April 20, 2011

Is the EPA's new Clean Water Act guidance already on the shoals?

By Is the EPA's new Clean Water Act guidance already on the shoals?

Author:  Damien M. Schiff

For some time, the Corps and the EPA have been drafting revised guidance governing how the agencies  interpret the scope of their power under the Clean Water Act, following the Supreme Court's decision (and PLF's victory in) Rapanos v. United States.  (The agencies' current guidance document was issued in December, 2008.)  A draft copy of the guidance was leaked last month; we here at the PLF Liberty Blog have refrained from commenting on the guidance until a finalized draft copy is issued.  But the "draft draft" guidance (so to speak) is already encountering serious opposition from many members of Congress.

In fact, last week over 150 House Representatives signed a letter urging the agencies to abandon their draft guidance and instead to proceed with formal rulemaking under the Administrative Procedure Act.  The letter states the representatives' "fear that this 'Guidance' is an attempt to short-circuit the process for changing agency policy and the scope of Clean Water Act jurisdiction without following the proper, transparent rulemaking process that is dictated by the Administrative Procedure Act."

I certainly share the representatives' concerns, but it bears mentioning that even the existing guidance expressly disavows any claim to the status of formal regulation (or the deference that usually attaches to such statutory interpretations), and I would suspect any future guidance document to do the same.  Further, it's not entirely clear to me how the guidance, even if formalized as a regulation, could really enjoy any of the benefits of being a regulation:  after all, it's expressed purpose is to interpret and apply the Supreme Court's opinion in Rapanos, not to interpret or apply the Clean Water Act itself.  That fact would seem to undercut the reasons usually articulated for deferring to agency interpretations.

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