Court of Appeals Sides with ARTBA in Clean Water Act Case

April 4, 2013

The Federal Court of Appeals for the Ninth Circuit sided with the American Road & Transportation Builders Association (ARTBA) over the scope of the federal Clean Water Act. The court refused to widen the scope of the act to cover regulation of pretreated wooden utility poles exposed to rainwater on construction sites.

ARTBA joined with 15 other industry associations to urge the court to reject arguments that would expand the act to cover wooden utility poles.

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 roadblock that could have needlessly delayed transportation improvements.

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 and the Army Corps of Engineers.

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.