By Nick Goldstein, vice president of regulatory affairs & assistant general counsel, ARTBA
The U.S. Supreme Court will decide which federal court level is the proper jurisdiction to resolve disputes arising from the federal Clean Water Act (CWA). Arguments are expected to be heard in mid-April.
The question grows out of existing ARTBA-supported litigation over the U.S. Environmental Protection Agency’s (EPA) “waters of the United States” (WOTUS) rule. ARTBA and its industry allies assert the WOTUS rule should be defended at the federal district court level, which is closer to where the regulation impacts local projects and landowners. The EPA claims federal appellate courts should decide these disputes.
ARTBA asserts the WOTUS rule will expand federal jurisdiction under the CWA to cover virtually any wet area, including roadside ditches. Such an expansion of federal authority will lead to increased permitting requirements and unnecessary delays and litigation for transportation construction projects. The WOTS rule is currently stayed nationwide pending a final decision by the courts.
In hearing the matter of proper court jurisdiction, the Supreme Court will not make a decision on the substance of the WOTUS rule. The WOTUS rule itself will be considered once proper jurisdiction is determined. It also remains to be seen how the Trump administration’s promises to withdraw the rule will impact the litigation.