Don't Go Near the Water . . . Stymied by Congress, EPA and the Corps Issue New CWA Jurisdictional 'Guidance'

On April 27, the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("Corps") ("the Agencies") issued draft guidance ("Proposed Guidance") that signals a dramatic expansion of asserted regulatory authority for the Agencies under the Clean Water Act ("CWA"). The Proposed Guidance identifies waters subject to the CWA in light of two U.S. Supreme Court decisions that interpret the statute, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers ("SWANCC"), 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715 (2006). The Proposed Guidance is part of a broader "clean water framework" released by the Obama Administration on the same day.

Once finalized, the Proposed Guidance would supersede existing guidance interpreting the scope of the Agencies' jurisdiction under the CWA, issued in 2003 following the SWANCC decision,1 and then updated in 2008 after Rapanos.2 Until the final guidance is issued, both the 2003 and 2008 CWA jurisdictional guidances remain in effect. Previously issued jurisdictional determinations will not be re-opened as a result of the Proposed Guidance.

Like the earlier guidance it is intended to replace, the Proposed Guidance will affect the scope of regulatory jurisdiction not only under the CWA Section 404 dredge and fill program historically associated with wetlands, but also under the Section 402 National Pollutant Discharge Elimination System ("NPDES") permit program, which covers all other discharges of pollutants to waters of the U.S., the Section 311 oil spill program, Section 303 water quality standards, and Section 401 water quality certification. The Proposed Guidance does not change any of the existing agricultural, forestry, ranching, and wastewater treatment system exemptions. While the public comment period ends on July 1, 2011, the EPA has declined to disclose specific timelines for the formal rulemaking process.

THE SUPREME COURT DECISIONS IN SWANCC AND RAPANOS AND EPA/CORPS AUTHORITY UNDER CWA

The Supreme Court addressed the scope of "waters of the United States" protected under the CWA in three cases (United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), SWANCC, and Rapanos), the last two of which are addressed specifically in the Proposed Guidance. In SWANCC, the Court eliminated CWA jurisdiction over isolated, intrastate, non-navigable waters, where jurisdiction is asserted solely on the basis of the use of the waters as habitat for migratory birds that cross state lines. Rapanos offered two tests for determining jurisdiction over wetlands adjacent to non-navigable tributaries. Justice...