EPA and the Corps of Engineers are at it again. The agencies — who share responsibility for regulation of wetlands under the federal Clean Water Act (CWA) — are moving forward with plans to bring more waters into the legal definition of "waters of the United States," thus subjecting them to federal CWA jurisdiction.
In its 2006 decision in Rapanos v. United States (547 U.S. 715), the U.S. Supreme Court (really only Justice Kennedy, who cast the swing vote in a plurality opinion, with whose reasoning no other justices agreed) limited CWA jurisdiction to wetlands which had a "significant nexus" to navigable waters. While EPA and the Corps have tried repeatedly since 2006 to limit the applicability of the Rapanos case and expand their jurisdictional reach, the courts have only muddied the waters further regarding which wetlands are subject to CWA jurisdiction.
Now EPA has come up with a scientific study of hydrological connectivity which may give them the nail on which to hang their proverbial hat in regulating upstream waters and wetlands that do not have a permanent connection to traditional navigable waters. At the same time, EPA withdrew a proposed guidance document intended to clarify the scope of their CWA jurisdiction which had been sitting at the Office of Management and Budget awaiting approval since February 2012 and, in its place, sent a proposed rule for interagency review.
The study asserts that there is a significant nexus between all tributary systems and downstream waters, including intermittent or ephemeral waters, wetlands and open waters in floodplains.
A copy of the report is available online from the EPA's website found here.
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