ARTBA, Industry Groups Hit Army Corps With FOIA Request for WOTUS Guidance

What happened: ARTBA and several industry partners March 12 filed a Freedom of Information Act (FOIA) request with the U.S. Army Corps of Engineers (Corps) seeking guidance and documents pertaining to the Corps and the Environmental Protection Agency (EPA)’s latest waters of the United States (WOTUS) regulation. The group wants information about the criteria being used to make Clean Water Act permitting decisions.

Why it matters:  In a Feb. 29 statement to the Corps and EPA, ARTBA asked the agencies to provide previously undisclosed, internal WOTUS training and guidance documents. “Federal agencies have a responsibility to transparency and professionalism. Especially when criminal penalties are at stake,” ARTBA said. “Regardless of whether these are informal…if they are being relied upon for implementation, they should be public. Not doing so is a violation of due process rights.”

ARTBA previously reported the potential impact on transportation construction projects where uncertainty over WOTUS definitions can cause permit delays. While last year’s Supreme Court Sackett vs. EPA ruling offered clarity, the agencies’ Sept. 8, 2023 final rule fell short of addressing the Court’s instructions. ARTBA requested additional implementation guidance in comments. Almost a year later, the agencies have yet to respond.
What’s next: The Corps must respond to the FOIA request within 20 business days. ARTBA also remains active in WOTUS litigation in Texas and North Dakota federal courts. Contact Prianka Sharma for more information.