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ARTBA-Backed Wetlands Case Gets U.S. Supreme Court Hearing

Wed January 11, 2012 - National Edition
Construction Equipment Guide

ARTBA and other stakeholders are urging the U.S. Supreme Court to suspend the U.S. Environmental Protection Agency’s (EPA’s) seemingly automatic presumption of the need for a wetlands permit on all needed infrastructure and residential improvements. The Court heard arguments 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, 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.

For 20 years, ARTBA has been the transportation design and construction industry’s primary legal advocate. The association has a second case before the Supreme Court relating to the Clean Water Act (CWA), with a ruling expected later this year. Two additional ARTBA-supported CWA cases are pending in the federal courts. In total, ARTBA’s efforts have allowed nearly $50 billion in approved — yet challenged — state, regional and local transportation projects and plans to move forward since 1993.

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