Obama Administration Proposes New Guidance With Expansive Federal Control Over Construction in U.S. Waters

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers Wednesday released for public comment new draft guidance to clarify jurisdiction of the Clean Water Act over wetlands and waterways.  The document would replace earlier guidance released in 2008 by the Bush Administration following two Supreme Court decisions that have confused the issue of jurisdiction.  The proposed guidance would more broadly define what waters are subject to regulation based on whether the waters share a “significant nexus” with a “navigable” waterway expressly protected under the Act. Stakeholders and policymakers are divided over whether the guidance would have the force and effect of law.  Despite the Administration’s claim that the document is not a rule and thus lacks the force of law, industry, policymakers, and the environmental community, which supports the new guidance, have all called for the Administration to undertake a longer, more deliberative rulemaking process to clarify jurisdiction. AGC, along with the Waters Advocacy Coalition, sent a letter to U.S. EPA and the Corps earlier this month to urge the Administration to withdraw the proposed guidance and to initiate a formal rulemaking process.  In addition, nearly 170 Congressional Republicans and Democrats wrote a letter to the agencies to express similar concerns. For more information on recent developments on the extent of federal control over construction in U.S. waters, click here. For more information, contact Karen Lapsevic at (202) 547-4733 or lapsevick@agc.org.