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Federal Clean Water Act Guidance in Limbo

The Environmental Protection Agency and the Army Corps of Engineers appear to have dropped their schedule for crafting a rule to codify informal “Guidance” governing Clean Water Act jurisdiction over various wetlands and marginal “waters of the United States.” Earlier this month, EPA’s website indicated a notice of proposed rulemaking could be published in the Federal Register in March. The EPA site now simply states, notwithstanding multiple calls for a formal rulemaking process, “[t]he agencies propose to finalize the guidance and to continue work on a rulemaking.” There is now no timetable, and it is unclear whether the agency will issue a proposal before the Presidential election. The informal nature of the “Guidance” presents significant questions concerning its legal effect. These questions have led many to call for a formal rulemaking under the Administrative Procedure Act. Even if the Guidance is not ultimately promulgated as a formal administrative rule, the regulated community can expect agency employees to follow it. But, it is unclear what deference Courts might afford the policies embodied in the Guidance. In response to the agencies’ decision to transmit the Guidance to the Office of Management and Budget, on February 21, 2012, Sen. Rand Paul (R-KY) introduced legislation, S. 2122, that would provide a definition of "navigable waters" and federal authority; exclude ephemeral and intermittent streams from federal control; prevent agencies from reinterpreting the definition of "navigable waters" without congressional approval; restore control over local water and land use to the States; limit federal access to private property; and, require compensation for loss of use and value of private property.