EPA Cribs From High Court To Shield Expansive CWA Rule

Law360, New York (March 26, 2014, 7:14 PM EDT) -- The U.S. Environmental Protection Agency is stretching its water authority as far as possible with its proposal to expand the Clean Water Act, crafting the rule using language directly from U.S. Supreme Court decisions as a preemptive defense against inevitable court challenges.

Issuing a joint proposed rule with the U.S. Army Corps of Engineers that has been years in the making, the EPA is applying Justice Anthony Kennedy's term “significant nexus” to add waters to federal jurisdiction with no additional analysis needed, concluding that most tributaries, ephemeral...
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