Industry reacts as revised WOTUS rule emerges

NSSGA’s Michael Johnson says the latest Waters of the United States rule does not align with the May 2023 Supreme Court decision in Sackett v. EPA. Photo: P&Q Staff

The Environmental Protection Agency (EPA) and the Department of the Army unveiled a final rule amending the 2023 definition of Waters of the United States (WOTUS) to conform with the Supreme Court decision in Sackett v. EPA.

Several industry organizations, however, argue that the agencies did not follow the Supreme Court’s direction.

“The May 25 Supreme Court opinion on Sackett was clear: The federal jurisdiction must be based on a surface connection to navigable water,” says Mike Johnson, president and CEO of the National Stone, Sand & Gravel Association, in a written statement. “Since then, the agencies have dragged their feet and even halted important determinations and permit reviews our members need to build and modernize our country’s infrastructure in an environmentally friendly manner.  This rule does not align with the clear, unanimous Sackett decision.”

Rich Nolan, president and CEO of the National Mining Association, also weighed in on the revised WOTUS rule.

“Earlier this year, the U.S. Supreme Court provided an important check to the federal government’s jurisdiction over water and land features,” Nolan says in a written statement. “Now, just three months later, the administration returns with a revised WOTUS rule that perpetuates prior government overreach, infringing on state authority and disregarding the court’s call for clarity, creating more regulatory confusion and uncertainty when just the opposite is needed.

“Given the soaring demand for mined materials and the need for domestic production to both help meet that demand and secure the nation’s supply chains, this rule was an opportunity to advance a regulatory framework that would support the development of strong domestic supply chains,” Nolan adds. “Instead, it has created a new obstacle.”

Ben Brubeck, vice president of regulatory, labor and state affairs at the Associated Builders & Contractors (ABC), offered a commentary on the final WOTUS rule, as well.

“Instead, this rule, issued without meaningful opportunities for input from the construction industry and other stakeholders, will contribute to continued regulatory uncertainty and unnecessary delays for critical infrastructure projects across the nation,” Brubeck says. “ABC urges the Biden administration to issue broader revisions to WOTUS in full compliance with the Supreme Court’s decision.”

According to EPA, the amendments to the latest WOTUS rule are limited and change only parts of the 2023 rule that are invalid under the Sackett v. EPA decision. As an example, EPA says its final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected.

“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, tribes and partners,” says Michael Regan, EPA administrator, in a written statement. “We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling. EPA will never waver from our responsibility to ensure clean water for all. Moving forward, we will do everything we can with our existing authorities and resources to help communities, states, and tribes protect the clean water upon which we all depend.”

Related: Supreme Court decision on ‘Sackett’ goes industry’s way