New Guidance on Clean Water Act Jurisdiction: Longer Federal Reach, Less Certainty

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On May 2, the Environmental Protection Agency and the Army Corps of Engineers jointly published new guidance on how the agencies will determine which waters and wetlands are subject to jurisdiction under the Clean Water Act.

The new guidance is the third attempt by the agencies to bring clarification from the muddled 2006 U.S. Supreme Court decision in United States v. Rapanos. In that case, the Court gave three different approaches to jurisdiction, causing considerable uncertainty among courts, agencies, and developers.

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