LAW360: Analysis: Construction Industry Anxious For Water Rule Saga To Dry Up
The construction industry spends huge amounts of time and money on all kinds of permits to complete a project, and few pose bigger headaches than those triggered when the federal government determines that a project affects water bodies protected by the Clean Water Act — making the Trump administration’s attempt to clear up the issue a top concern.
When the Obama administration in 2015 promulgated the Clean Water Rule, which defines what aquatic bodies qualify as “waters of the United States” under the Clean Water Act, a slew of states and industry groups including the National Association of Realtors, National Association of Home Builders, American Road And Transportation Builders Association and Leading Builders of America, challenged it in court. They argued the rule improperly expanded the federal government’s authority under the CWA.
Courts haven’t yet reached any decisions on the validity of the rule, because after the challenges were filed, a controversy arose about whether federal district courts or appellate courts have jurisdiction over the WOTUS question. The Supreme Court in January said district courts are the proper venue, the Sixth Circuit recently vacated its nationwide stay of the 2015 rule, and several district court cases that were on hold while the jurisdictional issue was being sorted out are getting back up and running.
But it’s not certain the legal system will ever reach a final conclusion about the Clean Water Rule, because the Trump administration has already proposed a new rule to rescind it, and said the U.S. Environmental Protection Agency and Army Corps of Engineers plan on proposing a new WOTUS rule sometime this summer.
Chris Roux, a partner at Alston & Bird LLP, said the construction industry is closely watching what the administration does, because the government requires permits and mitigation when a project impacts an aquatic feature that’s been determined to be part of the waters of the U.S.
