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News

A Closer Look at the Proposal to Replace 2015 WOTUS Rule

February 28, 2019

60-Day Comment Period Ends April 15

On Feb. 14, the public comment period officially opened on the administration’s newly proposed replacement of the controversial 2015 Waters of the United States (WOTUS) rule. Legal challenges have placed the 2015 WOTUS rule on hold in 28 states. In the Action Alert, AGC provides an online tool for you to easily express support of the newly proposed replacement rule to the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers.  If you need to read more on the proposal, the article below provides a closer look.

AGC has been advocating for a clear rule as construction projects in or near federal waters require extensive permitting that comes at a hefty price -- in addition to any state or local water permits a project will need. Over the decades, determining where federal jurisdiction lies and overly broad interpretations have added regulatory uncertainty, delay, and cost to projects. 

The proposal is a step in the right direction to correct the regulatory overreach of the old rule and provide clarity to industry, while continuing to protect federal waters. For example, it would continue to include waters that in many cases are readily identifiable as federal waters.  It would also simplify and clarify many of the exclusions in the old rule.  Below is a brief outline of the proposed jurisdictional waters and the exclusions to those waters; links to additional information follow. 

PROPOSED Six Categories of WOTUS

  • (a)(1) Traditional Navigable Waters (TNWs) – includes waters for interstate or foreign commerce
  • (a)(2) Tributaries – naturally occurring surface water channel that contributes perennial or intermittent flow to a TNW in a typical year
  • (a)(3) Ditches – artificial channels used to convey water that are TNWs, constructed in/relocate a tributary and meet tributary definition, or constructed in adjacent wetlands and meet tributary definition
  • (a)(4) Lakes and Ponds – that are TNWs, contribute perennial or intermittent flow to a TNW in a typical year, or are flooded by a jurisdictional water in a typical year
  • (a)(5) Impoundments
  • (a)(6) Adjacent Wetlands – must abut or have direct hydrological surface connection

PROPOSED Exclusions

  • (b)(1) Features not identified as WOTUS in (a) are excluded
  • (b)(2) Groundwater
  • (b)(3) Ephemeral Features and Diffuse Stormwater Runoff
  • (b)(4) Ditches Not Identified as WOTUS in (a)(3)
  • (b)(5) Prior Converted Cropland
  • (b)(6) Artificially Irrigated Areas – that would revert to upland
  • (b)(7) Artificial Lakes and Ponds Constructed in Upland - that are not otherwise jurisdictional
  • (b)(8) Water-filled Depressions Created in Upland - incidental to mining or construction and sand, gravel, and fill pits excavated in uplands
  • (b)(9) Stormwater Features - excavated or constructed in upland to convey, treat, infiltrate or store stormwater run-off
  • (b)(10) Wastewater Recycling Structures - constructed in upland
  • (b)(11) Waste Treatment Systems - active or passive

For more information, see AGC's WOTUS one-pager and an overview of the proposed replacement rule.  You will also find additional information on the U.S. Environmental Protection Agency’s website at http://www.epa.gov/wotus-rule.  Particularly, the agencies’ “overview” and “key proposed changes” factsheets for the proposal are helpful, as is this infographic.

To submit a comment, use AGC’s Action Alert to send a customizable letter to the agencies; or submit comments via www.regulations.gov. (On regulations.gov, search for the following Docket ID No. EPA-HQ-OW-2018-0149-0003 and follow the prompts for submitting a comment.)  Comments are due April 15, 2019. 

For more information or to offer feedback to AGC of America on the proposal, contact Melinda Tomaino at tomainom@agc.org

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