EPA Prepares New Clean Water Act Jurisdictional Guidance

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On December 20, 2010, five years after the United States Supreme Court struggled with resolving the scope of Clean Water Act (“CWA”) jurisdiction in Rapanos v. United States (2006) 126 S.Ct. 2208, the EPA and the US Army Corps of Engineers have sent a draft December 2010 “Clean Water Protection Guidance” (“2010 Draft Guidance”) to the White House Office of Management and Budget (“OMB”) that would reportedly “clarify Clean Water Act responsibilities.” The 2010 Draft Guidance represents a significant departure from the Existing Guidance as it relies more explicitly on Justice Kennedy’s “significant nexus” test for determining CWA jurisdiction in the Rapanos decision.

If adopted, the 2010 Draft Guidance will considerably expand federal jurisdiction under the CWA. Notable points of departure that 2010 Draft Guidance makes from the Existing Guidance include:
• It refers to Justice Scalia’s Rapanos test for determining CWA jurisdiction only as the “plurality standard” and allows staff to apply that standard as an option in the limited situations of evaluating jurisdiction over tributaries and wetlands adjacent to other waterbodies, but does not encourage staff to use either test interchangeably.
• It eliminates the “continuous” and “three month” elements of definition of seasonal tributaries in the Existing Guidance and sets jurisdiction based on whether such waters “are relatively permanent, meaning at least seasonal.”
• It addresses the scope of the CWA’s key term “waters of the United States” for all CWA provisions that use the term, including the Section 402 NPDES permit program, the Section 311 oil spill program, the water quality standards and total maximum daily load programs under Section 303, and the Section 401 State water quality certification process, while the Existing Guidance was limited on its face to CWA Section 404 determinations.
• It does not address CWA jurisdiction over waste treatment systems or prior converted croplands or any of the exemptions from CWA Section 404 permitting provided by CWA Section 404(f).

Under Executive Order 12866, OMB has up to 90 days (until March 20, 2011) to review the 2010 Draft Guidance and suggest changes for the agencies to make before the Guidance is released. EPA and the Corps will also provide an opportunity for public comment on this draft guidance.