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October 1, 2013  |  Written by Richard S. Deitchman

Clean Water Act Jurisdiction: U.S. EPA Releases Water Body Connectivity Report

On September 24, 2013, the United States Environmental Protection Agency (EPA) released a new draft science report for public comment titled Connectivity of Streams and Wetlands to Downstream Waters: A Review of and Synthesis of Scientific Evidence (Report). The Report provides a review and analysis of peer reviewed scientific literature that is to deliver technical information for joint EPA and United States Army Corps of Engineers (Corps) rulemaking that will clarify the scope of Clean Water Act (CWA) jurisdiction. This effort comes in light of recent United States Supreme Court cases, including Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos).

The Rapanos decision addressed CWA jurisdiction for wetlands adjacent to non-navigable tributaries. The decision has resulted in significant regulatory uncertainty because there was no majority opinion. Justice Scalia’s plurality urged that “waters of the United States” embraces only those wetlands with a “continuous surface connection” to water bodies that are “waters of the United States.” 547 U.S. at 742. Justice Kennedy, writing alone, adopted a “significant nexus” test: if wetlands, either alone or in combination with similarly situated wetlands in the region, significantly affect the chemical, physical, and biological integrity of other covered water more readily understood as “navigable.” 547 U.S. at 780. The EPA and Corps released draft guidance in 2011 to clarify the scope of CWA jurisdiction in light of Rapanos. The guidance explained what are definite jurisdictional waters (i.e., navigable waters and interstate waters), but also adopted Justice Kennedy’s “significant nexus” test for wetlands.

The new Report provides an analysis of the science of connectivity (how components of river systems, including wetlands, are joined or connected) in order to better inform the EPA and Corps’ formal rulemaking process. The Report contains three major conclusions: (i) streams, individually or cumulatively, exert a strong influence on the physical, chemical, and biological character (i.e., overall function) of downstream waters; (ii) wetlands and open waters in riparian areas and floodplains are physically, chemically, and biologically connected to and integrated with downstream waters and exert influence by impacting the flow of water, the control and release of non-point source pollution, and local biology; and (iii) although there is insufficient information to make generalizations about wetlands and open waters located outside of riparian areas, these wetlands impact downstream waters if there is a surface or shallow subsurface water connection to the downstream network.

The Report’s findings suggest there may be greater regulation of both riparian/floodplain wetlands and more remote wetlands because upstream waters and wetlands are connected by physical, biological, and geochemical means in ways that may exert significant downstream impacts. Organizations and individuals working on new development projects near different types of water features and seeking to make alterations to potentially jurisdictional wetlands should pay close attention to the new regulations that result from the joint EPA/Corps rulemaking.

The EPA Science Advisory Board will hold a public meeting in Washington regarding the Report on December 16, 2013. The public may submit comments on the scientific Report by November 6, 2013. In addition to the release of the Report, EPA and the Corps sent a draft rule clarifying the scope of CWA jurisdiction to the Office of Management and Budget for review that incorporates the science reviewed in the Report.

The Connectivity Report is available on EPA’s website here.

For additional information please contact Richard S. Deitchman at (916) 446 7979 or rdeitchman@somachlaw.com.

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