In May 2011, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) issued draft guidance on “Identifying Waters Protected by the Clean Water Act.” As this guidance document moved from proposed to final form, the concerns, including those raised in AGC’s comments, were not addressed. The guidance document, which was sent in final form to the Office of Management and Budget (OMB) on Feb. 21, 2012, significantly changes and expands what water features are considered protected under the Clean Water Act. The guidance also ignores the fundamental premise in the Act that there are waters subject to the exclusive regulatory jurisdiction of the states. The final guidance is overly broad and expands federal jurisdiction well beyond the intent of Congress and the limitations recognized in recent Supreme Court decisions. This increase in jurisdiction could increase construction costs and project delays with expensive permits that take years to obtain. There is already an extensive backlog of these Section 404 permits, and this will likely add to it.
In Congress, Senators Barrasso (R-Wy.), Inhofe (R-Okla.), Heller (R-Nev.) and Sessions (R-Ala.), along with 26 of their colleagues, have introduced legislation to stop EPA and USACE from implementing the guidance. AGC members will be asking their members of Congress for support and additional cosponsors next week during the annual Federal Contractors Conference and Fly-in.
As OMB’s Office of Information and Regulatory Affairs (OIRA) considers the approval of this final guidance, it will be considering the Supreme Court opinions on this issue, including the most recent decision in Sackett v. EPA where the court scolded EPA for its overreach and said that setting clear and reasonable jurisdictional limits would halt the uncertainty among industry. Also being considered is industry’s opposition to the guidance (see the Waters Advocacy Coalition’s letter to OMB). AGC will be joining other members of the Waters Advocacy Coalition in a meeting with OMB to lay out the construction industry’s opposition to the guidance.