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

Morrison & Foerster LLP
Contact

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U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) (“the Agencies”) issued draft guidance (“Proposed Guidance”) that signals a dramatic expansion of asserted regulatory authority for the Agencies under the Clean Water Act (“CWA”).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

Please see full publication below for more information.

LOADING PDF: If there are any problems, click here to download the file.

Written by:

Morrison & Foerster LLP
Contact
more
less

Morrison & Foerster LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide