New Rapanos Guidance: Is It Guidance Or Is It Really Legislation?

Industry groups and environmentalists continue to do battle over EPA's efforts to update its post-Rapanos guidance. Greenwire reports that 12 different groups have met with "the White House" in the past six weeks. As this process drags on, one cannot help but ask why this guidance is even being issued at all.

At an earlier point, I acknowledged that this might actually be an appropriate situation in which to use guidance, for one basic reason. The guidance is only temporary; EPA has already acknowledged the need to pursue rulemaking as the long-term solution.

That being said, however, I think that the theoretical benefits of guidance have run into the practical realities of the current political world. It seems as though EPA compared an idealized view of how quickly guidance can get done with a real-world estimate of how long it takes to write regulations. EPA started this process several years ago, presumably not imagining that we'd be sitting here in April 2012