The U.S. Environmental Protection Agency's (EPA) campaign to regulate all U.S. ditches hit another roadblock May 25. The U.S. Supreme Court agreed with the American Road & Transportation Builders Association (ARTBA) and the National Stone, Sand & Gravel Association (NSSGA) that the agency exceeded its authority in developing new wetlands regulations.
The decision potentially means EPA will need to rewrite its "Waters of the United States (WOTUS)" rule, which has led to permitting delays for transportation projects.
At issue in Sackett vs. EPA was whether the agency could require a permit for any area with a "significant nexus" to a navigable waterbody, such as a river, lake or stream. The EPA never defined "significant nexus," causing confusion for the entire transportation construction industry.
The Court called the "significant nexus" test "particularly implausible" and held the EPA has "no statutory basis to impose it."
In their brief to the Court, ARTBA and NSSGA critiqued the "significant nexus" test, noting it has "no inherent limiting principles" and empowers federal agencies to assert federal jurisdiction "well beyond the limits set by Congress."
ARTBA and NSSGA maintained that defining WOTUS in such an expansive way improperly creates permit obligations for features such as roadside ditches, which serve the necessary safety function of collecting water during and after rain events. This type of overregulation serves only to delay critical infrastructure improvements and increases costs without providing any environmental benefits, the groups say.
"Today's Supreme Court decision removes un-necessary and un-supportable impediments to transportation improvements across the country," said ARTBA President and CEO David Bauer. "With Sackett as a guide, we urge the EPA to pursue common sense strategies that complement our nation's infrastructure and environmental goals."
"Today's opinion in Sackett v EPA is a victory for our industry and is a major step towards a more reasonable definition of WOTUS, which our members have struggled with for years and was exacerbated by the premature and confusing Biden administration rule. With the end of significant nexus, we hope that the agencies heed this decision and work for a truly durable rule," said NSSGA President and CEO Michael Johnson.
"A clearer WOTUS definition is necessary for our industry to provide the materials needed to build and modernize our country's infrastructure in an environmentally friendly manner."
ARTBA and NSSGA have been working together on the issue of CWA jurisdiction since 2005, along with other national association coalition allies. The groups also have been involved in federal district court litigation on the WOTUS rule since 2015. With the clarity provided by Sackett decision in hand, the groups will continue their efforts to repeal the WOTUS rule and work towards a clear definition of the CWA's reach.
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