July 30 UPDATE: A Judicial Panel on Multi-District litigation has randomly selected the United States Court of Appeals for the Sixth Circuit in which to consolidate the multiple challenges to the WOTUS rule filed in circuit courts across the country - click here. EPA and the Army Corps have also asked the Panel to consolidate the pending (and future) district court actions in the District Court for the District of Columbia.
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As the controversy surrounding the new “Waters of the U.S.” rule continues to mount, the regulated community and regulators alike are preparing for how they will actually apply the rule, which is slated to take effect Aug. 28. AGC has opened up the lines of communication with the top regulatory officials at the U.S. Army Corps of Engineers; the latest report is that the Corps is on track to issue detailed implementation guidance within the next 30 days. AGC will provide members with educational and outreach opportunities in the coming weeks, focused on the practical implications of the rule for project managers on-the-ground.
As previously reported by AGC, the U.S. Environmental Protection Agency (EPA) and the Corps finalized their new rule interpreting the jurisdictional scope of the Clean Water Act (CWA). 80 Fed. Reg. 37,054 (June 29, 2015). The rule defines the key statutory term “Waters of the United States” (WOTUS). That phrase is critical because the CWA’s regulatory burdens (e.g., permits, management plans, reporting) are triggered only by the discharge of pollutants into such waters.
Applying the new WOTUS definition across all CWA programs may lead to implementation issues. AGC will work hard to ensure the agencies develop protocols, programs and procedures to minimize the risk of disruption
AGC Focuses on Practical Implications for Industry
AGC has communicated to top EPA and Army Corps leaders that the association seeks to promptly engage in a discussion of the many steps that will be necessary to put the rule into effect. Acting on AGC’s invitation, the agencies will participate in AGC’s 2015 Contractors Environmental Conference – scheduled for Sept. 2-3 in Arlington, Va. (see related articles in this issue). That same week, at the conclusion of the conference, AGC’s environmental steering committee plans to host a series of roundtable discussions with government staff on a variety of environmental programs and initiatives, including the WOTUS rule.
AGC remains very concerned that the final rule goes much further than necessary to achieve the objectives of the CWA, and that the rule will unduly deter the construction needed to sustain economic growth. AGC’s upcoming meetings will provide the forum for the nation’s leading construction contractors to begin the important process of helping the agencies identify potential pitfalls, develop resources, and exchange first-hand experiences with the new rule.
AGC is seeking additional clarity from EPA and the Corps on regulatory exclusions that the agencies’ WOTUS rule creates for certain types of ditches and stormwater control features, including how the two provisions work together and which agency is responsible for enforcing the exclusions. Indeed, for all its detail, the rule still leaves many questions unanswered, and how exactly it impacts the construction industry will very largely depend on how the agencies answer those questions.
Corps officials told AGC that the agency is completing “flow charts and pictograms” to walk the regulated community through the process of determining jurisdiction under the new rule, including a discussion on ditches and other stormwater control features.
An Uncertain Future for the Final Rule
Several lawsuits have already been filed across multiple federal district and appeals courts, including suits from more than half of the 50 states and a coalition of major industry groups. Environmentalists have also sued. AGC has been monitoring and reporting on these suits that challenge various provisions in the final rule as violating several constitutional principles and the CWA, the Administrative Procedure Act and the National Environmental Policy Act. Importantly, the legal challenges will test whether the agencies’ interpretation of CWA jurisdiction is consistent with the Supreme Court’s recent rulings.
Since AGC’s last update, nearly a dozen states involved in one of the lawsuits have asked a district court to stop the Corps and EPA from enforcing the new rule until the litigation is completed. The government has filed a motion to stay all of the lawsuits so that they can be consolidated in a single court for resolution. This motion will likely be granted and many predict that we’ll soon see all the cases joined together in a district court selected by a federal panel. Similar actions are underway to consolidate the pending court of appeals challenges.
Another consideration is possible action by Congress. Legislative efforts to reverse and repeal the rule have been gaining support. And provisions in pending appropriations bills would block the administration from implementing the rule during fiscal year 2016. AGC will continue to work with its Congressional allies to require the agencies to revisit their rulemaking process.
It is still unclear whether any of these attacks will delay federal governments’ implementation or enforcement of the final rule. Regardless of what happens next, one thing is certain: the controversy surrounding the rule does not appear to be subsiding any time soon. In fact, it may grow as recent revelations from internal Corps memos suggest considerable disagreement between the Corps and EPA about the workability and legal defensibility of the rulemaking and its supporting documents. More on that as it develops.
Until the rule takes effect, CWA jurisdictional determinations will continue to be made by the 38 Corps districts pursuant to existing regulations, coupled with non-binding agency guidance, and many of these determinations involve time-consuming case-specific evaluations.
For more information, contact Leah Pilconis at pilconisl@agc.org or Scott Berry at berrys@agc.org.