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EPA prepares to shed contentious Waters of the U.S. interpretation

Construction and business interests welcomed a late-2018 U.S. Environmental Protection Agency and Department of the Army proposal for a clear, understandable, and implementable definition of “Waters of the United States,” clarifying federal authority under the Clean Water Act. Unlike a 2015 definition that drew sharp criticism from construction materials producers and their customers, the new proposal a) contains straightforward wording that results in significant cost savings; b) protects the nation’s navigable waters; helps sustain economic growth; and, c) reduces barriers to business development.

“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” said EPA Acting Administrator Andrew Wheeler in joint unveiling with Army staff. “We are clearly defining the difference between federally protected and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”

Waters mood

The EPA rule had the potential to complicate concrete plant operations, where water management measures have traditionally been subject to primarily local and state regulator oversight.

“Previously conflicting U.S. Supreme Court rulings on the Clean Water Act left manufacturers without a clear and consistent set of criteria for when the law would impact their businesses,” Portland Cement Association CEO Mike Ireland noted in response to the EPA and Army proposal. “Unfortunately, the EPA’s prior attempts to clarify those criteria did little to reduce the uncertainty while expanding the reach of the federal government. This expanded reach posed a threat to the ability of cement manufacturers to [supply] our country’s infrastructure.

“EPA’s new proposal balances the need to encourage economic growth with protecting the environment. We particularly appreciate EPA’s exclusion of quarries from the definition—a common sense provision that helps ensure our members can meet the demand for resilient and sustainable building materials.”

The proposal, added Associated General Contractors of America CEO Stephen Sandherr, “will provide the kind of clarity needed to ensure that the waters of the U.S. continue to become even cleaner. The newly proposed clean water rule outlines clear and specific guidelines as to which sites require a federal water permit in addition to state and local water permits, and what needs to be done to protect federally permitted waters. As a result, the new measure will enable contractors for all types of construction projects, from schools to local roadways and other infrastructure, to understand which permits they need and proceed without substantial regulatory delay and additional cost.

“More important, the new proposal will replace misguided mandates imposed by the previous administration that were both likely unlawful and created significant confusion about which waters were covered by whom. In fact, the prior rule has never been fully implemented nationwide, as it was immediately challenged in court. That rule introduced confusing jurisdictional ‘tests’ that would have imposed new costs and delays on virtually every type of construction project anywhere in the country—even on sites without visible water nearby.”

“The rule would have required costly consultants to determine whether a job site was covered by the rule and also needed a federal water permit, and then figure out what impact that would have on their other environmental requirements,” Sandherr explained. “As a result, the cost of infrastructure and economic development activities would have grown while the time required to complete each project would expand. We look forward to working with federal officials to ensure implementation of this new clean water rule.”

LEGAL UNDERPINNINGS

The EPA and Army proposal is the second step in a two-step process to review and revise the definition of “waters of the United States” consistent with President Trump’s February 2017 Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” It states that it is in the national interest to ensure that the nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution.

“EPA and the Army together propose this new definition that provides a clear and predictable approach to regulating ‘waters of the United States.’ We focused on developing an implementable definition that balances local and national interests under the Clean Water Act,” noted Assistant Secretary of the Army for Civil Works R.D. James. “I have heard from a wide range of stakeholders on Clean Water Act implementation challenges. This proposed definition provides a common-sense approach to managing our nation’s waters.”

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Associated Builders & Contractors, Associated General Contractors of America and the National Association of Home Builders joined peer agriculture, natural resource and utility groups in a Politico ad saluting the EPA and Army proposal.

The agencies’ proposal would provide clarity, predictability and consistency so that the regulated community can easily understand where the Clean Water Act applies—and where it does not. Under EPA and Army vision, traditional navigable waters, tributaries to those waters, certain ditches, lakes or ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated. Their proposal also details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including those along farms or most roadsides; prior converted cropland; stormwater control features; and, waste treatment systems.

The agencies believe this proposed definition appropriately identifies waters that should be subject to regulation under the Clean Water Act while respecting the role of states and tribes in managing their own land and water resources. States and many tribes have existing regulations that apply to waters within their borders, whether or not they are considered “waters of the United States.” The agencies’ proposal gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act.

Robust, publicly accessible data is also a key component of common-sense, cost-effective environmental protection, according to federal officials. In response to requests from some states, EPA and Army are exploring ways the agencies can work with federal, state, and tribal partners to develop a data or mapping system that could provide a clearer understanding of the presence or absence of jurisdictional waters. The agencies invited written pre-proposal stakeholder input, and received more than 6,000 recommendations helping shape a revised “water of the U.S.” definition. Formal release of the proposal opened a 60-day public comment period, scheduled to conclude in February. More information on the proposal, including a formal Federal Register notice, supporting analyses and fact sheets are available at www.epa.gov/wotus-rule.