A Proposed Rule by the Environmental Protection Agency to Clarify the Clean Water Act’s Jurisdiction over Wetlands and Small Bodies of Water

By Shelley Clark

In September of 2013, in response to recent decisions of the United States Supreme Court that question the jurisdiction of the Clean Water Act (“CWA”) over wetlands,[1] the United States Environmental Protection Agency (“EPA”) proposed a new rule to deal with the question of wetlands and statutory scope.[2] The proposed rule will be based on a draft science report entitled The Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.[3] The report was produced by the Scientific Advisory Board and has been released for public review and comment.[4] The proposed rule will attempt to clarify and provide consistency across the nation for how the term “waters of the United States” applies to the regulation of wetlands under the CWA.[5] The proposed rule was submitted to the Office of Management and Budget for review, and EPA is requesting public comment on the draft science report.[6] Because the draft rule has not been released to the public for notice and comment, the following analysis is based on a conjecture of the content of the proposed rule.[7]

The policies of regulation upon which the draft rule is based are found in the draft science report entitled Connectivity of Streams and Wetlands to Downstream Waters.[8] The report synthesizes various peer-reviewed scientific reports. The finalized report will include “a description of the factors that influence connectivity and the mechanisms by which connected waters affect downstream waters.”[9] The report cites wetlands’ role in filtering water as the most important reason for the proposed rule.[10] This speaks to the CWA’s mandate to maintain the purity of the nation’s water. By using the protection of downstream waters as a key reason for the rule, EPA places wetlands within the jurisdiction of the CWA by showing how remote wetlands and small bodies of water affect the overall system of waters of the United States.

The report gives three major conclusions about which wetlands can be regulated by states based on the connectivity and adjacency of the wetland.[11] First, the scientists who compiled the report find that streams are “connected” and, thus, can be regulated by the CWA.[12] Streams are an important part of the nation’s water system because they “supply most of the water in rivers, transport sediment and organic matter, provide a habitat for many species, and take up or change nutrients that could otherwise impair downstream waters.”[13] Second, the report states that wetlands and open-water floodplains are included in the connected system of waters because they influence downstream waters by reducing pollution.[14] Third, the report states that wetlands and open waters should be considered connected even if they are located outside of riparian areas and floodplains. The proposed rule will not alter exceptions from CWA for the agriculture or fishing industries.[15]

The rule proposed by EPA will focus on clarifying and expanding the CWA’s jurisdiction over the network of streams, tributaries, and wetlands that feed into larger bodies of water and create a larger, connected network of water in the United States. The interconnected network of small waters protects downstream waters from upstream pollutants.[16] EPA also purports to protect wetlands that “that filter and trap pollution, store water, and help keep communities safe from floods.”[17] The proposed rule will not change existing regulatory exemptions and exclusions such as those that apply to the agriculture industry. EPA states that the proposed rule will help to clarify which waters are covered by the CWA and what activities require a permit under the CWA.[18] As we look to the future of our coastlines, rising sea levels caused by global warming are a harrowing and inevitable issue we will have to face. EPA’s proposed rule is a mechanism that attempts to fight this battle by protecting wetlands, a major line of defense for faulting coastlines.


[1] See generally United States v. Riverside Bayview Homes, 474 U.S. 121 (1985); Solid Waste Agency of N. Cook County v. Army Corps of Eng’rs, 531 U.S. 159 (2001); Carabell v. U.S. Army Corps of Eng’rs, 391 F.3d 704 (6th Cir. 2004), remanded and vacted by, Rapanos v. United States 547 U.S. 715 (2006); Rapanos v. United States 547 U.S. 715 (2006).

[2] Clean Water Act Definition of “Waters of the United States,” Envtl. Prot. Agency, http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm (last visited Jan. 23, 2014).

[3] Id.

[4] Report Information regarding Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (External Review Draft), Envtl. Prot. Agency, http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345 (last visited Nov. 5, 2013).

[5] Clean Water Act Definition of “Waters of the United States,” Envtl. Prot. Agency, http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm (last visited Jan. 23, 2014).

[6] Id.

[7] The proposed rule is currently being reviewed by the Office of Management and Budget and should be released to the public at any time. The following analysis is based on the draft science report and EPA sources.

[8] Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (External Review Draft), Envtl. Prot. Agency, http://yosemite.epa.gov/sab/sabproduct.nsf/0/7724357376745F48852579E60043E88C/$File/WOUS_ERD2_Sep2013.pdf (last visited Nov. 6, 2013).

[9] Report Information regarding Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (External Review Draft), Envtl. Prot. Agency, http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345 (last visited Nov. 5, 2013).

[10] Id.

[11] Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (External Review Draft), Envtl. Prot. Agency, http://yosemite.epa.gov/sab/sabproduct.nsf/0/7724357376745F48852579E60043E88C/$File/WOUS_ERD2_Sep2013.pdf (last visited Nov. 6, 2013).

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Clean Water Act Definition of “Waters of the United States,”  Envtl. Prot. Agency, http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm (last visited Nov. 5, 2013).

[17] Id.

[18] Id.

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