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The Compleat Wetlander: New Guidance on CWA Jurisdiction Will Be Out for Public Review (Part I of 2)

“In the absence of updated regulations, courts will have to
make ad hoc determinations that run the risk of transforming
scientific questions into matters of law. That is not the
system Congress intended.”

—Justice Breyer dissenting in Carabell/Rapanos

Over the holidays a notice was posted on the Office of Management and Budget’s reginfo.com website that Clean Water Protection Guidance had been received.  This means that EPA has forwarded guidance to OMB for interagency review. EPA is apparently proposing guidance to assist field staff in identifying waters that are jurisdictional under the Clean Water Act. http://www.reginfo.gov/public/do/eAgenda
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To recap briefly: In the spring of 2006 the Supreme Court Carabell/Rapanos decision created a great deal of uncertainty over which waters were subject to the Clean Water Act.  It was a 4-1-4 decision.  This split was unique in the history of Supreme Court decisions because the ‘1’ (Justice Kennedy) sided with the plurality (Justice Scalia) in returning the case to the lower courts, but with the dissent (Justice Stevens) on many other points while describing his independent framework for a “significant nexus” test to use in  determining jurisdiction.  After  analysis of  this very divided opinion the U.S. Department of Justice’s determined that a water body falls under the Clean Water Act if it meets either the plurality (Scalia) or Kennedy tests for jurisdiction. See ASWM Analysis of Supreme Court Decision in Carabell/Rapanos http://www.aswm.org/fwp/aswm_paper.pdf

In June of 2007 EPA and the U.S. Army Corps of Engineers issued guidance to help field staff determine which waters were jurisdictional.  Following a public comment period they made some minor adjustments late in 2008.  http://www.epa.gov/owow_keep/wetlands/guidance/CWAwaters.html This is the guidance currently in place.  The guidance recently sent to OMB would also address jurisdiction:  whether it would expand on the existing guidance or replace it is unknown and will remain so until the anticipated opportunity for public review and comment occurs and the guidance is finalized—sometime in the coming months.

The existing guidance is useful in identifying some broad considerations that should be included in making jurisdictional determinations that incorporate the constraints on jurisdiction created by Carabell/Rapanos.  However, it provides little scientific or technical direction that would create certainty and specificity.  The existing guidance requires the application of a great deal of best professional judgment on a case by case basis.  This means there has and will continue to be variability and in what waters are identified as jurisdictional around the country.

What guidance can do is limited by law.   Guidance cannot alter regulations.  In this case it can only further define existing regulations that describe waters regulated under the Clean Water Act as constrained by the Carabell/Rapanos and  (earlier) SWANCC decisions.  Guidance is a good first step, but rulemaking will be required for any truly substantial effort to clarify and simplify criteria for identifying waters of the U.S. under the Clean Water Act.  In a recent letter to the Council on Environmental Quality Chair Nancy Sutley a group of leading sportsmen and conservation organizations urged the Administration to pursue rulemaking to provide a revised definition of “waters of the U.S.” that is consistent with both law and science.  They are not alone.  In the Carabell/Rapanos decisions both Justice Roberts and Justice Breyer called for rulemaking.  Their request was echoed by many industry groups including the National Association of Homebuilders and the National Stone, Sand and Gravel Association.

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2 Responses to The Compleat Wetlander: New Guidance on CWA Jurisdiction Will Be Out for Public Review (Part I of 2)

  1. RussK says:

    Please identify the item number that goes with the link at the OMB REGINFO site – when you land there its hard to identify the proper document

  2. Admin. says:

    On the web page it is published as a notice

    AGENCY: EPA-WATER RIN: 2040-ZA11

    TITLE: Clean Water Protection Guidance
    STAGE: Notice ECONOMICALLY SIGNIFICANT: No
    RECEIVED DATE: 12/20/2010 LEGAL DEADLINE: None

    That is all the information available right now. Nothing will be released until the OMB review is complete and it is our understanding that at that point it will be published in the Federal Register for public comment. After public comments are reviewed and addressed it will be published in final form.

    The OMB review process can take up to 90 days, but it might be shorter. We will let you know as soon as there is something published.

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