In the continuing quest to resolve the scope of the federal Clean Water Act (CWA), the EPA has prepared draft guidance to assist field staff in identifying jurisdictional waters under the CWA. While the draft guidance is not a regulatory document, the draft guidance may be a step toward formal rulemaking. The EPA forwarded the draft guidance document to the Office of Management and Budget for interagency review on December 20, 2010.
In 2006, the U.S. Supreme Court issued a plurality decision in Rapanos v. United States, which only created more uncertainty over the jurisdictional reach of the EPA and the Corps under the CWA. In Rapanos, the plurality decision of Justice Scalia narrowly interpreted the term “waters of the United States”. Justice Kennedy, however, specifically rejected the plurality decision and established a “significant nexus” test to determine the agencies’ jurisdiction. The agencies and Congress have also made repeated unsuccessful attempts to clarify the scope of CWA jurisdiction once and for all through legislation and administrative efforts.
Since the new guidance has not been made publicly available, its exact contents are unclear. Reportedly, however, the new guidance may direct Corps-issued CWA Section 404 dredge and fill permits to apply the “significant nexus” test to determine CWA jurisdiction over non-navigable wetlands and tributaries. EPA’s guidance document is expected to be issued in February 2011.