Current Issues in Clean Water Act Alaska Miners Association 24 th Biennial Conference Fairbanks, Alaska Damien M. Schiff Pacific Legal Foundation

RAPANOS V. UNITED STATES The Plurality Decision Tributaries: Relatively permanent, standing or continuously flowing bodies of water described in ordinary parlance as streams, oceans, rivers, and lakes. Wetlands Continuous surface water connection Line-drawing problem

RAPANOS V. UNITED STATES The Kennedy Concurrence Tributaries: determination through regulations or adjudication that because of volume or flow, proximity to navigable waters, etc., adjacent wetlands will perform important function for aquatic system. Wetlands: wetland by itself or in combination with similarly situated wetlands in the same region significantly affects the physical, chemical, and biological integrity of a navigable in fact water.

PROPOSED REGULATORY CHANGES Navigable in fact waters All tributaries of navigable in fact waters Wetlands adjacent to jurisdictional waters (except other wetlands) Adjacency includes “neighboring” (undefined) [“Significant nexus” undefined] [“Similarly situated wetlands within the region” undefined] Same All waters adjacent to jurisdictional waters Neighboring means within “riparian area” or “floodplain” Significant nexus defined based on physical, chemical, or biological impact Similarly situated defined as within the entire watershed nearest the closest navigable in fact water