EPA Policy Change to clarify definition of US Waters

The Clean Water Act protects the quality of waters of the U.S., traditionally defined as "Navigable" waters and waters that are "a significant nexus...to navigable waters." The ambiguity of these distinctions has been the focus of several state court cases, as well as one recent Supreme Court Case (Rapanos Vs. United States, 2006).

This year, the EPA proposed a revision to the Clean Water Act that would clarify the definition of "Waters of the United States" in order to allow the EPA to protect water quality standards on smaller waters that are hydraulically linked to navigable waters.

Interpretation of Rapanos V. United States has resulted in some waters being removed from CWA protection. This policy change would address that gap, and any waters linked through ground or surface water connections would fall under the CWA.

Some groups, including farmers and managers, are concerned that "other waters" would include highway ditches, culverts, or farm ponds, and that addressing water quality for those waterways would prove costly. However, the EPA has stated, "The guidance will not extend federal protection to any waters not historically protected under the Clean Water Act and will be fully consistent with the law, including decisions of the Supreme Court. The guidance will also maintain all of the existing exemptions for agricultural discharges and waters, and also identify specific types of water bodies to which it does not apply – areas like artificial lakes and ponds, and many types of drainage and irrigation ditches."

Sources: Watertown Daily Times, EPA