Roadbuilding and contractor groups find themselves once again fighting definitions of “waters of the U.S.”
How waters are defined by the federal government – and more important, how those waters are regulated – has been the subject of a more than 15-year legal battle. At stake, say the groups, is the ability to efficiently implement the $1 trillion infrastructure law, as well as other construction projects.
“For too long, our members have had to spend countless hours and dollars navigating an unclear and often punitive permitting system where even dry land may arbitrarily be considered a federally regulated water,” says Michael W. Johnson, president and CEO of the National Sand, Stone & Gravel Association.
The American Road and Transportation Builders Association has said waters have been so broadly defined that roadside ditches could be regulated, delaying transportation projects and increasing costs.
The Clean Water Act calls for regulating pollution that enters “navigable waters,” a term that is not defined.
Both NSSGA and ARTBA have filed a brief with the U.S. Supreme Court in support of waters definitions that are more narrow and would leave out ditches and wetlands that do not abut navigable waters. Their brief contends the regulations are “impacting the ability to efficiently supply the materials needed for and to build the infrastructure projects under the Infrastructure Investment and Jobs Act, as well as increasing the costs of public works across the country without environmental improvement.”
In 2020, the Trump administration’s Navigable Waters Protection Rules replaced the Obama-era Waters of the U.S. rules by more narrowly defining navigable waters.
