By Mark S. Kuhar
A decision by the U.S. Environmental Protection Agency (EPA) to revoke a valid Clean Water Act (CWA) permit from a mining operation in West Virginia could have ripple effects on the ability of public agencies and private firms to deliver urgently-needed transportation-improvement projects for the nation, American Road & Transportation Builders Association (ARTBA) First Vice Chairman Nick Ivanoff, president and CEO of New York-based Ammann & Whitney, told members of Congress recently.
In testimony before the House Transportation & Infrastructure Committee’s Subcommittee on Water Resources and Environment, Ivanoff told federal lawmakers that EPA’s 2011 decision to revoke Arch Coal’s valid, three-year-old CWA permit, even though the mine was operating in compliance with the permit, sets a dangerous precedent that threatens to remove certainty from the permitting process.
“Major transportation projects, can take years, if not decades, to complete. In order for these projects to move forward, planners need to be able to know permits received at the beginning of a multi-year construction process will be valid throughout the project’s life span,” Ivanoff said.
He argued that the prospect of validly issued permits being rescinded could increase the perceived risk of a project to potential investors, thereby making projects less appealing and more expensive.
“While the EPA’s decision was directed at a single mining operation, its impacts have been felt throughout the regulated community in all sectors of the economy,” explained Ivanoff. “As things stand currently, project sponsors now face the potential uncertainty of losing a valid wetlands permit, through no fault of their own, simply because the EPA changes its mind.”
EPA’s decision to revoke the permit, issued by the Army Corps of Engineers, is particularly troubling in light of the agency’s recent attempts to expand its CWA jurisdiction, making this a “one-two” punch on transportation improvements, according to ARTBA. As the permitting burden increases, the validity of those documents will be in doubt.
Ivanoff also noted that uncertainty in regulatory process threatens to jeopardize bipartisan legislative achievements in MAP-21 aimed at streamlining and speeding the transportation project delivery process.