EPA is defending their new proposal to define the 'Waters of the United States' in the Clean Water Act. At a competing website EPA Administrator Gina McCarthy, in a guest editorial, defended her agency's plan, writing: "Some in the agricultural community might think that this rule will broaden the reach of EPA regulations – but that's simply not the case."
Let's look at the facts!
The Congressional Research Service issued a report on the EPA's new proposal on April 21, 2014. On page 10 of the CRS report it is stated that "EPA and the Corps estimate that approximately 3% of U.S. waters would additionally be subject to CWA jurisdiction as a result of the proposed rule…" The same paragraph declares, "The estimated increase includes about 17% of 'other waters'…that were not jurisdictional under the 2003/2008 guidance."EPA's bureaucratic language masks regulatory grab
The CRS states, "The agency's broader assertion of jurisdiction, compared to existing regulation and current practice, does not identify specific waters that will be found to be jurisdictional - that is, this or that particular stream or pond…"
The new additional definition is called "Other Waters." "Other Waters" are not automatically jurisdictional as are tributaries, but will be found to be under EPA's control if they are found on a case-specific basis to have a "significant nexus" to EPA waters which are jurisdictional.
EPA says "Other waters will be evaluated either individually, or as a group of waters where they are determined to be similarly situated in the region."
EPA continues by saying "Waters are similarly situated where they perform similar functions and are located sufficiently close together or when they are sufficiently close to a jurisdictional water."
More bureaucratic language describes "Other Waters" as being "…aggregated for a case-specific "significant nexus" analysis depends on the functions they perform and their spatial arrangement within the 'region' or watershed." If that is not a recipe for massive expansion of EPA jurisdiction over water of this country, I do not know what it is.
EPA goes on to define how "Other Waters" may have a "significant nexus" to water including wetlands or any combination with other similarly situated waters in the region. EPA does say to have a "significant nexus" it must be more than speculative or insubstantial.
EPA says there can be a "significant nexus" with "Other Waters "…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 water…"
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