![]() Significant nexus is a determination to be made by EPA and the Corps under the law in light of applicable science. The term refers to the connectivity and influence of waterbodies as a determining factor in whether they are considered jurisdictional. “Significant nexus” is not a scientific term, say the agencies, but it is a “touchstone” for Clean Water Act jurisdiction and is central to the entire rule. The EPA and the Corps have seized upon this concept with enthusiasm in their proposed rule. ![]() However, Justice Kennedy’s opinion, the “1,” along with four dissenters, elevated the concept of “significant nexus” as a central holding. United States, resulted in a fractured 4-1-4 decision on whether certain wetlands are, or are not, jurisdictional. Congress has declined to resolve this tension and even the Supreme Court has contributed to the confusion. The proposed rule, “Definition of ‘Waters of the United States’ Under the Clean Water Act,” has generated a firestorm of controversy as EPA struggles to reconcile 21st century ecological science, with its core concept of connectivity, and the Clean Water Act’s 19th century paradigm of navigability, which is the anchor of the act’s jurisdiction and scope. Tracy Mehan, George Mason University School of Law 14, this article examines points of intersection between the proposed rule and the stormwater sector with viewpoints from various stakeholders across the country. However, analyses performed by other groups contradict both the number of waters affected and the cost of the proposed rule. waters to Clean Water Act jurisdiction and generate as much as $514 million annually in public benefits, such as reduced flooding and groundwater recharge. The proposed rule seeks “to provide the intended level of certainty and predictability, and minimize the number of case-specific determinations” about whether various waters and wetlands are jurisdictional under the Clean Water Act.Īccording to EPA and the Corps, the rule would subject approximately 3% more U.S. rule to comment, and since then, EPA has said it expects an unprecedented number of comments. ![]() Army Corps of Engineers (Corps) opened the proposed Waters of the U.S. Environmental Protection Agency (EPA) and U.S.
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