On November 17, the Trump administration announced a new proposal to define federal waters (Waters of the United States or WOTUS)—key to determining when a federal Clean Water Act permit is required for projects. AGC of America advocates for a clear, predictable, and durable rule that provides regulatory certainty without overreach.
At first glance, the joint U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers proposal would–
- Define key terms, such as “relatively permanent” and “continuous surface connection,” informed by recent Supreme Court decisions;
- Define the scope for jurisdictional tributaries (focusing on relatively permanent flow and the presence of a “bed and banks”), which can include some ditches or channelized/relocated tributaries;
- Introduce the concept of “wet season” to help determine whether a feature is relatively permanent or if there is a continuous surface connection (allowing for seasonal and regional differences);
- Address wetland mosaics as individual wetlands;
- Amend the ditch exclusion to exclude non-navigable ditches that are constructed or excavated entirely in dry land (even though it conveys water or it interfaces or connects to a jurisdictional water);
- Add an exclusion for groundwater;
- Remove interstate waters as a category of WOTUS; and
- Shift the burden of proof back to the agencies in making jurisdictional determinations (including for ditches).
This summary is not exhaustive. The proposal is robust and technical in many sections. The agencies present alternatives and implementation considerations for the proposed changes for public comment. The agencies also provide significant statutory, regulatory, and case law background and citations.
At the time of this writing, AGC is conducting an in-depth review of the proposal. AGC provided extensive preliminary feedback to the agencies earlier this year. Likewise, AGC will prepare construction-specific comments on the proposal (due 45 days after formal publication). Members interested in providing feedback for that effort, please reach out to the AGC staff contact below.
The agencies will also hold two public meetings with in-person and virtual participation options. (AGC will update this article when EPA posts the link to register.)
For more information, please contact Melinda Tomaino at melinda.tomaino@agc.org.