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Wetlands Development: p Legal Trends and Challenges

Navigating Strict New Federal Guidance, Permitting Requirements and Emerging Case Law

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Today’s faculty features: Philip G. Mancusi-Ungaro, Attorney-Advisor, United States Environmental Protection Agency Office of Water Legal Support, Atlanta Beverlee E. S ilva, Partner, Alston & Bird, Atlanta

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WETLANDS UPDATE

“Wetlands Development: Legal Trends and Challenges Navigating Strict New Federal Guidance, Permitting Requirements and Emerging Case Law”

Philip G. Mancusi‐Ungaro USEPA ‐ Attorney‐Advisor 404‐562‐9519 Mancusi‐Ungaro.Philip@epamail.epa.gov

The views expressed in this presentation are those of the h d d h i i f h US author and do not represent the position of the US Environmental Protection Agency

Summary

• Rapanos Appellate Update‐What is new in the

Courts?

• Surface Mining Enhanced Coordination

Process, National Mining Association litigation challenging mining guidance.

• CWA 404(c) Determinations – background and

recent litigation.

• Sackett Litigation – Are EPA’s Section 309(a)

Sackett Litigation Are EPAs Section 309(a) injunctive orders subject to pre‐enforcement judicial review? judicial review?

6

Rapanos Update Rapanos Update

• Rapanos v United States and Carabell v United

Rapanos v. United States and Carabell v. United States 126 S. Ct. 2208 (2006). “Justsurdity”

• There is a split in the appellate courts on which

There is a split in the appellate courts on which test to use; Kennedy or Scalia or just Kennedy.

• No courts have said Scalia only.

y

• For Practitioners, need to know which Rapanos

Test to use to determine jurisdiction.

• Still use the 1987 Manual and the three part test

to delineate wetlands.

7

Post- Rapanos Legal Challenges

Courts of appeal have not taken a consistent position on which test applies:

1st Ci it U it d St t Ch l J h 467 F 3d 56 (1 t Ci O t 31 2006) titi

• 1st Circuit: United States v. Charles Johnson, 467 F.3d 56 (1st Cir. Oct. 31, 2006), petition

for rehearing and rehearing en banc denied Feb. 21, 2007, petition for certiorari denied

• Oct. 9, 2007; Jurisdiction exists if either standard satisfied
• 3rd Circuit: United States v David H Donovan appeal from U S Dist Court for the
• 3

Circuit: United States v. David H. Donovan, appeal from U.S. Dist. Court for the District of Delaware (D.C. Civil No. 1‐96‐cv‐00484, 1996). On October 31, 2011, affirming the District Court's grant of summary judgment in favor of the United States, the 3rd Circuit joined the 1st Circuit and the 8th circuits in holding that a wetland is subject to the CWA if it meets either Justice Scalia’s or Justice Kennedy's test.

• 4th Circuit: no current appellate interpretation ‐ Precon Development Corporation,

Incorporated v. United States Army Corps of Engineers, 633 F.3d 278 (4th Cir. Jan. 25, 2011); The parties had agreed that Kennedy's test was controlling in this case, so the court does not address the plurality standard or indicate what test or tests it might court does not address the plurality standard or indicate what test or tests it might apply in subsequent cases. Case remanded back to COE for further significant nexus analysis.

8

Post ‐Rapanos Legal Challenges Cont’d Post Rapanos Legal Challenges Cont d

• 5th Circuit: United States v. Robert J. Lucas, Jr., 516 F.3d 316 (5th Cir. Feb. 1, 2008),

petition for certiorari denied Oct 15 2008 Upheld defendants’ CWA convictions petition for certiorari denied Oct. 15, 2008; Upheld defendants’ CWA convictions concluding government presented evidence at trial that satisfied all three Rapanos standards (plurality, concurring, and dissent).

h h

• 6th Circuit: United States v. George Rudy Cundiff, 555 F.3d 200 (6th Cir. Feb. 4, 2009),

petition for certiorari denied October 5, 2009; Upheld district court’s finding of liability finding government satisfied both Kennedy standard and plurality standard.

• 7th Circuit: United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. Sept. 22, 2006),

petition for rehearing and rehearing en banc denied Dec. 1, 2006, petition for certiorari denied Oct. 1, 2007; Kennedy standard applies in most cases.

