Photo of Bart J. Kempf

Bart Kempf has a diverse practice involving litigation, agency proceedings, enforcement actions, compliance and legislative counseling, and transactional matters concerning a broad range of environmental, land use, and natural resources law. View articles by Bart

U.S. Supreme Court “Waters of the United States” Ruling May Lead to Confusion and Uncertainty in Waters and Wetlands Regulatory RegimeThe United States Supreme Court ruled unanimously in National Association of Manufacturers v. Department of Defense that legal challenges to an Obama Administration regulation defining “waters of the United States” (WOTUS) must be initially heard in federal district courts – and not federal courts of appeals. The decision resolves a long-standing ambiguity in the Clean Water Act and will have long-term consequences – e.g., relatively more resources will be necessary to litigate similar future cases and a six-year statute of limitations will apply (vs. 120 days).  In the near term, a key impact of the decision could be that the Obama-era WOTUS rule goes into effect in 37 states. This could lead to uncertainty and confusion – and delays – in certain permitting regimes, including the U.S. Army Corps of Engineers’ (Corps) issuance of Clean Water Act 404 permits.

An enduring controversy in environmental law is the scope of the term “waters of the Unites States” as set forth in the Clean Water Act. The issue rests on statutory and constitutional interpretation, with a key practical impact being the scope of the federal government’s jurisdiction over waters and wetlands. The conventional wisdom is that broader federal jurisdiction results in, among other things, a more complex and expensive permitting process (and, conversely, narrower jurisdiction means fewer regulatory burdens).

In 2015, the Corps and U.S. EPA promulgated the Obama WOTUS rule, which re-defined “waters of the United States,” generally providing for broader federal jurisdiction under the Clean Water Act. Unsurprisingly, this led to a bevy of lawsuits. Due in part to the aforementioned ambiguity as to where jurisdiction lies, a range of groups and states challenged the Obama WOTUS rule in several federal district courts and courts of appeals. Two of these lawsuits resulted in key decisions. First, the District Court of North Dakota issued an injunction halting implementation of the Obama WOTUS rule in 13 states (North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and New Mexico). Subsequently, in a separate proceeding, the Sixth Circuit Court of Appeals issued a nationwide stay of the Obama WOTUS rule. Staying the Obama WOTUS rule resulted in the continued effectiveness of the “waters of the United States” definition “promulgated in 1986/1988, implemented consistent with subsequent Supreme Court decisions and guidance documents.” (Additional details regarding the recent history of WOTUS rulemakings and court challenges are set forth in Section II.B of the Corps’ and U.S. EPA’s recent Proposed Rule, Definition of “Waters of the United States – Addition of an Applicability Date to 2015 Clean Water Rule.)

An important consequence of National Association of Manufacturers is that the Sixth Circuit will likely conclude that its nationwide stay may not remain in effect because that court lacks jurisdiction to hear the case. The only other limit on the Obama WOTUS rule currently in effect is the injunction issued by the District Court of North Dakota – which only applies to the 13 states listed above. As to the other 37 states, the Obama WOTUS rule could go into effect in the very near future – potentially creating significant concerns for the regulated community. As noted by U.S. EPA:

The Supreme Court’s resolution of the question as to which courts have original jurisdiction over challenges to the 2015 Rule [i.e., the Obama WOTUS rule] could impact the Sixth Circuit’s exercise of jurisdiction and its stay. If, for example, the Supreme Court were to decide that the Sixth Circuit lacks original jurisdiction over challenges to the 2015 Rule, the Sixth Circuit case would be dismissed and its nationwide stay would expire, leading to possible inconsistencies, uncertainty, and confusion as to the regulatory regime that could be in effect pending substantive rulemaking under the Executive Order. (Emphasis added).

To be sure, ongoing efforts under the Trump Administration could very well result in the delay of the Obama WOTUS Rule’s implementation and, ultimately, its rescission and replacement. Furthermore, parties in the District of North Dakota litigation discussed above may seek to expand the applicability of the injunction from 13 states to nationwide. Additionally, litigation in several federal district courts challenging the Obama WOTUS rule that had previously been dismissed could proceed separately and result in additional injunctions beyond those currently in effect for the 13 states. That said, a wide range of entities – including contractors and others in building and construction – may experience confusion, delays, and inconsistent approaches in their dealings with Corps offices across the country.  These concerns are particularly heightened in the 37 states where the Obama WOTUS rule may go into effect as Corps officials may lack sufficient legal clarity to finalize proposed 404 permits, issue jurisdictional determinations, and take other regulatory actions.  Entities with active issues in front of the Corps should carefully evaluate the impacts of National Association of Manufacturers on their ongoing projects.

*The original article has been edited and modified with permission from the Bradley firm website.

water treatmentOn January 10, 2017, the U.S. Environmental Protection Agency (EPA) announced the availability of $1 billion in credit assistance for water infrastructure projects under the new Water Infrastructure Finance and Innovation Act (WIFIA) program. See 82 Fed. Reg. 2933 (Jan. 10, 2017).  Congress enacted WIFIA in order to provide low-cost, long-term credit assistance through direct loans or loan guarantees. The program supplements other traditional forms of water infrastructure financing such as State Revolving Fund (SRF) programs and bonds.

