Article Date: 04/25/2014

To What Extent Could Obama’s ‘Waters of the United States’ Plan Delay Projects across America’s Construction Industry?

By Steve Rizer


There is much concern about the amount of damage the Obama administration’s new “Waters of the United States” proposal could do to the U.S. construction industry. If the plan, which the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) proposed last Monday, becomes a final rule, “we would imagine that projects will be delayed significantly,” Jimmy Christianson, Associated General Contractors of America’s (AGC) director of government affairs, told ConstructionPro Week (CPW) upon the proposal’s release. 


Christianson asserted that the rulemaking would “greatly expand” the definition of what is covered water for federal regulation and increase the number of Clean Water Act (CWA) Section 404 permits required for construction to begin. Under such a rule, “we’re going to have to go get more permits from EPA and [USACE], and the president’s budget doesn’t include any more money for getting those permits, so if you have a significant increase in permits and then the same amount of people and time and resources put into them,” delays will result. 


The plan “has the potential to affect pretty much any construction project in the United States because the way they are defining ‘waters of the U.S.’ will touch lots of different types of projects in lots of different areas, even in some of the driest parts of the country, as well as some of the wettest parts,” Scott Berry, director of AGC’s Utility Infrastructure Division, Environment, and Trade, told CPW. He added that “there are a whole lot of other impacts here beyond just the permitting system. It affects all different parts” of CWA and could impact stormwater and oil-spill programs, he said.


EPA stated that the proposed rule is intended to clarify protection for streams and wetlands and would “not protect any new types of waters that have not historically been covered under CWA and is consistent with the [U.S.] Supreme Court’s more narrow reading of CWA jurisdiction.” The agency noted that determining CWA protection for streams and wetlands “became confusing and complex” following Supreme Court decisions in 2001 and 2006. “For nearly a decade, members of Congress, state and local officials, industry, agriculture, environmental groups, and the public asked for a rulemaking to provide clarity.” Decisions cited in the proposed rule include U.S. v. Riverside Bayview (474 U.S. 121), Rapanos v. United States (547 U.S. 715), and Solid Waste Agency of Northern Cook County v. USACE (531 U.S. 159).


“EPA’s perspective is that its proposed rule merely clarifies and does not expand its jurisdiction over federal waters, but the last time I checked, no one needed to write a 370-page proposed rule [including supporting documentation] to clarify anything,” Christianson said. “That usually doesn’t clarify something; it usually means you’re doing a lot.”


The ConstructionPro Network member version of this article includes a transcript of CPW's interview with Berry and coverage of a pair of other recent Executive Branch actions that has the American Council of Engineering Companies concerned.



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