EPA Administrator Gina McCarthy has been forceful in claiming EPA's definition of "waters of the United States" is merely a clarification and not an expansion of EPA's authority. You can decide whether EPA is expanding its jurisdiction.
EPA further claims it is reducing confusion and reducing transaction costs for the regulated community and government agencies.
"Adjacent waters" is one of the nine definitions of waters of the United States. The proposed regulatory document claims EPA and the Corps of Engineers propose "…to revise the existing jurisdictional category of "adjacent wetlands" which currently limits consideration to only wetlands, to include "adjacent 'waters'". EPA believes there is no expansion of its jurisdiction under the Clean Water Act when it changes from "adjacent wetlands" to "adjacent waters". EPA claims that in addition to wetlands it would like to include "…other water bodies that meet the proposed definition of adjacent including 'neighboring.'"
Further evidence on how the government's proposed rules would amp up control over your land
No expansion here???
EPA says, "Adjacent waters are integrally linked to the chemical, physical, or biological functions of… water bodies to which they are adjacent." Got that?
Merriam-Webster dictionary defines "adjacent" as "not distant; having a common end point or border or immediately preceding or following". Nothing in this definition mentions being integrally linked.
EPA further claims "adjacent waters" are "…wetlands, ponds, lakes, and similar water bodies that provide similar functions which have a significant nexus to traditional navigable waters, interstate waters, and the territorial seas." EPA says it is including adjacent waters because there is a collective body of scientific literature, technical knowledge, and practical expertise, which addresses connectivity and ecological interactions.
All parts connected
This position by EPA seems to argue that all parts of ecosystems are connected, so the only question remaining is how much of a connection does one need… to create a connection.
Some argue that EPA is using this language to regulate isolated prairie potholes. The ecological connection would be that smaller potholes in North and South Dakota are the first to thaw in spring and are therefore critical in providing food and habitat for migratory birds. EPA seems to be arguing that it can use birds and amphibians movements from water body to water body to prove an ecological connection.
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