ARTBA: Legislation Needed to Clarify EPA, Corps Jurisdiction on Isolated Wetlands

Thu April 01, 2004 - National Edition

It’s time for Congress to pass legislation that provides clear guidance and clarifies the jurisdiction of the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers to regulate isolated wetlands under the federal Clean Water Act (CWA), the American Road and Transportation Builders Association (ARTBA) told a congressional committee March 30.

Under the CWA, the Corps and EPA have authority to regulate various activities that affect “the navigable waters” of the United States. In 1986, the agencies published the “migratory bird rule,” which defined navigable waters very broadly, giving the agencies power over small, isolated ponds and even areas that are only occasionally filled with water.

In a landmark decision handed down in 2001, the U.S. Supreme Court agreed with ARTBA’s argument to the Court that the rule exceeded the statutory authority provided to the Corps by the CWA and knocked down the migratory bird rule. The Corps and EPA subsequently issued ambiguous implementing guidance, causing permitting decisions on isolated wetlands by field offices of these two key agencies to be inconsistent. It resulted in confusion, unnecessary expense and time delays.

Although the EPA and Corps began a rulemaking process in early 2003 to clarify matters, the two agencies decided in December 2003 not to complete the process.

“Lack of clarity in the current regulatory program not only creates confusion, but also wastes time and money with no benefit to the environment,” Brian Holmes, ARTBA state executive, said in testimony before the House Transportation & Infrastructure Subcommittee on Water Resources and Environment.

Holmes, executive director of the Maryland Highway Contractors Association, cited a February 2004 General Accounting Office report that found vast differences in the way local Corps offices interpret and apply federal regulations when considering jurisdiction over wetlands and tributaries.

“Since the Supreme Court ruling, the regulated community has been faced with an array of inconsistent decisions that vary from field office to field office,” Holmes said. “Many of these determinations by field staff have been, at best, questionable.”

Legislation expected to be introduced soon by Rep. Richard Baker (R-LA) to clarify the agencies’ jurisdiction, help eliminate the inconsistency, reduce time delays and reduce federal intrusion into matters that are most appropriately handled at the local level, the association said.

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