• 8th Circuit: United States v. Gary Bailey, 571 F.3d 791 (8th Cir. July 9, 2009); The appellate

court found that the United States is entitled to demonstrate CWA jurisdiction under either of the Rapanos standards and found that in this case, Justice Kennedy’ s standard was satisfied.

9

Post ‐Rapanos Legal Challenges Cont’d Post Rapanos Legal Challenges Cont d

• 9th Circuit: Northern California River Watch v. Carl Wilcox, 633 F.3d

766 (9th Ci A 25 2010 d d J 26 2011) I thi 766 (9th Cir. Aug. 25, 2010, amended Jan. 26, 2011); In this Endangered Species Act case, the Ninth Circuit had initially found that Justice Kennedy’s concurrence was the controlling rule of law. The United States then filed an amicus brief requesting that the q g court revise its decision to indicate that although the Kennedy test provided the rule of law in this case, it did not preclude the use of the plurality in other cases. On January 26, 2011 the court issued an amended decision consistent with this position an amended decision consistent with this position.

• 11th Circuit: United States v. McWane, 505 F.3d 1208 (11th Cir. Oct.

24, 2007)petition for rehearing en banc denied, 521 F.3d 1319 (Mar. , )p g , ( 27, 2008), petition for certiorari denied Dec. 1, 2008 – Kennedy’s significant nexus standard is the controlling rule of law. Remanded to District Court – Judge called it: “Justsurdity”

10

d Litigation over Guidance

National Mining Association (NMA), et al. v. Jackson, et al. (D.C. Cir. Civil Action No. 10‐ Jackson, et al. (D.C. Cir. Civil Action No. 10 1220, 2010)

11

National Mining Association (NMA), et l k l

• al. v. Jackson, et al.
• EPA jointly issued the Enhanced Coordination Procedure and Interim Detailed

Guidance with the Army COE It set out a process for coordinating review of a Guidance with the Army COE. It set out a process for coordinating review of a series of mining permits under existing CWA regulations.

• On July 20, 2010, the NMA sued EPA and other federal agencies challenging the

ECP and Interim Detailed Guidance as improper rulemaking without notice and ECP and Interim Detailed Guidance as improper rulemaking without notice and

• comment. Four additional cases were transferred from other courts in West

Virginia and Kentucky to the DC Cir. and consolidated with the NMA case.

• On 11/6/2011 in the consolidated cases the District Court granted NMA’s Motion

On 11/6/2011, in the consolidated cases, the District Court granted NMA s Motion for Summary Judgment while denying the U.S. Motion for summary judgment.

• In the decision, the court ordered: "The MCIR Assessment and the E[nhanced]

C[oordination] Process, as unlawful agency actions, are hereby set aside." [ ] , g y , y

• The original complaint also challenged the Interim Detailed Guidance which

implemented the ECP. That part of the case is still pending.

• There has been no decision on whether to appeal.

12

Litigation Update Litigation Update

Clean Water Act Section 404(c) Determinations

13

CWA Section 404(c)

Background g

• Prohibit or restrict specification of defined area as
• Prohibit or restrict specification of defined area as

disposal site 404( ) i h R i d HQ

• 404(c) process starts in the Regions; ends at HQ
• To ensure avoidance of unacceptable adverse effects
• May be used before, during or after Corps action on a

permit application p pp

• May be used in absence of permit application
• EPA has the final decision and burden of proof

14

CWA Section 404(c)

• Under Section 404(c), EPA must determine that the

di h f d d d fill i l ill h discharge of dredged or fill material will have an unacceptable adverse effect on:

– Municipal water supplies; Municipal water supplies; – Shellfish beds and fishery areas (including spawning and breeding grounds); Wildlif – Wildlife; or – Recreational areas.

• EPA regulations identify a very specific process that

EPA regulations identify a very specific process that must be followed to initiate and finalize a Section 404(c) action. 40 C.F.R Part 231.

15

Existing Section 404(c) Actions Existing Section 404(c) Actions

• There have been 13 Section 404(c) final actions to

There have been 13 Section 404(c) final actions to

• date. Six have been in EPA Region 4.

http://water.epa.gov/type/wetlands/outreach/up p // p g / yp / / / p load/404c.pdf

• See following url for links to Federal Register

See following url for links to Federal Register Notices and draft, recommended and final determinations: http://water.epa.gov/lawsregs/guidance/wetland s/404c.cfm

16

Section 404(c) Section 404(c)

• First Section 404(c) action was in North

First Section 404(c) action was in North Miami, the Munisport Landfill; final determination issued January 19 1981 determination issued January 19, 1981. Stopped further action under existing permit and prevented future use of adjacent site for and prevented future use of adjacent site for discharge of dredged or fill material.

