The Environmental Protection Agency (EPA) and the Corps of Engineers (COE) are poised to assert broad authority over a larger number of discrete water bodies and water features after the September release of a report that reviews scientific literature on how smaller streams and wetlands are connected to large rivers, lakes, estuaries and oceans.
The EPA's and COE's broadened authority would likely include intermittent streams, ponds and isolated wetlands, some of which have questionable or no recognizable tie to larger bodies of water. Additionally, the two agencies sent a draft rule to the White House Office of Management and Budget meant to redefine the scope of waters protected under the Clean Water Act (CWA) citing the report as justification for doing so. The report, titled "Connectivity of Streams and Wetlands to Downstream Waters," states its purpose is to summarize the current understanding about the factors and mechanisms by which connected waters affect the function or condition of downstream waters.
Jurisdiction sought over disconnected wetlands, waterways
Generation of the report indicates EPA took a signal from the Supreme Court following Rapanos v. EPA in 2006. In this case, the court addressed the jurisdictional limits of EPA and the COE under the CWA. While the justices agreed "relatively permanent" bodies of water fell under the agencies' jurisdictional authority, there was little agreement when it came to interpreting the CWA's intention to include jurisdictional authority over disconnected wetlands and waterways. Because of this disagreement, the court failed to issue a majority decision and, in fact, issued five separate opinions. The opinion with the most support, termed the "plurality opinion," included within EPA's and COE's jurisdictional authority only wetlands with a "continuous surface connection" to other jurisdictional waters.
Although Justice Anthony Kennedy generally agreed with those issuing the plurality opinion, he declared the agencies also held jurisdictional authority over upstream wetlands that, either alone or in combination with similarly situated lands, affect the chemical, physical and biological integrity of navigable waters. This, he explained, creates a "significant nexus" between the wetland in question and the downstream water.
Report cites physical, chemical, biological connections
The report, released in conjunction with the draft rule, goes to great lengths to establish a significant nexus between virtually every upstream water body and jurisdictional water. However, the links often are established by citing loosely reasoned physical, chemical and biological connections that lack robust science to support them. The report's use of faulty determinations is a clear attempt by EPA to support the promulgation of a more specific regulation that Justice Kennedy said was needed if EPA and COE wanted to assert broad jurisdictional authority over wetlands adjacent to non-navigable tributaries. Additional permitting burdens and potential liability associated with this jurisdictional expansion makes it essential for our industry to comment on the proposed rule when it is released.