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The EPA took a giant step toward finally defining which bodies of water are subject to regulation under the Clean Water Act last week, when it filed a draft rule with the White House regulatory czar designed to settle the confusion created in recent years by a series of court decisions.
The legal battles have centered on the definition and scope of a seemingly innocuous phrase — what exactly are “waters of the United States”?
Judges and regulators have wrestled over how to interpret the term in the absence of legislative action to clarify it. Now, the EPA is not only proposing a regulatory solution — which is not yet publicly available — but is also conducting a scientific review to accumulate evidence to back up the penultimate rule.
That approach to implementing the Clean Water Act (PL 95-217) is the latest example of the Obama administration’s philosophy on environmental policymaking: Act when Congress doesn’t and take steps to shore up the approach against future legal challenges.
“We’re not likely to get that clarity from Congress anytime soon,” said Bruce Myers Jr. of the Environmental Law Institute. “Further clarity from the agencies is beneficial.”Court Decisions
The Supreme Court has ruled three times on the extent of the law’s application to wetlands since 1985, producing narrow decisions in 2001 and 2006. A split in the 2006 case Rapanos v. United States is the most recent reading of the law to befuddle regulators and the regulated.
Four of the court’s conservative justices ruled that the law could only be extended to cover “relatively permanent” static or flowing bodies of water. Justice Anthony M. Kennedy agreed with their judgment but offered a much different test to determine what exactly constitutes “waters of the United States”— whether a body of water or wetland has a “significant nexus” to waters that are or could reasonably be navigable.
Wetlands are typically found near waterways and floodplains, though sometimes they have no obvious connection to surface water but link up with groundwater sources.
The EPA and Army Corps of Engineers drafted joint guidance documents in response to the decision, most recently in 2011, that sought to advise enforcement officials how to determine on a case-by-case basis which waters meet the test outlined by Kennedy. But the document sat at the Office of Management and Budget for years and an EPA spokeswoman said the agency will withdraw it from interagency review.