Nick Goldstein
Vice President – ARTBA
Stop me if you’ve heard this one before – the U.S. Environmental Protection Agency (EPA) finalized a rule defining “Waters of the United States” (WOTUS). Sound familiar? It should. EPA just released its third WOTUS definition in seven years, reversing a 2020 rule that reversed its 2015 decision.
The saga is important because it defines which bodies of water are subject to permitting under the Clean Water Act (CWA) – including roadside ditches, aka important transportation project safety features.
Throughout these “WOTUS wars,” ARTBA has urged EPA and Congress to exclude roadside ditches from CWA jurisdiction, arguing they only fill when performing their primary function – water disbursement. Regulating them provides no ecological benefit. It will, however, increase project costs and delays.
The regulation also undermines policies in 2021’s Infrastructure Investment and Jobs Act (IIJA). A key IIJA provision is the “One Federal Decision” requiring federal agencies to review and approve projects within two years. The latest WOTUS rule triggers additional CWA permitting requirements, putting this two-year goal out of reach for many projects.
ARTBA has mounted a two-front legal challenge. On the day the latest definition was announced, January 18, ARTBA and 17 association allies filed suit in the Southern District of Texas to block the rule. And, in partnership with the National Stone, Sand & Gravel Association, ARTBA filed an April 2022 amicus brief with the U.S. Supreme Court in Sackett vs. EPA. This case will likely decide the fate of the WOTUS definition. Arguments were heard last October, and a March decision is expected. The resolution of Sackett is crucial, as the latest rule takes effect March 20. If the Court sides with ARTBA, major portions of the rule will have to be rewritten.
Beyond litigation, it’s important to track how the EPA and U.S. Army Corps of Engineers implement the rule. CWA regulations have been applied inconstantly in the past. If you are working on any projects that experience delays as a result of the latest WOTUS rule, please let ARTBA know.
The WOTUS situation is enough to make anyone’s head spin. It would be comical if it weren’t so serious. Rest assured ARTBA is not laughing, and we will fight to bring a positive outcome for the industry.
