By Nick Goldstein, vice president of regulatory and legal issues, ARTBA
A five-year regulatory struggle is nearing the end of the road. The Navigable Waters Protection Rule (NWPR), published April 21 in the Federal Register, will replace the 2105 Waters of the United States (WOTUS) rule later this summer.
The NWPR increases regulatory clarity by identifying which water bodies are under federal jurisdiction. If there is any confusion or dispute, the burden is on the government to prove it has jurisdiction. This is the opposite of WOTUS, which placed the burden on individuals to prove disputed water bodies were not federally regulated.
Most important to the transportation construction industry, NWPR does not exert federal jurisdiction over most roadside ditches, unlike WOTUS, causing delays, increasing costs, and jeopardizing highway safety.
The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) define water bodies that are subject to federal authority. The NWPR will be implemented by Corps district offices across the country. Once the rule takes effect June 22, ARTBA will be closely monitoring how each Corps district office implements the NWPR in order to ensure the new rule does not improperly regulate roadside ditches.
ARTBA remains involved in federal litigation over the earlier repeal of WOTUS. The association will similarly fight to protect the Trump administration regulations from any new legal challenges. ARTBA has released a memo with more details about the NWPR.