| Courts Ruling on the Environment
January 1, 2003 The Washington Letter http://www.primediabusiness.com The federal courts are proving to be an important forum for addressing regulatory restrictions affecting the transportation construction industry. In the wetlands arena, the U.S. Supreme Court in December heard oral arguments and now is poised to decide a case that will affect the scope of the federal government's jurisdiction under the Clean Water Act, as well as the method agencies use to assess penalties for violations of the law. Environmental groups are calling the case one of the most crucial environmental cases on the court's docket this term. In "Borden Ranch Partnership v. the U.S. Army Corps of Engineers," the court will decide whether a practice known as "deep ripping," which disgorges and redeposits soil in wetlands, should be considered discharge of a pollutant. The National Stone, Sand & Gravel Association, which has filed an amicus curiae brief in the case, urged the Supreme Court to reject a lower court's interpretation of the term discharge, saying it has the potential to expand the Corps' jurisdiction to apply to any mechanized activity that disturbs soil. And the construction industry won a key victory in federal appeals court recently in an Endangered Species Act case. The U.S. Court of Appeals for the District of Columbia ruled the U.S. Fish and Wildlife Service must make public more specific information on the whereabouts of the endangered cactus ferruginous pygmy owl on private property. FWS had turned down requests for the information from homebuilders, citing the privacy needs of private property owners. In its decision, the court strongly rejected the notion that the Interior Secretary could withhold information under ESA. "The Secretary's reliance on the Endangered Species Act as a statute that establishes particular criteria for withholding particular types of matters is misplaced," the court said. Under the ruling, FWS must release site-specific information about the pygmy owl, without revealing the identities of property owners. The National Association of Home Builders, one of the plaintiffs in the case, hailed the victory as an important step in making ESA decision-making a more open process.
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