Supreme Court hears ARTBA-backed wetlands case

ARTBA: EPA compels projects to obtain permits they might not actually need

Law News ARTBA January 09, 2012
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ARTBA and other stakeholders are urging the U.S. Supreme Court to suspend the U.S. Environmental Protection Agency’s (EPA) seemingly automatic presumption of the need for a wetlands permit on all needed infrastructure and residential improvements. The court heard arguments today in Sackett v. U.S. EPA, a case that could fundamentally alter how the agency administers its permitting program.


The proceeding highlights a fundamental problem with the federal wetlands approval process, according to ARTBA, forcing parties to secure a permit in order to determine whether or not the permit was actually required in the first place. As a result, any potential venture must choose between spending time and money on a permit—whether it is needed or not—or face substantial fines.


The current EPA system requires relatively minor transportation infrastructure improvements, with little impact on the environment, to be permitted in the same manner as a major new project. This results in projects being compelled to obtain permits they might not actually need—adding delay and cost. As U.S. infrastructure needs continue to grow, ARTBA is pushing for the Supreme Court to order EPA to clarify beforehand when a wetlands permit is needed and when it is not. Projects not requiring wetlands permits could save years in terms of completion time and hundreds of thousands of dollars in cost.


Under the current system, ARTBA’s legal brief noted that some regulated entities are simply giving up on projects rather than subjecting themselves to the burdensome and costly requirements of potential EPA jurisdiction. A positive outcome in Sackett will provide needed certainty for current and future transportation improvements.


A decision in the case is expected sometime later this year.


The full text of the association’s brief can be found in the “current advocacy efforts” section of

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