September 26, 2020
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State departments of transportation are set to benefit from the formal repeal this week of a 2015 rule that aimed to expand the definition of “waters of the United States” or WOTUS under the Clean Water Act.

[Above photo by the Delaware DOT.]

The Environmental Protection Agency and the Department of the Army – representing the U.S. Army Corps  of Engineers – said in a statement on September 12 that the repeal of ending what they described as a “regulatory patchwork” that required implementing two competing sets of Clean Water Act rules, which created a regulatory burden across the United States, especially for transportation projects.

Photo by Aaron Volkensy

The EPA and Department of the Army published a proposed rule in February as part of the second step in this process – developing a new WOTUS definition that would “clearly define” where federal jurisdiction begins and ends in accordance with the Clean Water Act and Supreme Court precedent.

In that proposal, the agencies said they will provide a “clear definition” of the difference between federally regulated waterways and those waters that rightfully remain solely under state authority.

That is a critical step in terms of lowering the cost of transportation costs while also speeding up timetables for their completion, according to a comment letter filed by the American Association of State Highway and Transportation Officials in April.

Photo by the Delaware DOT

“We have expressed concern about interpretations that could extend jurisdictional status to the majority of roadside ditches, noting the cost and delays that such an interpretation could impose on ditch maintenance activities, which are vital for maintaining road safety,” the group said in its letter.

Altogether, AASHTO said a regionally diverse working group formed by its Committee on the Environment and Sustainability spent four months analyzing the proposed WOTUS rule changes and largely favors them – albeit with clarifications to some of the terminology and definitions used within them.

“The regulatory ping-pong on roadside ditches has created vast uncertainty for years with little environmental benefit,” added Dave Bauer, president and CEO of the American Road & Transportation Builders Association, in a statement.

“Regulators should understand that delay and uncertainty only serve to increase transportation project costs,” he said. “The [WOTUS] repeal is a common-sense approach to harmonize wetlands protection and the delivery of needed transportation improvements.”

editor@aashto.org

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