Author: Reed Hopper
Several weeks ago, the Corps and EPA issued Draft Guidance on Identifying Waters Protected by the Clean Water Act. The "guidance" was proposed as a "nonbinding" interpretation of federal jurisdiction under the CWA as a ploy to avoid direct legal challenge. It's no wonder given the astounding breadth of the interpretation.
Among other things, the "guidance" misrepresents the judicial standard for "traditional navigable waters" asserting that transport by boat alone is sufficient to establish federal jurisdiction. This standard is incorrect and conflicts with the agencies’ own regulations and the case law on which they rely. The "guidance" also asserts jurisdiction over all interstate waters without legal precedent. In addition, the "guidance" distorts the jurisdictional tests under Rapanos and expands the "significant nexus" analysis to entire watersheds, including the Mississippi basin which covers more than a million square miles, extending from the Rockies to the Appalachians. Contrary to explicit Supreme Court directives, and established constitutional limitations, the "guidance" asserts federal control over virtually every pond, puddle, and ditch in the country as "tributaries" or "other waters." So broad is the putative reach of the government under this Guidance that the agencies expressly refuse to exclude even artificial ponds and swimming pools from federal regulation. It is, undoubtedly, the largest expansion of power ever proposed by a federal agency. It would far exceed federal authority, usurp the power of the States to manage local land and water resources, and undermine our constitutional way of life.
Today, we filed our formal comments on the Guidance. You can read them here.