Proposed expanded EPA authority over roadside ditches endangers goals of bipartisan infrastructure law, ARTBA says

The American Road & Transportation Builders Association (ARTBA) and its coalition allies Jan. 18 sued the U.S. Environmental Protection Agency (EPA) in federal court over the agency’s recent proposal that expands federal jurisdiction over roadside ditches. ARTBA contends the Dec. 30, 2022, rule will slow delivery of transportation projects and threatens to nullify the benefits of the 2021 federal infrastructure law.

At issue is how EPA defines bodies of water that qualify as “Waters of the United States” (WOTUS), and therefore subject to federal authority.

The lawsuit argues the new rule violates both Clean Water Act and the U.S. Constitution and will “result in case-specific, time consuming and inconsistent analyses” which will “substantially increase the costs and burdens” of obtaining regulatory permits for transportation improvement projects.

The latest EPA rule is the third time in seven years the agency has attempted to define WOTUS. ARTBA has previously litigated the issue, asking federal courts to decide what is a protected waterway.

“Unfortunately, the third time is not a charm in this case,” said Nick Goldstein, ARTBA’s vice president of regulatory and legal issues. “The latest WOTUS proposal could result in regulatory nightmares at a time when both parties in Congress, though the bipartisan infrastructure law, have emphasized the need to reduce delays and deliver transportation improvements to the communities who need them most.”

How roadside ditches are treated by the EPA has long been a concern for the transportation construction industry. ARTBA has consistently urged EPA not to consider ditches as protected waterways under WOTUS, noting that they act as an important conduit for draining water from roads under construction– an essential safety practice.