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“Six categories include traditional navigable waters, interstate waters, territorial seas (these three are called “jurisdictional waters”), impoundments of jurisdictional waters, “tributaries,” and “adjacent” waters. These are jurisdictional by rule in all cases, requiring no additional analysis in order to be regulated. To be adjacent, the rule uses the rubric of “neighboring,” which can be met by waters in the 100-year floodplain—meaning land which might be wet one out of every 100 days is a water of the U.S. and can be federally controlled. Texas coastal prairie wetlands are another type of water automatically considered adjacent, and therefore subject to regulation.

The final two categories can, upon “case-specific analysis,” be determined to have a “significant nexus” either alone or in combination with “similarly situated waters in the region.” The concept of a significant nexus was created by Supreme Court JUSTICE ANTHONY KENNEDY in 2006 and is not a scientific term, “but rather a determination made by the agencies.”

Yet another reason why getting Kennedy to retire would be a very good thing, provided Trump can come up with a true Constitutionalist for his replacement. I guess Kennedy bull$hitted Reagan to get the appointment, because he certainly is no “strict constructionist!”