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Waters of the United States


In 2019, the U.S. Environmental Protection Agency under President Trump and the U.S. Army Corps of Engineers repealed the ABC-opposed 2015 WOTUS rule and replaced it with the Navigable Waters Protection Rule.

In August 2020, following a federal court decision, the agencies halted nationwide implementation of the NWPR.

In December 2021, the agencies issued a proposed rule that would repeal the NWPR and restore the pre-2015 definition of WOTUS. ABC submitted comments urging the EPA and the Corps to withdraw the proposed rule.

On Dec. 30, 2022, the EPA and Corps issued a final rule to revise the definition of “waters of the United States” applicable to all Clean Water Act programs, repealing the ABC-supported 2020 Navigable Waters Protection Rule. 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.”

On Feb. 16, 24 state attorneys general filed a lawsuit against the EPA and Corps, seeking to overturn the final rule.

On Feb. 27, ABC, along with members of the Waters Advocacy Coalition, sent a letter to the U.S. House of Representatives Transportation and Infrastructure Committee supporting H.J. Res. 27, a joint resolution of disapproval under the Congressional Review Act of the revised WOTUS regulation.

On March 9, the House passed H.J. Res. 27. ABC key voted the resolution which passed by a bipartisan 227-198 vote.

On March 19, the U.S. District Court for the Southern District of Texas issued a ruling blocking the EPA and Corps from enforcing the WOTUS final rule, but only in the states of Texas and Idaho. The court separately rejected a request to block enforcement nationwide.

On March 29, the U.S. Senate passed H.J. Res. 27 in a 53-43 vote with the support of all Senate Republicans and five Democrats. President Joe Biden vetoed the resolution on April 6.

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 WOTUS final rule. The preliminary injunction applies to Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming. This brings the total number of states blocking the WOTUS rule to 26.

On April 18, the House held a vote on overriding President Biden’s veto. ABC issued an action alert asking members to urge their member of Congress to vote in support. The veto override again received bipartisan support in a 227-196 vote but failed to meet the two-thirds threshold needed to pass.

On May 25, the U.S. Supreme Court narrowed the scope of WOTUS in its decision in Sackett v. Environmental Protection Agency by rejecting the “significant nexus test,” eliminating the costly regulatory uncertainty that has plagued construction projects around the country for decades without providing meaningful environmental protections for America’s waterways.

On Aug. 29, the EPA and Corps issued a final rule and fact sheet regarding amendments to the definition of “waters of the United States” subject to Clean Water Act regulation. This rule is aimed at bringing the January 2023 WOTUS final rule into compliance with the Supreme Court’s decision in Sackett v. EPA.

ABC noted that although the rule implements some of the key wins from the Sackett decision, it fails to fully implement the court’s opinion, including on the definition of “relatively permanent” waters, and may result in continued regulatory uncertainty.

The final rule took effect on Sept. 8, 2023, after being published in the Federal Register. The amended version of the January 2023 final rule is now in effect, except in states where it is currently blocked by a preliminary injunction. 

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 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

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