On April 21, 2014, the agencies proposed a rule clarifying the scope of U.S. waters (79 FR 22188) and sought comments for more than 200 days. This final rule reflects the more than 1 million public comments on the proposal, the vast majority of which supported the proposed rule, as well as the contributions of the agencies` extensive outreach efforts, which included more than 400 meetings with states, small businesses, farmers, academics, miners, energy companies, counties, municipalities, environmental organizations, and other federal agencies nationwide. and many more. Many of these commenters and stakeholders asked the EPA to improve the April 2014 proposal by providing clearer line limits and simplifying definitions that identify waters protected under the CWA to minimize delays and costs. effectively protect clean water and improve predictability and consistency for landowners and regulated businesses. Given that the movement of water from watersheds to coastal waters, river systems and lakes shapes the development and operation of these systems in a manner critical to their integrity, the use of a watershed as a framework for conducting important linkages assessments is scientifically justifiable. Watersheds are generally considered to be the most appropriate spatial unit for water resources management. Anthropogenic actions and natural events can have profound impacts in the watershed, which together affect the integrity and quality of relevant traditional navigable waters, interstate waters, or territorial sea. The functions of the participating waters are inextricably linked and have a cumulative impact on the integrity of traditional downstream navigable waters, interstate waters or territorial seas. For these reasons, it is more appropriate to perform meaningful analysis of linkages at the watershed scale than to focus on a specific location, such as a single river segment. See proposal Appendix A, Scientific Analysis, 79 FR 22246, April 21, 2014, Scientific Report and Technical Support Document.
While these findings play a crucial role in agencies` interpretation of the CWA`s scope, the agencies` interpretive role in this rule – determining which waters have a « significant connection » – requires scientific and political judgment, as well as legal interpretation. Science shows that waters lie along a chemical, physical and biological link gradient with traditional navigable waters, and it is up to agencies to determine where to draw jurisdiction boundaries under the CEA along this gradient. To make this decision, organizations must rely not only on science, but also on their technical expertise and practical experience in implementing the CWA over a period of more than 40 years. In addition, agencies are guided in part by the imperative need for clearer, more consistent and user-friendly standards for the administration of the law, including lighter line limits where possible and appropriate. For example, excess nutrients discharged into small tributaries overall can cause algal blooms downstream, reducing dissolved oxygen levels and increasing turbidity in traditional navigable, interstate, and territorial waters. Water with little dissolved oxygen cannot support aquatic organisms. This widely recognized phenomenon, known as hypoxia, has impacted commercial and recreational fishing in the northern Gulf of Mexico. In this case, the cumulative effects of exporting nutrients from the many small source rivers of the Mississippi River resulted in major environmental and economic impacts hundreds of miles downstream. See the support document. Consistent with existing regulations and the rule proposed in April 2014, the final rule includes traditional navigable waters, interstate waters, territorial waters, and territorial water impoundments in the definition of « U.S.
waters. » These waters are subject to the rule. Five years later, in Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos), all members of the Court agreed that the term « waters of the United States » included certain waters that are not navigable in the traditional sense. In addition, Justice Kennedy`s opinion noted that the decisive factor in determining CWA coverage is whether a water has a « significant connection » to traditional downstream navigable waters, such that water is important in protecting the chemical, physical or biological integrity of navigable waters, referring to the Court`s decision in SWANCC. Judge Kennedy`s approval to Rapanos stated that to form « U.S. water » covered by the CWA, water or wetland must have « a « significant connection » to waters that are or were actually navigable or could reasonably be produced to do so. » Id., p. 759 (Kennedy, J., agreeing) (citing SWANCC, 531 U.S. at 167, 172). Justice Kennedy concluded that wetlands have the required significant association if wetlands « alone or in combination with similar [wetland] areas in the region significantly impair the chemical, physical and biological integrity of other covered waters that are more readily understood as `navigable.` » 547 US to 780. The first three types of territorial waters, traditional navigable waters, inter-State waters and territorial seas, have jurisdiction in all cases. The fourth type of water, territorial water reservoirs, is also responsible in all cases by rule.
The next two types of waters, « tributaries » and « adjacent » waters, are generally responsible because science confirms that they have a significant relationship with traditional navigable waters, interstate waters, or territorial waters. No further analysis is required for waters that have judicial jurisdiction under the rule. The last rule establishes a definition of « adjacent » to determine the neighbourhood. Typically, agencies identify three circumstances in which water bodies would be « adjacent » and thus « U.S. waters »: The agencies use many tools and sources of information to help determine jurisdiction, including topographic maps of the U.S. Geological Survey (USGS) and state and local governments, aerial photographs, soil surveys, watershed studies, scientific literature and references, and fieldwork. For example, the USGS and state and local river maps and datasets, aerial photographs, measurement data, watershed assessments, monitoring data, and field observations are commonly used to assess tributary flow contributions, including intermittent and short-lived streams, traditional navigable waters downstream, interstate waters or territorial seas. Similarly, flood and topographic maps from federal, state, and local agencies, modeling tools, and field observations can be used to assess how wetlands capture floodwaters that could otherwise affect downstream waters. In addition, agencies use the extensive scientific literature on tributary functions, including tributaries with short-term, intermittent and perennial flows, as well as wetlands and open water, to inform their assessments of important associations. In addition, the agencies have decades of experience and expertise before and since SWANCC and Rapanos decisions in determining jurisdiction, taking into account hydrology, ordinary flood mark, biota and other technical factors in implementing Clean Water Act programs. This scientific immersion, along with the practical expertise gained through case-specific regulations across the country and in a variety of environments, is reflected in the agencies` conclusions about which water bodies have important context, as well as where the agencies have drawn boundaries that mark where « U.S. waters » end.
Congress passed a federal Safe Drinking Water Act (U.S. EPA), which empowers the EPA to enact and enforce rules that must be followed by all public water systems in the country. In consultation with the EPA, Utah administers federal law within the state. Therefore, Utah`s laws and regulations regarding public watering systems comply with federal regulations. Utah water utilities should refer to Utah laws and regulations. The combined assessment of the functions of the identified water bodies is consistent not only with Justice Kennedy`s important connection standard, but also with science. Scientists regularly combine the effects of groups of water bodies and aggregate the known effects of a water with those of waters that are ecologically similar to a particular geographic area or scale. Indeed, the chemical, physical and biological integrity of downstream waters is directly related to the total contribution of upstream waters flowing into them, including all tributaries and associated wetlands.
Therefore, the scientific literature and scientific report agree that the health of major downstream waters is directly related to the overall health of upstream waters, including water bodies such as wetlands, which may not be hydrological, but interact to reduce the potential effects of flooding and pollutant contamination by impacts on to mitigate downstream waters.
