A leaked version of a proposed rule by the United States Environmental Protection Agency (EPA) redefines “Waters of the United States” in a manner that potentially expands agency jurisdiction under all Clean Water Act (CWA) programs. EPA crafted the new rule in an effort to clarify the reach of the CWA after the Supreme Court’s decision in Rapanos v. United States created some confusion about the tests regulators should employ in determining whether certain waters are jurisdictional under the CWA.
EPA sent a draft of the rule and a supporting scientific study to the White House Office of Management and Budget (OMB) for review in September 2013. The study, entitled “Connectivity of Streams and Wetlands to Downstream Waters,” is intended to provide the scientific basis for the rule. After receiving public comment on the study, EPA convened a Science Advisory Board (SAB) panel to review the accuracy of the study’s conclusions. The SAB is expected to release its recommendations by the end of February 2014. After receiving the SAB’s recommendations, EPA will issue a final version of the connectivity study, perhaps as early as May 2014. Even though EPA publicly released the study, EPA has not yet made the proposed rule public, and OMB is still reviewing it. EPA may wait to take any further action on the rule until the connectivity study is finalized. .
Under the CWA, agencies have regulatory jurisdiction over “Waters of the United States.” The leaked version of the proposed rule revises the definition of “Waters of the United States.” The revised definition makes all tributaries of traditional navigable waters jurisdictional. It also makes all waters adjacent to any other jurisdictional water jurisdictional. Additionally, EPA proposed new definitions for “tributary,” “neighboring,” “riparian area,” and “floodplain.” These new definitions would likely provide EPA with default jurisdiction over all streams, ponds, and wetlands located in floodplains and riparian corridors. The revised definition of “Waters of the United States” also provides for case-by-case jurisdictional determinations for isolated waters and wetlands where scientific evidence can demonstrate a “significant nexus” with jurisdictional water. According to EPA’s draft connectivity study, a “significant nexus” determination might be based on the aggregate impact of isolated waters or the existence of groundwater connections to surface water.
The proposed rule would apply to all programs under the CWA. However, it purportedly does not change any existing statutory or regulatory exemptions or exclusions. The rule also proposes new exclusions for ditches excavated in uplands that drain only uplands, and ditches that do not contribute flow directly or indirectly to traditional navigable waters. Some critics, however, have suggested that many manmade ditches may still become jurisdictional under the new definition of “tributary.”
Other criticisms of the draft study and proposed rule have been focused on inconsistencies between the definitions found in the connectivity study and those in the proposed rule. Critics have also demanded more data on the degrees of connectivity between waters, and have pointed out the risk that the rule could subject agricultural and road project operations to costly and burdensome CWA regulations. As discussed above, EPA may not publicly issue a draft of the rule until after it finalizes the scientific study in May 2014.
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