With the clock ticking on the implementation of the “Waters of the United States” (WOTUS) rule, the U.S. Environmental Protection Agency (EPA) just announced a webinar, scheduled for Thursday, Aug. 27 from 1:00 to 2:00 pm EST to provide last-minute details. Unless there is a court order that provides otherwise, the new Clean Water Act (CWA) definition of WOTUS will take full effect on Aug. 28. The webinar will provide a review of the final rule, answer some commonly asked questions, and discuss what to expect as the rule is implemented.
Click here to register for the webinar.
The controversial WOTUS rule by EPA and the U.S. Army Corps of Engineers (Corps) was publicly released May 27 and then published in the Federal Register on June 29. It takes effect Aug. 28. Click here to see AGC’s overview of what are – and are not – WOTUS.
To be clear, the term “Waters of the U.S.” or WOTUS dictates exactly what wet areas fall under federal jurisdiction and triggers federal water quality limits, standards, permits, enforcement and other reviews. Most notably, CWA Section 404 prohibits construction work (i.e., any discharge of dredged or fill material) in WOTUS without an Army Corps’ Section 404 permit. Generally speaking, if you already have received a Section 404 permit for your project, you will not have to obtain a new one, and your permit is grandfathered from the new definition of WOTUS. Any permit application deemed complete before June 29, 2015, is also exempt from the new WOTUS definition.
If you fail to obtain a permit and discharge dredged or fill material into a WOTUS, you will be in violation of the CWA and subject to fines of $37,500 per day from the time the discharge occurred.
For more information visit: www.epa.gov/cleanwaterrule and http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.
Implementation: Guidance and Outreach
AGC will provide its members with timely educational and outreach opportunities next week, when top EPA and Corps leaders present on the WOTUS rule at AGC’s 2015 Contractors Environmental Conference – scheduled for Sept. 2-3 in Arlington, Va. In addition, AGC’s environmental steering committee leaders will sit down with the agencies for a roundtable discussion on the WOTUS guidance released to date, as well as the additional protocols, practices and procedures that EPA and the Corps will need to develop as they implement the new rule.
In a July 2015 joint memo, EPA Administrator Gina McCarthy and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy say their agencies “must focus immediately” on developing tools for the jurisdiction rule that they jointly developed.
The memo lists as top priorities a “comprehensive Question and Answers document,” an automated tracking system and database for jurisdictional determinations (JDs) made under the rule, and an EPA-Corps workgroup that will, by the end of 2015, recommend ways to streamline the CWA permitting process.
However, the July 30 letter says EPA and the Corps have no plans to issue a formal implementation guide on the waters rule, in part because the final regulation “provide[s] clear and comprehensive direction regarding the process for conducting jurisdictional determinations." The letter also says that the pending Q&A document will serve the same purpose that formal guidance would; it will be updated on the agencies’ websites as experience with the rule grows.
In addition, as reported by AGC, the Corps is close to releasing “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. These documents will be posted online here (look under “Latest News”).
All of these implementation tools are being developed based on the rule taking effect on Aug. 28 – two months after its publication in the Federal Register.
Legal Challenges Update
As previously reported by AGC (click here and here), multiple states have already filed suit against EPA and the Corps challenging the rule, claiming it is an “unconstitutional and impermissible expansion of federal power over the states and their citizens and property owners.” Numerous industry groups have also teamed up to challenge the rule in various federal district and appellate courts. On July 28, the U.S. Judicial Panel on Multidistrict Litigation (JPMDL) issued an order merging all of the lawsuits over the WOTUS rule that have been filed in various courts of appeal, holding that the United States Court of Appeals for the Sixth Circuit will hear the consolidated suits. The JPMDL scheduled a hearing on October 2, 2015, on DOJ’s motion to consolidate ten challenges to the WOTUS rule from eight district courts. At least two district courts continued to consider motions for preliminary injunctions, including the Southern District of Georgia, which held a hearing on August 12. Absent a preliminary injunction, the new definition will go into effect on August 28, and the court advised that it would issue a ruling prior to that date.
For more information, contact Leah Pilconis at pilconisl@agc.org or Scott Berry at berrys@agc.org.