- The letter urges the EPA to uphold Justice Scalia’s Rapines v. United States, 547 U.S. 715 (2006) that found the Clean Water Act jurisdiction to include relatively permanent waters and wetlands with a continuous surface connection to relatively permanent waters. Justice Scalia further determined that the term “relatively permanent” should not include dry channels “through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” This term should not include only those waters that flow year-round or continuous seasonally and should be determined based in site-specific characteristics, according to Justice Scalia.
- “Continuous surface connection” was determined by Scalia to make it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins,” thereby asserting that there should be no clear distinction between the ‘waters’ and the ‘wetlands.’
- The RRC agrees with Justice Scalia’s opinion that any rule adopted by the Agencies should not include the concept of aggregation of similarly situated “other waters,” and that Congress did not envision federal Clean Water Act jurisdiction over any land feature that could possibly hold water.
b) The RRC argues that adherence to Justice Scalia’s opinion would “protect property gets and encourage economic development” and “would ensure that the regulatory burden is proportionate to reasonable water protection benefits.”
c) The RRC does not anticipate any changes at this time to the scope of their programs regarding Clean Water Act jurisdiction.
2) 304 – Letter to the United States Environmental Protection Agency regarding the definition of “waters of the United States” under the Clean Water Act.