Wednesday, April 27, 2011

Obama Administration Releases Clean Water Framework; Seeks to Clarify Clean Water Act Interpretation

In a multi-pronged effort intended in part to clarify definitions of wetlands and waterways where the Clean Water Act applies, the Obama administration today (April 27) released a national clean water framework, entitled "Clean Water: Foundation of Healthy Communities and a Healthy Environment."  The Framework release is accompanied by the release of a draft guidance from the US EPA and Army Corps of Engineers that updates Federal guidance regarding where the Clean Water Act applies nationwide.  

During a Wednesday afternoon conference call announcing the Framework and new guidance, EPA Administrator Lisa Jackson told reporters that she does not "think there will be some expansion to waters that currently people might view as isolated" (and not currently regulated under the Clean Water Act). However, she also noted that it is unclear how many more wetlands or waterways would now be covered, under definitions in the new guidance, adding, "This is not some massive increase as far as we can tell."

The draft guidance is now open for 60 days of public comment, and can be viewed hereThe  White House Council on Environmental Quality Framework web page is here.  You can read Clean Water Framework in its entirety (a large pdf file) here, and read an EPA news release summarizing the Clean Water Framework.

In stating in 1972 that the Clean Water Act (CWA) covers the “waters of the United States,” Congress expressed its intent that the term “waters of the United States” “be given the broadest possible constitutional interpretation.”  The resulting USEPA and Army Corps of Engineers regulations implementing the Act's provisions reflected that congressional intent by covering, among other waters:
  • tributaries of various waters, 
  • adjacent wetlands, and 
  • intrastate waters with linkages to interstate commerce. 
Those agency rules were upheld by the vast majority of courts that examined them, including the Supreme Court, until 2001 and 2006, when two Supreme Court decisions changed the regulatory and legal landscape and cast doubt upon the initial intent of the CWA jurisdiction and on its interpretation by the USEPA and Army Corps.  Although the 2006 (Rapanos v. United States) ruling articulated two tests for federal jurisdiction of wetlands, the majority opinion reaffirmed that the CWA covers only navigable waters and property with significant connections to navigable waters — or a "significant nexus" as defined by Justice Anthony M. Kennedy in his opinion. (for a full background on the issue, please see our White Paper, entitled, "Interpretations of the Clean Water Act - 'Waters of the United States'" located here).

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