• Section 404(c) final determinations have been
• Section 404(c) final determinations have been

modified.

17

Recent Challenges to 404(c) Actions Recent Challenges to 404(c) Actions

• There have been two recent Section 404(c)

There have been two recent Section 404(c) Determinations that have been challenged.

• Yazoo Backwater Pumps Project

August 31

• Yazoo Backwater Pumps Project – August 31,

2008 Final Determination; Issaquena County, MS MS.

• Spruce No. 1 Surface Mine – January 13, 2011

Fi l D i i L C W Final Determination; Logan County West Virginia.

18

Yazoo Backwater Pumps Project Yazoo Backwater Pumps Project

• EPA’s August 31, 2008 Final Determination prohibited the specification of

wetlands and other waters of the United States in Issaquena County MS wetlands and other waters of the United States in Issaquena County, MS, as a disposal site for the discharge of dredged or fill material for the purpose of construction of the proposed Yazoo Backwater Area Pumps

• Project. EPA’s determination was based upon a finding that the discharge
• f dredged or fill material associated with the construction and operation
• f dredged or fill material associated with the construction and operation
• f these projects would result in unacceptable adverse effects on fishery

areas and wildlife.

• EPA was sued by the Project Sponsor, the Levee Board, who alleged EPA

had no authority to issue the 404(c) They argued that the project was had no authority to issue the 404(c). They argued that the project was authorized under section 404(r). This was not a challenge to the underlying 404(c).

• EPA’s Motion for Summary Judgment was granted partially based on the

h h d did h 404( ) l i argument that the record did not support the 404(r) claim.

• The Levee Board has appealed the matter to the 5th Circuit Court of

Appeals . The 5th Circuit recently granted the Levee Board’s motion to amend the record with certain additional documents. The matter is fully y briefed; no hearing date scheduled.

19

Spruce No. 1 Surface Mine Spruce No. 1 Surface Mine

• January 13, 2011 Final Determination withdrew

y , specification of certain streams as a disposal sites for the discharge of dredged or fill materials and prohibited the use of other streams as disposal sites for prohibited the use of other streams as disposal sites for future mining.

• EPA has been sued by Mingo‐Logan, the owner of the

y g g mine challenging the authority to issue a veto, and the merits of the veto itself. (Mingo‐Logan vs. USEPA, (D.C. Cir No 1:10‐CV‐00541‐ABJ 2011)

• Cir. No. 1:10‐CV‐00541‐ABJ, 2011).
• Cross motions for summary judgment have been filed

and fully briefed.

20

Sackett v. USEPA

Litigation over whether Section 309(a) wetlands compliance orders are subject to judicial review

21

Sackett v. United States

• On June 28, 2011 the U.S. Supreme Court granted certiorari to hear a case concerning whether a Section 309(a) wetlands

compliance order should be subject to judicial review before the US seeks to enforce it in Federal Court.

• The order granting the petition for writ of certiorari limited the issues on review to two questions:

– “May petitioners seek pre‐enforcement judicial review of the administrative compliance order pursuant to the Administrative Procedure Act, 5 U.S.C. § 704?” – “If not, does petitioners' inability to seek pre‐enforcement judicial review of the administrative compliance order If not, does petitioners inability to seek pre enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?”

• In 2007 EPA had issued a Section 309(a) compliance order to the Sacketts for allegedly filling in approximately ½ acre of

wetlands, discharging pollutants without a Section 404 permit.

• The Sacketts then sued the EPA, arguing that the issuance of the compliance order without opportunity for judicial review

was arbitrary and capricious and a violated their due process rights. EPA filed a motion to dismiss the case for lack of subject matter jurisdiction arguing that the CWA precluded review of CWA Section 309(a) orders before EPA has brought an enforcement action in federal court. The U.S. District Court for the District of Idaho granted summary judgment.

• The Sacketts appealed the District Court opinion and the 9th Circuit affirmed the dismissal. The Court of appeals held that

pre‐enforcement judicial review of administrative compliance orders was precluded under the Clean Water Act and that does not violate due process rights (Sackett v. EPA, 622 F.3d 1139, (9th Cir. 2010)).

