In an Executive Order signed by the President in 2017 and then followed through on in December 2018, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) released a proposed rule to redefine the scope of the federal government’s jurisdiction over “waters of the United States (WOTUS)” covered by the Clean Water Act (CWA). The President’s order is more restrained and encompasses more traditional limits on the scope of federal power. With technical assistance from ASCE’s Environmental & Water Resources Institute (EWRI) members and a breadth of feedback from ASCE members, ASCE submitted public comments in response to the proposed rule. Additionally, we submitted a request for a 60-day extension to the public comment period in February, which was denied.
After decades of court confusion, the Obama Administration proposed and finalized a new WOTUS definition in 2014 and 2015. ASCE submitted comments to this proposed rule – many of which were included in the 2015 final WOTUS rule.
ASCE’S diverse members are directly and materially affected by the proposed changes to federal water jurisdiction under the CWA in their professional practice areas, and this proposed rule will have an extensive impact on infrastructure developments across the board. ASCE members represent the profession that plans, designs, and builds much of the nation’s infrastructure. As a result, civil engineers are keenly aware of and often most affected by regulations that either facilitate or impede expeditious, cost efficient, and environmentally effective infrastructure development to support our modern society.
ASCE carefully reviewed the rule, engaged with members, and attended a stakeholder outreach event conducted by the agencies. After careful staff and member review and consultation and ensuring consistency with ASCE Policy Statement 378 on National Wetlands Regulatory Policy, ASCE concludes that while we support a WOTUS rulemaking by the agencies to better define federal water jurisdiction under the CWA, our Society cannot support the proposed rule in its current form. In ASCE’s comments, we urge review on the proposed rule’s definition of ditches, wetlands, and ephemeral streams.
Moreover, it is critical that we have clear jurisdiction for national wetlands policy to ensure that wetlands’ issues are properly addressed in a timely and predictable manner during the project development process.