Clean Water Act

The federal Clean Water Act (CWA) is the main piece of federal legislation that protects the Nation's waters. Within the CWA, there are a number of sections that specifically address protection or regulation of wetlands. For example, Section 303 addresses water quality standards; Section 401 includes 401 Certification—to condition permits; Section 402 addresses the National Pollutant Discharge Elimination System (NPDES); and Section 404 includes the dredge and fill permitting program as well as State Assumption.

On Wednesday, March 25, 2014, the US Environmental Protection Agency and the US Army Corps of Engineers released the official draft rule to clarify jurisdiction over streams and wetlands. The Association of State Wetland Managers (ASWM) has been following the rulemaking process for more than two years, and has been actively involved with other organizations in interpreting the proposed clarifications and their implications for managing wetlands, streams, floodplains and water quality.

The Clean Water Act was weakened by the US Supreme Court after the split decision known as the Rapanos and Carabell Decision in 2006, which followed another complex debate known as the SWANCC Decision in 2001. The intent of the proposed rule is to clarify jurisdiction for the protection of the nation’s water resources in response to multiple requests from multiple sectors, including the agricultural community, consultants, regulators, developers, natural resource managers and conservation groups.

In addition to publishing the proposed rule on Clean Water Act jurisdiction, EPA and the Army Corps also published an interpretive rule “regarding the Applicability of the Exemption from Permitting under Section 404(f)(1)(A) of the Clean Water Act to Certain  Agricultural Conservation Practices” that can be found here.

For more information on the new proposed rule, read ASWM Executive Director’s blog here, or visit:

Geographically Isolated Wetlands of the United States

Waters of the United States

Background Information on Clean Water Act Definition of “Wwaters of the U.S.”

Science Advisory Board Connectivity Report

Interpretive Rule on Agriculture Exemption

ASWM has a robust collection of discussion papers on wetlands and jurisdictional issues, Rapanos, SWANCC and other significant court cases under Law on the menu. 

Setting the Record Straight on Waters of the US

Nancy Stoner, Acting Assistant Administrator for Water – EPA Connect – June 30, 2014

There’s been some confusion about EPA’s proposed “Waters of the U.S.” ruleunder the Clean Water Act, especially in the agriculture community, and we want to make sure you know the facts.

We know that we haven’t had the best relationship with the agriculture industry in the past, but that doesn’t mean we aren’t and we can’t do better.  We are committed to listening to farmers and ranchers and in fact, our proposed rule takes their feedback into account.

The rule keeps intact all Clean Water Act exemptions and exclusions for agriculture that farmers count on. But it does more for farmers by actually expanding those exemptions. We worked with USDA’s Natural Resource Conservation Service and the Army Corps of Engineers to exempt 56 additional conservation practices. These practices are familiar to many farmers, who know their benefits to business, the land, and water resources. 

Farmers and ranchers are on the land every day, and they are our nation’s original conservationists. The American agriculture economy is the envy of the world, and today’s farmers and ranchers are global business professionals—relying on up-to-the minute science to make decisions about when to plant, fertilize, and irrigate crops. To read full blog post, click here.

Changes to Clean Water Act Jurisdiction & the New Interpretive Rule

On Wednesday, March 25, the US Environmental Protection Agency and the US Army Corps of Engineers released the official draft rule to clarify jurisdiction over streams and wetlands. The Association of State Wetland Managers (ASWM) has been following the rulemaking process for two years, and has been actively involved with other organizations in interpreting the proposed clarifications and their implications for managing wetlands, streams, floodplains and water quality. ASWM's Executive Director, Jeanne Christie, wrote a blog in March to summarize the new proposed rule. On April 24, she wrote a blog with updated information on the new proposed rule as well as its unexpected companion, the Interpretive Rule. You may find other information and links on the ASWM Clean Water Act webpage here.

