AGC Calls for MS4 Systems to be Excluded from “Waters of the United States”

Joins Real Estate and Development Groups in Submitting Comments AGC and 11 other groups active in the real estate development, construction, and management fields called on the Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps) to categorically exclude municipal separate storm sewer systems (MS4s) from being considered “waters of the U.S.” (WOTUS) in official comments submitted to the agencies’ proposed rulemaking. The proposed rule, published for comment in April, redefines “waters of the U.S.” and for the first time includes a definition for tributary, characterizing it by “the presence of a bed and banks and ordinary high water mark” and stating specifically “a tributary … can be a natural, man-altered, or man-made water and includes waters such as rivers, streams, lakes, ponds, impoundments, canals, and ditches…” With this categorical inclusion of ditches, many that discharge stormwater into MS4s (which themselves are already regulated under different parts of the Clean Water Act) are left wondering if they face the double regulation of both what goes in to an MS4 as well as what comes out of one. The groups point out in their comments that “nowhere does EPA specifically address ditches that are components in permitted MS4s” and states “to the extent that ditches (and other system components) are mapped and identified as part of an MS4, and subject to an NPDES permit governing the MS4 of which they are a part, then such ditches (and components) should not be WOTUS.” While these comments do not represent the totality of the points the groups, including AGC, wish to raise about the WOTUS rulemaking, it is nevertheless an important enough singular ask that the groups felt comfortable submitting separate comments on this issue specifically. AGC and the members of the Waters Advocacy Coalition will be submitting extensive comments on the entirety of the rule – highlighting the significant process, regulatory, scientific, and economic problems the groups find with the proposed rule. AGC will also be preparing its own set of comments specific to the construction industry. You can easily submit individual comments through AGC’s Regulatory Action Center. For more information, please contact Scott Berry at or Leah Pilconis at