Federal Legislation Seeks to Reverse EPA Guidance Document

September 2012Articles In the Zone

On April 27, bipartisan leaders of the House Transportation and Infrastructure Committee and the House Agriculture Committee introduced H.R. 4965 , which would prohibit the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) from finalizing or implementing guidance provided in the document entitled “EPA and Army Corps of Engineers Guidance Regarding Identification of Water Protected by the Clean Water Act.” Enacting this legislation also would prohibit those federal agencies from using similar guidance as the basis for any decision regarding the scope of the Clean Water Act’s jurisdiction or in any rulemaking activities.

In May 2011, the EPA and the Corps issued draft guidance on "Identifying Waters Protected by the Clean Water Act." This guidance document, which was sent in final form to OMB on February 21, 2012, significantly changes and expands what features are considered protected under the Clean Water Act. It makes substantial additions, such as a first time inclusion of ditches, ground water, potholes, gutters and other water features that may flow, if at all, only after a heavy rainfall.

These new regulations would make it harder for Americans to build in their backyards, grow crops, manage livestock, expand small businesses and carry out other activities on private lands.

Further, the guidance uses an overly broad interpretation of the U.S. Supreme Court’s decision in the Rapanos case that addressed the issue of jurisdiction over “waters of the U.S.” under the Clean Water Act. The guidance contends that virtually all wet areas that connect in any way to navigable waters are jurisdictional, an assertion that was rejected in the Rapanos decision.

H.R. 4965 is similar to S. 2245 , the Preserve the Waters of the U.S. Act.