Clarifying which U.S. waters are within EPA’s jurisdiction
In enforcing the Clean Water Act (CWA), the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (COE) have clear jurisdiction over “ traditional navigable waters;  interstate waters, including interstate wetlands;  the territorial seas; [and 4] impoundments of traditional navigable waters, [and] interstate waters, including interstate wetlands, [and] the territorial seas.” The further upstream a water body, intermittent stream, or wetland is from one of these, the less clear it becomes that the EPA and the COE have jurisdiction.
This lack of clarity has resulted in lawsuits on behalf of landowners, several of which have ended up before the US Supreme Court. In the 2001 and 2006 cases, justices argued that there must a “significant nexus” between other waters and those over which the agencies have clear jurisdiction for the agencies to exercise regulatory control. The purpose of the April 21, 2014 proposed rule, “Definition of ‘Waters of the United States’ Under the Clean Water Act,” is in part to clarify what that “significant nexus” is and what waters would fall under the jurisdiction of the EPA and/or the COE. All quoted material in this article comes from the Proposed Rule.
To accomplish this goal, the “EPA’s Office of Research and Development prepared a draft peer-reviewed synthesis of published peer-reviewed scientific literature discussing the nature of connectivity and effects of streams and wetlands on downstream waters.... The draft Report provides a review and synthesis of the scientific information pertaining to chemical, physical, and biological connections from streams, wetlands, and open waters such as oxbow lakes, to downstream larger water bodies such as rivers, lakes, and estuaries in watersheds across the United States and the strength of those connections.” For the EPA, the first step is to identify the ways in which the scientific literature makes the connection between upstream tributaries and adjacent wetlands and downstream larger waters.
“Connectivity (emphasis added) is the degree to which components of a system are joined, or connected, by various transport mechanisms and is determined by the characteristics of both the physical landscape and the biota of the specific system. The structure and function of downstream waters are highly dependent on the constituent materials contributed by and transported through waters located elsewhere in the watershed. Connectivity for purposes of interpreting the scope of ‘waters of the United States’ under the CWA serves to demonstrate the ‘nexus’ between upstream water bodies and the downstream traditional navigable water, interstate water, or the territorial sea.
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