An E&E Publishing Service
WETLANDS: Obama admin proposes rule, yanks guidance on regulatory reach
(Tuesday, September 17, 2013) Annie Snider, E&E reporter
The Obama administration proposed a rule today aimed at clarifying federal regulatory jurisdiction over isolated streams, wetlands and other water resources and withdrew a proposed guidance on the issue that had been stalled in a White House review for more than a year and a half.
Nancy Stoner, U.S. EPA’s acting water chief, and Lek Kadeli, acting chief of the Office of Research and Development, announced the rule — proposed jointly with the Army Corps of Engineers — in a blog post.
“The proposed joint rule will provide greater consistency, certainty, and predictability nationwide by providing clarity for determining where the Clean Water Act applies and where it does not,” they wrote. “These improvements are necessary to reduce costs and minimize delays in the permit process and protect waters that are vital to public health, the environment and economy.”
The proposal seeks to clear up a Clean Water Act regulatory regime that was thrown into chaos by two muddled Supreme Court decisions in 2001 and 2006.
EPA and the Army Corps in 2011 proposed guidance to clarify some jurisdictional issues while the agencies undertook a rulemaking on the issue. Environmental groups supported the guidance, but industry groups staunchly opposed it, calling it a federal power grab. They pushed for the administration to drop the guidance and move directly to a rulemaking.
Ahead of the announcement, EPA today released a 331-page report, “Connectivity of Streams and Wetlands to Downstream Waters,” that attempts to synthesize 1,000 or so peer-reviewed studies on the link between isolated wetlands and large water bodies that are clearly protected under the Clean Water Act.
The report finds that streams, regardless of how infrequently they flow, have important effects on downstream waters. They transport sediment, provide habitat and absorb nutrients that would otherwise pollute larger waterways. It also concludes that wetlands and open waters in floodplains of streams and rivers “strongly influence” downstream waters in similar ways.
But the survey didn’t find enough information to make general conclusions about wetlands located outside of riparian areas and floodplains.
EPA is accepting public comments for 45 days on the study, which will also be reviewed by a panel of independent experts.
The advisory panel comprises scientists and includes two nominated by industry groups.
“Because the final report has the potential for wide-ranging implications for many sectors of our Nation’s economy, it is of critical importance that the panel be well positioned to evaluate both the scientific validity of the independent studies being synthesized, as well as any conclusions that may be drawn from those analyses,” wrote Deidre Duncan, counsel for the trade group Waters Advocacy Coalition, in a June nomination letter to EPA.
The advisory board will hold a public meeting on the study Dec. 16-18 in Washington, D.C.
Environmental groups, which are gearing up to rally support for the study, hailed its release.
“The science today demonstrates the need for a greater national commitment to clean water,” Earthjustice President Trip Van Noppen said in a statement. “Water flows and we all live downstream. If we want to have clean drinking water for our families and swimmable, fishable waterways in our communities, we need to protect all waters regardless of size and regardless of location.”