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

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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the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) (“the Agencies”) issued draft guidance (“Proposed Guidance”) that signals a dramatic expansion of asserted regulatory authority for the Agencies under the Clean Water Act (“CWA”).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, and then updated in 2008 after Rapanos. 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.

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