EPA Considers Permitting Discharges to Groundwater Under the Clean Water Act

Source: AGC of America Environmental Observer – March 30, 2018

AGC Seeks Input from Members on Potential Impact to Their Operations

The U.S. Environmental Protection Agency (EPA) is accepting public comment until May 21 on several topics related to the question of whether the federal government should use the Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) program to regulate discharges to (or through) groundwater that hydrologically connects to a “Water of the United States” (WOTUS). AGC is seeking more information from members on how this EPA action may impact contractors that own/operate stormwater infrastructure that “treats” or “stores” water runoff. This would include features that infiltrate stormwater or process water underground such as injection wells, underground tanks, surface water impoundments, retention or detention ponds, artificially constructed wetlands, treatment lagoons, or groundwater recharge and reuse systems.

EPA’s Federal Register notice points out that the courts have approached the question in varying ways. Over the years, and in varied settings, EPA has stated that such pollutant discharges may be subject to CWA requirements. But in the absence of clear and consistent nationwide requirements, the agency has made fact-specific, case-by-case determinations.

Some AGC members report that they use underground storage to allow incoming stormwater runoff to exfiltrate into underlying soils. Under current federal law, if an infiltration best management practice (BMP) is deeper than its widest surface dimension, or has a subsurface fluid distribution system, then it will likely be considered a Class V stormwater drainage well that is regulated under EPA’s Underground Injection Control (UIC) program at 40 CFR Parts 144 – 147, required by the Safe Drinking Water Act. See the AGC “Discussion DRAFT” document that summarizes the minimum federal requirements and the relevant language in EPA’s federal NPDES Construction General Permit. What EPA is wrestling with now is whether the agency should also apply the CWA NPDES permit program to discharges to groundwater where there is a direct hydrologic connection to jurisdictional water. EPA has asked for feedback on which connections are considered “direct,” recognizing the uncertainties associated with that term.

AGC Member Input NEEDED

Through public input, AGC and its members have an opportunity to inform a potential future federal regulatory action. Comments are due to EPA by May 21, 2018. Please respond to Leah Pilconis at pilconisl@agc.org by April 21.

  1. How would your company be impacted if EPA were to assert CWA jurisdiction over releases to groundwater?
  2. If EPA has the authority to subject such releases to CWA NPDES permitting, are they already addressed adequately through existing state statutory or regulatory programs or through other existing federal regulations and permit programs?

Background: Recent Ninth Circuit Decision

This EPA action stems from the U.S. Court of Appeals for the Ninth Circuit’s recent opinion in Hawaii Wildlife Fund v. County of Maui (County). The court concluded that the County’s underground injection control wells are “point sources” that “discharged” pollutants into groundwater that acted as an unconfined pathway that eventually reached the Pacific Ocean—a “navigable water” (881 F.3d 754 (9th Cir. 2018, 2/1/2018)). The wells therefore required NPDES permit coverage, per the Clean Water Act. The court based its decision on the “conduit theory” that unconfined groundwater can act as a point source if it conveys pollutants from a point source into a navigable “water of the United States” (WOTUS). Specifically, the court held that (1) the County discharged pollutants from a point source; (2) the pollutants are “fairly traceable” from the point source to a navigable water such that the discharge is the “functional equivalent” of a discharge to navigable waters; (3) the pollutant levels reaching the navigable water are more than de minimis. Read the full opinion here.

Please direct your comments and any questions to Leah Pilconis at pilconisl@agc.org or (703) 837-5332.

Transportation Funding Boosted in 2018 Funding Measure

Source: AGC of America Highway Facts Bulletin 03/23/3018

Transportation Funding Boosted in 2018 Funding Measure

President Signs After Veto Threat

Congress completed action this week on a funding bill for the remainder of fiscal year (FY) 2018 that avoids yet another government shutdown and includes $10 billion plus in additional infrastructure investment—compared to FY 2017.  President Trump signed the measure today after briefly threatening to veto the measure siting concerns about some of its provisions. The deal was set in motion three weeks ago when the Bipartisan Budget Act of 2018 was approved.

That compromise measure put in place a two year blueprint for government spending which promised $20 billion in additional infrastructure funding over that period. The bill signed today is the first half of the promised infrastructure investment. The compromise Omnibus FY 2018 appropriations legislation includes a significant increase in funding for highway, transit and aviation construction. The bill largely approves funding at FAST Act authorized levels from the Highway Trust Fund for the highway and transit programs and provides an additional $4.4 billion from the general fund for transportation programs.

