Corps of Engineers and Environmental Protection Agency Propose to Extend their Reach Over Waters and Wetlands

The U.S. Army Corps of Engineers and Environmental Protection Agency propose to expand their regulatory jurisdiction by reinterpreting two U.S. Supreme Court decisions.  Five years ago, a fractured Supreme Court offered three different views of the scope of the Clean Water Act (“CWA”), none of which commanded a majority, in Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, 547 U.S. 715 (2006) (“Rapanos”).  Five years earlier, the Court ruled in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”), that the CWA does not reach non-navigable, isolated, intrastate waters and wetlands.  Now the Corps and EPA have issued “draft guidance” explaining how they plan to “implement” those decisions and identify jurisdictional waters.  By this guidance, the agencies “expect” that the extent of waters over which they assert jurisdiction “will increase” beyond what they claim today.  Responding to the Court’s suggestions that much confusion may be resolved by regulation, the agencies said … Continue reading the original article at the Briscoe, Ivester & Bazel site.