WOTUS

As a result of May’s U.S. Supreme Court decision in Sackett vs. the United States Environmental Protection Agency (U.S. EPA), confusion to clarity has come regarding Waters of the United States (WOTUS).

The court decision resulted in a ripple effect of how WOTUS issues near heavy/ highway construction projects should be dealt with – for now.

“(The) Supreme Court decision removes unnecessary and unsupportable impediments to transportation improvements across the country,” said American Road & Transportation Builders Association (ARTBA) President/CEO Dave Bauer of the High Court’s May 25th decision.

Associated General Contractors of America (AGC) CEO Stephen E. Sandherr said the Supreme Court’s Sackett decision provides “muchneeded clarity on what is, and is not, a Water of the U.S. This decision will return consistency and sanity to the permitting process … (And) will allow vital infrastructure and development projects to proceed in a timely manner while still providing strong protections for the actual waters of the U.S.”

“Unnecessary,” “unsupportable,” “consistency” and “sanity” are all words used to describe what the heavy/ highway construction industry has endured when it comes to what does and what does not require permitting when working in and adjacent to WOTUS. Industry proponents say The Sackett vs. U.S. EPA decision strikes down the U.S. EPA’s effort to expand its authority under the Clean Water Act (CWA) and will result in a friendlierversion rewrite of the WOTUS rules.

What is a WOTUS?

While the term WOTUS originated in 1899, according to the National Association of Counties (NACo.) in its “Quick History of WOTUS,” the definition of what is a Waters of the U.S. has stretched the boundaries – like a creek or river pushes its banks after an extensive rain.

In the Rivers and Harbors Act of 1899, WOTUS referred to the U.S. Army Corps of Engineers’ (USACE) initial regulatory permits to protect navigable waters in developing harbors. The 1972 Clean Water Act, which came two years after the U.S. EPA was established, among other things, regulated quality standards for surface waters. According to NACo, in the 1980s the definition of WOTUS grew to include all waters and wetlands – and their decline or destruction that affects interstate or foreign commerce.

Over the next 25 years, because of Supreme Court decisions in 1985, 2001 and 2006, WOTUS expanded to include “adjacent wetlands” (U.S. vs. Riverside Bayview Homes); “isolated waters because they provide habitat for migratory birds” (Solid Waste Agency of Northern Cook County vs. USACE); and “relatively permanent, standing or continuously flowing bodies of water” with continuous surface connection to CWA waters, as well as wetlands with “significant nexus” (i.e., connection) to traditionally navigable waters, were under federal jurisdiction (Rapanos vs. U.S.).

From 2015 to the early months of 2023, prior to May’s Supreme Court decision, President Obama’s, President Trump’s and President Biden’s administrations continued to broaden and narrow the definition of WOTUS. These opposing views, repeals and replacements, for all intents and purposes, muddied the waters for the construction industry in regard to which waters are protected, which aren’t, and which necessitate permits and which don’t.

ARTBA Vice President of Regulatory & Legal Issues Nick Goldstein referred to the administrations’ back and forth changes to WOTSU as political ping pong. “This is the third Waters of the United States definition that we have had in seven years. And that’s what happens every time there is a new administration coming in … They withdrew what the last administration did and they put out their own. It’s kind of a game of regulation ping pong that is not good for anybody.”

“It is definitely confusing, the last three administrations, with Presidents Obama, Trump and now Biden, there have been varying definitions, varying iterations that have been out there,” said Kokosing Construction Co. Inc. Environmental Manager Charles “Chuck” Mull. “… The biggest confusion is what is actually going to be covered from a jurisdictional standpoint and how it affects us as a contractor and a landowner that is going to try to apply for permits.”

A Fine Line in the Broad Stroke

Goldstein, who recently joined the U.S. Small Businesses Administration after 18 years with ARTBA, has followed the federal government’s broadening reach when it comes to WOTUS. He spoke with Ohio Contractor in his final days with ARTBA regarding what he has seen as a watering down of WOTUS.

