Connectivity of Streams and Wetlands to Downstream Waters

Swamp Stomp

Vol. 13, Issue 39

About a week ago one of the most significant technical reports on wetland jurisdiction since the 1987 Wetlands Delineation Manual was issued for public comment by the EPA. It is entitled, “Connectivity of Streams and Wetlands to Downstream Waters” and written by the independent EPA Scientific Advisory Board (SAB). The purpose of the report is to help inform EPA and the U.S. Army Corps of Engineers in their continuing policy work and efforts to clarify what waters are covered by the Clean Water Act.

“This draft science report presents a review and synthesis of relevant peer reviewed scientific literature that will inform an upcoming joint USEPA/ Army Corps of Engineers rule making to enhance protection of the chemical, physical, and biological integrity of our nation’s waters by clarifying Clean Water Act (CWA) jurisdiction. Recent decisions of the Supreme Court have underscored the need for EPA and the public to better understand the connectivity or isolation of streams and wetlands relative to larger water bodies such as rivers, lakes, estuaries, and oceans, and to use that understanding to underpin regulatory actions and increase certainty among various CWA stakeholders. This report, when finalized, will provide the scientific basis needed to clarify CWA jurisdiction, including a description of the factors that influence connectivity and the mechanisms by which connected waters affect downstream waters.”

This is also mentioned in EPA’s blog, “EPA Connect” found here.

“In addition to the release of this report, EPA, with the Army Corps of Engineers, has sent a draft rule to clarify the jurisdiction of the Clean Water Act to the Office of Management and Budget for inter-agency review. This draft rule takes into consideration the current state-of-the-art peer reviewed science reflected in the draft science report. Any final regulatory action related to the jurisdiction of the Clean Water Act in a rule making 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 bulk of the report (and it is bulky at 331 pages) focuses on the issue of what to do about so called “isolated” wetlands. The issue is related to the point of law the Supreme Court has wrestled with over that last decade or so. Is a wetland jurisdictional if it lacks a significant nexus to a traditionally navigable water (TNW)? The published Corps guidance would suggest no. This new report takes on the challenge of what exactly is a significant nexus.

We are now looking at a few new terms and/or concepts. First is the issue of what is an isolated wetland? The report describes two types of wetlands as a function of the directionally of flows into our out of the system and streams. According to the report, streams by their very nature, will eventually connect to a TNW so they are all jurisdictional. This includes all perennial, intermittent and ephemeral streams. The transport of materials downstream seems to be the focus of the connections.

We now have to new classifications of wetland landscapes. These are bidirectional and unidirectional wetlands. Bidirectional wetlands have a two way hydrologic exchange. These seem to always be jurisdictional. Unidirectional wetlands discharge into the surrounding landscape but lack a two way exchange. These also are usually jurisdictional.

The next issue is what to do with wetlands that lack a bidirectional exchange? Wetlands like prairie potholes, vernal pools and playa lakes come to mind. These systems, while not directly connected to the TNW, can provide numerous functions that can enhance downstream water quality. If the wetlands are geographically isolated there is a question as to whether or not they are jurisdictional. However, these wetlands occur on a gradient of connectivity, and it is difficult to generalize about their effects on downstream waters from the currently available literature. Therefore these wetlands will need to be assessed on a case-by-case basis. It took 331 pages to come up with this!

These are the takeaways for this report

1. All streams are jurisdictional
2. All bidirectional and unidirectional wetlands are jurisdictional
3. Wetlands that are geographically isolated and lack a bidirectional exchange might still be jurisdictional

To be frank I do not see how this changes or clarifies anything. There does seem to be a major focus on material transport out of a wetland system as a connectivity feature. Perhaps this is some help. If anything it may bring some of the isolated wetlands back into a jurisdictional setting. But at the end of the day these would still be evaluated on a case-by-case basis which is what we do now.

You do have a chance to comment on this tome. Comments for the SAB review panel’s consideration may be submitted and reviewed using the Regulations.gov website. From the site, select “Environmental Protection Agency” and the keyword “EPA-HQ-OA-2013-0582” (for the docket ID) to submit comments. The comments are due by November 6, 2013.

Please comment.  This is very important!

I have one last observation. Did anyone notice, “EPA, with the Army Corps of Engineers, has sent a draft rule to clarify the jurisdiction of the Clean Water Act to the Office of Management and Budget for inter-agency review”? Apparently this is an internal review and we the public are not privy to it. Anyone out there what to try to take this on as a Freedom of Information Act (FOIA) challenge? The new draft report is used to support the technical aspects of the new CWA rule. I would love to know what this new rule is. I suspect many of you would as well.

One more item.  The Science Advisory Board (not to be confused with Ayn Rand’s State Science Institute) is holding a meeting on December 16, 2013 in Washington, D.C. at the Washington Plaza Hotel to discuss this report.  You are all invited.  You can download more information about this event ==> HERE.

Have a great week!

– Marc