Victory for transportation industry in wetlands case

News ARTBA June 20, 2006
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In one of the most significant environmental-related cases in recent years, the U.S. Supreme Court on June 19 refused to expand the authority of the Army Corps of Engineers to regulate man-made ditches and remote wetlands. If the Court had granted additional power to the federal agency, it could have led to even greater delays on transportation projects, the American Road & Transportation Builders Association (ARTBA) said.

In a split decision of the consolidated cases of Rapanos v. U.S. and Carabell v. U.S. Army Corps of Engineers, the Court said the agency may have over extended its authority under the Clean Water Act by exerting jurisdiction over wetland areas with remote connections to "navigable waters."

ARTBA, in partnership with the National Stone, Sand and Gravel Association and the Nationwide Public Projects Coalition, filed a "friend of the court brief" late last year explaining these cases had 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. State departments of transportation and local communities could also have been effectively removed from project-related decisions if the Corps was given more regulatory power, the brief said.

The brief also noted the transportation construction industry and state departments of transportation have been grappling with wetlands 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 increased costs due to permitting requirements, the brief stated.

According to ARTBA, the June 19 decision by the Court sent a message that it does not view the Corps authority to regulate wetlands as without limit, and a signal that it would not be receptive to future Corps attempts to broaden the federal jurisdiction over wetlands. Given the split decision, however, it is likely many of the wetlands and regulatory issues will still be reviewed in the future by lower courts on a case-by-case basis.

With Rapanos and Carabell decided, ARTBA said it would continue working with Congress and the federal agencies towards the legislative and regulatory goal of establishing clear wetlands regulations that effectively protect the nation's environment and reduce delays to transportation improvement projects.

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