Final WOTUS Rule Expected Spring 2015
The U.S. Environmental Protection Agency’s (EPA) Office of Research and Development released the final version of the much-anticipated report providing the main scientific underpinning for its “Waters of the U.S.” (WOTUS) proposed rule. As AGC expected, the report concludes that streams, wetlands and riparian areas are connected to downstream waters, and that isolated waters influence these waters also (albeit to a sometimes lesser degree). This final report incorporates feedback from the EPA Science Advisory Board (SAB) panel convened to review the document.
EPA developed the report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (Jan. 15, 2015), to summarize peer-reviewed existing information “about the connectivity and mechanisms by which streams and wetlands, singly or in aggregate, affect the physical, chemical, and biological integrity of downstream waters.” The SAB was asked to comment on the technical accuracy of the draft report and whether its findings and conclusions are supported by the available science. Click here to see SAB’s consensus advice and recommendations.
Notably, SAB members recommended a “gradient approach” to assessing connectivity because almost all waters are connected given a long enough time span. The final report incorporates this change as part of its evaluation of isolated waters, stating their impact of downstream waters works along such a gradient. The final report, however, still fails to scientifically conclude when a connection is “significant” as it pertains to distinguishing any nexus of waters from a “significant nexus,” which is the question at the heart of the WOTUS rulemaking.
The draft version of the report, published in September 2013, was used to support the proposed WOTUS rulemaking, on which AGC submitted extensive comments and joined in multiple coalition efforts. AGC criticized EPA for basing its proposal on science that was still in the process of being peer-reviewed by EPA’s own science advisors. EPA had promised not to finalize the rule until the report was final, and the report is now final.
The final WOTUS rule is currently scheduled for release as early as April 2015. It will revise the definition of “waters of the U.S.” and dictate which bodies of water fall under federal jurisdiction. This definition is critical to many of the Clean Water Act programs affecting how contractors perform their work, such as the Section 404 dredge and fill (wetlands) permits, Section 402 stormwater programs, and Section 311 spill prevention, control, and countermeasures plans.
Constructor Magazine Cover Story
The January/February 2015 issue of Constructor Magazine featured a cover story that examines the industry impact of the WOTUS rulemaking and identifies AGC's actions to encourage the administration to reconsider its new misguided regulation.
For more information, please contact Scott Berry at berrys@agc.org or Leah Pilconis at pilconisl@agc.org.