AGC Briefs Congressional Staff about Federal Clean Water Act Issues

AGC, along with other industry allies in the construction, materials, mining, and agriculture sectors, briefed several U.S. House of Representatives staff members as part of a panel discussion focused on Clean Water Act (CWA) permitting issues facing the industry.  Also this month, AGC worked with the Waters Advocacy coalition to submit extensive comments on EPA’s draft connectivity report, which ties every body of water in the U.S. together. AGC described to congressional staff the impact of expanded federal jurisdiction as part of the ongoing struggle to define “waters of the United States.”  There were several questions from the audience about the time and resources required to obtain a CWA Section 404 permit.  AGC also spoke about the impact that expanding the definition of waters of the U.S. would have on other parts of the Clean Water Act that affect contractors, such as Section 402 (stormwater) permits and Section 311 (Oil Spill Prevention).  The U.S. Environmental Protection Agency (EPA) is currently going through a rulemaking and scientific evaluation on this issue. Moreover, AGC spoke about the effect of recent court decisions ruling that EPA has the authority to retroactively veto permits years after they have been issued and where the requirements of the permit were being fulfilled. Connectivity Report EPA recently requested public comment on its draft report “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (connectivity report), which claims that every body of water, no matter how small, is somehow connected.  Scientific peer review of the connectivity report is far from complete, but AGC and other groups already have identified significant flaws in the report.  Click here to read AGC’s comment letter to EPA.  A central concern is the fact that EPA and the U.S. Army Corps of Engineers (Corps) have moved forward with a draft rule, predicated on the connectivity report, to re-define the scope of their jurisdiction in CWA Section 404 permitting. Draft Rule EPA and the Army Corps have sent to the Office of Management and Budget (OMB) for interagency review a draft proposed rule defining the scope of CWA jurisdiction. A copy of the draft proposed rule was obtained by Bloomberg BNA and has been made publicly available.  The draft rule would regulate ditches as “tributaries” and all waters and wetlands within floodplains. The draft rule’s broad definition of “waters of the U.S.” will have far-reaching consequences on the regulated public and the economy. Top Republican on the Environment and Public Works (EPW) Committee, and two House Chairmen are asking the Administration to halt EPA’s rulemaking that would greatly expand federal CWA jurisdiction.  In a Nov. 15 letter, the lawmakers are asking OMB to send it back until a connectivity report that EPA claims will justify the rule has been fully reviewed and is given legitimate time for public input and scrutiny. For more information on these issues, please visit AGC’s Environmental News web page at http://news.agc.org/topics/environment/ or contact Leah Pilconis at pilconisl@agc.org or Scott Berry at berrys@agc.org.