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White House Receives Rule to Withdraw WOTUS

Thu May 04, 2017 - National Edition
Construction Equipment Guide

According to NSSGA, the Trump administration has taken a major step towards rewriting the burdensome and controversial Waters of the United States (WOTUS) rule. On May 2, a rule called the Definition of “Waters of the United States” – Recodification of Preexisting Rules progressed to the White House, indicating it is undergoing inter-agency review.

“NSSGA has taken advantage of any opportunity to protect members from this jurisdictional overreach,” said Laura O'Neill-Kaumo, NSSGA vice president of government and regulatory affairs. “While this is a very welcome first step to rewriting the rule, NSSGA continues to work with Congress and the new administration to ensure a replacement rule is significantly less burdensome for aggregates operations.”

While the usual deadline for review is 90 days, it is expected that the administration will move more quickly.

The Obama-era rule allowed the Environmental Protection Agency (EPA) to regulate dry streambeds and isolated wetlands in what amounted to a radically expansion of federal jurisdiction over waters that have little or no connection to flowing streams and rivers. Aggregate operators would face additional, costly federal permitting, correction or mitigation, which in turn would cause increased delays and cost overruns for critical public-works projects. The rule has been under a nationwide stay from the 6th U.S. Circuit Court of Appeals since 2015, shortly after it was enacted. The courts could end that stay due to current litigation, but if this new rule is enacted, it would prevent the appellate court's decision from ever being lifted.

Last week at a hearing of the Senate Environment & Public Works Committee, witnesses pointed out that the WOTUS rule goes well beyond legal limits and has fatal flaws which make a rewrite of the rule necessary. The Trump administration has made a repeal or rewrite of the WOTUS rule a priority, and frequently chastised the EPA and WOTUS during the presidential campaign.

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