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On September 17, 2013, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) announced a joint proposed rule that purports to clarify which streams, wetlands and other waters are “waters of the United States” and subject to jurisdiction under the federal Clean Water Act (CWA). The agencies sent the proposed rule to the White House’s Office of Management and Budget (OMB) but have not yet released it to the public. The OMB has 90 days to act on the EPA's submission.
In support of the proposed rule, the agencies have released a draft science report titled “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (Draft Study). The Draft Study is a compilation of independent peer-reviewed scientific literature that when finalized, is intended to provide the scientific basis for the agencies to clarify CWA jurisdiction through the rulemaking process. The agencies could issue a final version of the Draft Study and publish a draft rule in the Federal Register in early 2014.
In 2012, the agencies announced their intent to undertake a rulemaking to clarify which waters of the United States are jurisdictional in light of U.S. Supreme Court decisions that have “muddied the waters.” One focus of the Draft Study, and likely the joint proposed rule, is the important effect that “ephemeral” and “intermittent” streams have on downstream rivers, lakes, estuaries and oceans. The Draft Study also addresses the effect of isolated wetlands.
NAR is working closely with industry partners and the Waters Advocacy Coalition to refute the conclusions of the study and conduct an economic imapct analysis of the proposed regulation.