By Nick Goldstein, vice president of regulatory affairs & assistant general counsel, ARTBA
The U.S. Environmental Protection Agency announced June 27 that it is repealing the “waters of the United States” (WOTUS) rule, which threatened to force transportation construction firms to get a permit every time a roadside ditch filled with water. In a press release, the agency stated that it was repealing in order to provide “regulatory certainty.”
As the 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 repeal process will impact those proceedings.
Following the repeal of the WOTUS rule, which could take months, EPA will reevaluate the extent of federal jurisdiction under the Clean Water Act. ARTBA will submit comments supporting EPA’s withdrawal of the WOTUS rule and will remain involved with the agency as it continues to seek a balance between proper environmental protections and reducing unnecessary regulatory burdens.