1. November 6, 2013
Office of Environmental Information (OEI) Docket
Mail Code: 28221T
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Re: Docket No. EPA-HQ-OA-2013-0582, Draft Report on “Connectivity of Streams and
Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence”
On behalf of the 6,000 members of the American Road and Transportation Builders Association
(ARTBA), I respectfully offer comments on the Environmental Protection Agency’s (EPA’s)
draft report entitled “Connectivity of Streams and Wetlands to Downstream Waters: A Review
and Synthesis of the Scientific Evidence.”
ARTBA’s membership includes public agencies and private firms and organizations that own,
plan, design, supply and construct transportation projects throughout the country. Our industry
generates more than $380 billion annually in U.S. economic activity and sustains more than 3.3
million American jobs.
ARTBA members undertake a variety of activities that are subject to the environmental review
and approval process, which includes multiple Clean Water Act (CWA) regulations, in the
normal course of their business operations. ARTBA’s public sector members adopt, approve, or
fund transportation plans, programs, or projects. ARTBA’s private sector members plan, design,
construct and provide supplies for these federal transportation improvement projects. This
document represents the collective views of our 6,000 member companies and organizations.
The draft report, according to EPA, will form the basis for a forthcoming proposed rule
regarding federal jurisdiction under the CWA. A potential increase in the scope of federal
jurisdiction. As environed in the draft report, could have significant impacts on multiple
regulatory schemes which apply to transportation construction, including wetlands permitting.
ARTBA supports the reasonable protection of environmentally sensitive wetlands with policies
balancing preservation, economic realities, and public mobility requirements. Much of the
current debate over federal jurisdiction, however, involves overly broad and ambiguous
definitions of “wetlands.” Many states define wetlands as well other types of water resources
and prescribe regulatory regimes that are appropriate to each. However, the federal government
often uses a one-size fits all approach essentially requiring water resources viewed by states as
not being wetlands to be regulated as if they were wetlands under federal law. The draft
report seeks to bolster this view by stating, essentially, that all waters in the U.S. are
“connected,” and therefore subject to federal regulation.

2. 2
Over-inclusive views as to what constitutes a wetland are frequently used by anti-growth groups
to stop desperately needed transportation improvements. For this reason, ARTBA has, and
continues to, work towards a definition of “wetlands” that would be easily recognizable to both
landowners and transportation planners and is consistent with the original scope of the CWA’s
jurisdiction. As an example of this, official ARTBA policy recommends defining a “wetland” as
follows: “If a land area is saturated with water at the surface during the normal growing season,
has hydric soil and supports aquatic-type vegetation, it is a functioning wetland.”
Prior EPA guidance, which has recently been withdrawn in advance of the aforementioned
upcoming proposed rule the draft report seeks to justify, would have expanded the universe of
waters under CWA jurisdiction. Such an expansion, in turn would increase the amount of
instances in which permits could be required—regardless of ecological value or demonstrated
need— for transportation improvements. While the benefit of additional wetlands permits in the
transportation arena are in doubt, it is clear new the requirements would contribute to already
lengthy delays in the project review and approval process. Further, in instances where the
federal government declines to require a permit, the door would still be left open to unnecessary,
time-consuming litigation initiated by project opponents.
ARTBA is particularly concerned with the treatment of ditches under a regulatory scheme based
on the draft reports’ conclusion that all water is “connected.” Roadside ditches are an essential
part of any transportation project and contribute to the public health and safety of the nation by
dispersing water from roadways. While current regulations say nothing about ditches, such an
expansive view of connectivity could be used to regulate all roadside ditches that have common
characteristics, such as a channel or an ordinary high water mark. As ARTBA has stated on
repeated occasions, roadside ditches are not, and should not be regulated as, traditional
jurisdictional wetlands since they are an essential part of any transportation improvement project
and contribute to the public health and safety of the nation by dispersing water from roadways.
The purpose of roadside ditches is unique and distinct from the waters the draft report seeks to
connect.
In addition, the draft report utilizes the concept of allowing for “aggregation” of the
contributions of all similar waters “within an entire watershed,” making it far easier to establish
a significant nexus between these small intrastate waters and newly expanded roster of
traditional navigable waters. This novel concept results in a blanket jurisdictional determination
for an entire class of waters within an entire watershed. Such an interpretation of jurisdiction
will literally leave no transportation project untouched from federal wetlands jurisdiction
regardless of its location, as there is no area in the United States not linked to at least one
watershed.
ARTBA instead, urges EPA to establish clarity in CWA regulation by developing a classification
system for wetlands based on their ecological value. This would allow increased protection for
the most valuable wetlands while also creating flexibility for projects impacting wetlands that are
considered to have little or no value. Also, there should be a “de minimis” level of impacts
defined which would not require any permitting process to encompass instances where impacts
to wetlands are so minor that they do not have any ecological effect. A “de-minimis” standard
for impacts would be particularly helpful for transportation projects and allow projects to avoid
being delayed by minimal impacts to areas which are non-environmentally sensitive areas.

3. 3
EPA should also note that there have been multiple legislative attempts in recent years to expand
the jurisdiction of the CWA to include all “waters of the United States.” Each of these efforts
have met with broad bipartisan opposition and none have resulted in new law or even a
successful committee mark-up. It is clear that a consensus among policymakers and affected
stakeholders has not yet been reached regarding appropriate federal wetlands jurisdiction.
ARTBA urges the EPA to take note of these developments and instead of seeking to “connect”
all waters, work with the regulated community to identify those specific types of water bodies
which are currently not being covered and craft more appropriate, targeted measures to protect
them.
Finally, ARTBA is an active member of the Waters Advocacy Coalition (WAC) and supports, as
well as incorporates by reference, the comments of WAC submitted to this docket.
ARTBA looks forward to continuing its long tradition of working with the EPA in order to work
towards a clear and consistent scope of CWA jurisdiction which retains essential environmental
protections without needlessly delaying essential transportation improvements.
Sincerely,
T. Peter Ruane
President & C.E.O