“Unfortunately, the EPA, both now and in 2016, has kind of shirked its duties to craft a clear and reasonable definition. And instead, kind of said, ‘We’re going to take all of the waters – whether we need to protect them or not – and you’re going to need a permit for everything. And if it doesn’t need protecting, well, we’ll just tell you that you don’t need a permit,’” he said. “That in and of itself is an incredible expansion of the Clean Water Act beyond what it was ever intended to do … They are writing a rule that is so vague that you’re going to need a permit for any wet area, and the attitude is: ‘Trust us, if it is too broad, we will scale it all back later.’ That is not how regulations are supposed to work,” Goldstein added. “You are supposed to regulate only the problem area and nothing more. But instead, this approach is trying to squeeze everything in and then with the understanding that it will be scaled down when necessary.”

The latest attempted revision to WOTUS – and what May’s Supreme Court decision all but negated – was President Biden’s Executive Order in his first days in office in 2021. Keeping a campaign promise of repealing and replacing WOTUS rules made by the Trump Administration, the U.S. EPA and USACE went back to preceding WOTUS rules utilized during the Obama Administration. Goldstein wrote about this reversing of regulations, “WOTUS Whiplash,” which appeared in the January-February 2023 issue of Ohio Contractor.

“We started 2023 with a new and expansive rule that the agencies (U.S. EPA and USACE) rushed to finalize, even when AGC, members of Congress and others advised them to wait for the Supreme Court to release their decision in the Sackett case,” said AGC Director of Environmental Services Melinda Tomaino.

Industry associations, such as AGC, ARTBA, National Stone Sand & Gravel Association and others, vehemently opposed the return to the former WOTUS definition and regulations and warned of the confusion that would result – as well as delays to needed transportation projects. “Uncertainty and confusion around requirements in the federal environmental permitting process can significantly drive-up project costs, delay schedules and ultimately cause project cancellations,” wrote AGC, which listed potential concerns for contractors and project owners if the Biden Administration’s proposed WOTUS rule revisions would stand:

• This new rule does not explicitly exclude roadside ditches. Therefore, each roadside ditch will need to be evaluated in its entirety
• Failure to cover a water under a federal 404 permit can lead to criminal penalties and fines of up to $64,618 per day
• An individual CWA Section 404 dredge and fill permit can take 788 days and more than $270,000 to process
• As one state estimates, the activities under the federal 404 permit and state permit overlap 85% of the time, meaning two sets of permits that often regulate the same activity must be filed

(Source: AGC)

“… Defining WOTUS in such an expansive way improperly creates permit obligations for features such as roadside ditches, which serve the necessary safety function of collecting water during and after rain events,” wrote Pits & Quarry. “This type of overregulation serves only to delay critical infrastructure improvements and increases costs without providing any environmental benefits …”

According to an analysis by the U.S. Senate Committee on Small Business & Entrepreneurship, the economic impact of the proposed “Biden WOTUS Rule” would affect an estimated 114,416 small construction businesses and their more than 167,000 employees. The committee said the expanded WOTUS regulations would significantly “expand regulations around permits for land and building projects. It would create significant uncertainty around what criteria (would) be used to determine whether a permit is ultimately awarded. The Rule would even require private individuals to prove water on their land is not under the federal government’s jurisdiction.” (See Sackett sidebar)

The proposed WOTUS Rule expansion would have an impact on any sized construction business, according to Goldstein. “The effect is the same, it’s just the ability to bear the increased costs. If you, as a result of WOTUS, have to bring on a consultant to figure out whether you need a permit, larger companies are going to be able to absorb that cost more than a smaller one …”

“… The biggest thing too are the agencies’ different interpretations of the rule,” said Mull, adding, “’It might be a federal rule, but OK, here is our interpretation of the way that we are reading this.’ That’s one of the biggest things with this whole WOTUS rule – interpreting what they are actually saying.”

Although many portions of the proposed Biden WOTUS Rule brought the ire of construction industry allies, Goldstein – like many – couldn’t get past the idea that a constructed safety feature could become classified as a navigable waterway and would need to be permitted. “Roadside ditches are not Waters of the United States. Categorically they are not,” Goldstein said adamantly. “They are safety features that are meant to convey water off a road – and it’s a public safety function.”

Waiting to Act

With the U.S. EPA and USACE’s reputation preceding itself of expanding the WOTUS rules, industry advocates were ready to act when the Biden Administration’s federal regulations calling for additional permitting requirements were published in the Federal Register this past January.

