AGC & Coalition Partners Meet with OMB on Clean Water Act Rule

AGC and several other trade groups from the construction, agriculture, mining, and manufacturing sectors met with the Office of Information and Regulatory Affairs (OIRA), the part of the Office of Management and Budget (OMB) responsible for regulatory analysis, oversight, and coordinating inter-agency review. The group expressed serious concerns with the policy, science and economics of the upcoming rulemaking on Clean Water Act jurisdiction. With the OMB regulation up for its final interagency review before being released as a proposed rule for public comment, the Waters Advocacy Coalition, of which AGC sits on the Steering Committee, presented its case for why the rule is not ready to be released. The group detailed why the rulemaking would be a serious expansion of federal Clean Water Act jurisdiction - far beyond what the agency had contemplated - by critiquing the methodology and data they used to arrive at their determination. The Coalition also explained why the rulemaking ran contrary to its goal of clarifying jurisdiction by introducing more unknowns left up to the agency to interpret – such as what they define floodplains or riparian areas to encompass. The group also took issue with the process that EPA has undertaken with regard to the scientific report EPA has based much of the reasoning in the rulemaking upon. The scientific report is currently being examined by the Science Advisory Board and peer-reviewed on a parallel track with the development of the rulemaking, instead of finalizing the science before crafting the rule.  Therefore, it cannot be determined whether EPA’s initial report is flawed. Finally, the group pointed out several glaring errors in the economic cost/benefit analysis used to justify the rule. For help with this, the group brought in Professor of Economics at UC Berkeley David Sunding. He pointed out areas where the agency has failed to use an adequate baseline for construction activity; based benefits calculations on outdated and irrelevant numbers without correcting for inflation; and failed to consider the costs associated impacts to the Clean Water Act beyond Section 404 programs. With the clock having expired on the 90 day interagency review, OMB could release the rule for public comment at any time now. AGC will continue to educate members of Congress on this issue and make the construction industry’s case at the agency level for why this expansion of jurisdiction is a flawed course of action. For more information, please contact Scott Berry at (703) 837-5321 or berrys@agc.org.