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U.S. EPA Seeks Comments on Clean Water Act Jurisdictional Guidance

The U.S. EPA and the U.S. Army Corps of Engineers recently released a joint draft to provide guidance on waters covered by the Clean Water Act.

Draft Guidance on Identifying Waters Protected by the Clean Water Act” is an attempt to clarify jurisdiction. The EPA is seeking comments on the joint draft, which would put the following waters under the jurisdiction of 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); and
  • wetlands directly next to relatively permanent waters.

The following waters are jurisdictional if they have a ‘significant nexus’ to a traditional navigable water or interstate water.” The draft discusses in detail how field staff are to determine whether a significant nexus exists.

  • Tributaries to traditional navigable waters or interstate waters;
  • wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate waters; and
  • 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.

Once finalized, the guidance will replace prior guidance documents, and will apply to all CWA programs that use the term “waters of the United States.”  No timetable for the rulemaking was provided. We will continue to monitor developments and provide updates. If you have questions about these issues, please contact the Environmental and Natural Resources Practice Group at Bingham Greenebaum Doll.

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    Andy has provided environmental legal services to industrial, commercial and governmental clients for over 30 years. Andy's practice is concentrated in environmental law. He assists clients with permitting, remediation ...

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