Clean Water Act Enforcement Efforts Decline

August 16, 2008
by BRIDGET DORFMAN
Client Alert Newsletter August 2008

In 2006, the U.S. Supreme Court issued a plurality decision in Rapanos v. United States that created considerable confusion regarding the scope of federal jurisdiction over wetlands under the Clean Water Act ("CWA"). In June 2007, the U.S. Environmental Protection Agency ("EPA") and U.S. Army Corps of Engineers ("Corps") jointly issued a guidance document on the interpretation of Rapanos meant to ensure nationwide predictability, reliability, and consistency in identifying wetlands, streams and rivers subject to the CWA. However, a March 2008 internal EPA memorandum from EPA's Assistant Administrator for Enforcement and Compliance Assurance states that CWA enforcement efforts have been "adversely impacted" by Rapanos and the EPA/Corps joint guidance document. For example, since July 2006 EPA decided in 304 separate cases not to pursue formal enforcement of CWA violations, and lowered the enforcement priority of 147 other cases due to jurisdictional uncertainty.

The internal memorandum recommends changes to the joint guidance that would improve the efficiency of compliance determinations, reduce the resource burdens on EPA and the Corps, and result in a more predictable and efficient enforcement program. The U.S. House of Representatives Committees on Transportation and Infrastructure and on Oversight and Government Reform recently obtained the internal memorandum and sent a letter to EPA Administrator Stephen Johnson expressing "grave concerns" regarding the status of CWA implementation. The Committees requested that Administrator Johnson provide the Committees with documents and respond to questions relating to the enforcement problems. It is unclear how, and when, this recent activity will impact CWA enforcement nationwide.