Rapanos Guidance

After the Supreme Court of the United States rejected EPA and the Army Corps’ excessive claims of authority under the Clean Water Act in Rapanos v. United States, the agencies jointly issued a guidance memorandum exploiting every ambiguity in the Supreme Court’s opinions to reassert broad authority. This controversial guidance was the foundation for the controversial Waters of the United States (WOTUS) rule, which President Trump recently ordered the agencies to reconsider.

For nearly a decade, agencies have wielded the Rapanos guidance against property owners across the country, even though it was never submitted to Congress as required by the CRA. Consequently, it has never legally gone into effect, should not be enforced, and remains eligible for congressional review.