A newly issued guidance document has the potential to dramatically expand regulation under the Clean Water Act (CWA), going against the express wishes of Congress and the Supreme Court in the process, NAWG said in comments last week to the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers.  

The comments were made in response to a request from the agencies on new guidance regarding how the government will identify waters protected under CWA, which covers the legally vague “waters of the United States”. 

The new definitions in the guidance will impact action under many Clean Water Act regulatory regimes, including what waters will be covered under the National Pollutant Discharge Elimination System (NPDES) permit program, which is poised to expand dramatically this fall if a legislative fix is not achieved for new and duplicative pesticide permitting requirements established by the Sixth Circuit Court.

NAWG’s comments attacked the guidance on both policy and procedural fronts. 

First and foremost, NAWG told the agencies that the guidance document represents a significant rewrite and expansion of existing regulatory guidelines.