EPA Releases Final WOTUS Rule in Advance of SCOTUS Decision, Adding to Confusion

SOURCE: NSSGA | January 18, 2023

Alexandria, VA –The National Stone, Sand & Gravel Association’s President and CEO Michael Johnson issued the following statement after the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) released their final Waters of the United States (WOTUS) rule. In April, NSSGA joined the American Road & Transportation Builders Association for an amicus brief in the Sackett v. EPA case, noting that confusing rules such as this one hurt industries like the aggregate industry’s ability to deliver infrastructure improvements that benefit all Americans.  

“The action taken by EPA and the Corps only adds to the confusion of an already unclear process that our members must deal with in order to provide materials crucial for infrastructure projects, like those in the recent bipartisan infrastructure law. Not waiting for the Supreme Court’s (SCOTUS) ruling before finalizing this rule expands the time and effort our members must spend navigating this punitive system. This was also done despite requests by a broad range of stakeholders, including NSSGA and over 250 bipartisan members of Congress, to delay a rule until the pending SCOTUS decision on Sackett v EPA is released. This rule purports to be a final withdrawal of the 2020 Navigable Waters Protection Rule but expands the reliance on the Significant Nexus test, which SCOTUS appears poised to limit or remove, as the test for whether a water is a WOTUS. The unnecessary agency actions are in direct contradiction to bipartisan calls to wait for the SCOTUS ruling, which will further waste taxpayer dollars, as the administration will likely have to write another rule – the fifth in a decade – once the ruling is finalized in the coming months.”

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