ROAD CONSTRUCTION: Appeals Court sides with ARTBA on CWA case

The Federal Court of Appeals for the Ninth Circuit, which covers most of the western U.S., sided with the American Road & Transportation Builders Association (ARTBA) April 3 in refusing to widen the scope of the federal Clean Water Act (CWA) to cover regulation of pretreated, wooden utility poles exposed to rainwater on construction sites.

In Ecological Rights Foundation (ERF) v. Pacific Gas and Electric Co. and Pacific Bell Telephone Co., the court declined to expand the definition of what is considered a “point source” under federal law. The ruling removes a potential roadblock that could have needlessly delayed transportation improvements.

ARTBA, the only transportation construction association involved in the case, joined with 15 other industry associations in urging the court to reject arguments that would have expanded CWA to cover wooden utility poles because rainwater fell on them and mixed with chemicals the poles had been treated with. For purposes of transportation development, once something is considered a point source it is under federal control and subject to the permitting authority of the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers.

An expanded definition of “point source” could have resulted in a scenario where the EPA and the Corps would have the option of exerting jurisdiction over any construction materials touched by rainwater, potentially adding years to an already expansive review and approval process for urgently needed transportation infrastructure projects aimed at reducing congestion and improving safety.