The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers are in the final stages of updating their Draft Guidance on Identifying Waters Protected by the Clean Water Act (“Guidance”). While the period for public comment was extended from July 1 to July 31, the groups do not anticipate the extension will slow their efforts. Instead, they plan to take into consideration continued stakeholder and public comment while finalizing the update.

The Guidance is not new. Previous guidance on the scope of “waters of the U.S.” was issued in 2003 and 2008 by field staff for use by field staff. The intent was to identify which waters fall within the definition of “waters of the United States” and, therefore, the protection of the Clean Water Act. While not a legal document and not binding on the government, the Guidance provides a framework for application of the law and valuable insight regarding agency staff views of the scope of the protection.

Article authored by McAfee & Taft Attorney: Heidi Slinkard Brasher.

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