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Construction Association, employer coalition file suit to block new ‘Waters of the U.S.’ rule

Associated General Contractors of America partners with other groups in challenging rule’s unlawful effort to regulate large sections of dry land and wet areas lacking connections to navigable waterways

The Associated General Contractors of America joined with a range of employer groups representing a broad cross-section of the economy in filing a lawsuit on Jan. 18, 2023, to block the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers’ Waters of the U.S. rule.

The organizations noted that the new measure violates the Clean Water Act, the Administrative Procedures Act and the U.S. Constitution’s Due Process and Commerce Clauses.

“Just because a piece of land occasionally gets wet doesn’t make it a navigable waterway,” said Stephen E. Sandherr, the association’s chief executive officer. “Try as it might, the administration cannot redefine the reality of existing law or constitutional limits on executive power.”

The legal action, which was filed yesterday in the U.S. District Court’s Southern District of Texas, seeks to have the court declare the new Waters of the U.S. rule the administration published on Jan. 18 unlawful and vacate the measure. AGC and the other employer groups noted that the administration released its new Waters of the U.S. rule despite the fact the Supreme Court is currently weighing the scope of the Clear Water Act as part of the Sackett v. EPA case. A ruling in that case could render elements of the new rule irrelevant, adding further regulatory confusion for a large section of the economy, the groups warned.

AGC and the other groups noted in their legal filing that the Clean Water Act gives the federal government the authority to regulate “navigable waters” within the United States. Yet the administration’s new Waters of the U.S. rule seeks to expand the federal government’s authority over an enormous area of dry land and wet areas that lack any physical connection to actual navigable waters in clear violation of the Clean Water Act.

The legal complaint also argues that the Biden administration violated the Administrative Procedures Act, noting that the EPA’s rationale for its new rule is arbitrary, capricious, and an abuse of discretion. They said the agencies used a flawed cost benefit analysis and failed to solicit or consider alternative flexibility proposals as they are required to by law. The groups added that the new Waters of the U.S rule also violates the constitution’s Due Process and Commerce Clauses.

AGC urged the Biden Administration to wait for the Supreme Court to issue a ruling on the Sackett case before proceeding. They also urged the administration to focus its regulatory efforts on implementing the environmental streamlining provisions that were included in the Bipartisan Infrastructure Bill the president signed into law over a year ago.

“After first promising new infrastructure investments, the President now seems committed to making sure much of that work gets tied up in needless regulatory holdups,” Sandherr said. “Instead of finding new and increasing unlawful ways to obstruct infrastructure improvements, the president should instead implement the environmental streamlining provisions that were included in the bipartisan infrastructure law.”

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