The U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA) proposed on May 2, 2011, a new draft “Guidance on Identifying Waters Protected by the Clean Water Act.” The proposed guidance intends to clarify the extent of federal control over construction work in “waters of the United States,” which has been a continued source of confusion following competing decisions in two U.S. Supreme Court cases.
The proposed guidance broadly interprets the Supreme Court decisions and, if adopted, will result in significantly more federally controlled waters that would require Clean Water Act (CWA) Section 404 permits. Contractors and land owners must obtain Section 404 permits before re-depositing dredged material during excavation or placing fill material in “waters of the United States,” including wetlands that are adjacent to “navigable” waters or their tributaries. (See, AGC’s Environmental Observer article, January 2011, for more background information.)
The proposed guidance and related information are available on EPA’s website. Public comments are due July 1, 2011. The final 2011 guidance is intended to supersede a 2003 “Joint Memorandum” and a 2008 Joint Guidance memo that currently remain in effect.
The agencies’ decision to issue the 2011 guidance instead of immediately initiating rulemaking has been criticized by members of Congress and representatives from both industry and environmental interest groups. The agencies have said that they will eventually propose revisions of existing regulations, but they have not indicated when they will do so.
The proposed guidance addresses the scope of the CWA’s key term “waters of the United States” for all CWA provisions that use the term, including the Section 402 National Pollutant Discharge Elimination System (NPDES) permit program, the Section 311 oil spill program, the water quality standards and total maximum daily load programs under Section 303, and the Section 401 State water quality certification process. The existing 2003 and 2008 guidance documents are limited to CWA Section 404 determinations.
Click here for a summary of the key points of the draft guidance. Click here for a fact sheet regarding the scope and impact of the guidance on regulated entities and the public. These documents were prepared (and are being circulated) by members of the Water Advocacy Coalition (WAC), a coalition of 31 industry organizations from a wide range of industry sectors). AGC is a long-standing WAC member and is currently working in that capacity to request an extension of time to comment on the proposed guidance and in drafting a formal industry response to the agencies.
For more information, please contact Leah F. Pilconis at (703) 837-5332 or pilconisl@agc.org
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