By Nick Goldstein, vice president of regulatory affairs & assistant general counsel, ARTBA
President Donald Trump signed an executive order Feb. 28 that begins the process of repealing the “Waters of the United States” (WOTUS) rule, which threatens to force transportation construction firms to get a permit every time a roadside ditch fills with water. It could take years, however, before the regulation dries up and blows away.
As the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) were developing the rule in 2015, ARTBA repeatedly warned that “roadside ditches are not, and should not be regulated as, traditional jurisdictional wetlands as they are not connected water bodies and they contribute to the public health and safety of the nation by dispersing water from roadways.”
The rule did not categorically exempt roadside ditches from federal jurisdiction. Instead, the EPA—in a regulatory overreach—decided a litany of qualifications must be met before a roadside ditch can be deemed exempt from federal permitting requirements.
ARTBA and other trade associations and state governments sued the regulatory agencies, and the federal courts have stayed the WOTUS rule nationwide. It is unclear how the executive order will impact those proceedings.
ARTBA will continue to monitor efforts to revise the WOTUS rule so that any replacement does not expand federal jurisdiction over roadside ditches or impede future transportation improvements, which Trump has said are critical to improving the economy.