WASHINGTON, D.C. – April 9, 2015 – (RealEstateRama) — AGC and its industry partners from the Waters Advocacy Coalition met with the Office of Management & Budget (OMB) to discuss the federal water quality standards (WQS) regulation proposed by EPA and its interaction with the proposed change in the definition of “Waters of the United States.” Both proposed rules attempt very significant changes to large portions of the Clean Water Act, and AGC and its industry partners do not believe that the agencies are evaluating the true economic costs of either rule, nor are the costs of the changes in either rule being adequately taken into account by the other rule. Taken together, these two rules are likely to give EPA and the states more authority to impose more costly and onerous controls on construction project that may impact water quality or have other “unacceptable” consequences.
As reported by AGC, the WOTUS rule opens the door for a lot more wet areas to become federally-controlled “Waters of the United States.” States must set WQS (designate uses and establish water quality criteria) for all newly regulated WOTUS, including potentially 4.6 million miles of “ephemeral” tributaries (including ditches and other stormwater conveyances) and innumerable small wetlands and ponds in riparian and floodplain areas. The greater number of water-bodies subject to WQS will increase states’ obligations to set reporting and attainment requirements. Specifically, CWA Section 303 requires states to identify and develop clean-up plans (Total Maximum Daily Loads or pollutant caps) for all “impaired” waters that do not meet state WQS to bring these waters into compliance. This will translate to tighter NPDES permit restrictions and conditions on construction in and around federal waters.
In addition, CWA Section 401 requires the applicant of a federal permit to discharge to a WOTUS (e.g., Section 402 stormwater or Section 404 dredge-and-fill) to obtain “certification” from the state that the discharge activities, like construction work, will comply with state water quality standards and goals. This also will translate to tighter permit restrictions and conditions on construction in and around federal waters. Obtaining 401 certification is often a costly and time-consuming process.
AGC strongly disagrees with EPA’s assertion that its WOTUS proposal will have little to no effect on state water quality standards, implementation/TMDL plans or certifications under the Clean Water Act.