6.1a ERMUSR 03-13-2017 - Laserfiche WebLink

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AMERICAN PUBLIC POWER.. ASSOCIATION Powering Strong Communities ISSUE BRIEF January 2017 Waters of the United States Summary On May 27,2015,the Environmental Protection Agency(EPA) Components of the Final Rule and U.S.Army Corps of Engineers (Corps) released a final rule The final rule defines WOTUS to include: to redefine waters of the U.S. (WOTUS) under the Clean Water Act(CWA).The rule became effective on August 28,2015.1 1 all waters which are currently used,were used in the The American Public Power Association(Association or APPA) past,or may be susceptible to use in interstate or for- believes that the rule is problematic because it dramatically eign commerce,including all waters which are subject expands the definition of WOTUS, thereby subjecting more to the ebb and flow of the tide; utility projects and activities to CWA jurisdiction.Currently,the 2 all interstate waters,including interstate wetlands; WOTUS rule is stayed pending a decision on the merits in the case in the U.S. Court of Appeals for the Sixth Circuit. 3 the territorial seas; 4 all impoundments of waters otherwise defined as wa- ters of the U.S.; Background The Clean Water Act of 1972 gave the federal government the 5 all tributaries of waters identified in(1) through(3); authority to regulate pollution of"navigable waters" (also known 6 all waters,including wetlands,adjacent to a water as"Waters of the U.S.").This seemed straight forward on its identified in(1)through(5);and face,but given the interconnectedness of surface water—clearly navigable large rivers and lakes are fed by streams and other 7 on a case-specific basis, "other waters,"including smaller bodies of water that are clearly not navigable—the line wetlands,that alone,or in combination with other of the federal government's jurisdiction is a fuzzy and moving similarly situated waters in the same region,have a one.Years of legal battles came to a head in a messy 4-1-4 ruling significant nexus to a water identified in(1) through by the Supreme Court in 2006.Justice Anthony Kennedy (3). joined the conservative wing of the Court in ruling that the gov- 8 waters within the 100-year floodplain of an(1) to(3) ernment could no longer could broadly interpret its jurisdiction; water,and waters within 4,000 feet of an(1)to(5) in other words,the government needed to write a new set of water of the U.S.,where those waters are found on a rules for determining where it had jurisdiction.Justice Kennedy case-by-case basis to have a significant nexus to(1)to wrote a standalone opinion suggesting that the government lim- (3)water. it its jurisdiction to waters that have a"significant nexus"with navigable waters.Instead of providing clarity,what constituted The Association has serious concerns with how various a"significant nexus"kicked off another round of confusion terms are defined in the final rule. between the federal government and industry. EPA and the Corps released a proposed rule attempting to define what constitutes a"significant nexus"in April 2014. APPA felt the proposed rule dramatically expanded the agencies' 1 The final rule is available at http://www2.epa.gov/sites/production/ files/2015-05/documents/rule_preamble_web_version.pdf PubUcPower.org 43 225