Proposed EPA Rule to Clean Water Act: Serious Implications for the Development Community

On March 25, 2014, the EPA and U.S. Army Corps of Engineers jointly proposed a new rule defining the scope of waters protected under the Clean Water Act (CWA). According to the agencies, the rule aims to make the process of identifying “Waters of the U.S.” less complicated and more efficient. As the current rule stands, CWA’s jurisdiction is limited to traditional navigable waters, including any wetlands that fringe upon these waters, and “other waters.”  The new rule would extend the CWA’s jurisdiction beyond these to include all tributaries, all “adjacent waters,” and any “other waters” that have been determined on a case-by-case basis to have a significant nexus to traditional navigable waters. The agencies assert that this new definition of “waters of the U.S.” supports scientific research on the connectivity between tributaries, adjacent waters, and other open waters to the quality of downstream waters.

The EPA produced an Economic Analysis report that projects how the 80+ page rule will impact industries; they estimate close to a 3% increase in CWA’s jurisdiction of water resources and predict annual costs to range from 19.8 to 52.9 million depending on the permit type and acreage.

The validity of these estimates is highly questionable considering the report is based on permit applications submitted at the height of the recession in 2009-2010. Another concern with the estimates is the lack of state-specific data in the report; it does not account for areas like Georgia with variable and difficult typographies. Because of this, the specific impact that the new rule would have on our state is unaddressed. The report also fails to address any additional money that will likely have to be spent investigating alternatives to land development, preparing and completing applications for permits, and for seeking further consultation and federal approvals.

Key Areas of Concern in the proposed rule change include:

  • More development projects would be subject to permitting requirements and regulatory oversight.
  • Greater delays and additional costs for developers.
  • Prevent developers from moving forward with certain new development projects or from expanding certain existing developments.
  • Some waters may be considered “adjacent” and therefore subject to regulation despite being separated by significant distance.

Council Board member and former director of Georgia’s Environmental Protection Division Harold Reheis weighs in on the new rule:

“I believe that the new definition of Waters of the U.S. in the proposed USEPA rule is so broad that it will be interpreted by federal agency employees, environmental activist organizations, and federal courts to include ANY man-made drainage ditches and ANY natural ephemeral drains that occasionally carry storm water. This will require an enormous amount of construction and development projects to need Section 404 permits that, as of now, do not need them.  Compared to the current situation, this will increase the permitting costs and cause much greater delays in obtaining permits.”

The Council for Quality Growth will be joining a broad coalition of industry interests to compose a detailed response to the EPA, specifically outlining the negative impact the new rule would have on the state’s economic welfare. The Council is seeking comments from members addressing their concerns with the rule. Please submit any comments to James Touchton (770-813-3373 or by September 30, 2014. The Council will compile and submit these concerns by October 20, 2014, unless the public comment period continues to be extended, so that they may be considered by the EPA before any further action is taken.

To view the proposed rule change, click HERE

To view the EPA Overview of the proposed rule change, click HERE

Special thanks to Wyatt Kendall at Morris, Manning & Martin, LLP for contributing to this story.