The American Road and Transportation Builders Association (ARTBA), the National Stone, Sand and Gravel Association and the Nationwide Public Project Coalition have filed an amicus brief in two cases coming before the U.S. Supreme Court that could decide the future of wetlands litigation cases.
According to a statement by ARTBA, the cases ask the Court to decide whether the Clean Water Act allows the "regulation of ‘isolated wetlands’ by the U.S. Army Corps of Engineers (Corps) that have no connection with ‘navigable waters.’ The Court will also decide whether or not a tenuous connection between a wetland and ‘navigable water’ is enough to allow regulation by the Corps, or if there is a minimal standard that applied.”
ARTBA’s brief explained to the Court that these cases have the potential to either greatly expand or sensibly limit the authority of the Corps to issue permits for transportation construction projects in all areas of the country. If the Court expands the ability of the Corpse to regulate wetlands, transportation construction projects will become subject to greater federal scrutiny, leading to greater delay, and state departments of transportation as well as local communities will be effectively removed from project-related decisions.
The brief noted the transportation construction industry and state departments of transportation have been grappling with these issues for years and often face confusing and conflicting interpretations on the scope of federal jurisdiction. This makes it very difficult to engage in long-term planning and increases costs due to permitting requirements, ARTBA said.
As reported in the October 14 AASHTO Journal, two of the three cases the Supreme Court will hear are: Rapanos v. U.S. and Carabell v. Army Corps of Engineers. If the federal government and the state win the cases, agencies will be able to preserve resources through the Interstate Commerce Clause, according to news reports.
According to Greenwire, Rapanos and Carabell will “test the government’s use of the Interstate Commerce Clause to regulate wetlands that are not directly connected to navigable waters.”
Rapanos, of Midland, Mich., faces fines and costs of $13 million for being accused by destroying wetlands on his farm in 1988 to fill in land for development. That led to a civil case against him filed by the federal government, the Detroit News reports. Macomb County, Mich., businessman Keith Carabell and a partner were planning a 100-unit residential development for 20 miles from Lake St. Clair when the Corps of Engineers halted the project.