| House Takes Aim at CWA’s “Navigable Waters” Jurisdiction
By Ben Gann
For decades, federal courts and regulatory agencies have been trying to pin down the practical extent of federal jurisdiction over wetlands under the Clean Water Act (1977). Whether or not a potential jobsite is a jurisdictional wetland is of great importance to utility contractors. If it is, they have to obtain not only a federal wetlands permit (also known as a Section 404 permit), but also protection — in the form of contract clauses and insurance — against any potential environmental problems. The additional time and expense involved has to be factored into the project bid.
New Legislation
The latest effort to eliminate the continuing uncertainty about what is and what is not a wetland is being spearheaded by Congressman Jim Oberstar (D-Minn.), Chairman of the House Transportation and Infrastructure Committee. In May, he introduced a bill — The Clean Water Restoration Act (H.R. 2421) — that would significantly expand federal jurisdiction under the Clean Water Act (CWA).
At the time of the bill’s introduction, Rep. Oberstar said: “There has been great uncertainty for federal, state and local governments, agencies, courts, communities and land owners regarding where federal authority begins and ends under the CWA. By clearly defining the scope of the CWA in this legislation, the chemical,  physical and biological integrity of the nation’s water bodies and wetlands will be better protected than they have been since the Supreme Court’s first anti-wetlands decision in 2001.”
The foregoing would be accomplished in the proposed legislation by the replacement of the current wording — “navigable waters” — with “waters of the United States,” which includes “intrastate waters” and “activities affecting these waters.” The practical effect of this replacement would be that federal agencies would no longer have to rely solely on the observation of a physical, above-ground water conveyance and conduit between a wetland/water and a flowing stream. Under the new legislation, they would also have the ability to look at subsurface groundwater connections. This is definitely an expansion from the CWA jurisdiction of the past, at least for bodies of water or wetlands that are not near, or do not abut, flowing streams.
Potential Consequences
Giving the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA) additional jurisdiction over all wet areas and activities affecting those waters — including construction — will undoubtedly increase the time and cost required to complete every construction project requiring a Section 404 permit. (An individual permit currently takes two to three years to obtain.)
According to the National Stone, Sand and Gravel Association, the current backlog of pending requests for permits is between 15,000 and 20,000. The new legislation would increase demand without providing additional resources to address the added workload. Additionally, H.R. 2421 could further delay the permitting process since all potentially jurisdictional areas would have to be identified.
Under the Clean Water Act, permits are needed in order to discharge any pollutant into “navigable waters.” (This jurisdiction has been examined and affirmed in multiple decisions by the U.S. Supreme Court.) The new legislation would expand the Act’s jurisdiction to include groundwater, ditches, pipes, streets, storm drains and gutters. Moreover, the bill would eliminate existing exemptions for cropland and wastewater treatment systems. In short, this would be a one-size-fits-all approach to federal regulation.
Removal of the term “navigable” from the CWA could also potentially give the federal government land-use planning power at the local level simply because any activity that is near wet areas or infrequent wet areas would need a CWA permit. It also provides citizen and environmental groups — which oppose virtually all public works projects — with additional ammunition.
Who Likes H.R. 2421 and Who Doesn’t?
Groups like the National Resources Defense Council (NRDC) have been quick to praise H.R. 2421. NRDC Clean Water Project Senior Attorney Jon Devine had this to say:
“For decades, the Clean Water Act has protected America’s water resources from industrial pollution, oil spills, sewage and outright destruction. Recent interpretations of the law have placed many of the nation’s important water bodies in legal limbo, allowing polluters to discharge into water resources across the country without complying with the Clean Water Act’s intended safeguards … We commend the introduction of this important bill and hope Congress will act quickly and decisively in passing it.”
It is NUCA’s position that Congress should rethink this legislation by seeking input from the regulated community — including the construction industry — about ways in which all stakeholders can work together to protect waters and wetlands for the benefit of the environment and future generations and, at the same time, not unduly hinder the utility construction industry from providing the essential infrastructure that helps sustain the quality of life enjoyed by all Americans.
Specifically, NUCA believes that the term “navigable” must be kept in the Clean Water Act in order to maintain the appropriate criteria needed to identify areas where excavation activities must be permitted by the federal government. NUCA looks forward to working with colleagues in the construction industry to oppose H.R. 2421 and maintain the current jurisdiction of “navigable waters” under the Clean Water Act.
Ben Gann is NUCA’s Government Relations Coordinator. |
