NSSGA: Regulation maze jeopardizing infrastructure goals

According to the National Stone, Sand & Gravel Association, the U.S. Environmental Protection Agency is advocating for a broad definition of waters of the U.S. to encompass virtually any wet area. Photo: P&Q Staff

Confusing rules from federal agencies under the Clean Water Act (CWA) are hurting the transportation construction sector’s ability to deliver infrastructure improvements that benefit all Americans, according to an amicus brief filed April 13 with the U.S. Supreme Court by the National Stone, Sand & Gravel Association (NSSGA) and American Road & Transportation Builders Association (ARTBA).

In the brief, NSSGA and ARTBA contend that existing regulations are impacting the industry’s ability to efficiently supply the materials needed to build infrastructure projects under the Infrastructure Investment & Jobs Act. The associations also say regulations are increasing the cost of public works across the country without environmental improvement.

In Sackett v. EPA (U.S. Environmental Protection Agency), NSSGA and ARTBA are asking the Supreme Court to determine the extent of the federal government’s regulatory powers under the CWA. The associations contend that the methods the EPA and U.S. Army Corps of Engineers use to determine the CWA’s scope should be abandoned.

NSSGA and ARTBA say a major issue is the EPA’s definition of what constitutes waters of the U.S. (WOTUS) under the CWA.

The EPA has advocated for a broad definition of WOTUS to encompass virtually any wet area. NSSGA and ARTBA 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.

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The groups say this type of overregulation serves only to delay critical infrastructure improvements and increase costs without providing any environmental benefits.

“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,” says Michael Johnson, president and CEO of NSSGA. “In order to successfully provide the materials crucial for infrastructure projects, including those in the recent bipartisan infrastructure law, we need clarity from the [Supreme] Court.”

David Bauer, ARTBA president and CEO, echoes Johnson’s sentiments.

“The transportation construction industry needs regulatory clarity to deliver economic benefits from record new federal highway investment,” Bauer says. “The [Supreme] 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.”

NSSGA and ARTBA say they have been funding litigation to ensure their members’ voices are heard on CWA jurisdiction since 2005.

According to the associations, the Supreme Court is expected to hear arguments in late October, with a decision expected in the first half of 2023.