Court Action Muddies Obama Admin. Waters of the U.S. Rule for Contractors

‘Hold’ on Controversial Rule Expected to be Lifted
A Jan. 22 U.S. Supreme Court procedural ruling involving the Obama Administration’s 2015 Waters of the United States (WOTUS) will lift an earlier appeals court decision to put in place a nationwide freeze of that rule. At this moment, implementation and enforcement of the 2015 rule—which expands federal jurisdiction involving wetlands—appears imminent in most states. However, AGC awaits word on when an appeals court will officially lift its nationwide hold on the rule but, until that happens, nothing is changed. (Read more in AGC’s “frequently asked questions” document).

Irrespective of when the appellate court lifts its hold, thirteen states – the states that were parties in a case before the U.S. District Court for the District of North Dakota – will remain shielded from the 2015 WOTUS rule in the short term. Those states are: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
The timing of the decision is unfortunate as the administration is still working to repeal and replace the 2015 rule. The administration is expected shortly to finalize a rule that would delay the implementation date of the 2015 WOTUS rule by two years, i.e., until 2020. It is not certain whether the administration will finalize that rule in time to forestall implementation once the appellate court’s nationwide stay is lifted. This two year delays is intended to prevent confusion over implementation that industry currently faces and to allow the agencies more time to finalize its repeal and replace efforts.
For more information, contact Melinda Tomaino at tomainom@agc.org or Leah Pilconis at pilconisl@agc.org.


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