EPA Draft Guidance on Clean Water Act Draws Fire

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by James Laughlin, Managing Editor

EPA's recent release of new guidelines for waters covered under the Clean Water Act has stirred controversy in some industries concerned about the agency's reach into state's rights and private property.

Although guidance does not have the force of law, it is frequently used by Federal agencies to explain and clarify their understandings of existing requirements, and will be used by EPA's regional offices in making decisions regarding CWA rulings going forward.

The guidelines are designed to address a decade-long dispute over what constitutes "waters of the United States" and are seen as a counter to U.S. Supreme Court decisions in 2003 and 2008 that denied CWA protection for intermittent and seasonal streams and wetlands.

In the 2003 SWANCC decision, the high court addressed the question of CWA jurisdiction over isolated, non-navigable, intrastate ponds, and concluded that CWA jurisdiction could not be based solely on the presence of migratory birds. In the 2008 Rapanos decision, the court addressed protection for wetlands adjacent to non-navigable tributaries, and determined that CWA jurisdiction should be limited to only those waters having a "continuous surface connection" to other "jurisdictional waters."

However, the plurality opinion, authored by Justice Scalia, stated that "waters of the United States" extended beyond traditional navigable waters to include "relatively permanent, standing or flowing bodies of water." Justice Kennedy wrote a concurring opinion that "waters of the United States" included wetlands that had a significant nexus to traditional navigable waters, and are covered by the CWA "if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.'"

EPA said its goal with the new guidance was to focus on those key points in the Supreme Court decisions and provide a more complete discussion of the agencies' interpretation of what's covered under the Clean Water Act, including how waters with a "significant nexus" to traditional navigable waters or interstate waters are protected by the CWA.

The proposed guidance will affect regulatory jurisdiction under the CWA Section 404 dredge and fill program, Section 402 NPDES permit program, Section 303 water quality standards, the Section 311 oil spill program, and Section 401 water quality certification. The guidance does not change any of the existing agricultural, forestry, ranching, or wastewater treatment system exemptions.

Rep. Bob Gibbs (R-Ohio), chairman of the Transportation and Infrastructure Committee's Water Resources and Environment Subcommittee said the guidance was "intolerable" and a "vast expansion of the federal government's jurisdiction and ability to impose its will on the states and the regulated community."

On the flip side, the environmental community wanted more from the guidance. The National Resources Defense Council said to "finish the job" the agency needs to develop a rule that will solidify CWA safeguards for the long term.

The public comment period ends on July 1. To read the draft guidance and for information on how to submit a comment, visit http://www.water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm.

 

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