AGC opposes legislation expanding federal wetland permitting requirements

Urges clarification of limits to federal jurisdiction over waters and wetlands

News AGC Highway Facts Bulletin July 20, 2007
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The Associated General Contractors of America (AGC) presented testimony yesterday to the House Transportation and Infrastructure Committee strongly opposing H.R. 2421, the Clean Water Restoration Act of 2007, which would greatly expand federal jurisdiction over waters and wetlands, resulting in an increase in areas and activities that would require Corps of Engineer 404 permits. AGC also urged that new regulations be issued establishing readily identifiable limits to federal jurisdiction over waters and wetlands.

AGC's testimony pointed out that without clear definitions to guide field staff in the regulatory agencies, permitting decisions would continue to be arbitrary and inconsistent.

Current regulatory provisions, which are vague, ambiguous and confusing, deny landowners fair notice of what is required and waste time and money--all with little benefit to the environment. This lack of clarity may slow the delivery of critical public infrastructure and private projects and increase their costs.

Committee Chairman Jim Oberstar (D-Minn.) introduced the H.R. 2421 in response to two Supreme Court decisions, in 2001 and 2006, which interpreted the Clean Water Act (CWA) as limiting federal jurisdiction over waters of the United States to "navigable waters." Those Supreme Court decisions significantly reduced the number of construction projects that are subject to 404 permit requirements but did not make fully clear which waters are covered and which are not. H.R. 2421 would delete the term "navigable waters" from the CWA and subject all "waters of the United States," including all "intrastate waters," and all activities affecting such waters, to federal jurisdiction.

On June 5, 2007, the Administration took the necessary first step towards a rulemaking through the issuance of joint guidance to aid regulatory agencies in making jurisdictional determinations. AGC believes that a comprehensive rulemaking is necessary to remove any ambiguity in the requirements, and asked that Congress not pre-empt this effort to clarify the rules by enacting H.R. 2421 or similar legislation.

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