Challenge to CWA Dredging Regulation Allowed to Proceed
There's no telling how this suit will ultimately turn out, but at least this broad-based industry challenge to some new Clean Water Act regulations jointly developed by EPA and the Corps will be heard on its merits, according to this opinion handed down February 3d by the D.C. Circuit.
It seems EPA and the Corps had decided that the act of using "mechanized earth-moving equipment in waters" itself constituted a "discharge" so as to trigger permit requirements for the activity under the CWA. The lower court said the suit wasn't ripe and dismissed on that ground. This court reversed and remanded for a hearing on the merits.
Because of the large volume of harbor and navigable water dredging and construction work in Washington, this case has obvious significance to costs and time impacts on many regional projects. And builders will tell you that permitting is probably the biggest single risk in many such projects -- especially mid-project permit changes and failure to grant permits on a timely basis. The Pacific Legal Foundation supported the industry appeal as an amicus.
