A major regulatory proposal announced just recently by the U.S. Environmental Protection Agency (EPA) relating to the Clean Water Act (CWA) will require additional burdensome permitting requirements and could be used as a litigation tool by project opponents, both of which will result in delays to key transportation improvements, the American Road & Transportation Builders Association (ARTBA) says.
At issue is how 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. Instead, the EPA sets forth a myriad of qualifications for a ditch to be exempt from permitting requirements. Such a piecemeal approach will only 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, ARTBA says.
“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,” according to ARTBA President Pete Ruane. He said 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.
Meanwhile, critics of the move have defined the rule as a "power grab" by the EPA. Fox News is reporting that House Speaker John Boehner, R-Ohio, said in a written statement following the rules release: “The administration’s decree to unilaterally expand federal authority is a raw and tyrannical power grab that will crush jobs,”
Boehner said more than 30 governors and government leaders rejected the EPA’s water rule. “These leaders know firsthand that the rule is being shoved down the throats of hardworking people with no input, and places landowners, small businesses, farmers and manufacturers on the road to a regulatory and economic hell.”
North Dakota Republican Rep. Kevin Cramer said in a statement the rules "trample on the rights of private property owners as well as local and state governments" and vowed to work with colleagues to overturn it.
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