AGC Prepares Early Feedback on the Future Definition of 'Waters of the United States'

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have opened a docket to collect recommendations on how the “Waters of the United State” or WOTUS definition should revised. The agencies have spent the last few months gathering public feedback through a series of listening sessions and an in-person meeting for small entities. AGC participated in the listening session for construction and transportation and is preparing written recommendations by the Nov. 28, 2017, deadline. It is not too late to participate, see below for information on how.

AGC’s verbal comments during the October 10 listening session highlighted general concerns with a broad expansion of federal authority over water and land use. AGC maintains that the federal government should not assert control over waters that have historically been protected by the states, including many ditches, conveyances, isolated waters, and other wet features. Such an expansion of the federal permitting process would increase the number of construction sites required to obtain a federal Clean Water Act permit. This would slow economic growth by delaying and increasing the cost of necessary improvements to the public and private infrastructure that forms the foundation of our nation’s economy, such as: highways, bridges, mass transit, airports, flood control, navigation, schools, and drinking and waste water facilities.

In the brief time allotted, AGC also highlighted three of the association’s most pressing recommendations for a revised definition of WOTUS:

• Exclude roadside ditches and other components of a municipality’s storm sewers
• Exclude other stormwater features such as retention/detention ponds
• Clarify and exclude “water filled depressions” such as those caused from the use of construction equipment

Providing Feedback
If you would like to provide verbal or written feedback to the agencies, you can participate in a listening session, submit a letter to the docket, or share your thoughts with AGC to factor into the Association’s recommendations. Two listening sessions remain during this “early feedback” time period (see below). Submit all written recommendations to the docket (Docket ID No. EPA-HQ-OW-2017-0480) on or before Nov. 28, 2017. If you would like AGC to consider your concerns in the association’s letter to the agencies, please contact Melinda Tomaino at tomainom@agc.org by Nov. 22.

To register for the remaining listening sessions, go to https://www.epa.gov/wotus-rule/outreach-meetings.

• Tuesday, November 14, 2017—stormwater, wastewater management and drinking water agencies and
• Tuesday, November 21, 2017—open to general public

Questions for Consideration
In advance of the construction and transportation listening session, the agencies provided a series of questions for consideration. These questions may be helpful when preparing your feedback.

• How does CWA jurisdiction affect your organization, as a part of the construction/transportation field?
• For purposes of the Clean Water Act, what tributaries and wetlands should be jurisdictional?
• Are there particular features or implications of any such approaches that you, as an organization in the field of construction/transportation, recommend the agencies be mindful of in developing the Step 2 proposed rule?
• Are there certain waters or features that you recommend the agencies consider excluding from the proposed definition?
• Following Supreme Court cases restricting jurisdiction - SWANCC in 2001 or Rapanos in 2006 - did you experience any changes in your costs as a result of reduced assertion of jurisdiction? Can you provide any helpful information or data regarding any such changes?
• Many construction/transportation-focused companies and organizations have requested better clarity regarding where the Clean Water Act applies. What would clarity look like to you?
• Do you have feedback about how the agencies should interpret key terms in Justice Scalia’s opinion, such as “relatively permanent,” and “continuous surface connection”?
• Would you and your stakeholders derive greater or fewer costs/benefits from a change in the definition of “waters of the U.S.” as suggested by the E.O.? Is there any information or data about costs and benefits to the construction/transportation industry that the agencies should consider in their economic analysis?

For more information on the WOTUS rulemaking, read AGC’s September 27, 2017, comments to the agencies on the joint proposed rule to repeal the 2015 definition of WOTUS, or contact Melinda Tomaino at tomainom@agc.org or (703) 837-5415