Federal Appeals Court Sides with ARTBA in Clean Water Act Case

Court declined to expand the definition of what is considered a "point source" under federal law

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The Federal Court of Appeals for the Ninth Circuit, which covers the 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 pre-treated, 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 road block 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 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 (Corps).

An expanded definition of “point source” could have resulted in a scenario where the EPA and 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.

ARTBA has its second case before the Supreme Court relating to the Clean Water Act (CWA), with a ruling expected later this year. Two additional ARTBA-supported CWA cases are pending in the federal courts. In total, ARTBA’s efforts have allowed nearly $50 billion in approved - yet challenged - state, regional and local transportation projects and plans to move forward since 1993.

The full text of ARTBA’s brief and the court’s decision can be found in the “Current Advocacy Efforts” section of www.artba.org.