June 19, 2014
By HunterMaclean Attorneys for Savannah Morning News
The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) recently proposed a new rule that would expand their jurisdiction under the Clean Water Act. The rule, if implemented, could add additional time and cost to new construction projects in Chatham County.
The Clean Water Act requires permits and mitigation for filling or dredging wetlands or discharging pollutants into surface waters subject to jurisdiction of EPA and the Corps.
Current guidance limits the EPA’s and Corps’ reach to “navigable waters” in general and other waters on a case-by-case basis. Various interpretations under current rules have caused uncertainty in the building community and among farmers and ranchers. In response to a request for clarification of what should be in the agencies’ jurisdiction, the EPA commissioned a scientific study to analyze contributing factors to the health of waters in its jurisdiction.
The Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence Report was released in September 2013. Among other things, the report states that all tributary systems, including perennial, intermittent, and ephemeral streams, and wetlands and open waters in riparian areas and floodplains are physically, chemically, and biologically connected with downstream rivers. In effect, the health of upstream bodies of waters affects the health of whatever is downstream, according to the report.
Based on that study, the EPA and the U.S. Army Corps of Engineers proposed a new rule to include every tributary and adjacent wetland that is upstream of what is now considered a traditional “navigable water” in its new jurisdictional definition as part of the Clean Water Act. The proposed rule broadly defines “adjacent” to include all waters located within the floodplain of otherwise jurisdictional waters, including waters with shallow subsurface hydrologic connection. The EPA uses this definition to determine which projects require permits for dredging and filling wetlands and discharging pollutants into surface waters.
Because much of Chatham County includes functioning wetlands, riparian buffers and marshlands, many private and public property owners who did not previously need permits may now be required to obtain them. Permits may be required for new construction near smaller and more remote bodies of water not previously under EPA jurisdiction.
Permits can take anywhere from several months to several years depending on the scope of the project, the body of water affected and the potential impact to the environment. Documentation required for permitting can cost thousands of dollars, varying by type of water affected and its location.
More than half the members of Congress, including Jack Kingston, R-Savannah, and 11 other Georgia congressmen opposed the move in a letter addressed to the EPA because of its potential impact on small business owners. The letter requested that the EPA and the Corps review the proposal as required by the Regulatory Flexibility Act (RFA). The RFA requires that any new law that significantly impacts a substantial number of small businesses offer a less burdensome alternative for these smaller entities rather than a blanket requirement for all.
The National Association of Homebuilders (NAHB) as well as many agricultural and ranching groups oppose the proposal. NAHB President Kevin Kelly said if the proposal is approved it would increase the cost of new homes without a corresponding benefit to America’s lakes, rivers or other bodies of water.
The EPA has been dealing with the question of what should be in its jurisdiction for more than a decade. Various court cases have expanded and decreased its reach and this new ruling is an attempt to answer the question once and for all. It will take some time to see how the EPA plans to put this rule into practice. But there’s sure to be some challenges to this ruling. The EPA is accepting public comments on the proposal until July 21.
