EPA, Army Corps Expand Clean Water Act Coverage

by | Apr 28, 2011

The federal government has released updated guidance to expand the definition of areas covered by the Clean Water Act, as part of a joint framework between four departments.

The draft guidance by the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers aims to delineate which waterways, water bodies and wetlands are protected by the Clean Water Act. This should provide more clarity for businesses, which need permits to discharge pollution into protected waters as well as fill protected waters and wetlands, the EPA said.

The guidance says that small streams are protected by the act if they have a “physical, chemical or biological connection” to larger bodies of water downstream, and could affect the integrity of those downstream waters. “Agencies would be able to evaluate groups of waters holistically rather than the current, piecemeal, stream-by-stream analysis,” the EPA said.

The agency indicated that it intends to expand the definition of “traditional navigable waters”, saying the term may apply under a wider range of circumstances than in previous guidance. This would make more water bodies subject to Clean Water Act protections.

The act will also apply to non-navigable tributaries to traditional navigable waters if the tributaries are relatively permanent, meaning they contain water at least seasonally. Wetlands adjacent to either interstate waters or traditional navigable waters would also be covered, along with wetlands that directly abut relatively permanent waters.

And the EPA said it is clarifying that interstate waters are also protected by the act. Waters that are not regulated by the act include artificial lakes and ponds, many agricultural and roadside ditches, and certain artificially irrigated areas, the EPA said.

The guidance is part of a national clean water framework (pdf) released yesterday. The framework, released jointly by the EPA, Army Corps, U.S. Department of Agriculture (USDA), Department of the Interior and the White House, outlines ongoing and planned actions that the departments said would protect public health and water quality.

These actions include partnerships with the private sector, actions to improve water efficiency, programs to restore waterways and initiatives to improve public access to recreational waters.

They also include EPA actions to tighten drinking water regulations, announced earlier this year. And the USDA’s Forest Service has developed a new planning rule to govern the management and stewardship of watersheds under its jurisdiction, which provide drinking water to tens of millions of Americans, the framework said.

The agencies said that despite dramatic progress made by the Clean Water Act in restoring the health of American waters, about one-third of waters still do not meet the swimmable and fishable standards of the act. New pollution and development challenges also threaten to erode gains already made, the agencies said.

The framework is open for 60 days of public comment before it is finalized.

The draft Clean Water Act guidance will also be open for 60 days of public comment. The publication of final guidance will then be followed by a rulemaking process, which will provide further opportunity for comment, the agencies said.

Picture credit: Steven Hupp

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