Supreme Court to decide if Army Corps can regulate isolated wetlands

The U.S. Supreme Court will soon decide whether the expansion of the Army Corps of Engineers’ ability to regulate wetlands is worth the delay to construction projects that would come from increased federal scrutiny.

Two separate wetlands cases, consolidated for the court’s review, will ask the court to decide whether the Clean Water Act allows the Corps to regulate “isolated wetlands” that aren’t connected to navigable waters. The court will also decide whether a tenuous connection between a wetland and a navigable waterway is enough to allow regulation by the Corps and if there is a minimal standard that should be applied.

The Clean Water Act established the basic structure for regulating the discharge of pollutants into U.S. waters, according to the Environmental Protection Agency.

The American Road & Transportation Builders Association, in partnership with the National Stone, Sand and Gravel Association and the Nationwide Public Project Coalition, filed a “friend-of-the-court brief” Dec. 2 in the potentially precedent-setting wetlands litigation.

ARTBA’s brief said these cases have the potential to greatly expand or sensibly limit the authority of the Corps to issue permits for transportation construction projects in all areas of the country. The brief noted that the transportation construction industry and state departments of transportation have dealt with these issues for years and often face confusing and conflicting interpretations on the scope of federal jurisdiction. This makes it difficult to engage in long-term planning and increases costs due to permitting requirements, the group said.

The case will likely be argued in February with a decision slated for May.