AGC Gets Results in 2016, Braces for More Water Rules in Early 2017
A lot has happened this year. EPA has been busy and so has AGC’s environmental staff. Government control over the amount of dirt that can run off a construction site (or developed property) during wet weather and the sort of construction activities that can occur on any tract of land with (or nearby) a “Water of the United States” continue to be top issues for AGC members. AGC’s effective advocacy work and solid reputation with the regulatory agencies brought positive results in 2016. As previously reported, there are more water rules on AGC’s radar – due out in early 2017.
AGC Gets Results
Electronic Reporting of Stormwater Compliance Data -- Throughout 2016, AGC maintained an open dialogue with EPA staff working to implement the first-ever Electronic Reporting Rule for stormwater permits. AGC succeeded in getting several improvements to the proposal, including limitations on the information that contractors have to report (no increase) and greater flexibility. AGC submitted two rounds of comments, held face-to-face meetings with EPA staff, and organized a member webinar to discuss the e-Reporting proposal. But AGC is keenly aware that the ongoing process of converting state-issued construction general permits from paper to digital reporting will require extensive consultation and coordination on industry’s behalf. Click here for more information.
Final Decision (JD) Regarding Federal Waters on Project Site -- In May 2016, the U.S. Supreme Court issued a unanimous ruling in U.S. Army Corps of Engineers v. Hawkes Co., deciding that “approved jurisdictional determinations” (AJDs) are “final agency actions” subject to review by a judge in court. This gives construction project proponents legal recourse when there is a disagreement over the precise scope of “Waters of the United States” (WOTUS) and related boundaries under the CWA. Prior to the Hawkes decision, AJDs were appealable only through the Corps’ internal administrative appeals process. AGC submitted a joint “friend of the court” brief in the Hawkes case making a strong case for why it is vital for contractors to know with certainty whether their projects contain WOTUS. AGC was the only trade association to advance the commercial construction industry’s interest in the outcome of this case and, once again, AGC has succeeded in changing facts on the ground. This decision will have a material impact on the way that the Section 404 permit program actually functions. Click here for more information.
Federal Mandates on Local Stormwater (Construction/Development) Programs -- AGC scored another big win for construction by ensuring that EPA’s December 2016 stormwater rule that revises the procedures for issuing general permit coverage for municipal separate storm sewer systems (MS4s), maintains flexibility and discretion in how states/cities manage their local pollution prevention programs — rather than forcing uniform mandatory numeric permit requirements. AGC submitted comments in March 2016 on EPA’s proposal and followed up with the White House Office of Management and Budget (OMB) in October 2016, making a strong legal case that numeric permit requirements are not required by the CWA or related permitting regulations. The federal MS4 permit program has potential to impact how future facilities and related infrastructure is designed, constructed, and operated to manage stormwater. Click here for more information.
Pending Water Rules on AGC’s Radar
EPA’s Construction General Permit -- EPA’s Construction General Permit (CGP) for stormwater runoff from construction jobsites will expire in March of 2017. AGC submitted comments in May 2016 on EPA’s proposed 2017 CGP and followed up with OMB in November 2016 to reiterate its procedural and substantive concerns with EPA proposal. A paramount concern to AGC members is the possible addition of a brand-new requirement that would make construction site “operators” publicly report their construction stormwater pollution prevention plans (SWPPPs). These thousands of site-specific plans would be shared with EPA Headquarters, and the agency would, in turn, post them on EPA’s Enforcement and Compliance History Online (ECHO) website for anyone to view. AGC took the lead in bringing together the nation’s leading homebuilding, real estate and development groups to submit a joint letter to EPA strongly opposing the online posting of construction SWPPPs. EPA hopes to publish the final 2017 CGP early next year. Click here for more information.
Nationwide (General) Discharge Permits -- On June 1, 2016, the U.S. Army Corps of Engineers (Corps) published a proposal to reissue and modify the existing Nationwide Permits (NWPs) that authorize general categories of construction in “Waters of the United States” (WOTUS). That began the process for renewing and revising the 2012 NWPs that are set to expire on March 18, 2017. AGC met with the Corps and submitted comments in August 2016, stressing that any changes to the nationwide permit program should maintain an efficient and streamlined process for authorizing activities that propose minimal impacts on WOTUS. AGC urged the Corps to not apply the controversial WOTUS rule definitions in this permit. The Corps hopes to publish its final 2017 NWPs early next year. Click here for more information.
“Waters of the United States” -- AGC submitted four sets of comments on the agencies’ 2014 proposed rule on the scope of their jurisdiction. The agencies finalized a modestly improved rule in May 2015 and scheduled it to take effect in August 2015. Many states and others challenged the rule in court. The U.S. Court of Appeals for the Sixth Circuit has at least temporarily blocked the agencies’ implementation of the rule. There is no deadline for the Sixth Circuit to make a final decision. AGC continues to discuss implementation of the 2015 rule with EPA and the Corps, including its potential impact on Clean Water Act permitting. AGC continues to push for legislation requiring the agencies to restart the rulemaking process. For information on the WOTUS rule and where it generally stands, click here and here, respectively.
For more information, contact Leah Pilconis, AGC’s senior environmental advisor, at pilconisl@agc.org.