On April 27, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released a draft guidance defining the jurisdictional reach of the Clean Water Act. The guidance advises field staff for these agencies to include as waters protected by the act not only traditional navigable waters and their adjacent wetlands, but also certain wetlands, tributaries and other waters that are controversial candidates for federal regulation. As a consequence, the draft guidance, which is open for public comment until July 1, is likely to engender considerable debate.
In various provisions of the act, Congress sought to control the discharge of pollutants and dredged or fill material into navigable waters. As the guidance recognized, substantive requirements of the act, including prohibitions on discharges, application of permitting and other programs, and issuance of state water quality certifications pertain to navigable waters. Consequently, how “navigable waters” are defined determines which waters are protected by the act.
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