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Where Are We with WOTUS?

November 23, 2015

In the Midst of Nationwide Stay, Federal Agencies Work to ‘Improve’ 404 Permit Program

The U.S. Environmental Protection Agency (EPA) has posted a statement on its website concerning the litigation over the new “Waters of the U.S.” (WOTUS) rule, acknowledging that the U.S. Court of Appeals for the Sixth Circuit has temporarily blocked EPA and the U.S. Army Corps of Engineers (Corps) from implementing the new rule, pending further action of the court.  The statement confirms that the agencies are back to using the prior regulatory definition of WOTUS and applicable guidance (status quo as it existed before the new rule) in making jurisdictional determinations or taking other actions based on the definition of WOTUS.  Despite this holding pattern, EPA and the Corps have directed their staff to move ahead with measures to “improve” implementation of the national Clean Water Act (CWA) Section 404 permit program, as promised when the new rule was released.

Compliance with the Stay

On Nov. 16, 2015, EPA Administrator Gina McCarthy and Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy issued a joint memorandum to their staff, affirming “the agencies are fully complying with the [nationwide] stay” granted by the Sixth Circuit in October  – but adding that they “look forward to vigorously defending the merits of the Clean Water Rule, which [they] continue to believe is fully consistent with the law and based on the best available peer-reviewed science.” 

Much uncertainty remains as to how and when the many legal challenges will be resolved, and thus, whether contractors should rely on the WOTUS rule’s new jurisdictional analysis in their planning. The Sixth Circuit has to decide whether it has jurisdiction over the multi-district litigation, and if the court concludes it does not have jurisdiction, the stay will dissolve.  That decision is expected in late December.  However, numerous other challenges against the WOTUS rule are pending in courts around the country, including a lawsuit in the federal district court in North Dakota, where the presiding judge also halted implementation of the WOTUS rule – but only in the 13 states that are involved in that particular case.  There is also the possibility that Congress will weigh in. 

AGC is closely monitoring judicial, administrative, and legislative developments relating to the WOTUS rule and will continue to report frequently on this evolving issue on its website.

What Rules Apply Today?

In states where the block on the new WOTUS rule remains in effect, the agencies are using the regulations codified in 1986 and the 2008 Rapanos Guidance to make jurisdictional determinations or take other actions based on the definition of WOTUS. The agencies’ field staff has been directed to follow the 2007 Corps-EPA joint memorandum on coordination, as modified by the January 2008 Corps memorandum

JD’s Posted Online; Other ‘Improvements’ In the Works

In the November 2015 memo, the federal agencies promise to “capitalize on the momentum… to improve transparency… coordination processes… public participation… [and] significant nexus determinations… ” that underpin the CWA Section 404 permit program.   Notably, EPA and the Corps are collaborating to develop a website where approved Jurisdictional Determinations (JD), used by the agencies to implement the Section 404 permit program, are publicly accessible.  Right now, you can access Corps approved JD’s by following this link to the Corps JD public interface (including JD’s being made under the 1986 regulations during the pendency of the stay).  In the near term, users will be able to access both Corps and EPA approved JDs on a single integrated site. Click here for the Corps’ Regulatory Guidance Letter on when an approved JD is required and when a permit applicant can elect to use a preliminary JD instead.

The agencies also reiterated their commitment to reduce permit delays and to make the program more understandable, consistent, effective and accessible; but it remains unclear what steps they will take to actually accomplish that.  As previously reported by AGC, and as detailed in a separate interagency memo from July 2015, EPA and the Corps have convened a workgroup to evaluate existing permitting tools and procedures, with streamlining recommendations due by the end of 2015. 

AGC Efforts

AGC published an in-depth look at the 2015 WOTUS rule when it was finalized.  AGC’s environmental leadership already has had several in-depth discussions with EPA and Corps staff about the new rule’s application to waters/features; exclusions for certain ditches, stormwater control features and water-filled depressions created by construction; and exemptions from CWA Section 404 permitting for certain activities like ditch maintenance. The two groups also discussed working together to develop general permits, simplified procedures and additional guidance that is needed to allow necessary projects to proceed without delay.  Notably, there currently are 50 nationwide permits (NWPs) set to expire on March 2017.  AGC will closely review and comment on the proposal to reissue, and likely amend, those NWPs – due out in January 2016. 

In addition, AGC has joined its industry allies in questioning whether “guidance” on interpreting/applying the WOTUS definition will clear up the confusion and potential problems that stakeholders, and the courts, have pointed out since the new rule was published. Indeed, AGC communicated similar concerns to EPA and the Corps when learning the agencies had no plans to issue a formal implementation guide on WOTUS, in part because the final regulation “provide[s] clear and comprehensive direction regarding the process for conducting jurisdictional determinations,” per the July 2015 interagency memo.  The memo further states that “a comprehensive Questions and Answers document… negat[es] the need for any new manual or guidance document.”  That Q&A document has not been updated since the wave of lawsuits hit. 

AGC is doubling-down on its efforts to make sure construction will proceed without delay and excessive permitting reviews and related costs.  AGC continues to work with its Congressional allies to enact legislation requiring the agencies to restart the rulemaking process, and to secure policy riders in the forthcoming spending legislation that will halt implementation/enforcement of the rule for the coming fiscal year. 

For more information visit EPA’s “Clean Water Rule” Web page and the Army Corps’ Regulatory Program and Permits Web page.  To view an EPA Q&A document that compares waters subject to jurisdiction under the 1986 WOTUS regulations to those waters covered by the 2015 rule, click herePlease contact Leah at pilconisl@agc.org or Scott Berry at berrys@agc.org if you have additional questions.

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