WOTUS Rule Raises Threat of Increased Project Costs & Delays

What happened: The U.S. Environmental Protection Agency (EPA) Dec. 30 released a rule expanding its jurisdiction under the Clean Water Act (CWA) to cover roadside ditches by defining them as Waters of the United States (WOTUS), which are therefore subject to federal authority.

Why it matters: For the transportation construction industry, the main issue of concern is that roadside ditches are an important conduit for draining water on construction sites and an essential safety feature. ARTBA has repeatedly urged EPA not to consider ditches as WOTUS, noting such regulation does not fulfill any tangible environmental purpose. The association also warned that the rule will make it harder to achieve the bipartisan Infrastructure Investment and Jobs Act’s goal of completing the environmental review process in two years by adding additional permitting requirements.

In comments submitted earlier this year, ARTBA explained: “The primary purpose of ditches is to help ensure safety by capturing and dispersing water which would otherwise flood roadways, and they only have water present during and after rainfall. In contrast, traditional wetlands are not typically man-made, nor do they fulfill a specific safety function. As such, roadside ditches are not, and should not be regulated as, traditional jurisdictional wetlands because the only time they contain water is when they are fulfilling their intended purpose.”

In 2020, EPA removed roadside ditches from CWA jurisdiction. Today’s rule, unfortunately, reinstates regulatory requirements on ditches that make determining jurisdiction more confusing and time consuming.

What’s next: The rule, which will take effect 60 days after it is published in the Federal Register, comes as the U.S. Supreme Court considers CWA’s limits in the case of Sackett v. EPA. ARTBA submitted an amicus brief in that case in April arguing against expanded CWA jurisdiction. A decision in the Sackett case is expected to be handed down in early 2023. If the Supreme Court invalidates the rule, it will have to be rewritten, further increasing regulatory uncertainty and delay. For the past seven years, ARTBA has been actively litigating this issue in federal court as part of its Transportation Makes America Work campaign. The association will be mounting a legal challenge to today’s rule as part of that ongoing effort.