On April 27, U.S. EPA and U.S. Army Corps of Engineers proposed new draft guidance for public comment that they assert will expand the number of waters currently protected by the Federal Clean Water Act (“CWA”). While the proposed guidance will be applicable to all CWA programs, including discharge permits, spill response, water quality certification, and wetlands, it is in wetlands that it will likely have its greatest impact.

The draft guidance interprets recent Supreme Court opinions on CWA jurisdiction, and sets new policy directions, increasing the extent of waters covered by federal programs as compared to those covered under current policies. In the wake of Supreme Court opinions, such at that in Rapanos v. United States, 547 U.S. 715 (2006) where the court failed to muster a clear majority behind a clearly articulated standard, courts and the agencies have been uncertain about the jurisdictional boundaries of the CWA. This guidance is an attempt to restore some predictability and consistency.

Because this draft guidance is the first step toward a rulemaking that will be binding on the public, I believe it is important for interested parties to weigh in now.  For more, see our complete advisory.