By Nick Goldstein, vice president of regulatory and legal issues, ARTBA
The Trump administration’s new water protection rule June 22 became the law of the land, except in Colorado.
Opponents of the “Navigable Waters Protection Rule” (NWPR) a few days earlier convinced a federal judge in Colorado to block it from taking effect in the Rocky Mountain State. That decision was quickly appealed to the Eleventh Circuit Court of Appeals. ARTBA and its allies are awaiting a decision by the court as to whether or not they will be allowed to join the litigation.
Opponents had also tried to block NWRP on a nationwide basis, but a different federal judge in California quickly sided with ARTBA and other supporters of the new rule.
The NWPR’s goal is to increase regulatory clarity by identifying which water bodies are under the federal government’s jurisdiction. If there is any confusion, the burden is on the federal government to prove it has jurisdiction over the water body in question. This is a significant change from the 2015 Waters of the U.S. rule (WOTUS), which placed the burden on individuals to prove disputed water bodies were not federally regulated, potentially impacting roadside ditches.
As the U.S. Army Corps of Engineers begins to implement NWPR, ARTBA will closely monitor how the rule is implemented by each district office in order to ensure it does not improperly regulate roadside ditches, which by draining rain provide an important role in motorist safety.
ARTBA remains involved in federal litigation over the earlier repeal of WOTUS and the implementation of the NWPR.