• The Sacketts filed the petition for certiorari on Feb. 23, 2011.

22

Proposed Post Rapanos Guidance: Proposed Post – Rapanos Guidance: An Expansion of EPA and the Corps’ Jurisdiction over Wetlands Jurisdiction over Wetlands

Wetlands Development: Legal Trends and Challenges Navigating Strict New Federal Guidance, Permitting Requirements and Emerging Case Law

N b 29 2011 St ff d W bi d T l f November 29, 2011, Strafford Webinars and Teleconferences

Beverlee E. Silva Alston & Bird LLP 404-881-4625 404 881 4625 beverlee.silva@alston.com

Rapanos v United States Rapanos v. United States 547 U.S. 715 (2006)*

http://www.epa.gov/owow/wetlands/pdf/Rapanos_SupremeCourt.pdf

*Revisited, yet again

Is it a “Water of the United States”

Rapanos sought to determine the scope of Clean Water Act’s jurisdiction: Regulates “Navigable Waters” i bl f h i d i l di h “navigable waters” are “waters of the United States, including the territorial seas . . .” 33 U.S.C. § 1362(7) What is a “Water of the United States?”

25

The Disharmonious Supremes

p

S li (4) Pl lit i i Scalia (4) – Plurality opinion Kennedy (1) – Significant Nexus opinion

26

Stevens (4) – Dissenting opinion

Plurality Decision (Scalia)

• Corps’ expansive “land is waters” approach goes beyond

CWA

• Waters are ONLY those relatively permanent, standing or

continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams features that are described in ordinary parlance as streams,

• ceans, rivers, and lakes.
• Waters are NOT channels through which water flows

intermittently or ephemerally or channels that periodically provide drainage for rainfall.

27

Scalia Two Part Test Scalia Two-Part Test

• 1. (Adjacent) Relatively permanent body of water connected

to traditional interstate navigable water, and

• 2. (Connected) Continuous surface connection with that

water, making it difficult to determine where the water , g ends and the wetland begins.

28

K d O i i Kennedy Opinion

• Requires significant nexus between the wetlands and navigable waters

(traditional)

• Significant nexus is met if the wetlands, either alone or in combination

with similarly situated lands in the region, significantly affect the chemistry, physical and biological integrity of navigable waters

• Adjacent wetlands meet the test, but otherwise case-by-case

determination

29

EPA/Corp Attempt to Interpret

• EPA and the Army Corps of Engineers have made three attempts to

issue “guidance” about what the Rapanos decision means in practice.

• Issued Post-Rapanos guidance on June 5, 2007 and December 3, 2008

ssued ost apanos gu da ce o Ju e 5, 007 a d ece be 3, 008

• 2007 Guidance was not much help because it failed to adequately

define “significant nexus.” 2008 G id i tl i ff t

• 2008 Guidance is currently in effect.
• Third Attempt: 2011 Proposed Guidance issued on April 27, 2011

30

Status of Proposed Guidance

• EPA and the Corps put the guidance out for public comment.
• 60-day public comment period was originally set to expire on July

1 2011 1, 2011.

• Extended to July 31, 2011
• EPA received 3863 comments on the proposed guidance.

p p g

• Currently awaiting the issuance of the final guidance.

31

Existing 2008 Guidance

How does it categorize “waters of the United States?” g

32

D fi it l J i di ti l Definitely Jurisdictional

The agencies will assert jurisdiction over the following waters:

• Traditional navigable waters
• Traditional navigable waters
• Wetlands adjacent to traditional navigable waters
• Non-navigable tributaries of traditional navigable waters that are relatively

permanent where the tributaries typically flow year-round or have continuous flow at least seasonally (e.g., typically three months)

• Wetlands that directly abut such tributaries

33

Maybe Jurisdictional

The agencies will decide jurisdiction over the following waters based on a fact- specific analysis to determine whether they have a significant nexus with a traditional navigable water: g

• Non-navigable tributaries that are not relatively permanent
• Wetlands adjacent to non-navigable tributaries that are not relatively

permanent

• Wetlands adjacent to but that do not directly abut a relatively permanent non
• Wetlands adjacent to but that do not directly abut a relatively permanent non-

navigable tributary

34

Not Jurisdictional Not Jurisdictional

The agencies will generally not assert jurisdiction over the following features:

• Swales or erosional features (e.g., gullies, small washes characterized

by low volume, infrequent, or short duration flow

• Ditches (including roadside ditches) excavated wholly in and draining
• nly uplands and that do not carry a relatively permanent flow of water

y p y y p

35

The agencies will apply the significant nexus standard as follows:

• A significant nexus analysis will assess the flow characteristics and

functions of the tributary itself and the functions performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters.

