AASHTO Journal

EPA, Army Move to Rescind 2015 'Waters of the U.S.' Rule

The Environmental Protection Agency and Army Corps of Engineers initiated a process to rescind a 2015 regulation known as the "waters of the United States" rule, which construction groups said would increase the costs and time required to build infrastructure projects.

"We are taking significant action to return power to the states and provide regulatory certainty to our nation's farmers and businesses," said EPA Administrator Scott Pruitt. "This is the first step in the two-step process to redefine 'waters of the U.S.' and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public."

capitol0816.jpgAs the AASHTO Journal reported in May 2015 when the agencies finalized the initial "WOTUS" rule, both the American Road & Transportation Builders Association and the National Stone, Sand and Gravel Association warned that it could trigger new permitting requirements or could be used by project opponents as the basis for litigation.

NSSGA President Michael Johnson had said the resulting "increased costs and delays will be passed along to the taxpayers through a higher price tag for infrastructure projects like highways."

To officially withdraw that rule, the EPA and Corps said June 27 that their proposed rule "would recodify the identical regulatory text that was in place prior to the 2015 Clean Water Rule, and that is currently in place as a result of the U.S. Court of Appeals for the Sixth Circuit's [October 2016] stay of the 2015 rule. Therefore, this action, when final, will not change current practice with respect to how the definition applies."

Their proposed rule follows President Trump's Feb. 28 executive order that said it is in the national interest to ensure that the nation's navigable waters are kept free from pollution while at the same time promoting economic growth and minimizing regulatory uncertainty.

The agencies said they have also begun deliberations and outreach on a second-step rulemaking to revise the "waters of the United States" in accordance with the executive order.

Questions regarding this article may be directed to editor@aashtojournal.org.

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