Swamp Stomp
Volume 14, Issue 17
One of the major tenets of the new EPA waters of the US regulations is the concept of Bright Line Rules. Bright Line Rules are a clearly defined rule or standard, generally used in law, composed of objective factors which leave little or no room for varying interpretation. The purpose of a bright-line rule is to produce predictable and consistent results in its application.
Some legal scholars, such as Supreme Court Justice Antonin Scalia, have expressed a strong preference for bright-line rules, critics often argue that bright-line rules are overly-simplistic and can lead to harsh and unjust results. Supreme Court Justice Stephen Breyer noted that there are circumstances in which the application of bright-line rules would be inappropriate, stating that “no single set of legal rules can ever capture the ever changing complexity of human life.” Over the course of the last three decades, many bright-line rules previously established in U.S. jurisprudence have been replaced with balancing tests.
The concept of similarly situated waters is a bright line rule. The EPA is attempting to designate these waters based upon their occurrence in a specific ecoregion. There are two documents you need to look at to understand this idea. The first one is found on page 29 of the newly published proposed rules (EPA-HQ-OW-2011-0880) and Map A also published (EPA-HQ-OW-2011-0880-0002) and included in the Federal Register docket.
This is from the rules:
The agencies would consider the ‘‘other waters’’ in a single point of entry watershed in these identified ecoregions as similarly situated for purposes of aggregation for a significant nexus analysis. The agencies expect that this approach would lead to all similarly situated other waters within single point of entry watersheds within an ecoregion being found jurisdictional through case specific analysis of significant nexus. Alternately, the agencies could determine that the similarly situated waters within each ecoregion have a significant nexus and are jurisdictional by rule and therefore do not require a case-specific significant nexus analysis.
These ecoregions are defined as, “an ecoregion is an area within the United States that includes generally similar ecosystems and that has similar types, qualities, and quantities of environmental resources. (J.M. Omernik, ‘‘Perspectives on the Nature and Definition of Ecological Regions,’’ Environmental Management 34(Supplement 1):S27–S38 (2004)). Ecoregions cover relatively large areas of land or water, and contain characteristic, geographically distinct assemblages of natural communities and species. The biodiversity of flora, fauna and ecosystems that characterize an ecoregion tends to be distinct from that of other ecoregions.”
The EPA has identified vast areas of the US as similarly situated and has depicted them on the map below.
The significance of this mapping is that any wetland or water found within these ecoregions would be considered similarly situated and therefore jurisdictional by default. There would be no need for a significant nexus determination.
I think it is kind of funny that the Keystone XL pipeline R-O-W more or less corresponds to one of these Bright Line Rule areas. Coincidence?
Have a great week!
Marc