PLF comments on EPA’s connectivity report

Last week, Pacific Legal Foundation filed comments on EPA’s recently released draft connectivity report.  EPA and the United States Army Corps of Engineers plan to use the report to promulgate new regulations interpreting the scope of the Clean Water Act.  EPA has sent the draft report to the Science Advisory Board, which will host a multi-day hearing on the report in December.

PLF’s comments raise several concerns with the draft report, which appears designed to justify a significant expansion of the Clean Water Act’s scope.  The report repeatedly emphasizes the connections of even small streams and seemingly isolated wetlands to larger bodies of water.  Strangely, the report treats as something new the truism that, although an ephemeral stream or apparently isolated wetland may have little impact on downstream waters, the class of ephemeral streams or isolated wetlands within a watershed may have a significant impact.

Hence, the report’s tone and approach confirm that the report’s authors are entirely oblivious to the Supreme Court’s decisions of the last decade, which have emphasized that the Clean Water Act cannot be used to regulate every wet spot or humble rivulet in the country.  Although the Board’s charge is limited to technical matters, nevertheless the Board should take this opportunity to demand greater consistency between the report and Clean Water Act case law.

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