By Andrew H. Perellis and Craig B. Simonsen

The U.S. Environmental Protection Agency’s Science Advisory Board has just released for public comment a draft scientific report, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.” EPA/600/R-11/098B.

Figure 1-1 from the Report: Overview of Watershed Elements

The draft report analyzes more than a thousand peer-reviewed pieces of scientific literature about how smaller, isolated water bodies are connected to larger ones. The EPA indicates that this report “represents the state-of-the-science on the connectivity and isolation of waters in the United States.”

According to EPA, the draft report makes three main conclusions: 

  • Streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters.
  • Wetlands and open-waters in floodplains of streams and rivers and in riparian areas are integrated with streams and rivers.
  • There is insufficient information to generalize about wetlands and open-waters located outside of riparian areas and floodplains and their connectivity to downstream waters.

The Agency is seeking comments on the literature summarized in the report, and its conclusions. The Agency’s stated purpose is that the final version of this report will serve as a basis for a joint EPA and U.S. Army Corps of Engineers rulemaking to clarify their jurisdiction in Clean Water Act permitting.

According to the Agency’s blog, a draft of the new proposed rule was sent on September 17, 2013, to the Office of Management and Budget for interagency review. The Agency asserts that the draft proposed rule is “necessary to reduce costs and minimize delays in the permit process and protect waters that are vital to public health, the environment and economy.” “The proposed joint rule will provide greater consistency, certainty, and predictability nationwide by providing clarity for determining where the Clean Water Act applies and where it does not.”

The regulated community — industry, municipalities, developers, builders, and a host of others — should watch and monitor this rulemaking effort very closely. The resulting rules may add innumerable “water bodies” to the list of “waters of the United States,” and make Clean Water Act permitting an even more onerous and costly proposition.