By Nick Goldstein, vice president of regulatory affairs & assistant general counsel, ARTBA
The 6th U.S. Circuit Court of Appeals Jan. 25 ordered a stop to ARTBA-supported litigation to overturn the U.S. Environmental Protection Agency’s (EPA) “Waters of the United States” (WOTUS) rule. This is an important victory for ARTBA and its industry allies.
The order was a response to the U.S. Supreme Court’s Jan. 13 decision to hear arguments about which federal court level is the proper jurisdiction to resolve disputes arising from the federal Clean Water Act (CWA). ARTBA and others challenging the WOTUS rule assert that it 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 the dispute.
The Supreme Court will hear arguments on the issue sometime in mid-April. It will not make a decision on the substance of the WOTUS rule, which ARTBA asserts 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.
Implementation of the WOTUS rule remains stayed while litigation continues at any court level. It also remains to be seen whether President Donald Trump keeps a campaign promise to withdraw the rule.