AGC to Participate in Development of New EPA Rulemaking on Water Jurisdiction
September 28, 2011

A testament to AGC’s continued outreach and strong advocacy work, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have announced their intent to move ahead with a rulemaking to clarify critical jurisdictional terms under the Clean Water Act (CWA) and have invited AGC to represent industry on a small business review panel scheduled to meet Oct. 12.  This regulatory development is very important to contractors because to the extent that waters remain under state control (and the federal government doesn’t broaden its jurisdiction over every wet area), contractors will not need to obtain costly and time-consuming CWA Section 404 “wetlands” permits before commencing work.

AGC has long supported a rulemaking to better define federal jurisdiction under the CWA and to resolve the uncertainty and confusion following prior guidance documents and competing decisions in two U.S. Supreme Court cases.  In its comment letter to the agencies on recently proposed guidance that would have significantly broadened federal jurisdiction without providing the much-needed clarity, AGC urged the agencies to forego the proposed guidance in favor of moving forward immediately with a rulemaking.  In meetings with the agencies, they confirmed the need for a rulemaking yet stated their intent to finalize the guidance before developing a rule.  Furthermore, the agencies would not provide the regulated community with a timeframe for when they would initiate the long-awaited rulemaking.  At this point, they have not yet finalized the newly proposed guidance; and AGC is encouraged that they appear to be moving forward with a rulemaking.

The rulemaking is a crucial step, as the agencies have indicated that they anticipate any changes in CWA jurisdiction would result in more circumstances where activities will require permits (as their proposed guidance also demonstrated).  When engaged in the rulemaking process, the agencies must comply with the Administrative Procedures Act (APA) as well as other mandatory statutory and regulatory requirements that allow for public comment, small business participation, and transparency.  These protections ensure that the rulemaking process is informed by stakeholders and also is subject to judicial review.  Indeed, AGC has criticized the agency for essentially skirting the APA in the development of its proposed guidance, which was sweeping enough in scope to be considered a “rulemaking.”  In the invitation to participate in the Oct. 12 small business review meeting that AGC received, the agencies cite the executive orders that mandate they reach out to small business entities.  In addition, the agencies highlight new opportunities for public comment as the process gets further underway.

Whether the agencies finalize the guidance before finishing the rulemaking process, AGC anticipates that they will use the proposed guidance as a foundation for the new rule; therefore, the advocacy work related to the guidance will not be in vain.  As previously reported, AGC submitted a 112-page comment letter plus 12 exhibits to the EPA and the U.S. Army Corps of Engineers (Corps) regarding their proposed guidance — Guidance on Identifying Waters Protected by the Clean Water Act; this comment letter was performed through a coalition of organizations representing the housing, mining, agriculture, and energy sectors. Responding to AGC’s request (submitted in conjunction with the coalition), EPA and the Corps gave the public more time to comment on the very controversial guidance manual on what waters are under federal control — thereby allowing AGC to develop comprehensive comments on behalf of the regulated community.  AGC also signed — with the National Conference of State Legislators, the United States Conference of Mayors, and other state and industry groups — a joint letter to the agencies that notes our shared concerns about the increased burden on state administrators and anticipated permitting delays.

On a related note, AGC has been invited to participate in a roundtable discussion on how to prevent the agencies from skirting the APA by developing guidance documents that are in effect new rules without proper input from the regulated community.  AGC will report back following that meeting in November 2011.

For more information, contact Leah Pilconis at pilconisl@agc.org or (703) 837-5332.  The proposed guidance is online at EPA’s website.