On April 15, AGC formally supported and offered substantive feedback in response to a new definition of “Waters of the United States” (WOTUS) proposed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers.  The current proposal provides greater clarity than the 2015 WOTUS Rule (undergoing legal challenges and repeal): it better identifies federal waters, respects states’ primary role in pollution prevention, and balances major case law from the last couple of decades.

In its comments, AGC urges the agencies to further refine newly proposed definitions or points of specific interest to the construction  industry.  Specifically, AGC calls on the agencies to exclude ditches that are part of a community’s public infrastructure from regulation as a federally jurisdictional water.  AGC also seeks a full exclusion for stormwater control features, a standard methodology(ies) for distinguishing between ephemeral versus intermittent waters, limits on the timeline and extent of documentation for historical inquiries, more examples of how the exclusions would work in the field, as well as greater clarity on how the proposal would treat flood controls.

The agencies will now take several months to review and respond to public comments on the proposal and prepare a final version of the rule.  AGC expects them to release a final rule towards the end of the year; however, the first quarter in 2020 is also a possibility.  The agencies have been very deliberative during the “repeal and replace” process and the timelines often are extended as a result.  In the interim, AGC will continue to be involved as the proposal moves through completion and as Congress looks to address WOTUS.  AGC continues to track legal challenges to the 2015 WOTUS Rule that are moving through the courts at the district level.  However, a formal repeal of the 2015 WOTUS Rule by the agencies is imminent.

For more information, please contact Melinda Tomaino at [email protected].