EPA and the Corps of Engineers Release Proposed Rule Expanding Clean Water Act Jurisdiction

AGC believes it is a massive – and unnecessary – expansion in Clean Water Act jurisdiction The Environmental Protection Agency (EPA) and US Army Corps of Engineers (USACE) proposed their new rule aimed at clarifying the definition of “waters of the U.S.” and which bodies of water fall under federal jurisdiction. This definition is critical to many of the Clean Water Act programs affecting how contractors perform their work, such as the Section 404 Dredge and Fill Permits, Section 402 Stormwater programs, and Section 311 Spill Prevention, Control, and Countermeasures plans. AGC is still working to evaluate the effects of the rule and compare it to an earlier version that was leaked last fall. After the leaked rule came out, AGC and its industry partners in the Waters Advocacy Coalition held briefings for House and Senate staff and met with regulators at the Office of Management and Budget, discussing the impact of expanded jurisdiction on construction, the flaws in EPA’s cost-benefit economic analysis, and the serious problems in the process that EPA has gone through with this rulemaking. At this point, the proposed rule appears substantially similar to the leaked version, which AGC believes is a massive – and unnecessary – expansion in Clean Water Act jurisdiction. Ditches, ephemeral and intermittent streams, tributaries, and isolated waters located in a floodplain or riparian area (which have no defined limit in the rule) are all now potentially jurisdictional. The rule is expected to be published in the Federal Register next week, with a 90-day comment period in effect after publication. The coalition will be submitting full comments and AGC will be submitting comments of its own. The AGC Regulatory Action Center will also have a template letter available shortly to help AGC members submit comments of their own. For more information, please contact Scott Berry at (703) 837-5321 or berrys@agc.org.