Ditches, Stormwater BMPs and Potholes Are Not Waters of the U.S.

AGC Urges Federal Agencies to Withdraw Proposed Rule

AGC of America has presented a powerful case for why the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) should withdraw their proposal to redefine “waters of the United States,” concluding that it is simply too flawed to repair. AGC filed a comprehensive 21-page letter on Nov. 13 that identifies practical problems with the proposal for the construction industry, based on input from AGC’s members. 

AGC also submitted nearly 200 pages of additional comments through partnership work with the U.S. Chamber of Commerce, the Waters Advocacy Coalition and several other nationally-based associations.  Those supplemental comment letters enhanced the construction industry’s advocacy and outreach efforts by coordinating AGC’s message with key stakeholders in the real estate, farming, home building, mining, manufacturing and many other business sectors.  On the whole, AGC provided an exhaustive analysis of the legal, scientific, economic and procedural deficiencies associated with the WOTUS rulemaking – including how the proposal would assert federal control over waters that are currently under the sole jurisdiction of the states, including roadside ditches, stormwater control basins and ponds, isolated waters and other wet features.  Under the proposal, more projects will have to comply with federal permitting and other environmental requirements, increasing the time and cost of performing construction services.

During the course of the nearly seven-month comment period, AGC and its chapters and members had dozens of meeting with the federal agency staff writing the rule, senior administration officials, and key members of U.S. Congress.  We signed various letters and lobbied extensively on the Capitol Hill to bring common-sense to the rulemaking process, and AGC encouraged the construction community to reach out to the federal regulatory agencies and their representative lawmakers using AGC’s Regulatory Action Center.  More than 100 members used AGC’s RAC to get involved and make industry’s voice heard on this important issue.

The agencies’ proposal expansively defines waters – claiming traditionally navigable waters, interstate/territorial waters, tributaries (including ditches), impoundments, adjacent waters (including waters in the floodplain or riparian areas), and “other waters” all as federally jurisdictional. The new “waters of the U.S.” definition would apply not just to the Section 404 program (that requires dredge-and-fill discharge permits for any work in federal waters), but also to other Clean Water Act programs that incorporate the term “waters of the U.S.,” most notably the Section 402 National Pollution Discharge Elimination System (NPDES) program (that requires Construction General Permits for stormwater runoff to federal waters), and the Section 311 Oil Spill Prevention Control and Countermeasures Program (that requires spill plans if there’s a potential for a release to federal waters – plus spill response and reporting).

The above-referenced requirements are expensive, cumbersome, and time-consuming to meet, and leave the construction community vulnerable to penalties and citizen suits. What is more, a lot of land might not be buildable at all. AGC is also extremely concerned with the process used to draft the proposal. The economic analysis conducted by EPA seriously underestimates impacted acreage and completely ignores impacts to non-404 programs. EPA also chose to not wait for a final peer review of their Connectivity Report, touted as the basis of the proposed rule, by the EPA’s own Science Advisory Board. Recognizing that state and local governments are managing water resources not under federal control, it is unclear why the agencies rushed through these important procedural steps designed to ensure that construction companies are protected.  AGC noted in its letter that the agencies are not under a deadline to promulgate this rule so there’s ample time to start over and write a rule that is legally defensible.

For more information, please contact Leah Pilconis at or Scott Berry at