By Nick Goldstein, vice president of regulatory and legal issues, ARTBA
A May 28 federal court ruling striking down the federal government’s 2015 version of the “Waters of the United States” (WOTUS) rule is a win for the nation’s transportation construction industry and builders of other much-needed infrastructure.
ARTBA and 13 other trade associations challenged the rule in July 2015. At issue is how the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) decide which bodies of water are under federal jurisdiction. Under the Obama administration rule, roadside ditches could have been subject to unnecessary federal oversight that would have delayed transportation improvements and resulted in increased project costs.
In the 2015 lawsuit filed in the U.S. District Court’s Southern District of Texas, the coalition of trade groups objected to how EPA drafted the rule. The groups said that in addition to distorting U.S. Supreme Court precedent, the agency “subverted the notice-and-comment process by … failing to seek comment on scientific reports relied on in the Rule and on major revisions of the proposed rule, conducting an inadequate economic analysis, and engaging in an unprecedented advocacy campaign during the comment period that demonstrated a closed mind to comments.”
In the May 28 ruling, the judge agreed with the groups’ procedural arguments and decided the rule must be sent back to EPA because “those governed by the rule were deprived of notice of a substantial change to our nation’s environmental regulation scheme.” The decision blocks enforcement of the 2015 rule in the states of Texas, Louisiana and Mississippi, but leaves it in place in 22 other states.
At the same time, the Trump administration is in the process of both formally repealing the 2015 rule and finalizing a replacement WOTUS regulatory framework. ARTBA supports both those efforts.