Entities interested in applying for WIFIA funding must act fast. In order to be considered in the current round of funding, prospective borrowers must submit formal letters of interest to EPA no later than April 10, 2017. EPA will host informational webinars explaining the process of submitting and evaluating letters of interest on February 9 and March 7, 2017.

WIFIA Overview

  • Eligible Borrowers
    • Local, state, tribal, and federal government entities and instrumentalities
    • Partnerships and joint ventures
    • Corporations and trusts
    • State infrastructure financing authorities
  • Eligible Projects
    • Wastewater conveyance and treatment
    • Drinking water treatment and distribution
    • Enhanced energy efficiency projects at drinking water and wastewater facilities
    • Brackish or seawater desalination, aquifer recharge, alternative water supply, and water recycling
    • Drought prevention, reduction, or mitigation
    • Acquisition of property if it is integral to the project or will mitigate the environmental impact of a project
    • A combination of projects secured by a common security pledge or submitted under one application by an SRF program
  • Key Program Features
    • $20 million – Minimum project size for large communities
    • $5 million – Minimum project size for small communities (population of 25,000 or less); WIFIA requires EPA to set aside 15 percent of its budget authority for small communities.
    • 49 percent – Maximum portion of eligible project costs that WIFIA can fund
    • Total federal assistance may not exceed 80 percent of a project’s eligible costs
    • 35 years – Maximum final maturity date from substantial completion
    • Five years – Maximum time that repayment may be deferred after substantial completion of the project
    • Interest rate will be equal to or greater than the U.S. Treasury rate of a similar maturity at the date of closing
    • Projects must be creditworthy and have a dedicated source of revenue

Letters of Interest and Applications for Funding

Prospective borrowers must first submit a letter of interest to EPA by April 10, 2017. The primary purpose of the letter of interest is to: (i) validate the eligibility of the prospective borrower and the prospective project; (ii) perform a preliminary creditworthiness assessment; (iii) perform a preliminary engineering feasibility assessment; and (iv) evaluate the project against the selection criteria and identify which projects EPA will invite to submit applications.

EPA will invite selected prospective borrowers to submit an application based on preliminary engineering feasibility findings, a preliminary creditworthiness assessment, the amount of budget authority necessary to provide credit assistance, and the scoring of the eligibility criteria. EPA expects that it “will only invite projects to apply if it anticipates that those projects are able to obtain WIFIA credit assistance.”

Eligibility Criteria

EPA has identified the following project priorities, in addition to geographic and project diversity:

  • Adaptation to extreme weather and climate change including enhanced infrastructure resiliency, water recycling and reuse, and managed aquifer recovery;
  • Enhanced energy efficiency of treatment works, public water systems, and conveyance systems, including innovative, energy-efficient nutrient treatment;
  • Green infrastructure; and
  • Repair, rehabilitation, and replacement of infrastructure and conveyance systems.

Within the priorities, selection criteria (and relative weight) for this round of funding include:

  • National or regional significance with respect to the generation of economic and public health benefits – 10 percent
  • The likelihood that WIFIA assistance would enable the project to proceed at an earlier date than without – 5 percent
  • Use of new or innovative approaches (energy-efficient parts and systems, renewable or alternate sources of energy, green infrastructure and alternate sources of drinking water through desalination, aquifer recharge or water recycling) – 10 percent
  • Protection against extreme weather events, such as floods or hurricanes, as well as the impacts of climate change – 10 percent
  • Maintenance or protection of the environment or public health – 10 percent
  • Service of regions with significant energy exploration, development, or production areas – 5 percent
  • Service of regions with significant water resource challenges, including water quality concerns, significant flood risk, issues identified in existing regional, state, or multistate agreements, and water resources with exceptional recreational value or ecological importance – 10 percent
  • Responds to identified municipal, state, or regional priorities – 5 percent
  • Readiness of the project to proceed toward development, including a reasonable expectation that the construction of the project can commence no later than 90 days after the date on which a federal credit instrument is obligated – 5 percent
  • Inclusion of public or private financing in addition to assistance under WIFIA – 5 percent
  • Reduction of other federal assistance to the project – 5 percent
  • The needs for repair, rehabilitation, or replacement of a treatment works, community water system, or aging water distribution or wastewater collection system – 10 percent
  • Service to economically stressed communities, or pockets of economically stressed rate payers within otherwise non-stressed communities – 10 percent


Letters of interest must be submitted no later than April 10, 2017. Prospective borrowers should take action immediately to evaluate their potential WIFIA eligibility and to begin preparing a letter of interest. Developers, designers, program managers, and contractors may want to help identify eligible cities and projects.


Bart Kempf is a member of Bradley’s environmental and government relations teams.

