The Environmental Protection Agency says new draft guidance to identify waters that are protected by the Clean Water Act clarifies current confusion stemming from Supreme Court rulings over when contractors need a U.S. Army Corps of Engineers permit to build in such areas. But some industry groups say the guidance, which the Corps and EPA issued on April 27, greatly expands the scope of the Clean Water Act's protections and could slow down projects and lead to lawsuits.

Glynn Rountree, environmental policy analyst for the National Association of Home Builders, says, “A lot of what they are doing is adding cost and delays with no environmental benefits.”

Once finalized, the new guidelines will replace documents the Bush administration issued in 2003 and 2008, which, critics say, hampered agencies' ability to block development in and around certain waters, such as ephemeral streams.

EPA Administrator Lisa Jackson told reporters on April 27 that the new version “is intended to make it clear that the current guidance is flawed [and] underprotects our waters.”

Ed Hopkins, the Sierra Club's director of environmental quality programs, says, “The Bush administration guidance did much more damage than the court decisions themselves did.” Hopkins says the high court's 2001 ruling in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and its 2006 decision in Rapanos v. U.S. were fairly narrow. However, the Bush administration's guidance interpreted those rulings broadly and “made it very difficult for tributaries to be considered waters of the United States,” Hopkins says.

Nick Goldstein, American Road & Transportation Builders Association vice president of government affairs and assistant general counsel, suggests the Supreme Court rulings did not create confusion but did set limits on what waters are protected. “Fundamentally,” Goldstein says, “the [court] said to the agencies that there are limits to their jurisdiction, twice, and they just don't want to hear that message.”

Goldstein adds that, in recent years, some congressional lawmakers have introduced bills that would have established virtually all U.S. waters as protected, but those efforts were unsuccessful. “Legislatively, this wouldn't work, so [agencies are] going to try to expand jurisdiction however they can,” he says.

The guidance will go through a 60-day comment period, then agencies will propose a formal regulation.

Some Areas That Would Not Be
Protected Under the Clean Water Act
Water-filled depressions created incidental to construction activity.
Groundwater drained through subsurface drainage systems.
Erosional features—for example, gullies and rills—swales and ditches that are not tributaries or wetlands.
Artificially irrigated areas that would revert to dry land should irrigation cease.
Waters that lack a “significant nexus” to traditionally navigable waters or interstate waters.
Source: EPA, U.S. Army Corps of Engineers