On October 21, 2021, the U.S. District Court for the Northern District of California vacated the 2020 State Water Quality Certification (WQC) Rule, which is considered to apply nationwide.  Subsequently, some U.S. Army Corps of Engineers Districts have advised permittees that they will not finalize permit decisions that rely on a Clean Water Act (CWA) Section 401 WQC or a waiver under the now vacated 2020 State WQC rule (click here for an example, scroll to “Latest News”).  This halt in permitting appeared to include the use of sixteen CWA Section 404 Nationwide Permits that the Corps finalized earlier this year.  Update: On Dec. 2, the Corps posted a notice on its website that it had resumed making decisions on all permit applications and requests for nationwide permit verifications.

Biden Administration Expected to Challenge

On November 15, AGC, along with industry allies, filed a lawsuit in the U.S. Court of Appeals for the Fourth Circuit challenging the recent OSHA COVID-19 emergency temporary standard (ETS). The suit highlights the many efforts the construction industry has collectively engaged in to combat COVID-19, including funding public service announcements and other proactive measures to encourage contractors to protect their workers throughout the pandemic. It also makes clear that the challenge is not in opposition to the ETS’s objective to get more people vaccinated, but the negative economic impact such a mandate will have on the construction industry and the fact that it exceeds the statutory authority of the U.S. Department of Labor. In all, there were 34 cases filed in 12 different circuits. On November 16, the U.S. Court of Appeals for the Sixth Circuit was randomly selected to consolidate all the cases.

On Nov. 10, the general counsel’s office of the National Labor Relations Board issued a memo expressing the position that employers have both decisional and effects bargaining obligations in relation to implementation of OSHA's Emergency Temporary Standard to Protect Workers from Coronavirus (“ETS”). Although the ETS is currently on hold, the memo is valuable for what it reveals about the office’s views on employers’ duty to bargain over government mandates generally.

According to the latest Contractor Compensation Quarterly (CCQ) published by PAS, Inc., Open Shop contractors anticipate skilled craft hourly wage increases of 3.01% in 2021 (3.21% excluding zeros). Actual increases for 2020 were 2.88% (including zeros) and 3.41% (excluding zeros). These increases are across the board for all craft, contractor types, sizes, and regions of the country. WorldatWork reports 2021 actual construction increases at 3.4% for Non-exempt Hourly Non-union positions. Historically, projected numbers are slightly lower than the actual year end figure.

Provides Additional Information on Religious Objections to Workplace Vaccine Requirements

The U.S. Environmental Protection Agency (U.S. EPA) released a proposal on Nov. 18, 2021, that would return to the 1980’s regulatory framework, with some changes, on Waters of the United States (WOTUS). As previously reported in September, a district court vacated the 2020 Navigable Waters Protection Rule (NWPR), which the Biden Administration has interpreted as a nationwide vacatur. Since then, the regulated community has been following the 1980’s regulatory regime and guidance on relevant U.S. Supreme Court rulings. Earlier this summer, the U.S. EPA announced its intention to remove and replace the Trump Administration’s NWPR. The first step is the proposal the U.S. EPA just released as a pre-publication version. Comments will be due within 60 days of its publication in the Federal Register. AGC will respond to the proposal.

AGC of America’s Union Contractors Committee will hold its next quarterly virtual meeting on Dec. 14, 2021, at 3:00 p.m. EASTERN Standard Time. All interested AGC members and chapter staff are invited. The meeting is not open to nonmembers. The agenda will include updates from AGC staff and an open discussion of labor relations developments around the country.

There are significant flaws with the current 811 utility location system according to a new survey of construction firms that perform any kind of underground excavation released by the Associated General Contractors of America today. Most contractors say that calling 811 often leads to inaccurate line marking and that utility firms are often very slow in coming out to even do locate and mark their underground lines.

AGC of America is releasing a new series of COVID-19 vaccine PSAs designed to encourage construction professionals to get their shot. The series will feature testimonials from workers who did not get their shot, contracted COVID and nearly died. They are now urging their co-workers to get their shots. Other videos feature construction mentors talking about the value of the vaccine. You can view the current videos here. The videos urge people to visit AGC of America’s vaccine toolkit to learn more.