EPA Issues Water “Connectivity Study” In Advance of Clean Water Act Jurisdiction Rule
Posted on December 16, 2013
On September 17, 2013, the EPA released a draft study, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.”
The voluminous, peer-reviewed study seeks to create a scientific basis for EPA and the Army Corps of Engineers’ jurisdictional determinations regarding when marginal waters, such as intermittent or temporary streams, and nontidal wetlands, are “connected” to navigable waters and potentially within the scope of the Clean Water Act permitting programs. On the same day the agencies released the draft study, they also sent a proposed rule to the White House Office of Management & Budget (OMB) for review. The proposed rule, which has yet to be made public, represents the agencies’ latest attempt to provide clarity about the Clean Water Act’s reach over marginal waters following the Supreme Court’s divided 2006 opinion Rapanos v. U.S., 547 U.S. 715. In light of the new proposed rule, the agencies have withdrawn their most recent revised draft guidance on Clean Water Act jurisdiction.