On April 27, 2011, the U.S. Environmental Protection Agency (EPA) issued proposed “Draft Guidance on Identifying Waters Protected by the Clean Water Act” (Draft Guidance) concerning its jurisdiction under the Clean Water Act’s (CWA) dredge and fill provision. The issue is important for farmers and ranchers due to the presence of seasonally ponded areas, drainage ditches, intermittently dry streams, prairie potholes, and other wet areas located on farm and ranch land that may be adjacent to other waters and over which the federal government may claim jurisdiction. In that event, agricultural activities can be curtailed substantially.
Under the Draft Guidance, the EPA is claiming expansive jurisdiction over certain waters well beyond what the existing regulations allow. Upon finalization, the Draft Guidance will replace present guidance that was first issued in 2003 and updated in 2008 after significant U.S. Supreme Court opinions did little to clear up existing questions about federal jurisdiction over isolated wetlands. The Draft Guidance is open for public comment until July 1, 2011.