By Nick Goldstein, vice president of regulatory affairs & assistant general counsel, ARTBA

ARTBA believes that a sharp increase in regulatory uncertainty and third-party litigation aimed at stalling transportation projects will result from the U.S. Environmental Protection Agency’s (EPA) May 22 rule defining “waters of the United States.”

Specifically, the rule defines which water bodies subject to federal regulations and permitting requirements.

Rather than excluding roadside ditches from regulation as ARTBA has urged for years, because “they are not connected water bodies and contribute to the public health and safety of the nation by dispersing water from roadways,” EPA sets forth a myriad of qualifications a ditch must meet to be exempt from permitting requirements.  ARTBA warned 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 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.