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U.S. Appeals Court Permits ARTBA’s Wetlands Litigation

Wed August 31, 2005 - National Edition
Gwenyth Laird Pernie



The American Road and Transportation Builders Association (ARTBA), along with a few industry allies, were recently given the green light by the United States Court of Appeals for the D.C. Circuit to continue litigation challenging the U.S. Army Corps of Engineers policies in regard to the Nationwide Permit Program (NWP).

According to Nick Goldstein, staff attorney of ARTBA, the litigation concerns changes made to the NWP rules on requirements for obtaining permits when discharging dredged or filled material into wetlands, He said the impacts of the changes on the regulated community were never considered.

“Construction projects, even on a minor scale, are tied up through administrative review — bureaucracy — which delays project completion dates and often leads to increased business costs: land costs, design fees and other project costs,” Goldstein said.

Other plaintiffs in the case include the National Stone, Sand & Gravel Association, the Nationwide Public Projects Coalition (NPPC), Wayne Newnam — owner of the Troy, Ohio-based Newnam Enterprises — and the National Association of Homebuilders.

“Our main objection to the changes in the NWP was that the Corps of Engineers initiated them without consulting those that would be affected or without any type of public review process,” Goldstein said. “In other words, there were no administrative safe guards during the decision process that led to these changes. The litigation contends that the changes in the NWP have caused harm to the plaintiffs and others participating in construction projects.”

The litigation first came forward in 2000, when the corps reduced the amount of wetland acreage into which a contractor can discharge material without a permit from three to 0.5. That same year, the National Federation of Independent Business (NFIB) filed a related suit which contended the Corps of Engineers failed to consider the impact of the changes to the NWP on small businesses violated the Regulatory Flexibility Act (RFA). This 1980 law requires government agencies to gauge the impact of their rules on small businesses and consider less burdensome alternatives. The courts determined the Corps did not violate the RFA.

“The recent appeal by ARTBA and industry allies is a consolidation of the cases begun by ARTBA, the NFIB and the National Association of Homebuilders five years ago,” Goldstein said. “Previous arguments at the district court level against the NWP were rejected on the notion that since no projects have actually been blocked by the changes to these permit policies; no harm was accrued. This is why we were required to go though the court of appeals before the case could be taken back to the district court.

“However, the court of appeals’ decision on July 29 acknowledged that there has been harm to the affected parties — the case will now proceed back to the district court.”

The Corps of Engineers contends it was within its powers to regulate the policies of the NWP.

Dave Hewitt, public affairs officer for the corps, said a provision was added to the Clean Water Act in 1972 that gave the corps the authority to regulate work done in the waters and adjacent wetlands of the United States, including the placement of dredge and fill material.

“Reduction in the amount of wetland acreage on which a party may discharge dredged or filled material without obtaining an individual permit began about 10 years ago,“ Hewitt said. “In the first five years it went from 10 to three acres and in 2000 it was reduced to 0.5 acres. It has since become the rule of the land.”

Hewitt said there are three goals in the corps’ permitting process.

“First, when possible, always avoid impact to the wetlands. Second, minimize impact to the wetlands — 99.9 percent — of permit applications are modified before the permit is issued. And third, when wetlands are filled, a 1:1 replacement ratio (state regulations often require a higher ratio) is required for the lost wetlands. The preference is to restore wetlands on site, either by restoring degraded wetlands or by creating new wetlands. If on-site restoration is not possible, as is often the case in road building, the contractor is required to buy credits at a mitigation bank.’

The money collected at mitigation banks is used to maintain or restore wetlands through out the state.

“The decision to reduce the amount of wetland acreage that could be filled before a permit was required was done out of concern for the cumulative impact on the environment from excessive dredging and filling of the wetlands; and, since the changes to the Nationwide Permit Program went into effect 10 years ago, there has been no net loss to wetlands,” Hewitt said.

Goldstein said there could have been a compromise.

“What we are challenging in our appeal is the right of the corps of engineers to make decisions and changes to the Nationwide Permit Program without considering the input of those affected by the changes.” he said. “If the corps of engineers had consulted the potentially affected parties before these changes were instated, we believe a compromise could have been reached. However, the only recourse now is though the court system.”

He said the litigation before the district court will determine if the corps should have consulted affected parties before changing the rules to the NWP.

“If this is determined, we hope to revisit the changes to the NWP — only this time going through proper administrative process,” Goldstein said. CEG