The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) released a final rule on May 27 to clarify the definition of “waters of the United States” (WOTUS) for all Clean Water Act programs. Despite claims to the contrary, the changes contained in the proposed WOTUS rule would significantly expand federal control of land and water resources across the nation—generating considerable additional permitting and regulatory requirements, increasing compliance and transaction costs, decreasing the availability of developable land and aggravating general uncertainty surrounding projects.

The Obama administration put forth this rule despite questionable tactics by the EPA and major concerns raised by numerous groups and industries, including construction, that will be most affected. Federal agencies, states, local governments and the regulated community disagree significantly regarding the scope and effect of the rulemaking. With the agencies being so reluctant to seriously listen to the voice of interested parties, Congress is taking action to prevent an unacceptable rule from taking effect.

After engaging in meaningful stakeholder consultation, the House of Representatives passed bipartisan legislation in May that would require the EPA and USACE to withdraw the flawed WOTUS rule and develop a new proposed rule. The introduction of the Regulatory Integrity Protection Act of 2015 (H.R. 1732) follows months of urging the EPA and USACE to withdraw the proposed rule and work with stakeholders to develop a proposal that respects the jurisdictional limitations imposed by Congress and affirmed by the U.S. Supreme Court.

By requiring the EPA and USACE to withdraw the proposed rule, this measure appropriately initiates a process that will protect environmental assets while assuring the nation’s ability to engage in robust economic activity, as well as earn broad support from state and local officials and the regulated community.

The Senate also introduced legislation to combat the overreach of these agencies as it relates to WOTUS. The Federal Water Quality Protection Act (S. 1140) offers a glide path to a revised WOTUS rule that will improve the quality of the nation’s navigable waters. The bill directs the EPA and USACE to issue a revised WOTUS rule that protects traditional navigable water from pollution while protecting stakeholders from undue harm.

It is important for Congress to set parameters for major rules such as the WOTUS rule. Additional time, outreach, oversight and transparency are needed to ensure all concerns are properly addressed in a final rule that achieves the regulatory clarity vital for a thriving U.S. economy.


Steve Rebillot is director of legislative affairs for Associated Builders and Contractors. For more information, email rebillot@abc.org.