Ian Shavitz Quoted in Law360 on “Waters of the U.S.” Rule

Ian Shavitz, senior counsel in Akin Gump’s public law and policy practice, was quoted in the Law360 article “Transportation Cases To Watch,” which looks at some of the high-profile transportation legal battles currently taking place.

One case worth noting, according to the article, is the challenge being waged by more than two dozen states as well as a number of private parties against an EPA rule clarifying which U.S. waterways are subject to federal jurisdiction. The article reports that the issue could affect major transportation and infrastructure projects that cross state borders.

Last month, the railroad industry filed its own suit against the EPA and Army Corps of Engineers for their “waters of the United States” rule, which, according to the agencies, is supposed to make permitting decisions easier and bring regulations up to date with Supreme Court opinions. Also known as the Clean Water Rule, it redefines the scope of protected waters.

Shavitz said the rule determines what is a basically a jurisdictional wetland, stream or waterway. “Long linear transportation projects,” he said, “will invariably cross one or more of these areas. What happens is you take a project that may not have had federal involvement and suddenly it becomes a project requiring federal approvals, resulting in millions of dollars in permitting costs and significant permitting delays, just based upon whether it is or is not a water of the U.S.”

Many of those opposing the rule, the article says, have argued that it disrupts the balance between federal and state authority. The states also contend that it oversteps states’ rights to regulate their own waterways and harms businesses and landowners.