What Waters Are Protected?

In West Virginia just about all waters are subject to some form of oversight, either surface waters, through the WV Water Pollution Control Act, or ground water, through the  Groundwater Protection Act. Surface waters are protected through surface water quality standards and the NPDES program, which issues general and individual permits, while groundwater is protected by groundwater quality standards and best management practices that are required for industrial and municipal facilities.

The recent debate over how much protection is afforded the nation's waters ignores these state programs and focuses solely on the extent to which the Clean Water Act and its federal programs extend. The  Supreme Court in the Rapanos  case came up with two tests for determining whether a water body falls within the Clean Water Act  ambit, one a plurality opinion by Justice Scalia and the concurring opinion by Justice Kennedy.   Both of those tests are more narrowly confined than the jurisdiction that EPA was asserting before Rapanos and the SWANCC case.

EPA and the Corps of Engineers have come up with a guidance for determining when waters fall under the jurisdiction of the Clean Water Act, and they are  taking comment on the guidance.  The guidance follows Justice Kennedy's approach, not surprising as his interpretation of the scope of the Act is broader than Scalia's. An explanation of the history of EPA's recent guidance on federal water jurisdiction is found here

The Clean Water Act is a great thing, but the suggestion by some that waters are abandoned to limitless pollution wherever the CWA doesn't apply is misleading.

Here's EPA's press release on the guidance:

 “Waters of the U.S.” Proposed Guidance Americans depend on clean and abundant water. However, over the past decade, interpretations of Supreme Court rulings removed some critical waters from Federal protection, and caused confusion about which waters and wetlands are protected under the Clean Water Act. As a result, important waters now lack clear protection under the law, and businesses and regulators face uncertainty and delay. The Obama Administration is committed to protecting waters on which the health of people, the economy and ecosystems depend.

U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers have developed draft guidance for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. This guidance would replace previous guidance to reaffirm protection for critical waters. It also will provide clearer, more predictable guidelines for determining which water bodies are protected by the Clean Water Act.

The draft guidance will reaffirm protections for small streams that feed into larger streams, rivers, bays and coastal waters. It will also reaffirm protection for wetlands that filter pollution and help protect communities from flooding. Discharging pollution into protected waters (e.g., dumping sewage, contaminants, or industrial pollution) or filling protected waters and wetlands (e.g., building a housing development or a parking lot) require permits. This guidance will keep safe the streams and wetlands that affect the quality of the water used for drinking, swimming, fishing, farming, manufacturing, tourism and other activities essential to the American economy and quality of life. It also will provide regulatory clarity, predictability, consistency and transparency.

The draft guidance will be open for 60 days of public comment to allow all stakeholders to provide input and feedback before it is finalized.

Read more at http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm