New WOTUS definition emerges to end 2022

The Environmental Protection Agency under the Trump administration argued that the Navigable Waters Protection rule ended decades of uncertainty over where federal jurisdiction begins and ends. Photo: P&Q Staff

The Environmental Protection Agency (EPA) and the Army Corps of Engineers finalized a rule establishing yet another definition of “waters of the United States” (WOTUS).

EPA says the new rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, territorial seas, interstate waters and upstream water resources that significantly affect those waters.

Construction materials industry stakeholders did not react kindly to the new WOTUS definition.

“The action taken by EPA and the Corps only adds to the confusion of an already unclear process that our members must deal with in order to provide materials crucial for infrastructure projects, like those in the recent bipartisan infrastructure law,” says Mike Johnson, president and CEO of the National Stone, Sand & Gravel Association (NSSGA).

One point of contention NSSGA has with the timing of the new rule is that the agencies did not wait for the Supreme Court’s decision on Sackett v. EPA.

“Not waiting for the Supreme Court’s ruling before finalizing this rule expands the time and effort our members must spend navigating this punitive system,” Johnson says. “This was also done despite requests by a broad range of stakeholders, including NSSGA and over 250 bipartisan members of Congress, to delay a rule until the pending [Supreme Court] decision on Sackett v. EPA is released.

Ben Brubeck, vice president of regulatory, labor and state affairs at the Associated Builders & Contractors, also took issue with the fact that the agencies did not wait for a ruling on Sackett v. EPA.

“As the Army Corps and EPA consider future rulemakings on this issue, ABC urges the agencies to postpone further action until the Supreme Court issues its ruling,” he says.

More reaction

Says NSSGA president and CEO Mike Johnson: “Not waiting for the Supreme Court’s ruling before finalizing this rule expands the time and effort our members must spend navigating this punitive system.” Photo: PamElla Lee Photography

According to NSSGA, the final WOTUS rule purports to be a final withdrawal of the 2020 Navigable Waters Protection Rule yet expands the reliance on the Significant Nexus test – which, the association says, the Supreme Court appears poised to limit or remove as the test for whether a water is a WOTUS.

“The unnecessary agency actions are in direct contradiction to bipartisan calls to wait for the [Supreme Court] ruling, which will further waste taxpayer dollars, as the administration will likely have to write another rule – the fifth in a decade – once the ruling is finalized in the coming months,” Johnson says.

The American Road & Transportation Builders Association (ARTBA) says the rule marks the third time in the past seven years EPA attempted to define WOTUS.

“Federal environmental reviews can take as long as seven years to complete for new transportation projects,” says Nick Goldstein, vice president of legal and regulatory issues at ARTBA, which plans to mount a legal challenge in federal court to stop the latest proposal. “While the bipartisan Infrastructure Investment & Jobs Act sets a two-year review timeline, EPA’s rule puts this goal out of reach for many projects by adding more permitting requirements with no resulting tangible environmental benefits – and in the process [increases] the time it takes to deliver transportation improvements.”