ARTBA Warns FEMA not to Expand the Definition of “Floodplain” in Light of Proposed EPA WOTUS Rule

1. April 3, 2015
Regulatory Affairs Division
Office of Chief Counsel
Federal Emergency Management Agency
8NE
500 C Street, SW
Washington, DC 20472-3100
Re: Docket ID Number FEMA-2015-0006, Guidelines for Implementing Executive Order
11988, Floodplain Management, as Revised
On behalf of the 6,000 members of the American Road and Transportation Builders Association
(ARTBA), I respectfully offer comments on the Federal Emergency Management Agency’s
(FEMA) Guidelines for Implementing Executive Order 11988, Floodplain Management, as
Revised.
ARTBA’s membership includes private and public sector members that are involved in the
planning, designing, construction and maintenance of the nation’s roadways, waterways, bridges,
ports, airports, rail and transit systems. 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 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.
FEMA has proposed guidelines which would redefine how the boundaries of a floodplain are
established. This will directly impact ARTBA members, as the existence of a floodplain on a
transportation improvement site triggers multiple regulatory requirements. In particular,
ARTBA is concerned that an expansion of the definition of floodplains under FEMA’s proposed
guidelines would increase the instances in which federal Clean Water Act (CWA) permitting
regulations would apply to transportation construction sites.
At the same time FEMA is developing its guidelines for floodplain management, the United
States Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) are also
in the process of finalizing a regulation which would greatly expand the definition of “waters of
the United States” under the CWA. FEMA’s guidelines could have a direct impact on the
impending EPA and Corps regulation, as floodplains are one of the many features which the
EPA and Corps would use to establish federal jurisdiction. Thus, if the FEMA guidelines

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expand the definition of floodplain, the EPA and Corp rule will have an even greater reach than
the agencies currently propose.
The issue of federal jurisdiction under the CWA is particularly concerning to ARTBA because of
the treatment of roadside ditches under EPA’s proposed rule. Current federal regulations say
nothing about ditches, but the proposed rule expands EPA and Corps jurisdiction to the point
where virtually any ditch with standing water could be covered. Federal environmental
regulation should only be applied when a clear need is demonstrated. Regulating all roadside
ditches under the theory of interconnectedness fails to meet this threshold. A ditch’s primary
purpose is safety and they only have water present during and after rainfall. In contrast,
traditional wetlands are not typically man-made nor do they fulfill a specific safety function. As
such, roadside ditches are not, and should not be regulated as, traditional jurisdictional wetlands
as they only contain water when they are fulfilling their intended purpose.
The unacceptable length of the environmental review and approval process for federal-aid
highway projects has been routinely documented and acknowledged by the Obama
Administration. Adding more layers of review—for unproven benefits—will only lengthen this
process. Further, requiring wetland permits for ditch construction and maintenance would force
project sponsors and the private sector to incur new administrative and legal costs. The potential
delays and increased costs that would result from EPA’s proposal would divert resources from
timely ditch maintenance activities and potentially threaten the role ditches play in promoting
roadway safety.
In addition, the proposed rule creates a completely new concept of allowing for “aggregation” of
the contributions of all similar waters “within an entire watershed.” This concept results in a
blanket jurisdictional determination—meaning the EPA and Corps could regulate the complete
watershed. Such a broadening of jurisdiction would literally leave no transportation project
untouched, regardless of its location, as there is no area in the United States that cannot be linked
to at least one watershed. In this area particularly, a broadened definition of a “floodplain”
would expand federal jurisdiction even further, by allowing for an even greater application of
“aggregation.” While there are certainly instances where a permit is appropriate for the impacts
of transportation construction, these situations should be evaluated on a case-by-case basis where
specific environmental benefits can be evaluated.
It should also be noted that there has been recent bipartisan progress in the area of streamlining
the project review and approval process for transportation projects. Members of both parties
agree that transportation improvements can be built more quickly without sacrificing necessary
environmental protections. The current surface transportation reauthorization law, the “Moving
Ahead for Progress in the 21st
Century” (MAP-21) Act contained significant reforms to the
project delivery process aimed at reducing delay. Recently, the Obama Administration released
the “”Generating Renewal, Opportunity, and Work with Accelerated Mobility, Efficiency, and
Rebuilding of Infrastructure and Communities throughout America” (GROW AMERICA)
reauthorization proposal which continues MAP-21’s efforts at improving project delivery.
If EPA’s rule is finalized, the progress of MAP-21 and the potential progress of the project
delivery reforms in GROW AMERICA would be jeopardized. Any reduction in delay gained
from improvements to the project delivery process would likely be negated by the increased

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permitting requirements and opportunities for litigation caused by the rule’s expansion of federal
jurisdiction.
In light of EPA’s proposed rule on “waters of the United States,” ARTBA urges FEMA to
suspend its efforts to redefine “floodplains” until the EPA regulation is finalized. At that time,
the issue of floodplain management can be addressed with an eye as to how it would impact
other regulatory requirements, including the EPA rule on CWA jurisdiction. Regulations do not
operate in a vacuum, and ARTBA looks forward to joining a conversation with FEMA where
floodplain management can be achieved without unnecessarily expanding federal jurisdiction
under the CWA.
Sincerely,
T. Peter Ruane
President & C.E.O