The Environmental Protection Agency and the U.S. Army Corps of Engineers have proposed a new rule defining the scope of waters protected under the Clean Water Act (CWA).
The proposal sets forth several categories of waters to be included in the definition as well as established waters that are subject to the Act. This proposed rule was made in light of the Supreme Court cases in U.S. v. Riverside Bayview, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States — regarding the determination of which streams and which wetlands were subject to the Clean Water Act protection.
The goal behind the proposed rule is to minimize the number of case-by-case determinations of which waters are protected under the Act; namely on the category of waters referred to as “other waters.” The agencies propose to define waters of the United States to mean:
The proposed rule states that the term “significant nexus” means that a water, including wetlands, either alone or in combination with or similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a jurisdictional water body. For an effect to be significant, it must be more than speculative or insubstantial.
Other waters, including wetlands, are similarly situated when they perform similar functions and are located sufficiently close together or sufficiently close to a “water of the United States” so that they can be evaluated as a single landscape unit with regard to their effect on the chemical, physical, or biological integrity of a protected water.
The proposed rule also excludes specified waters from the definition of “waters of the United States.” Some of these exclusions are:
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Source: kingkrebs, July 22, 2014