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Assessing Jurisdiction Under the New Clean Water Act Guidance

June 28, 2011

Two decisions of the U.S. Supreme Court have created enormous confusion around the question of what U.S. waters are subject to federal regulation. On May 2, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published proposed joint guidance that intends to clarify this issue, by describing how the agencies will identify waters protected by the Clean Water Act. The document is intended to assist agency staff in implementing the Supreme Court's rulings in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) (531 U.S. 159 (2001)) and Rapanos v. United States (547 U.S. 715 (2006)). The new guidance, which would supersede existing guidance documents (including 2008 Bush Administration guidance), seeks to reaffirm jurisdiction over important waters that currently lack clear protection under the law, and to provide clearer, more predictable guidelines to reduce uncertainty and delay for businesses and regulators. Although the guidance lacks the force of regulation, it is expected to be the first step in a formal rulemaking process. The panel discussed the significant elements of the guidance, assessed its likely impact, and highlighted the challenges that lay ahead.

PANELISTS:

Bruce Myers, Senior Attorney, Environmental Law Institute (moderator)

Donna Downing, Jurisdiction Team Leader, Office of Wetlands, Oceans & Watersheds, U.S. Environmental Protection Agency

Jan Goldman-Carter, Wetlands and Water Resources Counsel, National Wildlife Federation

Lawrence R. "Larry" Liebesman, Partner, Holland & Knight LLP

David B. Olson, Directorate of Civil Works Operations and Regulatory Community of Practice, U.S. Army Corps of Engineers




MATERIALS:

David Olson powerpoint presentation: Making Jurisdictional Determinations

Submitted by Jan Goldman-Carter:

Submitted by Lawrence Lieberman:

Members may log on to access the mp3 recording.

This ELI Associate Seminar is made possible by the generous support of our members.