AGC's Environmental Observer - January 31, 2008 / Issue No. 1-08 (Plain Text Version)
In this issue:
AGC Joins Coalition in Comments to U.S. EPA, U.S. Army Corps of Engineers on Wetlands Jurisdictional Guidance
On January 22, AGC—along with organizations representing the housing, mining, agriculture, and energy sectors—submitted detailed comments to the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) regarding Clean Water Act (CWA) jurisdiction over waters of the United States after the U.S. Supreme Court’s decision in Rapanos v. United States and Carabell v. United States. At issue is a new interagency guidance document 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.
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.
The group’s comments state that the Agencies have “misinterpreted Rapanos” and have “adopted lengthy and cumbersome procedures and onerous documentation requirements not required by Rapanos.” For example, the guidance gives EPA a new and significant role in determining federal jurisdiction and spells out complicated procedures for the Corps and EPA to follow in deciding whether a “significant nexus” exists in each instance between traditional navigable waters and intermittent, non-navigable tributaries; wetlands adjacent to such tributaries; and wetlands separated from relatively permanent tributaries by uplands, dikes or beams. Under the guidance, the government must document why the impact on the chemical, physical, and biological integrity of the traditional navigable waters is more than “speculative or insubstantial.”
Accordingly, the group argues that “these policies are resulting in further confusion and delays, more costs, and less predictability and certainty with regard to permitting.” To achieve greater clarity and transparency, which the regulatory community and the public have long desired under the section 404 program, the group recommends the Agencies improve the guidance immediately and ultimately undertake a rulemaking.
The group also makes substantial comments on the availability and quality of information regarding how the guidance is being implemented and how jurisdictional determinations are being made. The group recommends that the Agencies develop a national website dedicated solely to posting decisions, data and analysis, and other relevant documents to guide the public, as well as to foster greater consistency among the 38 Corps offices.
The Agencies released and put into effect the Rapanos guidance in June 2007 and announced a 180-day public comment period. The deadline was extended until January 2008.
AGC continues to work with the Waters Advocacy Coalition (WAC) in opposition to legislation introduced by Congressman Jim Oberstar (D-Minn) and Senator Russ Feingold (D-Wisc)—H.R. 2421/S. 1870, the Clean Water Restoration Act—which would expand the federal jurisdictional reach of the Clean Water Act to essentially all water bodies and wet areas within the United States and greatly increase the number of circumstances under which contractors will have to obtain permits. The coalition was successful in stalling consideration of the bill in both the House and Senate in 2007 and will remain vigilant to prevent efforts to move the bill this year.