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.
AGC highlighted 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 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 proposeddelaying implementation of the 2015 Obama-era WOTUS rule by two years (until 2020). According to the agencies, postponing the rule will provide regulatory certainty while they work to repeal and replace the rule, which is currently underway. The rule is also currently under a nationwide stay after it was challenged by environmental and industry groups. That litigation remains pending before the Supreme Court and the Sixth Circuit.
For more information, contact Melinda Tomaino at [email protected] or 703-837-5415.