Guidance to Identify Waters Protected by the Clean Water Act

The EPA is attempting to provide some clearer guidance on what is and is not protected under the Clean Water Act.  Did you give your input? If so, what were your main concerns?  Below is a summary of the guidance from the EPA website:

 

Based on the agencies’ interpretation of the statute, implementing regulations and relevant caselaw, the following waters are protected by the Clean Water Act:

  • Traditional navigable waters
  • Interstate waters
  • Wetlands adjacent to either traditional navigable waters or interstate waters
  • Non-navigable tributaries to traditional navigable waters that are relatively permanent, meaning they contain water at least seasonally
  • Wetlands that directly abut relatively permanent waters

In addition, the following waters are protected by the Clean Water Act if a fact-specific analysis determines they have a “significant nexus” to a traditional navigable water or interstate water:

  • Tributaries to traditional navigable waters or interstate waters
  • Wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters
  • Waters that fall under the “other waters” category of the regulations. The guidance divides these waters into two categories, those that are physically proximate to other jurisdictional waters and those that are not, and discusses how each category should be evaluated.

The following aquatic areas are generally not protected by the Clean Water Act:

  • Wet areas that are not tributaries or open waters and do not meet the agencies’ regulatory definition of “wetlands”
  • Waters excluded from coverage under the CWA by existing regulations
  • Waters that lack a “significant nexus” where one is required for a water to be protected by the CWA
  • Artificially irrigated areas that would revert to upland should irrigation cease
  • Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing
  • Artificial reflecting pools or swimming pools created by excavating and/or diking dry land
  • Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons
  • Water-filled depressions created incidental to construction activity
  • Groundwater drained through subsurface drainage systems and
  • Erosional features (gullies and rills), and swales and ditches that are not tributaries or wetlands

http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters_guidesum.cfm

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