Bill that seeks to block the EPA from expanding the jurisdiction of the Clean Water Act passes the House and now faces the SenateSchedule A Consultation

The federal Clean Water Act (CWA) is the primary regulatory tool that the federal government uses to protect wetlands in the United States. The CWA allows the Army Corps of Engineers to grant permits for certain activities, including construction activities, within wetlands and waterways. Importantly, the CWA enables the Environmental Protection Agency (EPA) to prohibit activities, including construction related activities, where such activities could have a negative impact to water quality or other environmental consequences. In most states, including North Carolina, the EPA has delegated authority to state environmental agencies to carry out these regulatory activities.

In 2014, the EPA and the Corps of Engineers proposed the Waters of the United States (WOTUS) rule. Some groups, including members of the Waters Advocacy Coalition (WAC), believe that the WOTUS rule would allow environmental regulators to expand the jurisdiction of the CWA to include roadside ditches. If the jurisdiction of the CWA is expanded to include roadside ditches, regulatory activities under the CWA could have major impacts to contractors across North Carolina that conduct road or transportation related work.

Recently, the WAC and other groups have supported legislative efforts to block the EPA from implementing their WOTUS rule. An overview of these legislative efforts can be found on the American Road & Transportation Builders Association's website. One of these is the Regulatory Integrity Protection Act (H.R. 1732), which the House voted to pass on May 12. The Bill now faces the Senate and a potential veto by the President.

As the CWA and related state regulations affect construction work in wetlands across the state, it is important for any contractor to understand what laws come in to play for every project they bid or carry out. If you're a contractor or construction professional with questions about what laws might impact your company and employees, seek legal counsel to ensure you comply with any applicable state and federal regulations. An attorney with construction experience can help you navigate these state and federal regulations.

About the Author: Carl J. Burchette is an attorney with The Van Winkle Law Firm and focuses his law practice on civil and commercial litigation, with a special interest in construction law. He can be reached at cburchette@vwlawfirm.com or (828) 771-2432.