Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Don’t forget to comment on the draft Clean Water Act Guidance

The July 1 deadline for commenting on the draft “Guidance Regarding Identification of Waters Protected by the Clean Water Act (CWA)” is fast approaching and has been extended by 30 days http://aswm.org/wetlands-law/cwa-guidance/1334-update-waters-of-the-us-draft-guidance.  On May 11 the Compleat Wetlander encouraged individuals to comment on the draft guidance.  http://aswm.org/wordpress/the-compleat-wetlander-make-a-difference-commenting-on-the-draft-cwa-guidance/#comment-2686

ASWM has been engaged in meetings and briefings on the draft guidance with a variety of interest groups.  Discussions have been lively! But one topic that is generally not discussed is how this guidance compares with the existing guidance which was last revised in 2008.  For example some of the technical criteria used for identifying jurisdictional waters in the new guidance are in the existing guidance as well.  http://www.usace.army.mil/
CECW/Documents/cecwo/reg/cwa_guide/cwa_juris_2dec08.pdf
Those planning to comment on the guidance should compare the two so that they know what is the same and what is different.  For example there have been questions about the appropriateness of using the ordinary high water mark (OHWM) and defined bed and banks to identify tributaries (streams and rivers) that may be jurisdictional.  The use of the ordinary high water mark is scarcely new.

On page 10 of the existing guidance it states:

“the agencies may reasonably consider certain physical characteristics of the tributary to characterize its flow, and thus help to inform the determination of whether or not a significant nexus is present between the tributary and downstream traditional water.  Physical indicators may include the presence and characteristics of a reliable ordinary high water mark (OHWM) with a channel defined by bed and banks.” (sic)

A visit to the U.S. Army Corps of Engineers website on Clean Water Act jurisdiction includes links to memos and regulatory guidance letters that provide additional information about the technical aspects of identifying areas subject to Clean Water Act jurisdiction http://www.usace.army.mil/cecw/pages/cwa_guide.aspx including a 2005 memorandum about identifying the ordinary high water mark http://www.usace.army.mil/CECW/Documents/cecwo/reg/cwa_guide/app_h_rgl05-05.pdf.

However there are ideas and concepts in the draft guidance that are new, such as aggregating similarly situated waters within a watershed to establish a significant nexus and the treatment of interstate waters.  These new ideas have yet to be adopted, while other criteria for asserting jurisdiction have been used for many years.

Topics that the agencies are seeking comment on with respect to the guidance include

  • How will implementation of this guidance affect state/tribal programs such as Section 401, 402 and state dredge and fill programs?
  • Are there legal implications or ramifications of importance?
  • Are there ecological (science-based) issues that have been or could be addressed?
  • Will there be improvements or threats to human health that will result from implementing the guidance?
  • Will there be improvements or threats to economic interests?
  • Is there grey literature that states and tribes may use as a basis for running their programs that may be helpful?  For example, are there documents that describe the physical, chemical, and/or biological relationships between traditional navigable waters and interstate waters and tributaries, adjacent wetlands, and other waters?

For more specific ideas on comments that will be useful please visit:  http://aswm.org/wetlands-law/cwa-guidance/1267-commenting-on-draft-guidance-on-identifying-waters-protected-by-the-clean-water-act

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