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Texas Court Strikes Down WOTUS

A May 28 federal court ruling in the Southern District of Texas striking down the federal government’s 2015 version of the “Waters of the United States” (WOTUS) rule is a win for the nation’s transportation construction industry and builders of other much-needed infrastructure, the American Road & Transportation Builders Association (ARTBA) said.

ARTBA and 13 other trade associations challenged the rule in July 2015. At issue is how the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) decide which bodies of water are under federal jurisdiction. Under the Obama administration rule, roadside ditches could have been subject to unnecessary federal oversight, delaying transportation improvements and resulting in increased project costs.

In their lawsuit, the coalition of trade groups objected to how EPA drafted the rule. The groups said that in addition to distorting U.S. Supreme Court precedent, the agency “subverted the notice-and-comment process by (among other things) failing to seek comment on scientific reports relied on in the Rule and on major revisions of the proposed rule, conducting an inadequate economic analysis, and engaging in an unprecedented advocacy campaign that led to a distorted and biased comment process.”

In the May 28 ruling, the judge agreed with the groups’ procedural arguments and decided the rule must be sent back to EPA because “those governed by the rule were deprived of notice of a substantial change to our nation’s environmental regulation scheme.” The decision blocks enforcement of the 2015 rule in the states of Texas, Louisiana and Mississippi, but leaves it in place in 22 other states.

At the same time, the Trump administration is in the process of both formally repealing the 2015 rule and finalizing a replacement WOTUS regulatory framework. ARTBA supports both those efforts.

“We are happy to see the EPA and Army Corps of Engineers move closer to finalizing a commonsense definition of ‘waters of the United States’ that honors the congressional intent of cooperative federalism,” said Industrial Minerals Association – North America (IMA-NA) Vice President Ariel Hill-Davis. “Along with other stakeholders, IMA-NA supports the Administration’s push to provide much needed clarity around WOTUS and is looking forward to seeing how the comments are incorporated in the final proposal. We remain committed to working with the Administration to ensure the final adopted proposal provides long-lasting clarity on the scope of federal jurisdiction according to the intentions of the Clean Water Act.”