Concrete Products

JAN 2019

Concrete Products covers the issues that attract producers of ready mixed and manufactured concrete focusing on equipment and material technology, market development and management topics.

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14 • January 2019 www.concreteproducts.com GOVERNMENT AFFAIRS REGULATIONS Construction and business interests welcomed a late-2018 U.S. Envi- ronmental Protection Agency and Department of the Army proposal for a clear, understandable, and implementable definition of "Waters of the United States," clarifying federal authority under the Clean Water Act. Unlike a 2015 definition that drew sharp criticism from construction materials producers and their customers, the new pro- posal a) contains straightforward wording that results in significant cost savings; b) protects the nation's navigable waters; helps sustain economic growth; and, c) reduces barriers to business development. "Our proposal would replace the Obama EPA's 2015 definition with one that respects the limits of the Clean Water Act and pro- vides states and landowners the certainty they need to manage their natural resources and grow local economies," said EPA Acting Administrator Andrew Wheeler in joint unveiling with Army staff. "We are clearly defining the difference between federally protected and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals." "Previously conflicting U.S. Supreme Court rulings on the Clean Water Act left manufacturers without a clear and consistent set of criteria for when the law would impact their businesses," Portland Cement Association CEO Mike Ireland noted in response to the EPA and Army proposal. "Unfortunately, the EPA's prior attempts to clar- ify those criteria did little to reduce the uncertainty while expanding EPA prepares to shed contentious Waters of the U.S. interpretation Continued on page 16 the reach of the federal government. This expanded reach posed a threat to the ability of cement manufacturers to [supply] our coun- try's infrastructure. "EPA's new proposal balances the need to encourage economic growth with protecting the environment. We particularly appreciate EPA's exclusion of quarries from the definition—a common sense provision that helps ensure our members can meet the demand for resilient and sustainable building materials." The proposal, added Associated General Contractors of America CEO Stephen Sandherr, "will provide the kind of clarity needed to ensure that the waters of the U.S. continue to become even cleaner. The newly proposed clean water rule outlines clear and specific guide- lines as to which sites require a federal water permit in addition to state and local water permits, and what needs to be done to protect federally permitted waters. As a result, the new measure will enable contractors for all types of construction projects, from schools to local roadways and other infrastructure, to understand which per- mits they need and proceed without substantial regulatory delay and additional cost. "More important, the new proposal will replace misguided man- dates imposed by the previous administration that were both likely unlawful and created significant confusion about which waters were covered by whom. In fact, the prior rule has never been fully implemented nationwide, as it was immediately challenged in court. That rule introduced confusing jurisdictional 'tests' that would have imposed new costs and delays on virtually every type of construc- tion project anywhere in the country—even on sites without visible water nearby." "The rule would have required costly consultants to determine whether a job site was covered by the rule and also needed a federal water permit, and then figure out what impact that would have on their other environmental requirements," Sandherr explained. "As a result, the cost of infrastructure and economic development activities would have grown while the time required to complete each project would expand. We look forward to working with federal officials to ensure implementation of this new clean water rule." LEGAL UNDERPINNINGS The EPA and Army proposal is the second step in a two-step process to review and revise the definition of "waters of the United States" consistent with President Trump's February 2017 Executive Order enti- tled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule." It states that it is in the national interest to ensure that the nation's navigable waters are kept free from pollution, while at the same time promoting eco- nomic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution. The EPA rule had the potential to complicate concrete plant opera- tions, where water management measures have traditionally been subject to primarily local and state regulator oversight.

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