Industry, States Looks To SAB To Apply Method For Grading Waters' 'Nexus'

摘要

Industry and some states are hoping that EPA advisors will use their upcoming review of the agency's proposed rule clarifying the scope of the Clean Water Act (CWA) to help apply its call for the agency to adopt a "graded" approach for determining if smaller isolated waters have a "significant" nexus to larger waters, an effort the sources hope will narrow the proposal's reach. The Science Advisory Board (SAB) panel earlier this year recommended a graded approach when it reviewed EPA's study on waters' connectivity - which the administration used to justify its proposed rule - saying the agency had used a "binary" approach that fails to adequately account for the magnitude of some impacts. Industry and state officials are now hoping the panel will apply the graded approach during an informal review of the proposed rule that the panel is slated to conduct Aug. 20-21, though they say that even if the SAB panel advises the agency on how to adopt the gradient approach, it is unlikely to help EPA defend a final rule in a court challenge. Ultimately, the sources say, "significant nexus" is a legal concept, and litigation challenging the rule will center on whether it is beyond the reach of the CWA.