Clean Water Act Rules Hurt Transportation Sector’s Ability to Fix Nation’s Roads & Bridges, Construction and Materials Groups Tell U.S. Supreme Court

Ever-Changing Maze of Regulations Jeopardizes Infrastructure Goals
Confusing rules promulgated by federal agencies under the Clean Water Act (CWA) are hurting the transportation construction sector’s ability to fulfill the goals of the landmark Infrastructure Investment and Jobs Act (IIJA), according to an amicus brief filed April 13 with the U.S. Supreme Court by the American Road & Transportation Builders Association (ARTBA) and National Stone, Sand & Gravel Association (NSSGA).
In the brief, ARTBA and NSSGA contend that existing 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 Sackett v. EPA [Environmental Protection Agency], ARTBA and NSSGA are asking the high court to determine the extent of the federal government’s regulatory powers under the (CWA). The associations contend that the methods the EPA and the U.S. Army Corps of Engineers (Corps) use to determine the CWA’s scope should be abandoned. 

Currently, the test used by the EPA and Corps have “no inherent limiting principles” and empower the agencies to assert federal jurisdiction “well beyond the limits set by Congress,” according to the associations. 

A major issue is the EPA’s definition of what constitutes “waters of the United States” (WOTUS) under the CWA. The agency has advocated for a broad definition of WOTUS to encompass virtually any wet area. ARTBA and NSSGA have maintained that reading WOTUS in such an expansive way improperly creates permit obligations for features such as roadside ditches, which serve the necessary safety function of collecting water during and after rain events. This type of overregulation serves only to delay critical infrastructure improvements and increase costs without providing any environmental benefits, the groups say.

“The transportation construction industry needs regulatory clarity to deliver economic benefits from record new federal highway investment,” ARTBA President & CEO David Bauer said. “The Court has the opportunity to end decades of unpredictable agency decisions, deliver clarity and help us demonstrate that infrastructure improvements and environmental stewardship need not be conflicting objectives.”

“For too long, our members have spent countless hours and dollars navigating an unclear and often punitive permitting system that arbitrarily will consider dry land a federally regulated water,” NSSGA President & CEO Michael Johnson said.  “In order to successfully provide the materials crucial for infrastructure projects, including those in the recent bipartisan infrastructure law, we need clarity from the Court.”
ARTBA and NSSGA have been working together on the issue of CWA jurisdiction since 2005, along with other national association coalition allies.
The Court is expected to hear arguments in late October, with a decision expected in the first half of 2023.

ARTBA brings together all facets of the transportation construction industry to responsibly advocate for infrastructure investment and policy that meet the nation’s need for safe and efficient travel.

NSSGA is the leading advocate for the aggregates industry. Its members – stone, sand and gravel producers and the equipment manufacturers and service providers who support them – produce the essential raw materials found in homes, buildings, roads, bridges and public works projects, NSSGA represents more than 90 percent of the crushed stone and 70 percent of the sand and gravel produced annually in the United States.