NRECA joined a multi-industry coalition in urging the Biden administration to follow the Supreme Court's recent decision narrowing federal authority over water bodies and wetlands when amending its expansive “waters of the United States" rule.

The Environmental Protection Agency and the Army Corps of Engineers plan to issue a final rule by Sept. 1 to modify the 2023 WOTUS Rule in response to the court's Sackett v. EPA decision that limits the reach of the Clean Water Act.

The Waters Advocacy Coalition, in a July 25 letter, explained why the agencies should adhere to the court ruling and avoid exacerbating uncertainty in the permitting process for building and maintaining infrastructure near water bodies and wetlands. The 45-member coalition represents a diverse cross-section of industries from agriculture to railroads and energy.

“The coalition's letter provides specific recommendations to ensure the amended rule is consistent with the Sackett decision," said Viktoria Seale, NRECA regulatory affairs director. “EPA and the Corps, however, are shortchanging the rulemaking process and moving rapidly to finalize an amended WOTUS rule without an opportunity for public comment."

The WOTUS rule, which is already temporarily blocked in 27 states, included a broad “dual test" approach to determine, case-by-case, if tributaries, adjacent wetlands and “additional waters" such as intrastate lakes and ponds, streams and wetlands are subject to the Clean Water Act's mandates.

But the Supreme Court opinion issued May 25 narrowed what constitutes a WOTUS under the law and rejected the EPA and Corps' expansive approach to regulate nearly all water features in the United States, permanent or not.

“The EPA and the Corps must revise the WOTUS rule consistent with the Supreme Court's ruling that narrows and clarifies the reach of federal Clean Water Act jurisdiction rather than injecting more uncertainty into the permitting process, which is already experiencing delays that make critical energy projects more expensive," Seale said.