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New EPA Report Documents Importance of Waters and Wetlands

AGC Offers Members Opportunities to Learn More and Weigh In The U.S. Environmental Protection Agency (EPA) recently released a massive 331-page draft report distilling peer-reviewed science on how smaller, isolated water bodies are connected to larger ones.  See Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.  The agency is accepting comments on the draft report through Wednesday, Nov. 6.  EPA has publicly acknowledged that the final version of its connectivity report will serve as a basis for a future joint EPA and U.S. Army Corps of Engineers rulemaking to clarify their jurisdiction in Clean Water Act Section 404 permitting.  This article provides links to information on how these actions may impact your business, identifies the key issues for the construction industry, and highlights current opportunities for you to communicate your concerns with government officials.  It has been widely reported that EPA’s draft hydrological connectivity report will mostly likely serve as a basis for the federal government to expand it regulatory control over upstream waters and wetlands that do not have a permanent connection to traditional navigable waterways.  Via its blog, EPA has announced that it sent to the White House for final interagency review a draft proposed rule that would revise the listing (in the Code of Federal Regulations) of waters that would qualify as “waters of the United States” – this is the regulatory term that triggers federal jurisdiction and permitting requirements under the Clean Water Act (CWA). (Although the CWA speaks of “navigable waters,” that term has, since 1972, been defined in the statute as meaning “waters of the United States.”) So far, no one outside of the executive branch has seen the new proposed rule, and the science report remains in draft format.  It will be months, perhaps years, before a regulatory revision to the definition of “waters of the United States” is finalized. Nevertheless, these preliminary government actions have already sparked widespread news coverage, concerns voiced by top legislative officials and industry groups, and applause from environmental groups. Role of Connectivity Report in Upcoming CWA Rulemaking The extent to which the CWA gives the federal government authority to regulate non-navigable tributaries and wetlands (that do not have a permanent connection to navigable-in-fact waters) has been a source of confusion for many years.  This issue last went before the U.S. Supreme Court in the 2006 Rapanos v. United States case, 547 U.S. 715 (2006), which produced a split-decision that set forth a “significant nexus” test for whether non-navigable tributaries and  wetlands should be regulated by the federal government.  Since the decision, ongoing questions and controversy over which waters are “jurisdictional” persist, and the Court itself underscored the need for a clarification rulemaking; one subject to the public notice-and-comment process.  Seven years later, we have still not seen a proposed rule and federal regulators continue to act in the face of this uncertainty, much to the detriment of the regulated community. A key scientific question is whether such  intermittent or ephemeral waters that are not permanent in nature should come under federal CWA permitting control because they may have some interconnection to downstream navigable waters, even if remote. The massive draft connectivity science report likely indicates the strategy at play – and many are calling it an answer to the ongoing concerns and criticisms. It appears to support the premise that an adequate nexus exists between all tributary streams – even those that are only intermittent and ephemeral – and downstream waters. This would include, notably, wetlands and open waters in floodplains.  AGC has some concerns, as explained below. According to EPA, any final regulatory action related to CWA jurisdiction “will be based on the final version of this scientific assessment.”  The draft proposed rule “is limited to clarifying current uncertainty concerning the jurisdiction of the Clean Water Act that has arisen as an outgrowth of recent Supreme Court decisions. . . .” EPA says the proposed rule will provide “greater clarity on which waters are not subject to CWA jurisdiction and greater certainty on which activities do not require CWA permits.” This comes despite consideration of the science and the rule on parallel, rather than ordinal, tracks. How Will These Actions Affect Your Business? In early October, AGG invited members to participate in a complimentary webinar – How EPA’s Report on the "Connectivity of Streams and Wetlands to Downstream Waters" Impacts Your Business and Regulation.  The webinar was jointly sponsored by the Waters Advocacy Coalition (WAC).  AGC is a steering committee member of WAC; its members represent the regulated community in the CWA section 404 wetlands permit program.  The Coalition’s members depend on the federal government to provide a sensible and predictable set of laws and regulations governing water resources. The webinar explained the relevant U.S. Supreme Court cases, why CWA jurisdiction maters, the current status of the EPA/Corps’ rulemaking and provided a review and analysis of the connectivity report. The slide presentation from the webinar program is now available online – click here.  To access the recording, click here.  Key Issues AGC and others are concerned that EPA’s rushed approach of sending the proposed “waters for the U.S.” rule to the White House (Office of Management and Budget) before peer review of draft connectivity study is complete demonstrates that regulatory agencies are not properly taking the science into account.  Moreover, EPA’s technical charge questions to its Science Advisory Board (SAB) focus on the technical accuracy of the draft reports findings, but do not ask important questions about scientific significance of these connections for the health or integrity of downstream waters. Other substantive issues with the draft report include the fact that it fails to address the “significance” of connections between waters; fails to address key features that are prevalent in most watersheds, like ditches; overstates the importance and/or frequency of certain types of connections with downstream waters; and relies on terminology that is inconsistent with the federal regulatory definition of “waters of the U.S.” Opportunities to Communicate Your Concerns The draft hydrological connectivity report, background information and timeline for oral or written comments to the Science Advisory Board panel can be found online – click here.  EPA will hold public meetings on the draft study on Dec. 16 and 17 in Washington, D.C. EPA is also accepting comments on the study, which may be submitted under EPA Docket EPA-HQ-OA-2013-0582. Comments received by Wednesday, Nov. 6 will be provided to the SAB panel as part of their deliberations. Given the length of the report, and the limited time that there is to develop comments, AGC has worked with its Waters Advocacy Coalition partners to provide the construction community a template letter that should be tailored/modified to meet individual needs. To access the template letter, please click here.  You are encouraged to make it relevant to your circumstances, where possible.    For more information, please contact Scott Berry at berrys@agc.org  or Leah Pilconis at pilconisl@agc.org.