These agencies have attempted to push this rule across the goal line for many years. Here it is at last, unfortunately. And once again the citizens will need to speak and submit comments in order to stop it. The only nexus (connection) here is between EPA bureaucrats and the desire to control others. Although this proposal may read nicely because it uses flowery language, the astute observer will realize that there is something very important missing, which is common sense. This ruling is about giving government more control over land, more control over landowners, giving the Corp of Engineers something to do, and making EPA and other attorneys a lot of money in needless litigation.
The summary is below. Click here for the prepublication notice.
“The agencies propose to define “waters of the United States” in section (a) of the proposed rule for all sections of the CWA to mean: traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate or the territorial seas; and adjacent waters, including adjacent wetlands. Waters in these categories would be jurisdictional “waters of the United States” by rule – no additional analysis would be required. The agencies emphasize that the categorical finding of jurisdiction for tributaries and adjacent waters was not based on the mere connection of a water body to downstream waters, but rather a determination that the nexus, alone or in combination with similarly situated waters in the region, is significant based on data, science, the CWA, and caselaw. In addition, the agencies propose that “other waters” (those not fitting in any of the above categories) could be determined to be “waters of the United States” through a case-specific showing that, either alone or in combination with similarly situated “other waters” in the region, they have a “significant nexus” to a traditional navigable water, interstate water, or the territorial seas. The rule would also offer a definition of significant nexus and explain how similarly situated “other waters” in the region should be identified.”