Likely Increase of Use of Wood in Tall Building ConstructionWood – architecture’s oldest building material – has experienced a renaissance of sorts in recent years, in the process providing a boost to the forest and wood products industry. Wood-product proponents tout a range of benefits relative to alternative materials such as concrete and steel, including: renewability; a smaller carbon and environmental footprint; and lower cost. Many argue that advances in wood technologies – especially mass-timber products such as cross-laminated timber (CLT) – have been a “game changer” in the construction industry, with such products providing vastly improved strength, durability, seismic performance, and fire-resistance. Supporters also assert that mass-timber products are easily installed and generate almost no on-site waste since they are pre-fabricated. Despite these advantages, there is no full recognition in U.S. building codes for CLT, although its use could be authorized under the “alternate methods” of construction, § 104.11, and its use is recognized in Chapter 6 of the 2015 IBC.

In 2014, the U.S. Department of Agriculture (USDA), with private group support, announced the U.S. Tall Wood Building Competition. The 2015 west coast winner is a project which is a 12-story, multi-purpose building to be constructed primarily of CLT; the east coast winner is a 10-story condominium, which will be the largest wooden building in New York City. In London, the Oakwood Tower, at 1,000 feet, is planned to have a completely timber frame.

The emerging potential and promise of wood products in construction is exemplified by two recent developments: (1) the introduction in the U.S. Senate of the bipartisan Timber Innovation Act of 2016, and (2) the establishment of a new pilot project by the U.S. Green Building Council (USGBC) that expands the types of wood certification programs that may qualify for credits under the Leadership in Energy and Environmental Design (LEED) program.

The Timber Innovation Act of 2016

The enthusiasm for CLT and other mass-timber products – and their potential for use in the construction of tall wood buildings – recently reached the halls of Congress with the introduction of S.2892, the Timber Innovation Act of 2016. The Act was introduced on April 28, 2016, by Sen. Debbie Stabenow, ranking member of the Committee on Agriculture, Nutrition, and Forestry (the “Senate Agriculture Committee”) and a bipartisan group of senators. The Act authorizes several programs to promote: (1) mass timber (defined as “a type of building component or system that uses large panelized wood construction, including cross-laminated timber, nail laminated timber, glue laminated timber, laminated strand lumber, and laminated veneer lumber”) and (2) tall wood buildings. (defined as “a building designed to be constructed with mass timber and more than 85 feet in height.”). Programs created by the Act include:

  • Research and Development (R&D) and Competitive Grant Programs to Advance Tall Wood Building Construction Section 4 of the Act requires USDA to establish separate R&D and competitive grant programs to advance tall wood building construction. Both programs would be carried out to achieve several priorities set forth in the Act related to tall wood building construction, including: improving commercialization and assessing safety; assessing life-cycle environmental footprint issues; identifying necessary building code modifications; and studying the impact that widespread adoption would have on wildlife and forest biodiversity.
  • Tall Wood Building Competition Subject to the availability of appropriations, the Act would require USDA to hold an annual competition for tall wood building design.
  • Wood Innovation Grant Program Section 6 of the Act provides that USDA – in implementing the wood innovation grant program as set forth in “Request for Proposals: 2016 Wood Innovations Funding Opportunity” (80 Fed. Reg. 63498 (October 20, 2015)) – may make a grant available for the purpose of advancing innovation in tall wood building construction.
  • Educational and Technical Assistance Section 7 of the Act requires USDA to carry out a program of education and technical assistance for mass timber applications.

As of May 26, 2016, no hearings have been scheduled on the Act in the Senate Agriculture Committee, nor has a companion bill been introduced in the House of Representatives. It therefore appears that it most likely will not become law in the near future. That said, the bipartisan support for the Act – as of May 26, 2016, five Republicans, five Democrats, and one Independent have signed on as cosponsors – suggests that it or a similar bill might find footing in future Congresses.

USGBC Pilot Program – “Legal Wood”

Shortly before the introduction of the Timber Innovation Act of 2016, the USGBC gave proponents of wood products something to cheer about with its establishment of a new Alternative Compliance Path (ACP) pilot that applies to both the LEED 2009 and LEED v4 systems. Under the ACP pilot – known as “Legal Wood” – LEED credit can be obtained where forest products meet verification requirements with respect to “legal sources,” “responsible sources,” and “certified sources” as these terms are defined in ASTM D7612-10 (2015):  Categorizing Wood and Wood-Based Products According to Their Fiber Sources. In effect, the ACP pilot allows builders and architects to achieve LEED credit through their reliance on product certifications from a wide range of organizations, including the Sustainable Forestry Initiative, the American Tree Farm System, the Forest Stewardship Council (FSC), and other programs. Before the Legal Wood pilot, LEED credits could be obtained only through the use of wood certified by FSC – a stance that has been criticized by the forest products industry as overly restrictive. Accordingly, the Legal Wood pilot has generally garnered the support of the industry because it is viewed as incentivizing increased wood use in LEED projects. On the other hand, environmental groups such as NRDC and the Sierra Club criticized the effort, calling it a “surprise move,” and suggesting that it may be a “capitulation to big timber.”


These recent developments suggest that government is exploring ways to incentivize the expanded use of mass timber products, and that the USGBC has opened the door to crediting a wider range of wood in its LEED system. If these trends continue and gain momentum, the ripple effects will surely be felt in all aspects of the construction industry.

Click here to view as PDF