On May 2, 2011, the EPA and the U.S. Army Corps of Engineers jointly issued a request for comments in the Federal Register on draft guidance that is intended to clarify how the two agencies will make determinations about whether waters are protected by the Clean Water Act (33 USC §1251 et seq.).
The proposed guidance, which also implements two relevant Supreme Court decisions that concern the extent of waters covered by the Clean Water Act (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States), once finalized, will supersede a 2003 ‘‘Joint Memorandum’’ on the topic and existing 2008 guidance entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States.”
The agencies believe that “under this proposed guidance the number of waters identified as protected by the Clean Water Act will increase compared to current practice and this improvement will aid in protecting the Nation’s public health and aquatic resources.”
Law firm Fulbright & Jaworski published a Briefing late last week that highlights some of the expected changes resulting from the adoption of this proposed guidance, focusing on the agencies’ increased jurisdictional reach – a change that, according to Fulbright & Jaworski, “legal challenges are guaranteed to follow.”
You can read more about the guidance – including an analysis of potential economic benefits and impacts associated with the guidance – on the EPA’s Clean Water Act Definition of “Waters of the United States” webpage. Comments will be accepted on the proposal through July 1, 2011.