Environment & Energy

Expanded Federal Regulation of Wetlands and “Waters of the United States”

Issue
Legislation is expected to be introduced again in the House and Senate that would amend the federal Clean Water Act (CWA) and greatly expand its jurisdiction. The legislation is in response to the 2001 U.S. Supreme Court decision in SWANCC (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers), which prohibited the Corps from using the Migratory Bird rule to assert Section 404 jurisdiction over isolated, intrastate, non-navigable waters.

The legislative proposal would remove the term “navigable” from the CWA and insert a long list of water types that would fall within the new definition of “waters of the U.S.” Such a change potentially would bring all wet areas under the jurisdiction of the U.S. Army Corps of Engineers and EPA, including stormwater retention ponds and water conveyances. Ephemeral and intermittent streams, ditches, pipes, gutters and even groundwater may trigger federal jurisdiction under the proposed bills. In addition, any activity that may affect the “waters of the U.S.” would also be regulated.

The bills would raise serious questions about the constitutionality of the CWA, impair ordinary permitting decisions made by Corps personnel in the field, and lead to more litigation. If permits are required for development activities in virtually all locations, increased delays in securing permits will raise costs. Also, the bills would call into question Congress’s intent for States to have the primary responsibility for land and water decisions. If all waters are subject to federal control, then few if any waters would be controlled by the States.

ACEC Position
ACEC urges House and Senate members to oppose legislation that federalizes virtually all bodies of water, and urges Congress instead to work with the regulated community to establish a workable, clear concept of federal jurisdiction under the CWA.