On September 17, 2013, USEPA issued a new hydrological sonnection study that will be used to expand the federal reach of the USEPA and US Army Corps of Engineers to regulate waters of the United States. See Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345). The study is applicable to upstream waters and wetlands that do not have a permanent connection to traditional navigable waterways (the USEPA also withdrew its earlier guidance intended to clarify the scope of CWA jurisdiction).
The study is the USEPA’s attempt to set forth an enforcement standard necessitated by the USSC “significant nexus” standard in Rapanos v. United States, 547 U.S. 715 (2006).
The study essentially claims jurisdiction to the USEPA over intermittent or ephemeral waters that are not permanent in nature but that may have some interconnection to navigable waters. With this study, the USEPA now asserts the existence of the “significant nexus” between all tributary streams and downstream waters which includes wetlands and open waters in floodplains.
More later.
As always, please feel free to contact me at walter.james@jamespllc.com
WDJiii