By Nick Goldstein, vice president of regulatory and legal issues, ARTBA 

The U. S. Supreme Court will consider whether the Clean Water Act (CWA) applies to discharges into groundwater. Recent lower federal court decisions have been split as to whether or not the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers can exercise federal CWA jurisdiction over groundwater.

For the transportation construction industry, expanded CWA enforcement into groundwater would lead to the same type of delays anticipated by the 2015 version of the “waters of the United States” (WOTUS) rule, now in the process of being repealed by EPA. Expanded CWA jurisdiction, ARTBA warned in 2018 regulatory comments, “would literally leave no transportation project untouched regardless of its location, as there is no area in the United States not linked to at least one source of groundwater.”

The Supreme Court will hear County of Maui v. Hawaii Wildlife Fund during its October term. Given the importance to the transportation industry, ARTBA will closely follow the case determine whether to file an amicus brief once the Court establishes the briefing schedule.