ARTICLE
29 January 2015

It’s All Connected: EPA Finally Determines That The Science Supports An Expansive Definition Of Waters Of The United States

FH
Foley Hoag LLP

Contributor

Foley Hoag provides innovative, strategic legal services to public, private and government clients. We have premier capabilities in the life sciences, healthcare, technology, energy, professional services and private funds fields, and in cross-border disputes. The diverse experiences of our lawyers contribute to the exceptional senior-level service we deliver to clients.
On Thursday, EPA issued its final report on Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence.
United States Environment

On Thursday, EPA issued its final report on Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence. The Connectivity report is intended to support EPA's rule clarifying the definition of waters of the United States. I know that groups on all sides will be providing their two cents, but of this I am sure enough to abandon my usual reluctance to speculate: This report will be more than sufficient to insulate EPA's final rule from judicial challenge. If opponents of the rule want to defeat it, they'd better be working on those 60 votes in the Senate.

There's a lot to the report, but the key conclusions can be summarized fairly simply:

  • The scientific literature unequivocally demonstrates that streams, individually or cumulatively, exert a strong influence on the integrity of downstream waters.
  • Wetlands and open waters in riparian areas and floodplains are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality.
  • Wetlands and open waters in non-floodplain landscape settings provide numerous functions that benefit downstream water integrity.
  • Watersheds are integrated at multiple spatial and temporal scales by flows of surface water and ground water, transport and transformation of physical and chemical materials, and movements of organisms.
  • The incremental effects of individual streams and wetlands are cumulative across entire watersheds .... When considering the effect of an individual stream or wetland, all contributions and functions of that stream or wetland should be evaluated cumulatively.

I have frequently discussed the role EPA's scientific support plays in judicial review of EPA regulations. Suffice it to say that the level of peer review to which this report has been subjected will be enough for the Court of Appeals.

To view Foley Hoag's Law and the Environment Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More