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Scientists Meet on EPA Water Rule

December 20, 2013

Connection Between Wetlands and Streams and Downstream Waters:

Key Development: A Science Advisory Board panel will recommend the EPA consider the degree of connections that wetlands and streams have with downstream waters in a draft scientific study. This is a positive development for regulated stakeholders because establishing significance of the connection is a test articulated by Supreme Court Justice Kennedy to ascertain which wetlands merit Clean Water Act jurisdiction.

What's Next: The panel submits its final recommendations to the Science Advisory Board by Jan. 31, which will be incorporated into a draft report that will be released to the public in mid-February. Following further comments, the report will be submitted to the EPA administrator by mid-June at the earliest.

A panel of the Environmental Protection Agency's Science Advisory Board said Dec. 18 it will recommend the agency consider the degree, magnitude and intensity of connections that geographically isolated wetlands and other water bodies have with downstream waters in the final version of its scientific study of such linkages.

The EPA should look at how these connections with wetlands vary across distances (spatial) and time (temporal) as well as across landscapes and regions in an attempt to understand the variety in hydrology and biological and chemical connectivity across these waters, the panel of science advisers said. They also intend to advise the EPA to quantify the connectivity of waters.

The panel made its comments at the end of a meeting held Dec. 16-18 to discuss the draft of the EPA's wetlands study, “Connectivity of Streams and Wetlands to Downstream Waters.” The study was sent to the Science Advisory Board for review Sept. 17.
These recommendations are in response to concerns raised by representatives of the mining, homebuilding and agricultural industries.

On the second day of its three-day meeting, the panel said the agency incorrectly concluded in its draft wetlands study that insufficient evidence exists to generalize that geographically isolated and other wetlands and open waters located outside flood plains are connected to downstream waters. The panel said the evidence the agency included in the draft study didn't match the conclusion.

The panel of scientists was selected by the SAB to review the so-called draft connectivity study and make recommendations. Although still in draft form, this study is providing the scientific rationale for the joint EPA-U.S. Army Corps of Engineers proposed rule that is now undergoing interagency review at the White House Office of Management Budget.

In discussions during the three-day meeting, the panel overwhelmingly rejected one of the draft study's three main conclusions—that insufficient evidence existed for generalizing that isolated wetlands and waters located outside of flood plains were connected to downstream waters.

The decision by the scientific panel to incorporate the degree, magnitude and intensity of connections of wetlands and streams to downstream waters underscores the concerns raised by various coalitions representing agriculture, real estate, mining, road builders, home builders and municipal water utilities that the agency might bring all waters and wetlands under federal jurisdiction by showing the mere presence of a connection with downstream waters.

At the conclusion of the three-day meeting, Rodewald said the final recommendations are due to the Science Advisors Board by Jan. 31. A draft report based on their recommendations will be released to the public and the panel for comment in mid-February.
Following comments, the board will hold a public teleconference to discuss the comments in mid-March and to “hopefully reach consensus” in mid-April, Rodewald said.

She said the goal of the panel is to submit a final report based on the recommendations to the EPA administrator by mid-June at the earliest.

The EPA has said it will not finalize the jurisdiction rule before finalizing the connectivity study.