EPA and the U.S. Army Corps of Engineers on Monday posted their proposed rule defining "waters of the U.S."
If you read Tolstoy's "War and Peace" this this might be right up your alley.
The proposal comes after two earlier U.S. Supreme Court cases left open the question of what constitutes a "waters of the U.S." that would then place a body of water under federal regulations in the Clean Water Act.
EPA and the Corps state that the goal of the new rule is to "result in more effective and efficient CWA permit evaluations with increased certainty and less litigation."
The proposal would define waters of the U.S. as:
All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
All interstate waters, including interstate wetlands;
The territorial seas;
All impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary;
All tributaries of a traditional navigable water, interstate water, the territorial seas or impoundment;
All waters, including wetlands, adjacent to a traditional navigable water, interstate water, the territorial seas, impoundment or tributary;
Then "other waters" that don't meet the preceding definition would be handled on a case-by-case basis as to whether they have a "significant nexus." Waters in a watershed with no connection to a traditional navigable water, interstate water or territorial sea would not be considered as waters of the U.S.
The rule would also define for the first time what classifies as a "tributary."
The proposal noted "significant nexus" is not a scientific term. It was a statement made by Justice Anthony Kennedy in the two Supreme Court decisions that led EPA and the Corps to create this rule. The proposal askes for comments on how exactly to define "significant nexus." A connection from one waterway to another has to be determined on a case-by-case basis regarding what constitutes a significant nexus.
The proposed rule is stunningly long to read. You can read it at http://dld.bz/…
The comment period on the proposal will run through July 21. I have a feeling that date will be extended before all is said and done.
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