• Significant nexus includes consideration of hydrologic and ecologic

factors.

36

How Has the Existing Guidance Been Received?

• Not popular with anybody
• Democrats in Congress proposed new legislation to

significantly increase definition of jurisdictional waters, but it went nowhere Ad i i i d id d i

• Administration decided to try again

37

2011 Proposed Guidance Attempt # 3

Important Links

• The Proposed Guidance and relevant related documents:

http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm

• Comments on the Proposed Guidance:
• Comments on the Proposed Guidance:

http://www.regulations.gov/#!docketDetail;dct=PS+N+SR;rpp=10;po=0;D=EPA-HQ-OW-2011-0409

39

What is the Expected Impact?

• The proposed guidance is a significant departure from the Existing

Guidance and relies more explicitly on the view taken by Justice Kennedy in the Supreme Court’s Rapanos decision

• Many in industry are interpreting it to significantly expand federal

jurisdiction under the Clean Water Act over millions of acres of property. property.

40

What’s New?

“This guidance reflects the relevant science and responds to the agencies’ experience implementing previous guidance documents.” “. . . alleviates the need to develop extensive administrative records for certain jurisdictional determinations that caused delays and added costs to both federal agencies and the regulated community.” The draft guidance seeks to address limits on the water law’s scope by

• ffering a new interpretation of the test provided by Kennedy, while

g p p y y reiterating EPA’s litigation position that regulators can rely on either the Kennedy test or the Scalia test when determining jurisdiction.

41

Why?

“The 2008 Rapanos guidance [Attempt #2] reflected a policy choice to interpret Justice Kennedy’s opinion narrowly, resulting in fewer waterbodies found to be jurisdictional under the CWA than under a f ithf l i t t ti ” more faithful interpretation.” The Proposed Guidance purports to refine the agencies’ interpretation of h i ifi d d i i i i h d the “significant nexus” standard so it is consistent with Kennedy’s

• pinion and “the science of aquatic ecosystems.”

Also purports to determine the jurisdictional status of waters not addressed by earlier guidance (for example, interstate waters).

42

Still Guidance Not Regulation

Attempt #3 is still just guidance. It does not have a legally binding effect on EPA, the Corps, or the g y g , p , regulated community. “. . . Interested persons are free to raise questions regarding the application . . . Interested persons are free to raise questions regarding the application

• f this guidance to a particular situation. . . .”

43

So what’s in the Draft Proposed So what s in the Draft Proposed Guidance?

SUMMARY OF KEY POINTS

44

Jurisdictional Waters Jurisdictional Waters

The Agencies will assert jurisdiction over:

• Traditional Navigable Waters
• Interstate Waters
• Wetlands adjacent to either traditional navigable waters or interstate waters

Wetlands adjacent to either traditional navigable waters or interstate waters

• Non-navigable tributaries to traditional navigable waters that are relatively permanent,

meaning at least seasonal

• Wetlands that directly abut relatively permanent waters

45

Maybe Jurisdictional

The following waters are subject to CWA jurisdiction if a fact-specific analysis determines they have a “significant nexus” to a traditional navigable water or interstate waters:

• Tributaries to traditional navigable waters or interstate waters
• Wetlands adjacent to jurisdictional tributaries to traditional navigable

waters or interstate waters

• Waters that fall under the “other waters” category of the regulations.

46

Not Jurisdictional

The following aquatic areas are generally not subject to Clean Water Act jurisdiction as waters of the United States:

• Wet areas that are not tributaries or open waters or do not meet the agencies’

regulatory definition of “wetlands”

• Waters excluded from coverage under the CWA by existing regulations
• W t

th t l k “ i ifi i t ” h i i d f t t b

• Waters that lack a “significiant nexus” where one is required for a water to be

subject to CWA jurisdiction

47

Also Not Jurisdictional

• Artificially irrigated areas that would revert to upland should irrigation

cease

• Artificial lakes or ponds created by excavating and/or diking dry land

and used exclusively for such purposes as stock watering, irrigation, settling basins or rice growing settling basins, or rice growing

• Artificial reflecting pools or swimming pools created by excavating

and/or diking dry land

48

Also Not Jurisdictional

• Small ornamental waters created by excavating and/or diking dry land

for primarily aesthetic reasons

• Water-filled depressions created incidental to construction activity

49

2011 D ft G id i V R b t 2011 Draft Guidance is Very Robust

Divided into Eight Separate Sections

• The first two sections address the fundamental classes of waters subject to Clean Water

Act jurisdiction: traditional navigable waters and interstate waters.

