Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Clean Water Act Jurisdiction: Science Review Comment Period Opens to Evaluate and Clarify Basis for Rule Changes

This week the U.S. Environmental Protection Agency’s (EPA) independent Scientific Advisory Board (SAB) has requested public comment on “Connectivity of Streams and Wetlands to Downstream Waters.” The 331 page report was developed by the EPA Office of Research and Development (ORD) to synthesize peer-reviewed scientific literature about the biological, chemical, and hydrologic connectivity of waters and the effects that small streams, wetlands, and open waters have on larger downstream waters such as rivers, lakes, estuaries, and oceans.  The report is posted here.  For a short summary of what is in the report and more information about the review process, click here. Comments on the report may be submitted using the e-Government Regulations.gov website. From the site, select “Environmental Protection Agency” and the keyword “EPA-HQ-ORD-2011-0806″ (for the docket ID) to comment on this report.  Comments will be accepted until the review is completed, probably sometime in late winter or early spring.  However, in order to impact the deliberations of the panel selected by the Science Advisory Board to review the report, comments should be submitted by October 31.

In addition on September 17 the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers sent a draft rule to clarify Clean Water Act Jurisdiction to the Office of Management and Budget (OMB) for interagency review. The contents of a draft rule are not made public when it is going through the interagency review process which can last for quite a while.  In addition EPA states:

“Any final regulatory action related to the jurisdiction of the Clean Water Act in a rulemaking will be based on the final version of this scientific assessment, which will reflect EPA’s consideration of all comments received from the public and the independent peer review.”

The purpose of the draft rule send to OMB is to clarify current uncertainty about Clean Water Act jurisdiction resulting from the Carabell/Rapanos and SWANCC Supreme Court decisions.   To follow the status of the rule, click here.

The Association of State Wetland Managers along with other state nonprofit organizations supported rulemaking or legislation to clarify jurisdiction in a letter submitted as one of the comment letters submitted to comment on the proposed guidance in July of 2011.  A very diverse set of interest groups supported rulemaking as well.

The request for comments on the report, “Connectivity of Streams and Wetlands to Downstream Waters”, provides a rare opportunity for the public to provide their response to the scientific underpinnings that are proposed as the basis for the draft rule under interagency review.

If the report is adopted as is and used as a basis for rulemaking, it signals that there is a great deal of scientific research supporting a significant nexus between streams and navigable waters as well as wetlands and other open waters located in floodplains.  It also concludes that there is insufficient information to support jurisdiction over wetlands and other open waters outside of floodplains and riparian areas and that these will need to be handled on a case by case basis.  The public comment period provides an opportunity to forward additional scientific information that supports or challenges these general findings.

Individuals and organizations preparing to comment on the report can review the literature cited and provide an analysis of whether the conclusions are correct. They can also identify other studies that do or do not support the findings that are not cited in the report.

The Association of State Wetland Managers along with other state nonprofit organizations supported rulemaking or legislation to clarify jurisdiction in a letter submitted as one of the comment letters submitted to comment on the proposed guidance in July of 2011.  A very diverse set of interest groups supported rulemaking as well.

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have provided a unique and important opportunity for public comment on the science of connectivity of the nation’s waters.  I encourage you to participate!

Additional information

EPA Clean Water Act website

Draft Guidance on Identifying Waters Protected by the Clean Water Act (never finalized)

State Nonprofit Comment Letter on Proposed Clean Water Act Guidance (July 26, 2011)

The Compleat Wetlander: Will Congress Prohibit Rulemaking to Clarify Clean Water Act Jurisdiction? (November 17, 2011) – See more here.

ASWM webpages with information on the Carabell/Rapanos Decision and subsequent actions

ASWM webpages with Information on Draft Clean Water Act Jurisdiction Guidance

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