Yes, Indeed, A Victory For Regulation Over Guidance

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EPA’s used its blog today to announce that it and the Army Corps of Engineers have sent to OMB a draft rule clarifying the scope of jurisdiction under the Clean Water Act.  It appears that EPA has finally given up on its controversial efforts to solve the Rapanos problem through guidance.  As I noted previously, when an agency is still working on its quick and easy guidance (with regulations to follow) eight years after the court decision that made the guidance necessary, it’s probably time to acknowledge that there is no quick and easy, so you might as well settle down and do a rulemaking.

EPA has not yet released a copy of the proposed rule.  It did, however, provide a link to the draft report, Connectivity of Streams and Wetlands to Downstream Waters:  A Review and Synthesis of the Scientific Evidence,” which EPA says provides the basis for its proposed rule, and it is taking comments on the report.

The regulations aren’t going to be any less controversial than the draft guidance was.  However, there is a reason for the regulation.  Interested parties will be able to comment on the Connectivity Report and, ultimately, make arguments to a court whether EPA’s interpretation of its jurisdiction under the CWA is reasonable.  That is the way it’s supposed to work.

 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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