While Rule Includes AGC-Backed Revisions, We Are Working with Congress to Restart the Rulemaking Process to Address Many Other of the Measure’s Flaws
The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers on May 27 released their final rule, which attempts to clarify which water features are subject to federal jurisdiction, a controversial effort that is intended to make permitting decisions easier and bring regulations up-to-date with U.S. Supreme Court opinions. While the new rule includes a number of significant changes AGC proposed, the final measure is still problematic and we are working with Congress to enact legislation requiring the EPA to restart the rule making process.
On its face, the final “Waters of the United States” rule maintains the structure and framework of the proposed rule, defining which rivers, streams, lakes and marshes fall under federal jurisdiction. The rule gives the federal government control over work in traditional navigable waters, interstate waters/wetlands, territorial seas, impoundments, and tributaries that have physical signs of flowing water (even if they don’t flow all year round), and ditches that “look and act” like tributaries. In addition, the final rule automatically applies jurisdiction to adjacent waters/wetlands. Importantly, waters that are jurisdictional are subject to the multiple regulatory requirements of the Clean Water Act: water quality standards, total maximum daily load programs, discharge limitations, stormwater and dredge-and fill permits, water quality certifications, spill protection, and enforcement – which make this rule extremely important to the business of construction. General contractors will now need to know whether the CWA applies before proceeding with construction work in any area in or near a potential WOTUS.
The final rule reflects important changes AGC pushed for in the multiple sets ofcomments it submitted and in several meetings with agency and White House representatives. Those changes include first-time exclusions for certain types of ditches that fall outside the “tributary” definition; some limits on when a stream or wetland should be jurisdictional because it is near or “adjacent” to other jurisdictional waters; limits on the area where waters would have to face a “significant nexus” test on a case-by-case review; clarification on stormwater control features and unique water features like prairie potholes; express exclusion for groundwater and shallow sub-surface drainage connections; provisions to address the validity of existing jurisdictional determinations, and further explanation of what the WOTUS rule means for municipal separate storm sewer systems (MS4s).
While AGC is still examining the details of the rule, we are concerned the broad tributary definition allows for jurisdiction over many ditches as “waters of the U.S.” The ditch exclusions are still narrow and it will be onerous for applicants to prove (through topographic maps, historic photographs, aerial photography, etc.) that their ditch meets the exclusion criteria.
AGC is also concerned that the rule will jeopardize many projects on Day 1 of implementation because the Clean Water Act allows citizen suits. The uncertainty and ambiguity of the rule will breed third-party litigation and citizen suits, even where the agencies decline to assert jurisdiction over particular activities and features on a site.
AGC has been actively speaking out about the substantial flaws in the economic, scientific and administrative rulemaking process upon which the “waters of the U.S.” definition is based -- including that EPA and the Corps failed to adequately consult with states and small-business stakeholders in crafting the proposal, leading to a flawed policy. Overall, because of these flaws inherent in the process, and the problematic broadness of the rule despite important narrowing, AGC remains committed to working with Congress to pass legislation that would restart the rulemaking process with state/local and small business consultation and more robust economic and scientific analysis.
A more extensive analysis of the differences between the proposed rule and final rule and how those differences affect the construction industry will be posted here shortly.
For more information, contact Leah Pilconis at pilconisl@agc.org or Scott Berry atberrys@agc.org. Return to Top