Rapanos Guidance III:'Waters' Revisited

摘要

The proposed guidance attempts to resolve issues that were once deemed fairly well-settled but which became problematic after the decisions in SWANCC and Rapanos. Many of the positions reflected in the guidance seem to be reasonable interpretations of the CWA consistent with the views of the Supreme Court. Others, however, appear to go beyond, or to be inconsistent with, current law and might encounter difficulty when subjected to deference analysis. The concept most difficult to reconcile with the Supreme Court views is the concept that interstate waters are relevant waters for the purpose of applying the significant nexus test. Other notable issues are the treatment of ditches and the expansion of "similarly situated waters." The ultimate official treatment of these issues will become clearer after comments are evaluated and the final guidance is issued.