The Biden administration’s revised rule on the definition of polluted waterways threatens to delay transportation projects and drive up costs, road infrastructure groups warned last week after the Environmental Protection Agency released a revised rule that attempts to conform to a recent opinion from the U.S. Supreme Court.
The EPA’s revised Waters of the United States (WOTUS) rule scales back the number of streams and wetlands that are protected by the Clean Water Act, but raises new regulatory questions and will likely once again be challenged in the courts, critics said.
The amended rule comes three months after a Supreme Court ruling on May 25 restricted which types of water the federal government can regulate.
The SCOTUS ruling in Sackett v. EPA invalidated the Biden administration’s move to expand federal authority over the thousands of miles of streams, wetlands and other bodies that feed into navigable rivers and lakes. That rule meant that roadside ditches would be considered protected waterways, requiring additional regulatory permits under the Clean Water Act, according to road infrastructure groups, farmers and other critics.
The definition of WOTUS has been an issue since Congress passed the Clean Water Act 50 years ago but declined to define the waters, noted the Roosevelt Institute in an October 2022 report on the conflict. The term has instead been shaped over the years by various presidential administrations, the Army Corps of Engineers and judicial decisions.
“EPA will never waver from our responsibility to ensure clean water for all,” EPA Administrator Michael Regan said Tuesday when announcing the new rule. “Moving forward, we will do everything we can with our existing authorities and resources to help communities, states, and Tribes protect the clean water upon which we all depend.”
The agency did not seek public comment when crafting the new rule, noted the National Association of Counties, which will hold a webinar on the new rule next week. Counties, as owners of local infrastructure, may now need to apply for a federal permit to maintain or build new infrastructure projects, NACo noted.
The American Road & Transportation Builders Association called it “another roadblock for transportation projects.”
“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.
Associated Builders and Contractors said the rule, “issued without meaningful opportunities for input from the construction industry and other stakeholders, will contribute to continued regulatory uncertainty and unnecessary delays for critical infrastructure projects across the nation.”
In Congress, top House Democrats said it maximizes Clean Water Act protections despite the SCOTUS restrictions.
“I applaud today’s effort by the EPA and the Corps to quickly establish some clarity governing the waters in communities around the country which will allow critically important infrastructure projects to continue progressing,” House Transportation & Infrastructure Committee ranking member Rep. Rick Larsen, D-Wash., said in a statement. ”However, ultimately Congress needs to step in and correct the egregious misreading of the Clean Water Act by the Supreme Court to ensure communities continue to have access to clean and safe water.”
Sen. Shelley Moore Capito (R-W.Va.), the top Republican on the Senate Environment Committee, said it would likely end up in court again.
“I’m disappointed this rushed rule lacks public outreach and real transparency, results in a definition that is at odds with the law, and will likely be rejected once again in the courts,” Capito said.