Monday, December 8, 2008
EPA and the Corps in a guidance memo issued December 2 took a somewhat conservative position on what constitutes waters of the United States after the U.S. Supreme Court's decision in Rapanos. CWA_Jurisdiction_Following_Rapanos 12 02 08.pdf Rather than keep "either permanent flow or significant nexus" position, the agencies have developed a somewhat curious hybrid. In particular, the agencies determined that to find a significant nexus, discharges to non-navigable tributaries without a relatively permanent flow and wetlands adjacent to non-navigable tributaries with relatively permanent flows must have a significant effect on water quality of traditional navigable waters, even though the agencies classify non-navigable tributaries with relatively permanent flows as "waters of the United States." It would seem to me that discharges into any water that had a significant effect on the water quality of waters of the United States should be within the agencies' jurisdiction. I understand the problem -- if something that significantly affects a "water of the United States" becomes a "water of the United States," then every discharge into a water that significantly affected that water would be a regulated discharge, ad infinitum. Actually, that might be just fine. EPA has a good Rapanos page for those who wish to delve deeper.