Officials earlier this month indicated that the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers will likely resume considering whether to finalize its 2011 guidance concerning the scope of the Clean Water Act (CWA). The highly controversial draft guidance has been effectively on hold since it was submitted to the White House Office of Management and Budget in February 2012. Industry advocates and many states have urged the administration to codify the guidance by initiating rulemaking to ensure transparency and minimize confusion surrounding its application. As currently drafted, the guidance offers a broad interpretation of Justice Kennedy’s opinion in the landmark decision Rapanos v. United States, 547 U.S. 715 (2006), that the CWA reaches all waters that share a “significant nexus” with jurisdictional waters. More information about the guidance can be found at the EPA’s Clean Water Act Definition of “Waters of the United States” website.
For more information contact Timothy M. Riley