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Latest 'Waters of the United States' Proposal Threatens to Undermine Progress Goals of Bipartisan Infrastructure Law

Tue January 03, 2023 - National Edition #2

The U.S. Environmental Protection Agency's (EPA) Dec. 30 rule expanding Clean Water Act (CWA) jurisdiction over roadside ditches will slow delivery of transportation projects and threatens to nullify the benefits of the 2021 federal infrastructure law, according to the American Road & Transportation Builders Association (ARTBA).

The association said it would mount a legal challenge in federal court to stop the latest proposal.

At issue is how EPA defines bodies of water qualifying as "Waters of the United States" (WOTUS), which are therefore subject to federal authority.

How roadside ditches are treated by the EPA has long been a concern for the transportation construction industry. ARTBA has previously urged EPA not to consider ditches as protected waterways under WOTUS, noting that they act as an important conduit for draining water from roads under construction — an essential safety feature.

In 2020, EPA removed roadside ditches from CWA jurisdiction. The Dec. 30 rule, however, reinstates regulatory requirements on ditches that make determining jurisdiction more confusing and time consuming, according to ARTBA.

"Federal environmental reviews can take as long as seven years to complete for new transportation projects. While the bipartisan Infrastructure Investment and Jobs Act (IIJA) sets a two-year review timeline, EPA's rule puts this goal out of reach for many projects by adding more permitting requirements with no resulting tangible environmental benefits, and in the process increasing the time it takes to deliver transportation improvements," said ARTBA Vice President of Legal & Regulatory Issues, Nick Goldstein.

This rule marks the third time in the past seven years EPA has attempted to define WOTUS and comes as the U.S. Supreme Court considers CWA's limits in the case of Sackett v. EPA. ARTBA has been challenging the issue of CWA jurisdiction over roadside ditches in federal court throughout that time.

In April 2022, ARTBA's latest amicus brief in the Sackett case argued against further expansion of CWA jurisdiction. A decision in that case is expected to be handed down in early 2023. If the Supreme Court invalidates the rule, it will have to be rewritten, thereby exacerbating regulatory uncertainty and delay.

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