On May 2, 2011, EPA andthe Corps issued draft joint guidance for the interpretation of the phrase “waters of the United States” under the CWA. Determinations of CWA jurisdiction are critical for the agencies in issuing permits to fill wetlands under §404 of the CWA and in CWA enforcement actions. The proposed guidance purports to “clarify” how the agencies will “understand” existing requirements of the CWA and identify waters protected by the CWA “in light of” the holdings in Solid Waste Agency of Northern Cooke County v. U.S. Army Corps of Engineers and Rapanos v. United States. The author argues that the guidance would, if issued in its current form, do more than “clarify understanding.” Instead, it would provide the agencies a basis for exercising broader authority over the nation’s waters than current policy supports. This
expansion would be wrought by a few definitional and linguistic changes, some of which would be consistent with the CWA as interpreted in Rapanos and SWANCC and others that would be inconsistent.