• Section 3 provides general guidance relating to Kennedy’s “significant nexus” standard

Section 3 provides general guidance relating to Kennedy s significant nexus standard

• The next three sections provide guidance on determining whether various types of

waters are subject to CWA jurisdiction, including: Tributaries (Section 4); Adjacent l d (S i ) d O h (S i 6) wetlands (Section 5); and Other waters (Section 6)

• Section 7 discusses examples of waters over which the CWA has no jurisdiction
• Section 8 provides guidance on the documentation necessary to jurisdictional decisions

50

Significant Nexus: An Expansive New 4 Page Significant Nexus: An Expansive, New 4 Page Explanation

• “Waters have the requisite nexus if they either alone or in combination
• Waters have the requisite nexus if they, either alone, or in combination

with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters or interstate waters ” waters or interstate waters.

51

What will the Agencies Look at?

Si ifi N D i i

• Significant Nexus Determination
• Are the waters “similarly situated” with other waters of the same regulatory
• r resource type?
• r resource type?
• Are they in the same watershed, “defined by the area draining into the

nearest traditional navigable water or interstate water”

• If so, there is a significant nexus “if they alone or in combination” they

would have an effect on the chemical, physical, or biological integrity of traditional navigable waters or interstate waters that is more than traditional navigable waters or interstate waters that is more than ‘speculative or insubstantial”

52

Hydrologic Connection Not Necessary

• The draft guidance also notes that a “hydrologic connection” is not

necessary to determine jurisdiction under Kennedy’s test because: “in some cases the lack of hydrologic connection would be a sign of the water’s function in relationship to the traditional navigable or jurisdictional water, such as retention of flood waters or pollutants that ld h i fl d h di i l i bl would otherwise flow downstream to the traditional navigable or interstate water”

53

Expansion of Jurisdictional Wetlands

• Has the potential to assert jurisdiction over wetlands away from traditional

navigable waters, based on the impacts of proposed activity in those wetlands

• “ . . . while it may be difficult to demonstrate that a particular individual

wetland adjacent to a small headwater tributary has a significant nexus to a j y g traditional navigable water, the destruction of all such adjacent wetlands in a region could have significant effect on the traditional navigable water and, thus, in such circumstances the CWA must protect those wetlands in order to protect the traditional navgiable water,” “The same logic applies to tributaries and similarly situated other waters.”

54

Expected Results in the Field

• “The Agencies expect that the number of waters found to be subject to

CWA jurisdiction will increase significantly compared to practices under [past] guidance.”

• The “scope of waters subject to CWA jurisdiction will still not be as

extensive as it was prior” to the Supreme Court’s action extensive as it was prior to the Supreme Court s action.

55

Reactions?

Comments are – predictably – mixed.

• Industry groups oppose what they consider a “monumental expansion of CWA
• Industry groups oppose what they consider a monumental expansion of CWA

jurisdiction,” and predict “profound detrimental impacts” on industry interests.

• Some local governments love it -- many with the same letter – because they perceive it

as “carefully-drafted . . . guidance [that will] . . . restore and clarify Clean Water Act i protections.

• Other local governments hate it because it could “cause significant economic hardship.”
• The Sierra Club membership endorses it because it will “conform federal policy to

scientific reality: it's impossible to safeguard rivers and lakes downstream without scientific reality: it s impossible to safeguard rivers and lakes downstream without protecting the small, headwater streams that feed them.”

56

Will this Guidance be the Last Word?

• No.
• Common comment by those who oppose the policy is that it “redefines”

what constitutes a “water of the United States” and expands the p jurisdiction of the CWA.

• Thus, the argument is, the Guidance is a de facto legislative rule that

under the APA can only be promulgated through a formal rulemaking under the APA can only be promulgated through a formal rulemaking.

• EPA has, in fact, promised to “further clarify which waters are subject

to CWA jurisdiction” in a future rulemaking.

• Unclear when these future regulations will be promulgated.

57