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Assessing Jurisdiction Under the New Clean Water Act Guidance

September 2011

Citation: 41 ELR 10773

Issue: 9

Author: Bruce Myers (moderator), Donna Downing, Jan Goldman-Carter, Lawrence R. "Larry" Liebesman, and David B. Olson

Two decisions of the U.S. Supreme Court have created enormous confusion around the question of what U.S. waters are subject to federal regulation. On May 2, EPA and the U.S. Army Corps of Engineers published proposed joint guidance that intends to clarify this issue by describing how the agencies will identify waters protected by the CWA. The document is intended to assist agency staff in implementing the Supreme Court’s rulings in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. United States. The new guidance, which would supersede existing guidance documents (including 2008 Bush Administration guidance), seeks to reaffirm jurisdiction over important waters that currently lack clear protection under the law, and to provide clearer, more predictable guidelines to reduce uncertainty and delay for businesses and regulators. Although the guidance lacks the force of regulation, it is expected to be the first step in a formal rulemaking process. On June 28, 2011, ELI convened a panel to discuss the significant elements of the guidance, assess its likely impact, and highlight the challenges that lay ahead.

Bruce Myers is a Senior Attorney at the Environmental Law Institute. Donna Downing is the Jurisdiction Team Leader at the Office of Wetlands, Oceans & Watersheds of the U.S. Environmental Protection Agency. Jan Goldman-Carter is on the Wetlands and Water Resources Counsel at the National Wildlife Federation. Lawrence R. “Larry” Liebesman is a Partner at Holland & Knight LLP. David B. Olson is the Directorate of Civil Works, Operations and Regulatory Community of Practice, of the U.S. Army Corps of Engineers.

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