On Jan. 5, AGC responded to a newly proposed definition of the term “waters of the United States” under the Clean Water Act—determining when a water falls under federal or state jurisdiction. If federal, the permitting process can add significant cost and scheduling delays to projects. AGC made recommendations to strengthen the proposal to ensure roadside ditches, stormwater controls, and other mostly dry features are not regulated as federal waters.
As previously reported, the joint U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers proposal aims to more fully align the regulation with the statute and recent Supreme Court decisions limiting the scope of federal control—namely Sackett v. EPA.
The two key takeaways from Sackett are: “Relatively permanent” is the main “test” for federal waters. And jurisdictional wetlands are those adjacent to a federal water having “a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
In the proposal, the agencies define “relatively permanent” and “continuous surface connection.” They also propose using the “wet season” to assess whether a water has the requisite flow to be considered a WOTUS and, in relation to adjacent wetlands, the time during which it needs to have a “continuous surface connection” to a WOTUS. The agencies made other AGC-supported changes, such as:
- Clarifying interstate waters that otherwise do not qualify as WOTUS are no longer under federal jurisdiction,
- Confirming a long-standing understanding that groundwater is not a WOTUS, and
- Maintaining several core “exclusions” that remove specific wet or semi-wet features from federal jurisdiction (e.g., ditches, waterfilled depressions, wastewater treatment systems).
AGC’s comments centered on our urgent recommendations for the agencies to strengthen the exclusion for ditches and reinstate the prior exclusions for stormwater control features and ephemeral features. The Sackett decision clarified that non-relatively permanent, ephemeral features are not jurisdictional, and ditches are not considered bodies of water “described in ordinary parlance as streams, oceans, rivers, and lakes.” AGC recommended an expansive ditch exclusion to ensure these features are not mistakenly brought under jurisdiction during implementation in the field. AGC recommended the agencies reinstate the exclusion for stormwater control features to similarly ensure these features are not caught up during implementation. Contractors need confidence that the sediment basins and other controls they put in place to comply with their stormwater permit will not later become a WOTUS.
For more information, contact Melinda Tomaino.