The House Transportation and Infrastructure Committee released a letter on April 18 sent to EPA and the U. S. Army Corps expressing concern over their proposed guidance clarifying what water bodies are subject to the Clean Water Act (CWA), saying it would expand the scope of the act and amount to a “de facto” rule. Water Resources and Environment Subcommittee Chairman Bob Gibbs (R-OH) and Transportation and Infrastructure Committee Member Tim Holden (D-PA) were joined by Full Committee Chairman John L. Mica (R-FL) and a large, bipartisan group of Members on the letter to EPA Administrator Lisa Jackson and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy. The letter was signed by 170 House members. In the proposed version of the guidance submitted for review in December to the White House Office of Management and Budget, EPA said a wider range of water bodies would be subject to Clean Water Act jurisdiction than under guidance issued by EPA and the Army Corps of Engineers in 2007 and 2008. EPA officials have said the proposed guidance will be issued soon and will be available for public comment.
The proposed guidance is intended to clarify which waters are subject to Clean Water Act jurisdiction and how two U.S. Supreme Court decisions on jurisdiction should be implemented—the 2001 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and the 2006 Rapanos v. United States case. In Rapanos, the Supreme Court split on defining a standard to establish Clean Water Act jurisdiction, although federal appeals courts have widely cited Justice Anthony Kennedy's concurring opinion, which said a particular water must have a “significant nexus” to a navigable water (Rapanos v. United States, 547 U.S. 715, 62 ERC 1481 (2006)).