Photo Courtesy of U.S. Dept. of Agriculture Natural Resources Conservation Service

Proposal would alter list of what qualifies as "waters of the U.S.," which require federal permits for construction near them.

An Environmental Protection Agency-Army Corps of Engineers proposal to redefine which bodies of water are federally regulated has stirred up a storm of criticism from construction groups that contend the new definition is far too broad.

The proposed rule, released on March 25, would have a big impact on construction because it changes when firms must get a Corps Clean Water Act permit for dredging and filling in or near wetlands, streams and other "waters of the United States."

In another Clean Water Act-related action, construction interests suffered a defeat on March 24, when the U.S. Supreme Court declined to hear a challenge to EPA's decision to withdraw dredge-and-fill permits the Corps issued years earlier.

For now, at least, a brighter spotlight seems to be on the proposed EPA-Corps rule. EPA Administrator Gina McCarthy said, "Our proposal does not add to, or expand, the scope of waters historically protected under the Clean Water Act." She added, "It clarifies which waters are protected and which waters are not." McCarthy said the plan "cuts red tape" and "gives certainty to business."

Some types of bodies of water would remain under federal jurisdiction, such as interstate waters and wetlands and those used in interstate commerce. But industry officials are worried about other provisions. Nick Goldstein, American Road & Transportation Builders Association vice president of environmental and regulatory affairs, says, "The way the rule is written, we see it as a pretty large expansion of federal authority."

Goldstein says ARTBA especially fears the proposal could lead to federal regulation of roadside ditches. He notes that the text would exclude some ditches from Uncle Sam's jurisdiction. But he adds, "It's kind of the mythical ditch, if you will. It has to be upland and flow only into upland areas. So where is that ditch? It's like a unicorn—we're not sure if it exists."

Scott Berry, director of the Associated General Contractors utility infrastructure division-environment and trade, points to the rule's definition of a tributary. "That's a big deal for us because a tributary under this definition is anything with a bank, a bed and an ordinary high-water mark.That's a pretty broad swath of waters."

The National Association of Home Builders is concerned about several provisions in the rule, including its "very expansive" tributaries definition, says Tabby Waqar, a program manager in the NAHB environmental advocacy group. She also says the proposal adds other types of "adjacent" waters, beyond wetlands, to those deemed to be under federal jurisdiction.

Berry expects AGC and other opponents of the rule to mount "a multi-pronged strategy," including filing comments with EPA and the Corps about the regulation, seeking discussions with the Office of Management and Budget's regulatory arm and lobbying Congress.

EPA and the Corps have opened the docket for comments on the proposal for 90 days after it appears in the Federal Register. They will review those filings for weeks or maybe months before issuing a final version. Any court challenge would have to wait until the rule is final.