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Phyllis Harden

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AGC Urges Agencies 'Draw Bright Lines' in Revised WOTUS Definition

November 30, 2017

Latest Update on WOTUS Rule Status

On Nov. 28, AGC commented on the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers’ (Corps) request for pre-proposal feedback on revising the definition of “Waters of the United States” (WOTUS) under the Clean Water Act (CWA).  The definition of WOTUS, which dictates the scope of the federal control and CWA (e.g., 404/wetlands) permitting responsibility, is of fundamental importance to the construction industry.  AGC members perform many construction activities on land and water that often require a jurisdictional determination from the Corps.  A broad definition of WOTUS will result in more projects falling under federal jurisdiction and requiring expensive and time-consuming permits to proceed.

In verbal (at an Oct. 10 EPA/Corps listening session) and written comments, AGC highlights the industry’s general concerns with a broad expansion of federal authority over water and land use.  AGC recommends the agencies “draw bright lines” for the regulated community and the agencies’ field staff and urges the agencies, among other things, to—

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

As for the latest on the WOTUS rulemaking, the EPA and Corps recently proposed delaying implementation of the 2015 Obama-era WOTUS rule by two years (until 2020).   This latest action is just one of many moving pieces; a step by the agencies under the Trump administration towards maintaining the status quo and ensuring the 2015 rule is not implemented.

The agencies had intended the Obama-era WOTUS rule to re-define the federal government’s jurisdiction over waters and wetlands under the Clean Water Act.  Immediately after it was issued, the rule was challenged by environmental groups and industry groups alike. The litigation remains pending before the Supreme Court and the Sixth Circuit. In the meantime, the WOTUS rule is subject to a nationwide stay.

In February 2017, the President signed an Executive Order, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” According to the agencies, postponing the rule will provide regulatory certainty while the agencies finish the process of repealing and replacing the WOTUS rule, which is currently underway.

For more information, contact AGC’s Melinda Tomaino at or 703-837-5415.

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