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Issuance of New 404 Permits or Jurisdictional Determinations on Hold

August 24, 2018

Court Ruling Puts 2015 WOTUS Rule in Effect in 26 States

As a result of an August 16 federal court ruling, U.S. Army Corps of Engineers has put a hold on the issuance of any new federal Clean Water Act Section 404 permits or jurisdictional determinations for at least the next two weeks as the agency develops guidance to address the court’s findings. The court ruling put in effect in 26 states (see below) the Obama administration’s 2015 “Waters of the United States” (WOTUS) rule—which redefines federal environmental permitting jurisdiction under the Clean Water Act. Existing approved 404 permits and jurisdictional determinations for projects should remain valid; but experts still urge caution against citizen suits. AGC published an in-depth look at the 2015 WOTUS rule when it was finalized.  

The 2015 WOTUS rule is now in effect in:  California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, and Washington. 

This is a developing issue and the situation could change quickly.  Multiple cases challenging the 2015 rule are working their way through the district courts.  Three courts have already determined that challenges to the 2015 rule are likely to succeed on their merits. Already, groups have moved to appeal the August 16 decision, as well as urge a Texas-based court to promptly issue a nationwide injunction against the 2015 rule.  AGC will continue to closely track this issue and report to members.

For more information, contact Melinda Tomaino at tomainom@agc.org or (703) 837-5415.

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