Supreme Court Decides on WOTUS Rule

May 26, 2023
The “Waters of the United States” rule has led to permitting delays for transportation projects

On May 25, the U.S. Supreme Court agreed with the American Road & Transportation Builders Association (ARTBA) and the National Stone, Sand & Gravel Association (NSSGA) in that the U.S. Environmental Protection Agency (EPA) exceeded its authority in developing new wetland regulations.

This roadblock potentially means the EPA will have to rewrite the Waters of the United States (WOTUS)” rule, which has led to permitting delays for transportation projects.

Sackett vs. EPA's battle was whether the EPA could require a permit for any area with a “significant nexus” to a navigable waterbody, such as a river, lake, or stream. However, "significant nexus" was never defined by the EPA.

The Court called the “significant nexus” test “particularly implausible” and held the EPA has “no statutory basis to impose it.”

ARTBA and NSSGA critiqued the "significant nexus" test, saying it has "no inherent limiting principles" and empowers federal agencies to assert federal jurisdiction “well beyond the limits set by Congress.” They maintained that defining WOTUS in such a way creates permit obligations for features such as roadside ditches, which serve the necessary safety function of collecting water during and after rain events. 

“Today’s Supreme Court decision removes unnecessary and unsupportable impediments to transportation improvements across the country,” said ARTBA President & CEO David Bauer. “With Sackett as a guide, we urge the EPA to pursue common sense strategies that complement our nation’s infrastructure and environmental goals.”

“Today’s opinion in Sackett v EPA is a victory for our industry and is a major step towards a more reasonable definition of WOTUS, which our members have struggled with for years and was exacerbated by the premature and confusing Biden administration rule. With the end of significant nexus, we hope that the agencies heed this decision and work for a truly durable rule,” said NSSGA President and CEO Michael Johnson.  “A clearer WOTUS definition is necessary for our industry to provide the materials needed to build and modernize our country’s infrastructure in an environmentally friendly manner.”

ARTBA and NSSGA have also been involved in federal district court litigation on the WOTUS rule since 2015


Source: ARTBA

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