ROADS/BRIDGES: EPA Clear Water Act likely to cause delays in transportation development

According to ARTBA, legal options are viable against new regulatory proposal

Law News ARTBA May 28, 2015
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The U.S. Environmental Protection Agency (EPA) has announced a new piece of regulation relating to the Clean Water Act (CWA) that will require additional permitting requirements and could be used as a litigation tool by project opponents, both of which could result in delays to key transportation improvements, according to the American Road & Transportation Builders Association (ARTBA).
At issue are the EPA’s attempts to define the types of bodies qualifying as “waters of the United States” and therefore subject to federal authority.
In previous comments submitted to the agency multiple times and in congressional testimony, ARTBA has noted that “roadside ditches are not, and should not be regulated as, traditional jurisdictional wetlands, as they are not connected water bodies and contribute to the public health and safety of the nation by dispersing water from roadways.”
The new rule, however, does not categorically exempt roadside ditches from federal jurisdiction. Rather, the EPA sets forth a myriad of qualifications for a ditch to be exempt from permitting requirements. Such a piecemeal approach may, according to ARTBA, lead to increased confusion and delays, while also allowing opponents to use the rule as justification for filing lawsuits to stop projects from moving forward.
“The EPA’s regulatory overreach aims to submarine congressional efforts enacted in 2012’s MAP-21 law that were aimed at speeding up the delivery of transportation projects,” said ARTBA President Pete Ruane.
Ruane went on to say ARTBA will continue to examine the more than 300-page rule, work with transportation leaders in Congress on possible legislative solutions, and explore potential litigation to stop the rule from taking effect in its current form.

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