Revised EPA "guidance" amplifies need for Clean Water Restoration Act

The U.S Environmental Protection Agency (EPA) and U.S Army Corps of Engineers released a "revised" guidance to field officials instructing them how to assert Clean Water Act jurisdiction over wetlands, streams, and other waters in light of the fractured 2006 Supreme Court decision in Rapanos v. United States. In Rapanos, the Justices split 4-1-4 and provided no clear legal standard in a case concerning protection of wetlands adjacent to non-navigable tributaries...

• "The revised Guidance clearly points to the need for Congress to clean up the legal mess and restore full protections to our Nation's waters"

WASHINGTON, DC, Dec. 4, 2008 -- The U.S Environmental Protection Agency (EPA) and U.S Army Corps of Engineers released a "revised" guidance to field officials instructing them how to assert Clean Water Act jurisdiction over wetlands, streams, and other waters in light of the fractured 2006 Supreme Court decision in Rapanos v. United States. In Rapanos, the Justices split 4-1-4 and provided no clear legal standard in a case concerning protection of wetlands adjacent to non-navigable tributaries. Far from clarifying the legal situation, the revised Guidance is less protective and more confusing than the original June 2007 guidance it replaces.

"The revised Guidance clearly points to the need for Congress to clean up the legal mess and restore full protections to our Nation's waters," said Jan Goldman-Carter, Wetlands and Water Resources Counsel for National Wildlife Federation. "Administrative attempts to address the uncertainty created by Rapanos have only resulted in less protection and more confusion."

"Amazingly, this revised Guidance is even more vague than the original," added Jim Murphy, an attorney for National Wildlife Federation. "It is another lose-lose document that will have the effect of making it harder to protect waters, and more time-intensive and costly to administer permit applications. It will result in more pollution, more administrative delays, and more head-scratching."

The revised Guidance makes three primary changes from the original Guidance. Of most concern, it in many cases requires waters to support or be capable of supporting commercial activity to be considered "traditionally navigable." Currently and under case law, mere navigation or susceptibility to navigation, including recreational navigation, suffices. Because an important test in the Rapanos decision -- Justice Kennedy's significant nexus test -- measures the relationship between upstream waters and the nearest traditionally navigable water, it is crucial that as many waters be labeled traditionally navigable as the law allows.

By limiting the extent of such waters, the nature of the relationship between upstream waters and traditionally navigable waters will in many instances be more attenuated and thus less likely to support a finding that the upstream water is protected. The result will be fewer wetlands and streams being protected under the Clean Water Act.

The two other changes are at best vague and confusing. One change attempts to clarify when a wetland is adjacent to another water body by providing a "reasonably close" standard that is ill-defined. A second change states that tributary flow, an element important in establishing protections under certain tests set forth in the Guidance, can now be measured as "the flow regime that best characterizes the entire tributary" without providing what that means.

"None of the major flaws of the original Guidance were addressed in this revision," continued Murphy. "But more to the point, Congress must correct this untenable situation with swift passage of the Clean Water Restoration Act. This simple fix will unambiguously reaffirm the historic scope of Clean Water protections and end the confusion, delays, and loss of water quality protections that the Court has created."

National Wildlife Federation is America's conservation organization inspiring Americans to protect wildlife for our children's future.

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