The U.S. EPA announced the availability of a 331-page report entitled “Connectivity of Streams and Wetlands to Downstream Waters,” which compiles and evaluates peer-reviewed literature on the impacts and connectivity of smaller, isolated water bodies to larger downstream waters. The Agency announced that a final version of the report “will serve as a basis for a joint EPA and Army Corps of Engineers rulemaking aimed at clarifying the jurisdiction of the Clean Water Act.” With this announcement, EPA has charted a new path for its attempts to more clearly delineate the scope of Clean Water Act jurisdiction.
The scope of the Act’s jurisdiction which turns on the meaning of the term “waters of the US,” has been the subject of regulatory and judicial reinterpretation for decades. And following two U.S. Supreme Court decisions in 2001 and 2006, there has been particular uncertainty with respect to the Act’s jurisdiction over wetlands near traditionally jurisdictional waters, as well as over ephemeral and intermittent flowing streams.
Since the Supreme Court decision in 2006, EPA and the Corps have been working to develop interim guidance to resolve the uncertainty. However, the Agencies’ most recent attempt at that guidance had been stalled for several years. The most noteworthy announcement by the Agency was that it was abandoning the guidance and instead moving forward with a joint EPA and Corps rulemaking. The Agencies took the first step in that process by sending a draft proposed rule to the White House Office of Management and Budget.
The implications of any final joint EPA and Corps rule will have far reaching consequences for landowners, developers, and industry operations. By way of example, if the final rule broadly interprets the scope of the Act’s jurisdiction to cover more isolated wetlands, then countless acres of private property could become subject to EPA and Corps permitting and oversight — which could impair a landowner’s ability to develop its property.
Troutman Sanders has been actively monitoring the Agencies’ efforts to establish a clear boundary for the Act’s jurisdiction and advises individual clients and industry groups on the implications of these efforts and strategies for participating in the public comment process.
The public will have 45 days to comment on the technical report and a separate opportunity to comment on any proposed rule, once it is publicly available.