On October 12th, the Environmental Protection Agency (EPA) held an invitation-only session with the Associated General Contractors of America (AGC), who represented industry on a small business review panel. The panel discussed a proposed rule that would provide clarification to the controversial draft guidance, proposed April 27, 2011, that determined which wetlands and other marginal waters are subject to regulation under the Clean Water Act (CWA). This draft guidance was proposed by the EPA and U.S. Army Corps of Engineers (COE) and aims to clarify legal uncertainty over how the EPA and the COE determine if isolated wetlands and other marginal waters are subject to the CWA¹.

The April 27, 2011 draft guidance expands CWA jurisdiction to include tributaries to traditionally navigable waters, wetlands adjacent to those tributaries and other marginal waters, by offering a new interpretation of when discharges to these waters are subject to regulation. However, implementing the CWA regulations after the two Supreme Court decisions has brought to light certain regulations that are also subject to interpretation; and the draft guidance does not provide clarification for how those specific regulations should be interpreted. As a result, the EPA and the COE are developing a proposed rule that will clearly describe which waterbodies (such as isolated wetlands and other marginal waters) are protected under the CWA.

EPA's decision to provide a guidance document while developing a proposed rule has not gone without criticism from industry leaders and lawmakers. While the EPA is prepared to issue a rule once the draft guidance is finalized, some lawmakers and industry officials say the guidance should be eliminated and the agency should proceed immediately to implement a formal rule that provides regulatory certainty. Additionally, house lawmakers have included language in EPA's proposed spending bill for fiscal year 2012 that will block the EPA and the COE from issuing a guidance document. Environmentalists and conservationists are in support of a rule to provide clarification of the CWA regulations, however, these groups also support a guidance document as an interim measure until the EPA can complete a formal rulemaking. The EPA plans to issue a notice of proposed rulemaking called the "Clean Water Protection Rule" in January 2012.

For more information on the EPA proposed rule, please contact Jennifer Van Houten, Ben Rosner or Jennifer Feese.

For related articles on the topic, please refer to the following links:
Field Notes Vol. 19 No. 3 - Federal Government Expands Jurisdiction Over Weltands & Streams

Field Notes Vol. 15 No. 4 - Which Wetlands and Streams are Jurisdictional?

Field Notes Vol. 14 No. 4 - Supreme Court Ruled on the Limit of Federal Regulation of Streams and Wetlands - Or Did It?

¹As a result of the Supreme Court decisions: Rapanos v. United States in 2006 and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers in 2001. http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf