WOTUS Withdrawal Threatens Infrastructure Agenda

What happened: ARTBA filed Feb. 7 comments with the U.S. Environmental Protection Agency (EPA) that state the Biden administration’s withdrawal of the 2020 ‘Navigable Waters Protection Rule’ (NWPR) jeopardizes its own infrastructure goals by increasing delays to important transportation projects.

Why it matters: The administration’s move is the latest chapter in the multi-year dispute over what is considered a ‘water of the United States’ (WOTUS) under the federal Clean Water Act (CWA). The term WOTUS governs how EPA and the U.S. Army Corps of Engineers (Corps) decide which water bodies are subject to federal authority. Under the Trump Administration’s 2020 NWPR, roadside ditches were not subject to federal oversight. Roadside ditches act as a conduit for draining water from roads under construction – an essential safety feature of road projects.

Key quote: ARTBA’s comments say the administration’s proposal ‘will trigger additional CWA permitting requirements due to its expansion in jurisdiction, with associated time and costs. On the public agency side, an increase in individual permit applications could overwhelm staff, thus further exacerbating the delays in permitting. This is an unfortunate case of conflicting policy objectives, although largely avoidable by leaving the NWPR in place. ARTBA assumes that no federal agency would want its bureaucratic obstinance to be cited as a reason the Infrastructure Investment and Jobs Act did not fulfill its promise.’

What’s next: EPA and the Corps will release a final rule in the coming months after responding to the comments. The U.S. Supreme Court will hear a case later this year that is expected to have a major impact on federal CWA jurisdiction, which could impact the agencies’ regulatory efforts.