EPA Provides Justification for Water Authority

In the latest development in the ongoing saga over the U.S. Environmental Protection Agency's (EPA's) authority under the Clean Water Act (CWA), the agency recently released a report entitled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. The report is intended to provide the scientific foundation for a draft regulation of the law, released jointly by the EPA and the U.S. Army Corps of Engineers. The proposed regulation is now open for public comment.

The CWA provides the EPA with the authority to regulate the discharge of pollutants into U.S. waters and establish pollution standards for surface water. At issue in this report is the breadth to which this law can be applied to small streams and wetlands. This issue has been hotly contested by industry professionals and environmentalists because of the potential regulations that could stem from granting the EPA this authority. The EPA believes the report solidifies its position that small streams and wetlands have a real impact on larger, downstream waterways and are therefore covered by the law. Critics of the proposed rule claim that the EPA is looking to expand the agency's jurisdiction without authority from Congress.

A number businesses and entities face potential regulation under the CWA, including agricultural, mining, oil and gas industries, as well as municipalities. The opportunity to respond to the technical documents supporting the EPA's regulations provides stakeholders with the chance to directly address the foundations of the agency's argument. All interested stakeholders should take advantage of this opportunity.