The U.S. Environmental Protection Agency (EPA) and the Department of the Army are issuing revised guidance to ensure America’s wetlands, streams and other waters are better protected under the Clean Water Act (CWA). The guidance clarifies the geographic scope of jurisdiction under the CWA, redefining “Waters of the US.”
“We are providing improved guidance to ensure the information is in place to fully protect the nation’s streams and wetlands under the Clean Water Act,” said Benjamin H. Grumbles, EPA’s assistant administrator for water. “The guidance builds upon our experiences and provides consistent direction to our staff and the public.”
“We are committed to protecting America’s aquatic resources as required by the Clean Water Act and in accordance with the Supreme Court decision,” said John Paul Woodley Jr., Assistant Secretary of the Army (Civil Works). “This revised interagency guidance will enable the agencies to make clear, consistent, and predictable jurisdictional determinations within the scope of the Clean Water Act.”
The revised guidance replaces previous policy issued in June 2007 and clarifies a June 2006 Supreme Court decision in Rapanos v. United States regarding the scope of the agencies’ jurisdiction under the CWA. The guidance follows the agencies’ evaluation of more than 18,000 jurisdictional determinations and review of more than 66,000 comments.
More information on the guidance: http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html
40 CFR 230.3(s) The term waters of the United States means:
- 1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide
- 2. All interstate waters including interstate wetlands;
- 3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairiepotholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
- (i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial purposes by industries in interstate commerce;
- 4. All impoundments of waters otherwise defined as waters of the United States under this definition;
- 5. Tributaries of waters identified inparagraphs (s)(1) through (4) of this section;
- 6. The territorial sea;
- 7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.
Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
It sounds like farmed wetlands are NOT considered “Waters of the United States.”