2012 Clean Water Act Guidance

In 2011, the U.S. EPA and the U.S. Army Corps of Engineers developed draft guidance for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. This guidance would have replaced previous guidance to reaffirm protection for critical waters. It was also intended to provide clearer, more predictable guidelines for determining which water bodies are protected by the Clean Water Act. The Agencies' Joint draft guidance was never finalized due to multiple requests from stakeholders to issue a rulemaking instead of guidance. The proposed rule described in the section above is the result of that effort to develop the requested rule. For a link to the 2011 Proposed Guidance, click here. For the 2011 Federal Registry Notice, click here.

Clean Water Act Better at 40 (Minnesota Pollution Control Agency)

U.S. House committee considers reigning in EPA's CWA Power Grab

By Dorothy Kosich – Mineweb – July 16, 2014

The U.S. Environmental Protection Agency’s unabashed power grab under the auspices of the Clean Water Act has got the business sector, regulators and legal experts alarmed and seeking remedies from the legislative branch, specifically, the House Subcommittee on Water Resources and the Environment. 


House Hearing on EPA’s Expanded Interpretation of its Permit Veto Authority Under the Clean Water Act

Contact: Jim Billimoria – Transportation & Infrastructure Committee – July 15, 2014 – Video

On July 15, the House Transportation and Infrastructure Committee held a hearing on EPA's application of its 404C veto authority under the Clean Water Act.  A recording of the hearing as well as testimony from the Witnesses is available. To read more about the hearing or to view video, click here.

House Holds Hearing on Proposed Waters of the United States Rule - July 9, 2014

By Josh Abel – Association of California Water Agencies – July 9, 2014

The House Science, Space, and Technology Committee held a hearing to examine the impacts of EPA’s proposed “Definition of the ‘Waters of United States’ Under the Clean Water Act” rule on July 9th. The full Committee hearing, entitled “Navigating the Clean Water Act: Is Water Wet?”, provided members the opportunity to ask EPA Deputy Administrator Robert Perciasepe questions about the rule. The Honorable Perciasepe was the only witness at the hearing and members grilled him about specific issues in their districts. For full story, click here.

EPA, Army Corps Extend Comment Period For Rule Clarifying Clean Water Act Jurisdiction

By Amena H. Saiyidi – House Committee on Small Business – June 10, 2014

The Environmental Protection Agency and the U.S. Army Corps of Engineers confirmed that the public has until Oct. 20 to comment on a proposed rule that would clarify Clean Water Act jurisdiction over the nation's waters and wetlands. The agencies said June 10 that they are granting the 90–day extension from the initial July 21 date in response to numerous requests, including letters from state environmental officials, industry groups and Republican lawmakers. After a private meeting with several Western governors, EPA Administrator Gina McCarthy told reporters June 10 that some of the governors raised concerns about the proposed rule. “There's a lot of concern among agricultural interests in their states and what the industry has read into it,” she said. “We need some time to get out there and, if need be, write the rule in a way so the intent is understood.” The proposed “Waters of the United States” rule, which the EPA published April 21, would bring under federal jurisdiction all tributaries of streams, lakes, ponds and impoundments, as well as wetlands that affect the chemical, physical and biological integrity of larger, navigable downstream waters (79 Fed. Reg. 2,218); (77 DER A-13, 4/22/14). For full article, click here.

New EPA Survey Underscores Need to Release Clean Water Act Guidance

By Karen Hobbs – Switchboard – March 27, 2013

EPA released the results of a comprehensive survey yesterday that shows that more than half – 55 percent – of our nation’s streams and rivers are in poor condition. More than half. That’s a 10 percent increase from the 2002 survey, which found that 45% of assessed rivers and streams were impaired.  What’s particularly striking about the latest survey are the levels of nutrient pollution: 27 percent of our rivers and streams were found to have excessive levels of nitrogen and 40% have excessive levels of phosphorous.  Nutrient pollution can lead to dangerous algal blooms (like this one in Lake Erie), which kill fish, close beaches and harm local economies. For full blog post, click here.