On April 27, EPA issued a draft of its controversial new Guidance on Identifying Waters Protected by the Clean Water Act (“Guidance”). The guidance is the latest effort by EPA and the Army Corps of Engineers (the “Agencies”) to put their gloss on recent Supreme Court decisions defining the Clean Water Act’s (“CWA”) core jurisdictional focus - “waters of the United States.” The new guidance would supersede two earlier guidance documents issued in 2002 and 2008 under the Bush Administration, and purportedly embodies “lessons learned since 2008” and “reflects the agencies’ understandings with respect to CWA jurisdiction.” As expected, the guidance is proving to be extremely controversial.

The controversy has its roots in two Supreme Court cases decided in 2001 and 2006. In the first decision, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”), a divided court ruled that the CWA does not grant the federal government jurisdiction over non-navigable, isolated, intrastate waters. As such, SWANCC removed a significant amount of water from federal jurisdiction. In the more recent decision in Rapanos et ux. v. United States (“Rapanos”), the justices were even more divided. In the Rapanos plurality opinion, Justice Scalia expressed the opinion that jurisdiction extends beyond traditional navigable waters to “relatively permanent, standing or flowing bodies of water.” While five of the justices voted to overturn a lower court ruling preventing the destruction of isolated wetlands, the decision of the court was essentially 4 to 4, with the last justice (Kennedy) not fully agreeing with either of the other groups. Justice Kennedy expressed the view that jurisdiction extends to waters that “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical or biological integrity of other covered waters more readily understood as ‘navigable.’”

Article Authored by McAfee & Taft Attorney: Robert J. Joyce.