Environmental Policy – Clean Water & Wetlands

Overview

In seeking to comply with permitting requirements under the Clean Water Act (CWA), the transportation construction industry has faced continually unsettled policies. Major revisions to federal agencies’ definition of “Waters of the United States” (WOTUS), resulting from changes in presidential administrations, have needlessly complicated long-term planning for transportation projects and often resulted in delays and increased costs. In addition, overly prescriptive rules can prevent contractors and designers from devising innovative and timely solutions for preserving wetlands in proximity to projects.

To address these challenges, ARTBA supports the following CWA reforms:

• Development of a clear, permanent definition of WOTUS, focused on relatively permanent waterbodies and immediately adjacent wetlands that is easily recognizable to both landowners and transportation planners. Exclusion from federal jurisdiction of isolated wetlands and man-made ditches or remote wetlands with finite connections to navigable waters.
• Consistent application of CWA regulations by all U.S. Army Corps of Engineers (Corps) district offices.
• Designation of a “de minimis” level of wetlands impacts and the use of “non-notifying” permits to acknowledge insignificant impacts not warranting federal or state intervention.
• Development of an efficient wetlands permitting process, allowing for necessary protection of ecologically sensitive resources without excessive delay for transportation improvement projects. Specific reforms include:
  • Time limits for agency permitting decisions.
  • Designation of the Corps as the “lead agency” in permitting decisions and removal of the EPA from the wetlands permitting process.
  • Expanded use of the Nationwide Permit Program to limit time-consuming individual permits to projects with the greatest impact.
• Encouraging mitigation banking as the preferred method of wetlands reclamation. This approach provides flexibility to project developers in meeting wetlands restoration obligations by allowing selection of a mitigation site based on environmental value rather than proximity to a highway project.  Moreover, mitigation banking should encompass:
  • Expanded and financially reasonable mitigation service areas,
  • Transfer or sale of mitigation credits when appropriate, and
  • Delegation of responsibility to the states when possible.
• Sharing of resources among the Corps, states and third parties-including the use of independent consultants where appropriate-with the objective of reducing permit backlogs and delays.
• Using technology to expedite the federal CWA permitting process.