Apr 15, 2003

For the birds

The Clean Water Act, meant to protect a natural resource, can be a quagmire

With civil penalties as high as $27,500 per violation per
day and possible criminal prosecution, there are several things about the
federal Clean Water Act (CWA) that transportation contractors need to know.

Signed into law on Oct. 18, 1972, in response to public
outrage over the Cuyahoga River fire in Cleveland, the CWA continues to evolve
as the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of
Engineers add new regulations and mandates under the law.

In fact, the CWA is one of the largest contributors to the
explosion of federal regulation that has occurred in the environmental arena
over the past 30 years. In 1970, almost no federal environmental regulations
existed. By 1990, there were almost 11,000 pages of federal environmental
regulations. Today, there are almost 20,000 pages and growing. To the unwary
contractor, these regulations can result in hundreds of thousands of dollars in
fines almost overnight and maybe even jail time.

Besides imposing some very specific requirements on
contractors, the CWA also has been the largest obstacle in delaying
transportation improvement projects in past years. In a survey of state
departments of transportation (DOTs) conducted by the American Road &
Transportation Builders Association (ARTBA), almost 400 highway projects worth
$2.7 billion were canceled or delayed nationwide in 2000 because of issues
raised under the CWA. When asked what was the biggest problem they faced in the
environmental review process in order to deliver projects on time, the majority
of state DOTs identified the CWA.

Wetland regulations

Perhaps the issue most contractors associate with the CWA is
its regulation over wetlands. Under section 404 of the CWA, the Corps--with the
advice and consent of the EPA--is empowered to issue permits "for the
discharge of dredged or fill material into the navigable waters" of the
U.S. However, the precise definition of these terms has resulted in years of
litigation and inconsistent enforcement between different Corps districts.

Historically, the Corps and the EPA have interpreted
"navigable waters" very broadly to include even the smallest wetland
or even streams that only run intermittently when it rains. The agencies'
justification for doing so was the so-called "migratory bird rule,"
which stated that waterfowl use these small waters, attracting bird watchers
and hunters. Since the bird watchers might travel across state lines to see the
birds and hunters buy shotgun shells that travel across state lines, even these
small waters affect interstate commerce, thereby making them navigable.
Needless to say, this seems to be a stretch of the definition on its very face.
As a result, industry and local governments challenged the rule in court and it
was struck down in 2001 by the U.S. Supreme Court.

However, despite the Supreme Court's ruling, the Corps and
the EPA have continued to try to regulate even the smallest wetlands. They
stated that other laws gave them authority to do so and also advanced the
theory--which many have nicknamed the "migratory molecule
theory"--that these small bodies of water are "hydrologically
connected" to larger navigable waters. Finally, on Jan. 15, 2003, under
great pressure from industry, the agencies issued guidance instructing their
field offices to stop regulating isolated wetlands unless they first receive
prior approval from headquarters. According to the EPA, this will reduce the
number of wetlands they can regulate by about 20%. The agencies also announced
they would undertake an official rulemaking to better define what can be
regulated under the CWA and what cannot.

The Corps and the EPA have taken an equally broad
interpretation of the second part of section 404 of the CWA of what constitutes
a "discharge of dredged or fill material." On its face, it would
appear the CWA only permits the regulation of placing materials into a body of
water, not taking material out. However, in the so-called "Tulloch
rule," the agencies argued that when you remove dirt from water, small
particles fall off the bucket back into the water. As a result, according to
the federal government, when you are taking material out, you also are placing
material in the water, thereby allowing the Corps and the EPA to regulate the
activity. Once again, ARTBA and other industry groups challenged this broad
interpretation of the CWA in the courts and prevailed. The court said the CWA
does not allow for the regulation of mere incidental fallback. And, once again,
the Corps and the EPA have repeatedly tried to circumvent the court's decision.

The current rule states that unless a contractor can prove
otherwise, it is presumed that more than just incidental fallback is falling
into the water when material is being removed. ARTBA and other industry groups
are currently challenging this rule in the courts. It was thought that the
Supreme Court would help settle this long-standing dispute between the agencies
and industry in a case before it in its current term. However, that case was
dismissed in December in a split 4-4 decision by the court where Justice
Kennedy abstained because he knew one of the litigants. As a result, the case
that ARTBA is involved in has been expedited and will be heard by the courts

Storm water permitting

Another part of the CWA that has a very direct impact on
contractors on a day-to-day basis is the storm water permitting requirement. In
1987, the CWA was amended to include the National Pollution Discharge
Elimination System, which led the EPA to establish regulations in 1990 to
control storm water runoff from construction sites. The EPA has delegated
authority to all but seven states to perform their own permitting and
enforcement in this area, but all of the state programs must be consistent with
the EPA's mandates.

Under Phase I of the rules, any construction site that
disturbs five or more acres of land must obtain a permit if the site will
discharge runoff into a "water of the United States." This includes
the contractor, who has day-to-day control over the site, as well as the developer,
who has control over the specifications and plans for the project. To meet this
requirement, the EPA established the Construction General Permit (CGP) and
states that run their own programs have established very similar permits. Under
the EPA's CGP a contractor is required to file a Notice of Intent two days
prior to starting work on a project. Soil stabilization must take place within
14 days after the last work on the project, and a Notice of Termination must be
filed within 30 days. If the project involves special circumstances such as
endangered species, historic preservation or impaired waters, the contractor
may have to apply for an individual permit, which is a much more complicated

As part of the permit, a Storm Water Pollution Prevention
Plan must be established, which includes a description of the site and possible
sources of pollution and watershed affected, best management practices that
will be used to control runoff and who is responsible for implementing them, a
schedule for inspection, provisions for maintaining all of the control and a
site map and sequence of construction. Beginning March 10, 2003, the EPA was
scheduled to start enforcing Phase II of the storm water rules, which will
apply these same requirements to smaller construction sites of one acre or

Effluent limitation guidelines

If all of this doesn't seem like enough regulation already,
the EPA is currently under a court order to establish new effluent guidelines
for the construction industry by March 2004. Effluent guidelines are national
technology-based standards established for specific industries to control the
discharge of pollution into waterways. For the construction industry, this
would include runoff from construction sites during land disturbances and the
design, installation and maintenance of permanent erosion and sediment controls
for a project or development.

Before drafting the proposed rule, the EPA was required to
convene a panel of small-business representatives affected by it and to
mitigate any adverse effects on small businesses. This panel, which included
three ARTBA representatives, convinced the EPA to abandon its most costly
proposal, which would have mandated specific technologies or numerical
reductions that required constant on-site testing of sediment runoff, computer
modeling, etc. On June 24, 2002, the EPA set forth three possible options for
the new regulation: (1) do nothing but continue to enforce Phase I and Phase II
of the storm water requirements, (2) establish minimum requirements for inspection
and certification of work sites or (3) require inspection and certification and
require state programs to follow the existing requirements under the EPA's CGP.
ARTBA and most industry groups continue to back option one. Environmental
groups have threatened to challenge the EPA in court if it is not more
aggressive in establishing its final guidelines.

The CWA and other federal laws provide a myriad of obstacles
for contractors performing their day-to-day business. By being involved in
groups like ARTBA, contractors can stay informed and help mold these
regulations as they develop, hopefully reducing burdensome compliance costs for
the industry while also improving the environment.

About the author

Smith is vice president for environmental and regulatory affairs at the American Road & Transportation Builders Association, Washington, D.C.