After a lengthy period of uncertainty and speculation, EPA clarified its path forward (working with the Army Corp of Engineers) for settling questions of Clean Water Act (CWA) jurisdiction over marginal wetlands. The proposed guidance on CWA jurisdiction that has languished at the OMB since early 2012 was withdrawn in favor of a draft regulatory proposal that will now begin OMB review. The contents of the proposal submitted to OMB have not been released, but will be informed by a new EPA Science Advisory Board report, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence,”which summarizes the scientific literature on water body connectivity issues at the core of the CWA jurisdiction debate.
The development of a regulation in lieu of guidance is the approach advocated by AMWA and other water utility groups since it will provide regulatory consistency and assurance that can’t be provided by a non-legally binding guidance document. A rulemaking also typically provides more opportunities to provide official feedback as part of the formal regulatory development process.
Based on typical OMB review periods, a proposed rule could be released as early as the beginning of 2014. However, the scope of CWA jurisdiction continues to be politically and legally controversial, with many Congressional leaders engaged on the issue legislatively, so additional significant delays, similar to those experienced during the guidance development process, can’t be ruled out.