IMPACT

By giving the federal government sweeping authority over private land, the 2023 WOTUS rule would have threatened economic growth, hindered job creation and raised the costs of goods and services for American families. Fortunately, the U.S. Supreme Court invalidated much of the 2023 WOTUS rule as it deemed the significant nexus test illegal in its Sackett v. EPA decision. 

Now, the federal government’s failure to provide a directive following the high court’s ruling, coupled with the regulatory patchwork created after the courts put the 2023 WOTUS rule on hold, has forced farmers, builders, manufacturers and small businesses to endure continued uncertainty and confusion.

The Supreme Court’s opinion in Sackett made it clear that the significant nexus test is unlawful. Yet, the federal government has failed to provide the regulated community with any guidance on how to proceed until a revised rule is released in September. Federal agencies instead have chosen to halt the permitting process and cause enormous risk for millions of American job creators.

Threatens key projects to update America’s aging infrastructure

The U.S. recently has made historic investments in revitalizing the country’s core infrastructure including roads, bridges, highways, airports and waterways. But the 2023 WOTUS rule jeopardized many of these projects due to the threat of costly permitting and mitigation delays. Now, the federal government’s pause of jurisdictional determinations – a key step in the Clean Water permitting process – is creating even more uncertainty for the regulated community. Builders, miners and other small businesses are forced to either proceed with projects no longer regulated by the Clean Water Act under the Sackett opinion and risk civil or criminal penalties for being wrong, or pause projects for months until the revised rule is issued. 

Creates costly confusion and uncertainty for small businesses

The 2023 rule marked the third time in eight years that the federal government has attempted to define WOTUS, which has caused never-ending uncertainty and confusion for the small businesses that fuel America. The Supreme Court’s Sackett decision was undoubtedly a victory for the nation’s farmers, builders, manufacturers and small businesses, and served as a crucial step toward delivering much-needed clarity to landowners across the country. But the federal government’s delay in implementing the court’s guidance has continued to incite confusion for the regulated community.

Raises the cost of goods and services for American families

The ongoing uncertainty and delays surrounding the 2023 WOTUS rule has created significant costs on the small businesses and industries that grow food, build housing, and produce energy, and risks exacerbating the affordability issues facing everyday Americans.

Farmers, homebuilders, manufacturers and small businesses need a clear and transparent WOTUS rule that recognizes their efforts to protect our nation’s water resources and frees them to operate with confidence.