EPA Moves To Expand Federal Clean Water Act Jurisdiction

by Perkins Coie
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The prolonged controversy over the Clean Water Act’s reach may be coming to a dramatic head.  On September 17, 2013, the Environmental Protection Agency announced the release of a draft scientific report finding that all of the nation’s streams and most of its wetlands are physically, chemically and biologically interconnected with navigable waters, such as rivers and lakes.

The draft report, entitled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, is intended to provide the scientific basis for upcoming regulations defining the key term “waters of the United States” under the Clean Water Act.  EPA and the Army Corps of Engineers have jointly submitted the proposed regulations, which have yet to be made public, to the Office of Management and Budget for interagency review. 

It is widely anticipated that the regulations will seek a dramatic expansion of federal permitting authority under the Act, which has been significantly curtailed by recent Supreme Court decisions.  As a result, the draft report will surely trigger intense scrutiny and debate over the proper boundaries of Clean Water Act jurisdiction.  Comments on the draft report are due by November 6, 2013. 

Background

The Clean Water Act provides federal jurisdiction over “waters of the United States” but does not define this term.  Starting in the 1970s, EPA and the Corps adopted a very broad interpretation covering any water body the use, degradation or destruction of which could affect interstate commerce.  But in 2001, the Supreme Court reined in this expansive view, holding  that “isolated” waters are not subject to Clean Water Act jurisdiction solely on the grounds that they are used by migratory birds.  Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).  Then, in 2006, the Supreme Court issued its split decision in Rapanos v. United States, 547 U.S. 715 (2006), which held that a stream or wetland is subject to the Clean Water Act only when there is a “significant nexus” to a navigable water. 

In the wake of the Rapanos decision, there has been a great deal of uncertainty regarding the scope of federal permitting authority under the Act.  Landowners, developers, public agencies, and federal regulators have all struggled to determine what constitutes a “significant nexus,” especially in cases involving isolated wetlands, ephemeral streams and other small water bodies where the connection to a navigable water is far from apparent.  EPA and the Corps have issued a series of informal guidance documents on the issue, but the agencies thus far have failed to provide any real measure of clarity or certainty. 

The Draft Report and the Upcoming Regulations

The draft connectivity report states that it “reviews and synthesizes the peer-reviewed scientific literature on the connectivity or isolation of streams and wetlands relative to large water bodies such as rivers, lakes, estuaries, and oceans.”  It further states that its purpose is to “summarize the current understanding about these connections, the factors that influence them, and the mechanisms by which connected waters, singly or in the aggregate, affect the function or condition of downstream waters.” 

The draft report makes the following findings:  

  • All streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters.  Streams supply most of the water in rivers, transport sediment and organic matter, provide habitat for species, and take up or change nutrients that could otherwise impair downstream waters.
  • Wetlands and open-waters in floodplains and riparian areas (transition areas between terrestrial and aquatic ecosystems) are integrated with streams and rivers.  They strongly influence downstream waters by affecting the flow of water, trapping and reducing nonpoint source pollution, and exchanging biological species.

  • Wetlands in landscape settings that lack two-way hydrologic exchanges with downstream waters (such as many prairie potholes, vernal pools and playa lakes) provide numerous functions that can benefit downstream water quality and integrity.  However, there is insufficient information to generalize about the connectivity of these types of wetlands to downstream waters, although individualized evaluations could be possible on a case-by-case basis.

In issuing the draft report, EPA has made clear that, when finalized, it will provide the scientific basis for upcoming regulations defining the extent of Clean Water Act jurisdiction. 

Implications of the Draft Connectivity Report

Since the Supreme Court decided Rapanos in 2006, the question of what constitutes a “significant nexus” to trigger application of the Clean Water Act has been one of the most contentious and closely watched environmental issues in the nation.  When the connectivity report is finalized, the scientific findings it contains will play a vital role in how EPA and the Corps answer this question, and thus in how far the agencies will attempt to go in asserting their Clean Water Act permitting jurisdiction. 

Based on the findings in the draft report, it seems that the agencies are preparing for an attempt to maximize their jurisdiction.  If finalized, these findings would strongly suggest that a significant nexus exists for all streams and for all ponds and wetlands that lie within a floodplain or a riparian area.  And for other ponds and wetlands, the findings in the draft report point to the possibility that a significant nexus could be determined on a case-by-case basis.  In short, the findings in the draft report, if finalized, could be used to support a sweeping interpretation of Clean Water Act jurisdiction that would greatly increase federal permitting burdens for landowners across the country. 

Given the importance of the findings in the connectivity report and their effect on the upcoming rulemaking proceeding, stakeholders should carefully consider submitting comments by the November 6 deadline. 

Read about this and other legal developments in Perkins Coie's California Land Use & Development Law Report.

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