EPA/Corps Clean Water Act Rulemaking

On September 17, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers withdrew their proposed Clean Water Act (CWA) guidance.  At the same time, the agencies announced that they have submitted a draft rule to clarify CWA jurisdiction to the Office of Management and Budget (OMB) for interagency review.

After the review, the agencies will publish the draft rule for comment. EPA Acting Assistant Administrator for Water Nancy Stoner said the rule “…will provide greater consistency, certainty, and predictability nationwide by providing clarity for determining where the

[CWA] applies and where it does not.  These improvements are necessary to reduce costs and minimize delays in the permit process and protect waters that are vital to public health, the environment and economy.”  Please see: http://blog.epa.gov/epaconnect/2013/09/watersoftheus/. In addition, EPA said the rule is based on a draft report that its Science Advisory Board (SAB) released concurrently with the rule’s submission to OMB.  Titled “Connectivity of Streams and Wetlands to Downstream Waters,” the report reviews and synthesizes peer reviewed literature on the connection between small, isolated waters and larger bodies of water.  EPA also says any final regulations regarding CWA jurisdiction will be based on the final version of the report, and will maintain existing exemptions and exclusions.

The report makes three initial conclusions.  The first states: “Streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters.  These streams supply most of the water in rivers, transport sediment and organic matter, provide habitat for many species, and take up or change nutrients that could otherwise impair downstream waters.” The second conclusion states: “Wetlands and open-waters in floodplains of streams and rivers and in riparian areas…are integrated with streams and rivers.  They strongly influence downstream waters by affecting the flow of water, trapping and reducing non-point source pollution, and exchanging biological species.” The third conclusion states: “[T]here is insufficient information to generalize about wetlands and open-waters located outside of riparian areas and floodplains and their connectivity to downstream waters.”

EPA is requesting public comment on the draft report by November 6, which the SAB will consider during a public peer review meeting later this year.  Comments received after November 6 may be considered, but not at the public meeting.  For more on the rulemaking and how to comment on the report, see: http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345.

Of note, the WSWC has expressed concerns about the draft guidance, and wrote EPA and the Corps in April, asking the agencies not to issue the guidance and stating that formal rulemaking would be a better mechanism for the agencies to use in clarifying CWA jurisdiction.  However, the WSWC’s letter urged EPA to view the states as co-regulators and to ensure “…that state water managers have a robust and meaningful voice in the development of any rule regarding CWA jurisdiction, particularly in the early stages of development before irreversible momentum precludes effective state participation.”  (WSW #2029)

By |October 3rd, 2013|Categories: WSWC Update|Tags: , , , , , |