I’m beginning to feel like a broken record, but the drumbeat of the anti-guidance crowd is not letting up. Earlier this week, the Waters Advocacy Coalition, which is a group of farm and industry trade groups, sent a letter to EPA and the Army Corps of Engineers, requesting that EPA and the Corps withdraw their plan to issue further guidance on the interpretation of “navigable waters” post-Rapanos. It’s not surprising that this group would oppose the guidance. What is most interesting – and persuasive – about the letter, though, is this quote from the draft guidance itself:
"the agencies expect that the number of waters found to be subject to the CWA jurisdiction will increase significantly compared to practices under the 2003 SWANCC guidance and the 2008 Rapanos guidance.
To me, it would seem a defining characteristic of guidance that it not alter the jurisdictional scope of laws and regulations. That’s what laws and regulations are for. Guidance, on the other hand, to the extent is does have a role, is to guide those affected by regulation, to assist them in their understanding of legal requirements – not to change the scope of those requirements. I think that, by inclusion of this sentence in the draft guidance, EPA and the Corps have made the strongest possible argument against issuing the guidance.
Perhaps even more notable was the resolution passed last week by the Environmental Council of the States objecting to EPA’s use of interim guidance and rules. Specifically, the resolution states that
"EPA should minimize the use of interim guidance, interim rules, draft policy and reinterpretation policy and eliminate the practice of directing its regional or national program managers to require compliance by states with the same in implementation of delegated programs.
"EPA should not use its objection authority when based entirely or in part on interim guidance, interim rules, draft policy or reinterpretation policy.
ECOS, of course, is generally on EPA’s side of the fence. The resolution is powerful evidence that EPA’s use of guidance is not simply to facilitate understanding of applicable laws and regulations, but as a substitute for the regulatory process itself – as a way to impose new binding rules.
Taken together, the ECOS resolution and the text of the proposed revision to the post-Rapanos guidance make a compelling case that EPA’s use of guidance has strayed far from true guidance and is in fact often an end-run around the regulatory process.