Recently, the EPA and Corps completed a draft report on the connectivity of streams and wetlands. This report will form the basis of new regulations defining the scope of federal jurisdiction to regulate isolated streams and wetlands throughout the country. Based on the report’s conclusions, the federal agencies are preparing to expand their jurisdiction to include many more ephemeral and intermittent streams, as well as isolated wetlands.
The agencies have argued that the coming regulatory changes will benefit property owners by providing “greater consistency, certainty, and predictability nationwide by providing clarity for determining where the Clean Water Act applies and where it does not.”
Greater regulatory clarity in the scope of the Clean Water Act is needed. Two years ago, in Sackett, Justice Alito criticized the EPA and Congress for failing to settle the scope of the act. But clarity alone will not solve the problem. For example, the EPA could provide absolute clarity and predictability to property owners by adopting a rule that any property that has standing water at any time in the year (basically all of the United States) is a “water of the United States.” But this clarity, would come at too high of a cost—expanding the scope of the act. Thankfully, EPA and the Corps do not appear to be going that far. But the expansion that they appear to be pursuing cannot be justified as a boon to property owners, increased clarity notwithstanding.