WOTUS Update: Final ‘Clean Water Rule’ Causes Flood of Lawsuits


WASHINGTON, D.C. – July 2, 2015 – (RealEstateRama) — Although signed on May 27, the Clean Water Rule: Definition of “Waters of the United States” (WOTUS) was not officially published in the Federal Register until Monday, June 29. The publication of the rule determined its effective date of August 28, 2015, and opened the door for legal challenges. Immediately following publication, at least 18 state attorneys jointly filed three lawsuits to block the rule. Tuesday, June 30, nine additional states jointly challenged the rule in federal court.

The Clean Water Rule redefines WOTUS and establishes the water features over which the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) claim jurisdiction. Work in or near waters that fall under federal jurisdiction requires special permits and permissions. In addition, the new definition would apply across the Clean Water Act (CWA) regulations and impact other programs such as stormwater permits and spill prevention measures. For more information on the rule itself, please click here to read AGC’s detailed analysis dated May 29. Fact sheets and additional information are also available on EPA’s website at www.epa.gov/cleanwaterrule (link is external). To read the rule in the Federal Register, click here (link is external).

In total, 27 states across four separate suits have taken legal action against this Administration’s rulemaking within two days of its publication. The suits are varied in their reasoning, some alleging usurpation of state responsibility for management of certain waters, some discussing the overly expansive nature of the definition of tributary, and others claiming the rule violates the CWA, the National Environmental Policy Act (NEPA), and the Constitution.

Click here for the lawsuit from the states of North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, and Wyoming; and the New Mexico Environment Department and State Engineer
Click here for the lawsuit from the states of Texas, Louisiana, and Mississippi
Click here for the lawsuit from the states of Ohio and Michigan
Click here for the lawsuit from the states of Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, and Wisconsin
EPA and the Corps received more than one million public comments on the proposed rule, and they recently presented a lengthy, nearly 8,000-page “Response to Comments Document (link is external).” EPA organized their response into categories based on the main issue addressed, such as adjacent waters, ditches, or other waters. The final rule, preamble, supporting documents, as well as documents in the administrative record and this response document represent the totality of the agencies’ response to public comments.

Applying the new WOTUS definition will likely lead to many implementation questions, concerns and even new guidance. AGC also is working to update the information on the Construction Industry Compliance Assistance Center (link is external) with the latest available resources. However, AGC’s efforts to inform its members on the new rule will span several months as it becomes clearer how the rule will be implemented.

For more information, please contact AGC’s Scott Berry at (703) 837-5321 or (link sends e-mail) or Leah Pilconis at (703) 837-5332 or (link sends e-mail)

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