Postponed and Canceled Projects Proliferate, Yet Majority of Firms Report Difficulty Filling Hourly Craft Positions; Officials Urge Immediate Federal Action to Fund Infrastructure and Enact Liability Reforms

Sixty Percent of Firms Report Future Projects Have Been Canceled or Delayed, But 52 Percent of Firms Struggle to Find Craft Workers Amid Worker Fears of COVID and Unemployment Supplement

The U.S. Army Corps of Engineers (Corps) is proposing to reissue and modify its Nationwide Permits that provide a streamlined process for the Corps to authorize discharges of “dredged or fill material” under Section 404 of the Clean Water Act and Section 10 of the River and Harbors Act. Nationwide (general) Permits (NWP) cover construction (and other activities) that, after adherence to identified conditions and mitigation measures, have been determined to result in minimal adverse environmental impacts to federally jurisdictional waters and wetlands (i.e., waters of the United States). The Corps is proposing modifications across the program in addition to creating new NWPs and dividing the current NWP 12 into three separate NWPs. This article highlights the potential top impacts of these developments on the construction industry and invites member feedback to better inform the association’s response to the proposed changes.

Steep monthly declines in public and private nonresidential construction spending offset a surge in homebuilding in July, while industry employment decreased compared to July 2019 levels in two-thirds of the nation’s metro areas, according to an analysis by the Associated General Contractors of America of government data released today. Association officials said many commercial construction firms were likely to continue shedding jobs without needed federal coronavirus relief measures.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service are proposing to add a definition of “habitat” to the regulations that implement section 4 of the Endangered Species Act (ESA). The proposed definition – which would be used in the context of making critical habitat designations – comes following a recent U.S. Supreme Court decision that concluded “critical habitat” must first be habitat (Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018)) (see AGC article). The Act prohibits adverse modification to “critical habitat” of listed species but it currently does not define “habitat.” A definition of habitat may help developers and contractors identify and avoid those areas, which would better inform ESA consultations during the planning and permitting process for projects.

On Aug. 11, 2020, the U.S. District Court for the Southern District of New York (SDNY) invalidated the 2017 Department of the Interior legal opinion (M-37050) that had reversed prior policy by stating that the Migratory Bird Treaty Act (MBTA) does not prohibit incidental take. The SDNY judge disagreed and concluded the MBTA prohibits take “by any means or in any manner.” The court’s decision adds a new twist to ongoing efforts at the agency to finalize an AGC-supported rule intended to codify the now vacated legal opinion.

Clarifies Employers’ Obligations to Track Compensable Hours

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers have released new implementation tools for the Navigable Waters Protection Rule that went into effect earlier this summer. These tools are available online for the public to view and include educational resources, new forms, and “implementation memos” to provide greater clarity and consistency implementing the rule across the country.

The National Labor Relations Board (“NLRB” or “Board”) has revised its standard for determining the lawfulness of an employer’s discipline or discharge of an employee who has engaged in abusive or offensive conduct —including making profane, racist, and sexually unacceptable remarks—in the course of activity otherwise protected under the National Labor Relations Act (“NLRA”).

Clarifies Employers’ Obligations to Track Compensable Hours With telework arrangements expanding in response to the coronavirus pandemic, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued Field Assistance Bulletin (FAB) 2020-5 to clarify an employer’s obligation to track the number of hours of compensable work by employees who are teleworking or otherwise working away from premises controlled by their employers.