Legislative/Regulatory

Washington Waves: February 12, 2018

Washington, D.C.—Handed a setback by the U.S. Supreme Court, the Trump administration moved quickly to block implementation of  the controversial 2015 Waters of the United States (WOTUS) rule for another two years as it continues efforts to kill that rule’s definition and come up with a replacement.

The U.S. Environmental Protection Agency and the U.S. Department of the Army announced they had finalized a rule establishing a new applicability date of February 6, 2020, for the rule. The original date was August 28, 2015.

That action came in the wake of a ruling by the nation’s highest court that legal challenges to the Obama-era WOTUS rule belonged in district, not appeals, courts.

That in turn triggered questions over what comes next in the long-running legal battle, especially concerning the nationwide stay put in place by the 6th U.S. Circuit Court of Appeals as well as the litigation in multiple district courts.

“EPA is taking action to reduce confusion and provide certainty to America’s farmers and ranchers,” EPA Administrator Scott Pruitt said.

“The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years, while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation.”

EPA stressed that the rule on the applicability date is separate from the two-step process already underway.

Acting Assistant Secretary of the Army for Civil Works Ryan Fisher said the action will provide regulated public clarity and predictability during the rule-making process.

“We are committed to transparency as we execute the Clean Water Act Section 404 regulatory program,” Fisher said.

Pruitt recently told the Senate Environment and Public Works Committee he hopes to roll out a proposed substitute for the rule by April or May with  final action on it by the end of this year.

Supporters of the administration’s effort applauded the development.

Without the action, countless farmers, ranchers and other businesses would risk lawsuits and huge penalties for activities as common and harmless as plowing a field, American Farm Bureau Federation President Zippy Duvall said.

Critics of the move wasted no time in announcing a legal challenge.

New York Attorney General Eric Schneiderman, a Democrat, announced he will lead a multistate lawsuit to block what he described as a rollback to outdated regulations that were in place before the Obama-era WOTUS.

McConnell To Be Honored

Senate Majority Leader Mitch McConnell (R-Ky.) will receive the 17th Annual Waterways Council Inc. Leadership Service Award.

“WCI’s Leadership Service Award has long recognized ardent American champions of our country’s critically important waterways transportation and port system,” WCI President and CEO Michael Toohey said.

“Senator McConnell stands among them this year.”

In its announcement, WCI singled out McConnell’s work as a veteran member of the Senate Appropriations Committee, crediting him for securing funding for Kentucky priorities such as $225 million for the Olmsted Locks and Dam Project and other infrastructure projects to help the Bluegrass State’s inland waterways workers move agriculture and coal products to market.

WCI also noted McConnell’s support for the Kentucky Lock project.

His state’s longest-serving senator, McConnell was elected in 2014 to a record sixth term.

“In 2015, Time Magazine named him one of the 100 Most Influential People in the World,” WCI stated.

McConnell is scheduled to receive the award February 14 at the Watergate Hotel in Washington, D.C., the same week WCI has scheduled its Washington meetings and waterways seminar.

Harbor Maintenance

The American Association of Port Authorities began touting to members of Congress what it called a “historic, unified” spending agreement for the Harbor Maintenance Tax.

“This solution will address decades of complaints to Congress about tax fairness and the importance of creating a sustainable system to maintain our nation’s ports,” stated an overview of the agreement posted on the AAPA’s website.

Elements of the agreement include mandatory full use of HMT funds, a “fair and equitable” allocation of funds and language addressing HMT cargo diversion concerns.

“The best opportunities for congressional approval would be the next Water Resources Development Act (WRDA) or a federal infrastructure bill,” stated an AAPA alert from Susan Monteverde, vice president for government relations.

The Trump administration is expected to unveil more details of its infrastructure package in the coming days while key lawmakers are planning to launch WRDA 2018 in the next month or so.

Users Board To Meet

The Inland Waterways Users Board is scheduled to meet at 8 a.m. on March 1 in Chattanooga, Tenn.

In addition to briefings on the status of the inland waterways system, the board’s agenda includes updates on fiscal year 2018 funding, the budget for fiscal year 2019, the Inland Waterways Trust Fund, construction activities for Olmsted Locks and Dam Project, Locks and Dams 2, 3 and 4 on the Monongahela River Project, the Kentucky Lock Project and the Inner Harbor Navigation Canal Lock General Re-evaluation Report.

The meeting will be held at the Embassy Suites by Hilton Chattanooga Hamilton Place, 2321 Lifestyle Way, Chattanooga, TN 37421.

For additional information, contact Mark Pointon at 703-428-6438.

Corps Project Alterations

The U.S. Army Corps of Engineers is accepting comments on its proposal to issue an updated Engineer Circular on processing requests to alter civil works projects under Section 408 in current law.

“For example, other entities may want to alter a civil works project to increase recreational opportunities; improve flood risk management; or construct a road, transmission line, or pipeline across a civil works project,” the notice in the Federal  Register stated.

Comments must be submitted by March 7.

For additional information, contact Tammy Conforti at 202-761-4649.

Coastal Engineering Research

The Board on Coastal Engineering Research is scheduled to meet at 8 a.m. March 14 and 15 in Duck, N.C.

Items on the agenda include presentations on the Nearshore Process Research Initiative, 2017 hurricane season, the U.S. Coastal Research Program, dune research, Flood and Navigation Coastal Asset Management, coastal processes research and development needs, Next Generation Coastal Guidance Document, Strategic Tech Transfer and Training and Numerical Technology Modernization. 

The sessions will be held at the U.S. Army Corps of Engineers Coastal Hydraulics Laboratory, Field Research Facility, 1261 Duck Road, Duck, N.C. 27949.

For additional information, contact Col. Bryan Green at 601-634-2513.

MTSNAC Public Meeting

MarAd is scheduled to hold a public meeting of the U.S. Maritime Transportation System National Advisory Committee (MTSNAC) on February 27–28.

In addition to hearing from the maritime administrator, the agenda includes the development of work plans and proposed recommendations.

MTSNAC advises the U.S. Department of Transportation on the maritime transportation system.

The meeting is scheduled to begin at 9 a.m. in the DOT Conference Center, U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington, D.C. 20590.

For additional information, contact Jeffrey Flumignan at 212-668-2064.

Credential Exam Clarification

In response to questions, the National Maritime Center released a statement to help mariners determine whether they will be testing under previous or current credentialing regulations.

“If the examination code on the Approved to Test Letter is preceded by a Q, the examination module is based on current regulation,” the agency stated.

“If the examination code is not preceded by a Q, the examination module is based on the previous regulation. All Rules of the Road examination modules will be preceded by a Q, regardless of which regulation the applicant was evaluated under.”

The statement went on to explain the NMC is updating its website to more clearly reflect the information.

For additional information, call the NMC at 888-427-5662.

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