ARTBA and industry allies file brief in Supreme Court wetlands case

One of the most significant transportation-related environmental cases in the past five years will soon come before the U.S. Supreme Court and the American Road & Transportation Builders Association (ARTBA) is making sure the Court hears the views of the U.S. transportation construction industry.

ARTBA, in partnership with the National Stone, Sand and Gravel Association and the Nationwide Public Project Coalition, filed a “friend of the court brief” Dec. 2 in potentially precedent-setting wetlands litigation.

At issue are two separate wetlands cases that have been consolidated for the Court’s review. The cases ask the Court to decide whether the Clean Water Act allows the regulation of “isolated wetlands” by the United States Army Corps of Engineers (Corps) that have no connection with “navigable waters.” The Court will also decide whether or not a tenuous connection between a wetland and “navigable water” is enough to allow regulation by the Corps, or if there is a minimal standard that should be applied.

ARTBA’s brief explained to the Court that these cases have the potential to either greatly expand or sensibly limit the authority of the Corps to issue permits for transportation construction projects in all areas of the country. If the Court expands the ability of the Corps to regulate wetlands, transportation construction projects will become subject to greater federal scrutiny, leading to greater delay, and state departments of transportation as well as local communities will be effectively removed from project-related decisions.

The brief noted the transportation construction industry and state departments of transportation have been grappling with these issues for years and often face confusing and conflicting interpretations on the scope of federal jurisdiction. This makes it very difficult to engage in long term planning and increases costs due to permitting requirements, ARTBA said.

The case will likely be argued in February 2006 with a decision anticipated sometime around May.