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On January 22, 2018, the U.S. Supreme Court issued a ruling that legal challenges to the 2015 Waters of the United States (WOTUS) rule belong in the district rather than appellate courts. In short, this Supreme Court decision will result in lifting an appellate court’s nationwide stay of the 2015 WOTUS rule that has been in effect since Oct. 2015. The definition of WOTUS dictates the scope of the federal government’s control and Clean Water Act permitting authority over construction work in water and wet areas. Whereas this ruling may be a victory for industry in the long term, the timing of the decision is unfortunate as the Administration is still working to repeal and replace the 2015 WOTUS rule. In the short term, we anticipate confusion as the process plays out.

House Transportation Committee Considers Environmental Streamlining

On Jan. 5, �۽�ֱ�� urged the U.S. Fish and Wildlife Service (FWS) to remove the goal of “net conservation gain” from the Service’s Mitigation Policy and Endangered Species Act (ESA)–Compensatory Mitigation Policy, finalized in late 2016. �۽�ֱ�� asserts that that the “improvement” goal is not supported under the ESA; the goal fails to provide a clear limit on how much mitigation is necessary and blurs the line between recommendations and requirements.

Christopher Halapy, Shook ConstructionClients’ needs and expectations relative to the services provided by their design and construction partners are evolving. Savvy clients have increased their demand for turnkey services and a higher level of detailed information far earlier in the project planning process. Beyond programming, owners are looking to understand milestone dates, disruption of ongoing operations, and a firm cost for the project, all earlier than this information is typically provided.

�۽�ֱ�� called on the U.S. Environmental Protection Agency (EPA) to apply federally approved “Recommended Best Practices for Environmental Reviews and Authorizations for Infrastructure Projects” in delegated states that EPA has authorized to implement and enforce a federal environmental permit program. In response to EPA’s request for input, �۽�ֱ��’s Nov. 20 letter explains that where states have taken over the responsibility for executing federal authorizations and environmental reviews, the obligation to use best practices should transfer to the state permitting authority. A majority of states have been delegated authority to implement and enforce one or more provisions of the federal pollution control laws.

�۽�ֱ�� commented this week on three separate Federal Highway Administration (FHWA) regulatory proposals to expedite project delivery by streamlining the federal environmental review process. The FHWA proposals implement various �۽�ֱ�� supported provisions in the Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Fixing America’s Surface Transportation Act (FAST Act), intended to make the National Environmental Protection Act (NEPA) procedures work better. In one proposal, �۽�ֱ�� supported the state of Arizona taking responsibility for undertaking part of the NEPA review process and in so doing eliminating federal review. Eight states have or are seeking assignment of this review authority and �۽�ֱ��’s comments pointed out that FHWA and these states report significant reduction in the time it takes to complete the NEPA process. FHWA’s report indicates that states that have undertaken this responsibility have, “a greater awareness, understanding, and opportunity for improving environmental outcomes.”

For �۽�ֱ��’s most recent episode of the ConstructorCast, we sit down with Leah Pilconis, �۽�ֱ��’s Senior Counsel of Environmental Law, to talk about the complex world of environmental permitting and what �۽�ֱ�� is doing to try to make it easier for construction companies. Our discussion examines the breadth of requirements, the opportunities to streamline regulations and make environmental protection more efficient, and where environmental regulations might be headed in the coming years.

Date: Feb. 28, 2018 - Wednesday Time: 9:00 AM to 4:00 PM Location: Hyatt Regency New Orleans

Latest Update on WOTUS Rule Status

Calls for Congressional Repeal These Agency Policies