Agricultural organizations are raising concern over the Environmental Protection Agency’s draft report “Connectivity of Streams and Wetlands to Downstream Waters: a Review and Synthesis of Scientific Evidence.” When finalized, the report could be the scientific basis for defining “waters of the United States,” and could result in expanded EPA and Army Corps of Engineers jurisdiction under the Clean Water Act.
In September, EPA sent a draft rule to the Office of Management and Budget to clarify the jurisdiction of the Clean Water Act. While at the same time, EPA’s Science Advisory Board solicited public comments on the draft report and scheduled a public meeting in December. For now the proposed rule is being reviewed by the Office of Management and Budget, and isn’t available to the public.
The topic of the definition of “waters of the United States” is not a new one and is one that raises concerns among agricultural groups on mere mention. Twice in recent years, Congress has refused to pass legislation to remove the word “navigable” from the definition of waters of the United States.
The report reviews and synthesizes more than 1,000 pieces of scientific literature finds the following:
- All tributary streams, including perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed, and transported.
- Wetlands and open-waters in landscape settings that have bidirectional hydrologic exchanges with streams or rivers are physically, chemically, and biologically connected with rivers via the export of channel-forming sediment and woody debris, temporary storage of local groundwater that supports baseflow in rivers, and transport of stored organic matter.
- Wetlands in landscape settings that lack bidirectional hydrologic exchanges with downstream waters (e.g., many prairie potholes, vernal pools, and playa lakes) provide numerous functions that can benefit downstream water quality and integrity
According to EPA’s website, 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. Further, EPA says the proposed rule does change propose changes to existing regulatory exemptions and exclusions, including those for agriculture.
So, what did some of those comments include?
According to the National Cattlemen’s Beef Association, “EPA’s Charge Questions focus on verifying the clarity and technical accuracy of the Report, but EPA stops short of asking important questions about the scientific significance of these connections on the health of downstream waters. For example, the Report identifies the presence but not the significance of these connections; fails to discuss how effects are measured; and whether it is possible to establish science-based effects thresholds that could ultimately be applied in a regulatory context. These are all important questions that need to be answered scientifically for the Agencies to make CWA policy decisions.