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September 19, 2013
Jurisdictional waters draft at OMB

The EPA rarely announces that it has submitted draft rules to the Office of Management and Budget (OMB), but did so on September 17, 2013, after providing the OMB with its preliminary interpretation of which waters are subject to protection under the Clean Water Act (CWA). 

The announcement was in a blog entry written by Nancy Stoner, acting assistant administrator of EPA’s Office of Water, and Lek Kadeli, acting assistant administrator of the Agency’s Office of Research and Development. 

Given that the CWA is over 40 years old, the absence of an interpretation of jurisdictional waters has been viewed by members of Congress, state and local governments, industry, environmental groups, and the general public as a glaring legal omission, and all have called on the EPA and the U.S. Army Corps (Corps) of Engineers to close the gap.  Moreover, the problem has been exacerbated over the last dozen years by two decisions by the U.S. Supreme Court that threw into turmoil the approach to protecting waters previously taken by the two agencies. 

SAB draft

In the blog entry, Stoner and Kadeli write that the draft rule sent to the OMB was based on a draft scientific report released the same week for public comment by EPA’s Science Advisory Board (SAB).  The officials state that the final version of SAB’s report will serve as a basis for a joint EPA/Corps final rule; public comments will also play a role and the chances are good those will number in six figures.

Although still a draft, the SAB report appears to be pointing toward a more-inclusive interpretation of CWA waters.  While streams and wetlands that have a clear connection to rivers and downstream waters are clearly under CWA jurisdiction, the major disagreements that gave rise to judicial actions have related to seasonal or otherwise temporary waters and “unidirectional” wetlands (e.g., prairie potholes, vernal pools, and playa lakes) that lack bidirectional exchanges with downstream waters.  The SAB says these waters provide numerous benefits, including storage of floodwater; retention and transformation of nutrients, metals, and pesticides; and recharge of groundwater sources of river baseflow.  Even with the value they provide, the SAB is not definitive on CWA jurisdiction concerning these waters.

“Because such wetlands occur on a gradient of connectivity,” says the SAB, “it is difficult to generalize about their effects on downstream waters from the currently available literature.  However, evaluations of individual wetlands or groups of wetlands could be possible through case-by-case analysis.”  The SAB says its report is based on the “review and synthesis” of over 1,000 peer-reviewed publications.

Permitting will be affected

“The proposed joint rule will provide greater consistency, certainty, and predictability nationwide by providing clarity for determining where the Clean Water Act applies and where it does not,” write Stoner and Kadeli.  “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.”

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