Washington Update

Revised EPA Waters of the U.S. Rule Prompts Protest by Industry Groups

WASHINGTON—The American Road & Transportation Builders Association (ARTBA) and the National Association of Home Builders were among the first business organizations to protest the revised Waters of the United States (WOTUS) rule issued late last month by the U.S. Environmental Protection Agency and the U.S. Department of the Army.

The revised rule by the EPA was in response to a ruling handed down by the U.S. Supreme Court in May in the Sackett vs. EPA case that limited the EPA’s regulatory jurisdiction under the WOTUS rule. The EPA announced the release of its revised WOTUS rule that it stated will provide clarity to the scope of the WOTUs rule that was released earlier this year. The original WOTUS rule was released by the two agencies earlier this year.

While EPA’s and Army’s 2023 rule defining “waters of the United States” was not directly before the Supreme Court, the decision in Sackett made clear that certain aspects of the 2023 rule are invalid. The amendments are limited and change only parts of the 2023 rule that are invalid under the Sackett v. EPA decision. For example, the  final rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected.

Following eight years of litigation, five contradictory regulatory actions spanning three administrations, hundreds of thousands of public comments, and one Supreme Court decision, ARTBA president and CEO Dave Bauer said, “EPA’s rule spurns the opportunity to deliver a lasting solution to protect the nation’s wetlands and brazenly hands this responsibility back to the courts. We are back to Square One.”

The National Association of Home Builders was also critical of the revised rule. NAHB Chairman Alicia Huey stated: “The amended WOTUS rule represents a blow to housing affordability. It assures continued uncertainty regarding federal jurisdiction as established by the Supreme Court’s recent Sackett decision that made clear the federal government only has authority over relatively permanent waterbodies.”

The EPA in announcing the new WOTUS rule noted that the Supreme Court’s decision in Sackett v. EPA, issued on May 25, 2023, created uncertainty for Clean Water Act implementation. The EPA and Army are issuing this amendment to the 2023 rule expeditiously—three months after the Supreme Court decision—to provide clarity and a path forward consistent with the ruling. With this action, the Army Corps of Engineers will resume issuing all jurisdictional determinations. Because the sole purpose of this rule is to amend specific provisions of the 2023 Rule that are invalid under Sackett, the rule will take effect immediately.

“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” said EPA Administrator Michael S. Regan. “We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling. EPA will never waver from our responsibility to ensure clean water for all. Moving forward, we will do everything we can with our existing authorities and resources to help communities, states, and Tribes protect the clean water upon which we all depend.”

EPA Issues Final Water Protections Rule

WASHINGTON—The U.S. Environmental Protection Agency announced on Sept. 14 a final rule to restore the fundamental authority granted by Congress to states, territories and Tribes to protect water resources that are essential to healthy people and thriving communities.

The agency’s final Clean Water Act Section 401 Water Quality Certification Improvement Rule will support clear, efficient and focused water quality reviews of infrastructure and development projects that are key to economic growth, EPA officials stated.

EPA Administrator Michael S. Regan said, “With EPA’s final Clean Water Act Section 401 rule, we are affirming the authority of states, territories and Tribes to protect precious water resources while advancing federally permitted projects in a transparent, timely, and predictable way.”

For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems, and sustainable growth. This final rule strengthens that foundation while recognizing the essential partnership among the federal government, states, territories, and Tribes in protecting our waters.

Clean Water Act Section 401 enables states, territories, and authorized Tribes to protect their water quality from adverse impacts of construction or operation of federally permitted projects. Under Section 401 of the Act, a federal agency may not issue a license or permit to conduct any activity that may result in any discharge into a water of the United States, unless the appropriate state, territory, or authorized Tribe issues a CWA Section 401 water quality certification or waives certification. EPA’s 2023 rule realigns the scope of Section 401 certification with decades of established practice and restores and strengthens the role of states, territories, and authorized Tribes.

The rule enhances certification review and provides regulatory certainty to advance federally permitted projects. For example, the rule establishes a six-month default timeframe (when the federal agency and certifying authority fail to reach an agreement) and a one-year maximum timeframe for certification review (the statutory maximum). The rule emphasizes that states, territories, and Tribes may only consider the adverse water quality-impacts from the activity. To limit delays, the rule also provides a clear approach to defining the required contents in a request for certification.

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