By Lowell M. Rothschild – (National Law Review) – This is my penultimate article on the Administration’s final Waters of the US rule. For those of you who have read our previous articles on the proposed and final rules (hi Mom!), you know we have concerns about the significant nexus test. Our concern is not just the breadth of the test, but its ambiguity and need for case-by-case application. For the regulated community, knowing when one must comply with the law is half the battle (at least). And the significant nexus test, based on neither science nor the language of the Clean Water Act, is an ambiguous, case-by case test.
But apart from its ambiguity, there is the practical reality – the practical difficulty – of actually applying the test. Now that the test has been ensconced into regulation, we’ll take a quick look at the practical implications of applying of the test.
As you’ll recall, the significant nexus test requires a determination of whether the water in question – alone or in aggregation with other similarly situated waters in the region – significantly affects the chemical, physical or biological integrity of a traditionally navigable or interstate water or the territorial sea (with “significant” meaning “more than speculative or insubstantial.”). The “region” is the watershed that drains to the nearest traditionally navigable or interstate water or the territorial sea, and waters are “similarly situated” when they function alike and are sufficiently close to function together in affecting downstream waters
Read the complete article HERE
Read the Revised Definition of ‘‘Waters of the United States’’ HERE
The Current Rules are HERE