By Prianka Sharma, Assistant Chief Counsel
Sunny skies, cruise ships, and jurisdictional wetlands. These were themes that emerged at Advocacy’s National Waters of the United States roundtable in Tampa, Fla. In a room filled with sunlight and a view of Tampa Bay, and with a blast from the horn of an enormous cruise ship leaving the dock, Director of Interagency Affairs Charles Maresca, Assistant Chief Counsels Prianka Sharma and Janis Reyes, and Senior Advisor Mitchell Tyner heard comments from several small businesses on the Army Corps of Engineers’ and the Environmental Protection Agency’s proposed rule.
The rule proposes a new definition for the Waters of the United States. Under the Clean Water Act, those waters that are deemed Waters of the United States are subject to federal permitting requirements. Since February, Advocacy has been engaged in a major outreach effort to engage with stakeholders affected by the rule.
Floridians are particularly interested in the rule due to the overabundance of wetlands that may flow into Waters of the United States. Attendees spoke about the need for a clear definition of what is considered an adjacent wetland, meaning those wetlands that are adjacent to a water of the United States and thus under the jurisdiction of the Clean Water Act. The previous rule suggested a distance measurement for determining those wetlands that would be subject to the requirements. Instead, the current proposed rule defines adjacent wetlands as those that have a “direct hydrologic surface connection” to a jurisdictional water. This means that without an actual connection, the adjacent wetlands would be exempt.
One representative of the National Ready-Mix Concrete Association stated that the agencies should consider an exemption for areas that are already subject to other EPA permitting requirements, including settling basins and mixing reservoirs. He stated that to include them as jurisdictional waters under this proposed rule would be redundant and would also result in additional permitting delays and burdensome costs.
Florida is also home to many endangered species that reside in or near the wetlands in question; therefore, those who wish to develop on the land are already subject to strict permitting and reporting requirements under provisions of the Endangered Species Act, National Environmental Policy Act, and other various environmental statutes. Attendees spoke about the need to finalize three rules from the Fish and Wildlife Service and National Marine Fisheries Service that would streamline interagency consultation and otherwise reduce the burden to small businesses in the permitting process.
Finally, Advocacy heard from one industry stakeholder that may be adversely impacted by the new proposed rule, mitigation bankers. The representative from Florida stated that they were not overly concerned with the rule affecting their revenue stream because Florida requires state mitigation. They did foresee that for mitigation banks in states that do not themselves require mitigation, there may be a decrease due to the rule regulating fewer jurisdictional waters subject to mitigation requirements.
Prianka Sharma is an Assistant Chief Counsel for Advocacy whose portfolio includes natural resources, agriculture, and energy. She attended Advocacy’s National Waters of the United States roundtable in Tampa, Fla., in April. Sharma can be reached at Prianka.Sharma@sba.gov.
Read Advocacy’s recent comment letter on the proposed rule here. Read more about Advocacy’s WOTUS outreach here.