The U.S. Environmental Protection Agency and the U.S. Corps of Engineers have released draft guidance to clarify which waters are protected by the Clean Water Act nationwide.  The new guidance does not expand federal jurisdiction beyond existing regulations of the waters of the United States.

The draft guidance, released on Apr. 27, is now open for 60-day public comment period to allow all stakeholders to provide input and feedback. EPA officials are encouraging all interested parties to comment on the draft guidance during this comment period, according to an agency release. The EPA and COE will draft the final guidance with rulemaking, regarding the scope of clean water protections and to clarify CWA regulations.

“EPA believes that protection of Midwest wetlands and streams is more important than ever as we experience more pronounced effects from flooding, climate change and habitat loss. We are fortunate to have a vast network of wetlands and streams in the Midwest that support the great Missouri and Mississippi Rivers. We are blessed with a great diversity of lakes, ponds, rivers, streams and wetlands,” EPA officials stated in a release.

EPA points out that U.S. wetlands, rivers and streams provide significant benefit to local communities by:

  • Acting like sponges to soak up floodwater, thereby reducing flood damage and bank erosion.
  • Filtering out sediment and pollutants to improve the quality of surface and ground water that communities rely on for drinking, irrigation and livestock watering.
  • Providing water that supports habitat for grazing livestock and animals.

Over the past decade, interpretations of U.S. Supreme Court rulings removed some critical waters from Federal protection, and caused confusion about which waters and wetlands were protected under the CWA. 

“This draft guidance provides clearer, more predictable guidelines to determin which water bodies are protected by the CWA,” EPA officials said. “This draft guidance does not change any of the existing agriculture exemptions under the CWA. All of the exemptions from permitting requirements for normal agriculture, forestry and ranching practices continue to apply.” These include:

  • Agricultural stormwater discharges and return flows from irrigated agriculture.
  • Normal, ongoing agricultural, silvicultural and ranching activities.
  • Normal activities related to construction and maintenance of irrigation ditches and drainage ditch maintenance.
  • Normal activities associated with construction or maintenance of farm, forest and temporary mining roads.

The guidance also describes waters not regulated under the CWA, including the following water bodies, which often are associated with agricultural activities:

  • Non-tidal drainage and irrigation ditches not connected to a jurisdictional water.
  • Artificially irrigated areas that would revert to upland if irrigation stops.
  • Artificial lakes or ponds used for purposes such as stock watering.
  • Artificial ornamental waters created for primarily aesthetic reasons.
  • Water-filled depressions created as a result of construction activity.

“We are committed to a transparent process for developing this guidance, including the opportunity for public comment, which will be considered as the agencies finalize the guidance in 2011,” EPA officials said in a statement.

EPA has dedicated a website for more information.