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, the U.S. Environmental Protection Agency 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 Clean Water Act. 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) (531 U.S. 159 (2001)) and Rapanos v. United States (547 U.S. 715 (2006)). 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. The panel discussed the significant elements of the guidance, assessed its likely impact, and highlighted the challenges that lay ahead.
PANELISTS:
Bruce Myers, Senior Attorney, Environmental Law Institute (moderator)
Donna Downing, Jurisdiction Team Leader, Office of Wetlands, Oceans & Watersheds, U.S. Environmental Protection Agency
Jan Goldman-Carter, Wetlands and Water Resources Counsel, National Wildlife Federation
Lawrence R. "Larry" Liebesman, Partner, Holland & Knight LLP
David B. Olson, Directorate of Civil Works Operations and Regulatory Community of Practice, U.S. Army Corps of Engineers
MATERIALS:
David Olson powerpoint presentation: Making Jurisdictional Determinations
Submitted by Jan Goldman-Carter:
- Goldman-Carter powerpoint presentation: "Waters of the United States" in the wake of SWANCC and Rapanos
- The Clean Water Act Guidance: What it Does and Does Not Do
- Hard to Navigate: Rapanos and the Future of Protecting Our Waters (James Murphy)
- Significant Flaws: Why the Rapanos Guidance Misinterprets the Law, Fails to Protect Waters, and Provides Little Certainty (James Murphy and Stephen M. Johnson)
- Muddying the Waters of the Clean Water Act: Rapanos v. United States and the Future of America's Wetlands (James Murphy)
Submitted by Lawrence Lieberman:
- Obama Administration Releases National Clean Water Framework, Holland & Knight Environment Alert
- Rapanos v. United States: Searching for a Significant Nexus Using Proximate Causation and Forseeability Principles (Excerpt: Part 1)
- Rapanos v. United States: Searching for a Significant Nexus Using Proximate Causation and Forseeability Principles (Excerpt: Part 2)