Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Clean Water Act jurisdiction—Separating Fiction from Fact

“Our first memorable scientific discovery was the law
that water and like fluids run down-hill not up.”
—Mark Twain

On Wednesday, April 27, 2011 the Obama Administration issued “Draft Guidance on Waters Protected by the Clean Water Act.”  http://water.epa.gov/lawsregs/guidance/wetlands/upload/
wous_guidance_4-2011.pdf
.  In doing so, the Administration took the unusual step of making a guidance document available for public comment.  The public comment period will run through July 1st  http://water.epa.gov/lawsregs/guidance/wetlands/upload/
signed_epa-hq-ow-2011-0409_frn.pdf
.  In the guidance, the Administration also committed to pursuing rulemaking to further clarify jurisdiction.  During a briefing session on April 27th, one administration official estimated that the guidance would not be finalized and go into effect until sometime this fall.

Over the past week widely divergent views on the extent and impact of this guidance have been reported in the press.  It is to be expected that there will be differing interpretations on the impact of a 39-page guidance document.  But the range is extraordinary.

According to Congressman John Mica of Florida: “Through this guidance, the administration is clearly attempting to redefine wetlands, expand the government’s authority over states and private individuals and enact its economically stifling agenda.” http://www.ens-newswire.com/ens/apr2011/2011-04-27-093.html

On the other hand Senator Bill Cardin of Maryland states that the new Clean Water Act guidelines are good news for America’s waterways and are designed to address the court’s concerns in a way that will protect waters important for fish habitat, flood protection and drinking water supplies http://www.abc2news.com/dpp/news/state/md-senator-supports-clean-water-guidelines. There are a number of stories in the press that expand upon both viewpoints.

In trying to decide who is providing a reasonably accurate interpretation of how the guidance would change jurisdiction, it is worth giving weight to parties that will need to be accountable, in other words, those who are going to court.   The U.S. Environmental Protection Agency certainly is.  Years ago I was told that EPA is sued 80% of the time upon publishing a rule.  As a result, the agency anticipates it will be sued for any rule it publishes and plans accordingly.  It knows the guidance will be challenged.  Also lawyers who will act on behalf of clients are likely to be more measured in their comments.

The law firm Holland and Knight provided a brief overview this week describing how the guidance is part of a larger National Clean Water Act Framework that reemphasizes the administration’s commitment to protecting the health of America’s water. It also includes a brief analysis of the proposed guidance.   http://www.hklaw.com/id24660/PublicationId3113/ReturnId31/contentid55525 Another firm, VanNess Feldman, offers a succinct history of events leading up to the release of the draft guidance and an evaluation of its probable significance http://www.vnf.com/news-alerts-588.html

Groups like National Wildlife Federation have also historically challenged EPA in the courts.  In a statement issued in coordination with other sportsmens’ groups they asserted that the proposed guidance is moderate and reasonable and falls well within the limits of the Clean Water act and Supreme Court decisions.  Their statement includes a list of waters and activities that are not regulated. http://www.trcp.org/assets/pdf/Clean_Water_Act_guidance_A_Balanced_Approach.pdf.

Clearly the key issue for many is to what degree the draft guidance would expand jurisdiction beyond the existing guidance document issued during the previous administration http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_
12_3_wetlands_CWA_Jurisdiction_Following_Rapanos120208.pdf
.  EPA and the Corps had to evaluate exactly that issue as part of the cost/benefit analysis required by the Office of Management and Budget.  The agencies determined that mitigation for wetlands would increase 5% over current costs and mitigation for streams would increase 2%.  Mitigation expenditures are currently somewhere between 2.1 and 3.9 billion dollars per year.  The additional wetland acres and stream miles would increase these costs $87 to $171 million.  The annual benefits—in the form of ecosystem services such as clean water, flood protection and wildlife habitat—accrued would range from $162 to $368 million.  http://water.epa.gov/lawsregs/
guidance/wetlands/upload/cwa_guidance_impacts_benefits.pdf
.

There is now an opportunity to assist the administration in making changes to the guidance before it is finalized.  The submission of comments, particularly scientific information, recommendations on how to evaluate available information and economic analyses to include or exclude waters from Clean Water Act jurisdiction can improve the guidance and can have an impact.

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