EPA Revises WOTUS Rule, Falling Short of Supreme Court Directives

What happened: Pursuant to a May 25 U.S. Supreme Court (SCOTUS) ruling, the U.S. Environmental Protection Agency (EPA) Aug. 29 revised its Waters of the United States (WOTUS) rule defining what constitutes a protected waterway under the Clean Water Act (CWA). Despite directives from the Court, the new rule makes only marginal improvements to EPA’s previous version, which took effect March 20.

Why it matters: ARTBA and industry allies achieved a major victory with the Court’s earlier Sackett vs. EPA ruling as it offered clear direction on what is and is not considered a protected waterway, reducing lengthy permitting reviews. Despite that mandate, the EPA failed to offer a clear and meaningful response in line with the Court’s decision, and will likely perpetuate longstanding uncertainties in CWA jurisdiction. Key features of EPA’s new WOTUS rule include:

• Maintaining the burden on project proponents to determine on a case-by-case basis what constitutes a WOTUS, or protected waterway.
• Ignoring ARTBA’s repeated comments that roadside ditches be definitively exempt from CWA jurisdiction.
• Forcing industry to rely on the Army Corps of Engineers to make permitting determinations, resulting in delays and agency overreach.
• Striking mention of “significant nexus” from the regulatory text pursuant to the Supreme Court’s decision.
• Failing to define what is a “relatively permanent” water flow.

“After eight years of litigation, five contradictory regulatory actions spanning three administrations, hundreds of thousands of public comments, and one Supreme Court decision, EPA’s rule spurns the opportunity to deliver a lasting solution to protect the nation’s wetlands and brazenly hands this responsibility back to the courts,” said ARTBA President and CEO David Bauer in a statement.

What’s next: EPA’s rule takes effect when published in the Federal Register. ARTBA is working with industry allies to determine an appropriate response. Members are encouraged to reach out to ARTBA’s Prianka Sharma for more information.