The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers would, under a draft of a proposed rule recently obtained by Bloomberg BNA, assert Clean Water Act jurisdiction over all natural and artificial tributary streams, lakes, ponds, and wetlands that affect the chemical, physical, and biological integrity of larger, downstream navigable waters.
The draft proposed rule is supported, in-part, on an EPA draft scientific report, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (EPA/600/R-11/098B), which the EPA’s Science Advisory Board recently released for public comment. We had previously blogged about the draft scientific report.
The Agency’s blog on the draft scientific report indicated that this 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 Agency indicates that the proposal would define the scope of waters protected under the Clean Water Act in light of the U.S. Supreme Court cases in U.S. v. Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. United States. EPA believes that the “rule will result in more effective and efficient CWA permit evaluations with increased certainty and less litigation.”
According to the EPA, the draft scientific report “represents the state-of-the-science on the connectivity and isolation of waters in the United States.” It 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 final version of the draft scientific report will serve as a basis for this joint EPA and U.S. Army Corps of Engineers rulemaking to clarify their jurisdiction in Clean Water Act permitting.
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.