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

The U.S. Environmental Protection Agency’s (EPA) controversial “waters of the United States” (WOTUS) rule is unconstitutional and violates fundamental tenets of administrative law, ARTBA and 56 other trade associations and businesses say in a new federal court brief. The groups have urged the 6th U.S. Circuit Court of Appeals to strike down the 2015 regulation.

ARTBA has long opposed the WOTUS rule because it would expand federal wetlands jurisdiction to include roadside ditches and other bodies of water, leading to increased delays and permitting burdens for transportation improvements. The groups’ Nov. 1 brief criticizes several definitions of federal jurisdiction under the WOTUS rule as “irreconcilable with Supreme Court precedent, the scientific evidence, and (quite often) simple logic.” The brief continues, “[t]he Supreme Court…could not have been more clear that the word ‘navigable’ continues to have meaning under the CWA; and yet the Rule asserts jurisdiction over countless isolated waters and desiccated land features that bear not the slightest resemblance to navigable waters.”

Read ARTBA’s brief and the appendix.

The court has blocked the WOTUS rule from going into effect until all litigation is resolved. ARTBA anticipates this could take through 2018.