Status
On March 29, 2024, ABC and 25 members of the Waters Advocacy Coalition submitted a letter to the U.S Environmental Protection Agency Office of Water and the U.S. Army Corps of Engineers seeking implementation guidance on the agencies Sept. 8, 2023, Revised Definition of "Waters of the United States” conforming final rule. The conforming rule applies in states where it is not blocked by the courts and arose following the U.S. Supreme Court’s May 25, 2023, decision in Sackett v. EPA, which narrowed the agencies initial final rule published on Dec. 30, 2022.
While the conforming final rule implements some of the key wins from the Sackett decision, ABC notes it fails to fully implement the court’s opinion, including on the definition of “relatively permanent” waters, and may result in continued regulatory uncertainty.
On Feb. 16, 2023, 24 state attorneys general filed a lawsuit against the EPA and the Corps, seeking to overturn the 2022 WOTUS final rule. On April 12, a federal judge in the U.S. District Court for the District of North Dakota issued a ruling blocking the EPA and Corps from enforcing the rule. The preliminary injunction applied to Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming. This decision followed a March 19 ruling by the U.S. District Court for the Southern District of Texas, which blocked the EPA and Corps from enforcing the WOTUS final rule in Texas and Idaho. On May 10, the U.S. Court of Appeals for the Sixth Circuit issued a ruling blocking the rule’s enforcement in Kentucky. The courts’ rulings bring the total number of states blocking the WOTUS rule to 27.
Prior to the courts’ decisions on the 2022 WOTUS final rule, Congress passed H.J. Res. 27, a joint resolution of disapproval under the Congressional Review Act to nullify the regulation. ABC key-voted the resolution, which passed the U.S. House of Representatives by a bipartisan 227-198 vote on March 9, 2023. Following House passage, the U.S. Senate passed the resolution in a 53-43 vote. President Joe Biden vetoed the resolution on April 6.
On Dec. 30, 2022, the EPA and the Corps issued a final rule to revise the definition of WOTUS applicable to all Clean Water Act programs, repealing the ABC-supported 2020 Navigable Waters Protection Rule, which provided a new, clear definition for WOTUS. ABC issued a statement on the final rule, calling it the rule a “significant step back” that will “delay critical infrastructure projects and raise costs for the construction industry.”
In December 2021, the agencies issued a proposed rule that would repeal the 2020 NWPR and restore the pre-2015 definition of WOTUS. ABC submitted comments urging the EPA and the Corps to withdraw the proposed rule.
In 2019, the EPA under President Donald Trump and the Corps repealed the ABC-opposed 2015 WOTUS rule and replaced it with the 2020 ABC-supported NWPR. However, in August 2020, following a federal court decision, the agencies halted nationwide implementation of the NWPR.
Desired Outcome
For decades, uncertainty surrounding the scope of federal authority under the Clean Water Act has resulted in litigation, regulatory uncertainty and confusion in the business community. ABC urges the EPA and the Corps to return to the clear, concise definition of WOTUS implemented in the 2020 NWPR final rule so that its members have the information they need to comply with the law while also serving as good stewards of the environment.