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The EPA’s Expanding Interpretation of its Regulatory Authority Under Section 404 of the Clean Water Act--Practical Implications For the Mining Industry

Kathryn Kusske Floyd, Julia Jones, Jay C. Johnson, Kristin Stastny, Water-Energy Nexus: Acquisition, Use, and Disposal of Water for Energy and Mineral Development (2012)

In recent years, the Environmental Protection Agency (EPA) has employed an increasingly expansive view of its regulatory authority under Section 404 of the Clean Water Act (CWA). In implementing this expansion, however, EPA frequently has avoided notice and comment rulemaking under the Administrative Procedure Act (APA) and has instead attempted to implement new requirements and give itself more power through the adoption of “guidance” and through novel interpretations of existing statutory provisions. These expansions of regulatory authority have the potential to significantly impact natural resources industries by delaying or even halting the permitting process. Even for projects that are not directly impacted by EPA action, the agency's attempts to increase its authority under the CWA without passing new rules under APA procedures are likely to result in increased regulatory uncertainty.

Although federal agencies may permissibly issue guidance that does not effect binding changes in the law without undergoing notice-and-comment procedures required under the APA, binding legislative rules must comply with the notice-and-comment requirements.1 An agency cannot escape the procedural requirements of notice-and-comment rulemaking by merely labeling a substantive change as “guidance.” But it appears that is precisely what EPA is attempting to do in the CWA arena.