The Environmental Protection Agency and Army Corps of Engineers have drafted a proposed rule that they say aims to clear up the issue of which bodies of water fall under federal regulatory jurisdiction and which do not.
Construction officials are concerned that EPA and the Corps will define federally regulated waters too broadly. Environmental groups praised the agencies' action.
EPA and the Corps sent their draft proposal on Sept. 17 to the Office of Management and Budget, which will coordinate a review of the draft by other federal agencies. After the review, the next step would be the formal publication of the proposed rule. EPA and the Corps did not release the text of the draft.
The Clean Water Act states that "waters of the United States" are subject to federal regulation. For construction companies, that means projects in certain wetlands and other areas that meet that definition require a Corps permit.
For years, determining which wetlands and types of streams are U.S. waters has been anything but clear, even after the U.S. Supreme Court took a stab at an answer in 2001 and 2006 wetlands rulings.
EPA and the Corps say the draft focuses on making clear how the definition applies to wetlands and to smaller waters that feed larger ones. EPA also released a draft report from its Science Advisory Board that found that streams, including small or intermittent ones, and wetlands have effects on downstream waters. EPA is seeking public comment on the study.
Nick Goldstein, American Road & Transportation Builders Association vice president for environmental and regulatory affairs, says of the new draft, "When we talk about really defining a water of the U.S., what we're afraid [of] is, the approach is going to be to sweep everything in and then work backwards through exemptions."
Dalal Aboulhosn, a senior Washington, D.C., representative of the Sierra Club, says, "We are pleased to see the administration taking active steps in ending this confusion and restoring vital protections to our nation's waters."