The agreement includes transportation funding as follows:

  • Fully funds FAST Act authorized funding of $44.23 billion for the Federal-aid highway program, an increase of $900 million over FY 2017.
  • An additional $2.565 billion for federal-aid highway funding (from the general fund). The biggest portion of this amount, $1.98 billion will be distributed to states only for highway, bridge and tunnel projects under existing formula, $225 million goes to a new bridge program for rural states (almost half of the states qualify), $15.8 million for Puerto Rico highways, $4.2 million for other territories and $300 million for Federal and tribal lands.
  • $1.5 billion for TIGER Grant Program which was funded at $500 million in FY 2017.
  • Fully funds FAST Act authorized funding of $9.733 billion for mass transit formula grants, no increase from the FY 2017 level.
  • An additional $834 million from the general fund for transit formula grants.
  • Provides $2.645 billion in funding for transit new start capital grant program which funds ongoing transit projects with full funding grant agreements (FFGA). An additional $232 million is provided for FFGA for 5 new transit projects.
  • $4.35 billion for the Airport Improvement Program, an increase of $1 billion from FY 2017.
  • $25 million in additional funds for the Railroad Rehabilitation & Improvement Financing (RRIF) program for credit subsidies.
  • The bill does not include an increase in the Passenger Facility Charge (PFC) from the current cap of $4.50. The PFC, levied on airline tickets, is used for airport capital construction projects. The Senate appropriations bill had proposed an increase of $4.00 in the cap.

In other infrastructure funding the bill provides $6.83 billion for the Army Corps of Engineers for navigation and flood-control projects an increase of $789 million from FY 2017 appropriated level.

AGC called on thousands of its social media grassroots supporters to urge Congress to keep its $10 billion infrastructure investment promise.  AGC pushed for Congress to pass the bill; however, the association also noted the litany of critical construction issues that remain unresolved by this bill and Congress, including but not limited to the need for long-term infrastructure funding, border security and immigration reform, and multiemployer pension reform.

2018 Legislative Wrapup

Much has been made of the ending of the 2018 state legislative session, and with good reason! It was, by all accounts, chaotic and messy, leaving more than a few broadly supported issues unresolved. Governor Eric Holcomb will be calling legislators back to the Statehouse in May to finalize a couple of these issues (federal/state tax law conformity, additional school safety funding) in a short special legislative session. But what happened with ICI’s legislative issues? Let’s recap.


HB 1015 (Torr) contained two different sections aimed at changing some language in state indemnity statutes. After some early negotiating on the House side, Rep. Torr agreed to alter his approach and support changes to the law aimed at eliminating problems with vicarious liability issues on worksites – a stance the construction industry broadly supported. However, the second section of the bill contained provisions supported by design professionals that would have statutorily removed them from the private negotiation process with owners and contractors in regards to duty to defend provisions in contracts. A business coalition made up of contractors, utilities, manufacturers and other entities staunchly opposed this section of the bill to the point where the entire measure died in a conference committee. We should be prepared for this idea to come back in a future legislative session.

HB 1021 (Torr) was an attempt to make it easier for private sector project developers to “bond around” liens that have been placed on a project in order for contractors to get paid for work they have performed. After the bill passed the House, ICI members jumped into the battle and began contacting state Senators to voice concerns about taking away what little leverage contractors have in ensuring payment. And your efforts worked! Senators didn’t even hear the bill in committee.

HB 1341 (Soliday) was one of the bills caught in the last-day-of-session shenanigans. This bill, a priority of the Governor, would have set up a regulatory framework for the operation of autonomous vehicles on Indiana roads and highways. Despite some differences in the two legislative chambers, it was expected to pass, but ultimately didn’t get across the finish line. We expect this bill to come back in 2019.

SB 242 (Holdman) was the omnibus Department of Revenue bill also caught up in the final minutes of the session. The bill contained language that would have put into statute the decades-long sales tax exemption on equipment used in the manufacture of asphalt. Though elements of this bill related to federal tax law conformity are expected to be considered during this year’s special legislative session, this portion of the bill will not come back until 2019.


