EPA/Corps Seek Comment on Draft Clean Water Act Jurisdiction Guidance

On April 27, 2011, the federal agencies responsible for enforcing the Clean Water Act issued draft Guidance interpreting the extent of federal jurisdiction under the law. The Corps of Engineers and the Environmental Protection Agency are seeking public comment on the document, and expect to follow it with formal rulemaking under the Administrative Procedure Act. The Guidance presently lacks the force of law, but is to be relied on by field staff across the country to interpret Supreme Court decisions and existing agency regulations. As with earlier confidential drafts (see AquaNews archive), the Guidance predicts its use will result in an expansion of federal jurisdiction. This reflects the view of many federal officials, including EPA Administrator Lisa Jackson, that prior agency guidance was “under-protective” of the Nation’s waters. For the regulated community, this likely means increased permitting and regulatory oversight. Comments must be filed within the next 60 days.