Flooding Its Banks: An Argument for Jurisdictional Limits and Certainty in Clean Water Act Regulations

Abstract

In 2011, the Environmental Protection Agency and Army Corps of Engineers introduced a draft version of a guidance document that purported to clarify the jurisdiction of the Clean Water Act in accordance with recent Supreme Court Cases. Shortly thereafter, it became clear that the Draft Guidance was a reinterpretation of Supreme Court precedent, and was meant to expand federal jurisdiction. An even greater problem, mentioned repeatedly in official comments submitted to the agencies, is that the Draft Guidance lacks the force of law, but will be enforced by the agencies. Consequently, a divide has formed between the agencies, courts, and the regulated community, creating great uncertainty for businesses and state governments. This article sets forth the background of the Clean Water Act and relevant Supreme Court decisions, reviews reactions to the Draft Guidance, and proposes a solution to clarify the extent of federal jurisdiction in the future.