HBs 1301 and 1374 (Carbaugh and Soliday) both contained language asking for a summer legislative study relating to payment and performance bonds for future public-private projects. Both items are awaiting the Governor’s signature.

HR 8 (Pressel) is another measure asking for a summer study committee, this one on the use of speed cameras in work zones and increased fines for distracted drivers. Ultimately, Legislative Council will decide if these issues will make the limited list of study topics.


We want to express our appreciation to ICI members for picking up the telephone or typing out an email whenever we requested your help. Your work on these measures made a HUGE difference. Please remember this next year, and in future years, when similar requests come across your desk – your input matters!

Ft. Wayne District Staff and ICI Members Talk Pros and Cons of Contract Bundling

Representatives from INDOT Ft. Wayne District and ICI met on January 25 in Warsaw to discuss positive and negative contract bundling characteristics. ICI member contractors, working in northeast Indiana, are concerned that aggressive bundling has reduced competition and is driving up costs. Contractors, primarily working in the Ft. Wayne District, have noticed a higher volume of larger bundles including multiple work types over large geographic areas. Such bundling characteristics present several issues for contractors. Concerns include bonding and bidding capacity for smaller-to-medium contractors, DBE availability, limited opportunities for regional contractors and inflexible contract durations.

After receiving contractor comments leading up to the meeting, Ft. Wayne District Construction Director Jason Spreen and district area engineers reviewed bundled contracts scheduled in the first half of the INDOT fiscal year 2019. Spreen presented the results of their evaluation at the meeting including several contracts split into smaller bundles or stand-alone projects. The revised contract bundles include projects in tighter regional areas, along interstate and major highway corridors, and similar work types. Contractors were appreciative of INDOT’s efforts and believe that the resulting contracts will increase competition, optimize crews and help coordinate maintenance of traffic across adjacent projects.

ICI staff will continue reviewing future bundled contracts listed in the INDOT 18-month letting list and requests for proposals to identify bundles with negative characteristics. We urge members to provide comments and feedback to ICI staff and the INDOT districts construction leadership.

AGC Composite Pension Plan Update

Source: Stephen Sandherr, AGC of America

Recently, AGC participated in a media rollout of the Give Retirement Options to Workers (GROW) Act with the future bill sponsors, the NCCMP and NABTU. The GROW Act is more commonly known as composite plans and has long been an AGC priority. Below are several media stories:

Sandherr/McGarvey OpEd The time is now to ensure multiemployer pension plan security, January 9, 2018 The Hill
Bill Meant to Stabilize Union Pensions on Way in House January 9, 2018 BNA (subscription required)
Lawmakers Working to Overhaul Pension Rules, January 9, 2018 The Washington Free Beacon
Roe, Norcross Unveil Bipartisan Plan to Give Retirement Options to Workers, January 9, 2018 Press Release
The legislation could be formally introduced soon and AGC is calling on members to send letters of support to their legislators by the AGC Legislative Action Center.

Additional Background:

AGC continues to work with Congress, the Building Trades and other stakeholders in the authorization of composite plans. AGC has long viewed the plan design as being comprised of the best features of defined benefit plans and defined contribution plans. These composite plans would offer voluntary options to share risks to provide funding stability, provide lifetime income to participants and limit employer obligations to negotiated contributions only.

Composite plans were was initially proposed in the NCCMPs Solutions not Bailouts but were not included in the Multiemployer Pension Reform Act of 2014 (MPRA). Since that time AGC has led efforts to advance composite plans.

Efforts are also underway to refine proposals to save distressed plans where MPRA is not an option (including but not limited to Central States). We are working to provide credible and realistic solutions to the solvency problems of these plans which will not increase the long-term financial exposure for non-distressed plans in the multiemployer system.

More information can be found on the campaign website: Save Our Futures

LEOs in Work Zones

The latest improvement in the concerted efforts between INDOT and ICI to make working in highway work zones a safer experience is reflected in INDOT Construction Memo 17-17 and USP 801. The practice of having flashing blue lights in and near work zones (especially those without barrier walls) has proven to be an effective way to slow traffic — creating a safer environment for workers and motorists alike.

This special provision will supplement the use of ISP officers patrolling work zones by allowing contractors in certain situations to hire local Law Enforcement Officers (LEOs) who will be paid under a contract pay item.

This is a step in the right direction, and ICI will continue to work with INDOT to improve safety for our contractors and their people, as well as the motoring public.