The Clean Water Act, enacted and amended in the mid-20th century, was a significant development in the protection and restoration of the Nation’s waters. The Act authorized the Environmental Protection Agency and the Army Corps of Engineers to regulate the discharge of pollutants into many types of bodies of water. However, this wide-spread jurisdictional authority was challenged by the Supreme Court in two turn of the century cases which limited the application of the Act to certain waters. In 2011, a draft guidance document was released by the Environmental Protection Agency and the Army Corps of Engineers, which would increase waterway protection by offering more consistent and predictable procedures for identifying waters protected under the Act, as well as clarifying current legal confusion resulting from inconsistent court rulings and agency reports. This Note examines the changes the draft guidance would introduce to the current regulatory scheme should it be adopted. It also addresses potential industry costs and explores concerns that such guidance is an unlawful expansion of the Act’s jurisdiction. This Note ultimately concludes that the guidance is an appropriate and constitutional mechanism to institute crucial water protection, and should be followed promptly by a legally binding rulemaking.
Jennifer L. Baader,
Permits For Puddles? The Constitutionality and Necessity of Proposed Agency Guidance Clarifying Clean Water Act Jurisdiction,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol88/iss2/17