“We knew this rule was coming out, and we knew as soon as it was published in the Federal Register, we were going to file a dispute against it,” said Goldstein. “… It is too broad, it’s confusing, there are no sort of bright lines that is to where federal jurisdiction starts and stops. … There is supposed to be a line where federal jurisdiction only extends so far, but how this rule (was) written, it’s very vague and you could have federal jurisdiction over pretty much any wet area of the country. And for transportation construction, it is particularly concerning in the area of roadside ditches, because it’s confusing enough where a roadside ditch could be classified as a water of the United States and could need a federal permit to do things like ditch maintenance when the ditch is filled with water – which is basically their function.”

Amicus briefs and court challenges by industry advocates and other trade associations on behalf of the construction industry led to federal district court decisions in Texas, North Dakota, Idaho and Kentucky to maintain the permitting regulations in 27 states – including Ohio – as they were prior to the Biden WOTUS Rule expansion.

May’s U.S. Supreme Court decision in Sackett vs. U.S. EPA provided needed clarity – for now. NSSGA President/CEO Michael Johnson said in Pit & Quarry’s article, “Supreme Court Decision on ‘Sackett’ Goes Industry Way,” that the court’s decision was a “victory for our industry and is a major step towards a more reasonable definition of WOTUS, which our members have struggled with for years and was exacerbated by the premature and confusing Biden Administration’s rule.”

“The Court roundly rejects the use of the flawed ‘significant nexus’ test for determining when projects require a federal permit and establishes a new test for evaluating when a wetland is a Waters of the United States,” said Tomaino. The nexus test was at the core of Sackett vs. U.S. EPA decision, and was what was confusing to contractors and project owners, as it was the barometer to what clarified if a body of water, such as tributaries and wetlands, are subject to the CWA rules based on their connection and effect on downstream waters that Congress sought to originally protect.

According to the National Federation of Independent Business (NFIB), the Sackett vs. U.S. EPA resolved decades of confusion and provides clarity on the CWA and what qualifies as a WOTUS. “The Court flatly and clearly rejected the ‘significant nexus’ test – a test used by different administrations, EPA and USACE to expand their jurisdictional authority and by judges to condone broad claims of authority.

“The Sackett decision likely dooms the Biden Administration’s 2022 WOTUS Rule,” the NFIB added.

ODOT Office of Environmental Services Administrator Tim Hill said the Supreme Court decision has the department in a holding pattern until further instruction by the USACE. “Right now, given the new ruling, we will be reaching out to the USACE to discuss how we move forward. I can imagine that it’s going to be a while before USACE is ready to make decisions, so our ‘holding period’ may continue for a while. … USACE has been very willing to coordinate with us on this as they are working hard to figure it out on their end. So, I’m hoping to have some direction soon.”

Sackett vs. U.S. EPA

The Idaho Panhandle is more than 1,400 miles northwest of the geographic center of the United States’ contiguous 48 states, but it was at the center of the Supreme Court’s Sackett vs. U.S. EPA case that had the nation watching its outcome.

Sackett vs. U.S. EPA, which the May 25th Supreme Court decision is resulting in the U.S. Army Corp of Engineers and U.S. EPA going back to re-writing the most-recent revisions to the Waters of the U.S., stems from private landowners Michael and Chantell Sackett wanting to build their home near the banks of Idaho’s Priest Lake.

To prepare for construction, the Sacketts began filling the lower ground or their property with gravel for the home’s foundation in 2007. A neighbor’s complaint prompted the U.S. EPA’s involvement, halting work and ordering the Sacketts to restore their site under the threat of $40,000 fines per day because it classified wetlands on the property to be waters of the U.S. The Sackett’s wetlands were adjacent a ditch, which fed into a creek, which fed into Priest Lake – a navigable, intrastate lake. The Sacketts filed suit and sued U.S. EPA in 2008, saying EPA lacked jurisdiction because wetlands on their property were not WOTUS and there was dry land between it and the lake.

Nearly 15 years later, this past May, the Supreme Court decided in favor of the Sacketts, ruling that the U.S. EPA’s interpretation of wetlands covered by the CWA is “inconsistent” with the law’s text and structure and extends only to wetlands with a continuous surface connection to bodies of water that are determined as WOTUS.