AGC asks the administration to align the definition of “waters of the United States” (WOTUS) with the U.S. Supreme Court’s decision in Sackett v. Environmental Protection Agency.

In an April 23 comment letter, AGC responded to the Trump administration’s request for feedback on aligning the definition of “waters of the United States” (WOTUS) with the U.S. Supreme Court’s decision in Sackett v. Environmental Protection Agency (2023). The decision in that case greatly narrowed the scope of federal jurisdiction over waters, which is central to when expensive and time-consuming Clean Water Act (CWA) section 404 permits are needed on construction projects. The 2023 conforming rule in response to Sackett is legally flawed and remains on hold in 27 states due to AGC-supported litigation. 

In its comments, AGC urged the administration to address the deficiencies raised in that litigation and provide a clear, predictable and enduring WOTUS definition that is sorely needed. In doing so, we encourage the agencies to retain longstanding exclusions (for example, excluding ditches, stormwater controls, and water-filled depressions from equipment). AGC shared member ideas for opportunities to streamline the process. We ask the agencies to prioritize approved jurisdictional determinations, which will be critical for moving projects forward. At the same time, we highlight the need for the administration to reverse the trend towards over-mitigation and resolve longstanding concerns with insufficient credits.  

In following a strict reading of the statute and Supreme Court decisions, AGC asserts that WOTUS should encompass three categories:  

1. Traditional interstate navigable waters (TNWs) and territorial seas;
2. Rivers, streams, lakes and ponds that are relatively permanent, standing, or continuously flowing bodies of water and are connected to category (1) waters; and 
3. Wetlands with a continuous surface connection to category (1) or (2) waters. 

Most ditches, including roadside ditches, should be excluded unless they convey perennial flow to category (1) waters, were constructed in a WOTUS, or relocate/alter a WOTUS. 

For more information, please contact Melinda Tomaino.