Industry Granted More Time To Respond To New Federal Guidance on Jurisdiction Over Waters, Wetlands
Earlier this year, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly released new interagency guidance regarding the scope of Clean Water Act (CWA) jurisdiction following the Supreme Court’s decision in the consolidated of Rapanos v. United States and Carabell v. United States. The agencies announced Nov. 28 that the period to solicit public comment on early experiences with implementing the guidance has been extended until January 21, 2008. AGC is currently working on the construction industry’s response.
Construction projects that are planned to be built in federally-controlled waters (referred to as “waters of the United States”) cannot proceed until the project owner or operator has received approval from the Corps via a CWA Section 404 discharge permit. The so-called “Rapanos Guidance” will influence regulators’ decisions on whether CWA Section 404 discharge permits are required—and whether they will be issued—for construction activities impacting wetlands, tributaries and other waters. It will also impact civil and criminal environmental enforcement.
AGC is carefully reviewing the Rapanos Guidance and drafting comments, following the recommendations of AGC’s Environmental Network Steering Committee. AGC is teaming up with several other trade groups engaged in “dirt-moving” activities—including the National Mining Association, the Farm Bureau, and the National Association of Realtors—to submit a joint letter. Your input and experience with CWA Section 404 permitting is welcome and appreciated. Please email any case studies to email@example.com.
According to the agencies, the guidance is intended to ensure that jurisdictional determinations, administrative enforcement actions, and other relevant agency actions being conducted under CWA Section 404 are consistent with the Rapanos decision. A six-month public comment period to solicit input on early experience with implementing the guidance began on June 8, 2007. The agencies are extending the public comment period by 45 days. Comments are now due January 21, 2008. By early next year, the agencies plan to either reissue, revise, or suspend the guidance after considering input from the public and Corps’ field staff.
A copy of the guidance can be found on the Corps’ Web site at http://www.usace.army.mil/cw/cecwo/reg/. For an overview of the guidance, see the July 2007 issue of AGC’s Environmental Observer. Click here to access the Federal Register notice announcing the extension of the comment period.
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