The National Stone, Sand & Gravel Association and Associated Builders and Contractors (ABC) have issued statements after the US Environment 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'.
Speaking earlier today, NSSGA President and CEO Michael Johnson said: "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 finalising 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 finalised in the coming months."
Meanwhile, the ABC's Vice President of Regulatory, Labor and State Affairs Ben Brubeck said: "By repealing the Navigable Waters Protection Rule's commonsense definition of 'waters of the United States' and returning Clean Water Act enforcement to unpredictable, case-by-case determinations of jurisdiction, the Biden administration's final WOTUS rule is a significant step back in establishing unambiguous water quality protections that provide clarity for contractors. This rule will delay critical infrastructure projects and raise costs for the construction industry and taxpayers without providing meaningful improvements to water quality.
"The fact that the Army Corps and EPA have issued this rule while the US Supreme Court case on CWA jurisdiction in Sackett v. EPA is still pending further compounds the confusion and regulatory uncertainty that will result from this rulemaking. As the Army Corps and EPA consider future rulemakings on this issue, ABC urges the agencies to postpone further action until the Supreme Court issues its ruling."
