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THE SAGA
CONTINUES….
After the Supreme Court muddied the waters
with the Rapanos decision last year, the EPA and US Army Corps of
Engineers promised to issue guidance that would provide clarification
about federal jurisdiction of the waters of the United States. However, the guidance that was
finally issued on June 5, 2007 does nothing of the sort. While a primary purpose of the
guidance was to “establish an efficient and effective process for
determining Clean Water Act Section 404 jurisdiction,” the guidance
instead further confuses jurisdiction about which waters receive federal protection and provides for a
complicated case-by-case process that staff must undergo to make a
jurisdictional determination.
Essentially, the guidance requires waters to
meet one of the two tests outlined in the opinions written for the
Rapanos decision. Protection
of our waters will come for: 1) “traditionally navigable waters” and
wetlands adjacent to these waters, 2) “non-navigable tributaries that
are relatively permanent and wetlands that are physically connected
to these tributaries”, and 3) other tributaries and wetlands if
case-by-case determinations prove there is a significant nexus with
the traditionally navigable waters.
Rather than ensuring protection of our
vital water resources, the guidance ensures significant hurdles for
agencies and citizens, and ultimately, more future court cases. Because
resources are already scarcely available to the agencies, implementing
case-by-case determinations will further waste resources leaving
other waters at risk and more vulnerable to degradation and
destruction.
With further confusion upon confusion,
Congress must step in to reaffirm the intent of the Clean Water Act
clarifying what waters are federally
regulated. The Clean Water
Restoration Act of 2007 will restore the protections we have been
losing at the hands of the Supreme Court in recent years.
While the guidance is in effect, the
agencies will be accepting public comments for the next six months
which, depending upon the comments received,
could result in modifications to or suspension of the guidance.
To
submit comments or for more information, visit: http://www.epa.gov/owow/wetlands/guidance/CWAwaters.html
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