Comment on Massive Expansion of Federal Jurisdiction in ‘Waters of the U.S.’ Proposed Rule
UPDATE: The agencies have extended once again the public comment period on the WOTUS proposal to Nov. 14, 2014. AGC encourages members to use our template letter in the Regulatory Action Center to help craft their comments to EPA and the Corps on the agencies’ proposal. The U.S. Chamber of Commerce also is circulating a set of comments, which are designed to highlight the business/industry objections to the rulemaking. AGC of America is joining the Chamber’s effort in addition to comments that AGC already filed on municipal separate storm sewer systems (MS4s), additional forthcoming AGC of America comments, and forthcoming comments from the Waters Advocacy Coalition, where AGC sits on the steering committee.
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Earlier this year, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) jointly released their notice of proposed rulemaking redefining “waters of the U.S.” under the Clean Water Act (CWA). The proposal asserts federal control over waters that were previously under the sole jurisdiction of the states, including many ditches, conveyances, isolated waters, and other wet features. More projects will have to comply with federal permitting and other environmental requirements, increasing the time and cost of performing construction services. AGC chapters and members are encouraged to use AGC’s template letter to submit written comments by Oct. 20 detailing how the new definition for this critical term will impact construction operations.
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 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).
To this end, the proposal is likely to have a significant impact on construction operations across the country in the following ways:
- The proposed rule would expand the number of ditches—roadside, flood channels and potentially others—that would fall under federal control.
- The proposed rule would impact the construction and maintenance of “green infrastructure” controls that most state and city governments are requiring, as a stormwater management tool to lessen flooding and protect water quality by using vegetation, soils and natural processes.
- The proposed rule would effectively shift the burden to the regulated community to prove that any water-filled depressions created during the course of construction are not federal waters. Old maps and aerial photos may be the only sources available to identify historic conditions in order to resolve third-party allegations of violations of federal CWA laws; however, these tools often lack the level of resolution required to make a proper determination.