On March 31, the U.S. District Court for the District of Columbia denied an appeal filed by the Natural Resources Defense Council (NRDC) and other conservation groups seeking to overturn a National Marine Fisheries Service (NMFS) decision not to protect two types of river herring, alewife, and blueback herring under the Endangered Species Act (ESA). The appeal sought to have NMFS list both species as threatened. A listing of river herring would have a significant impact on hydropower projects, as dams were identified as one of the primary threats to river herring populations. Continue Reading Conservation Group Efforts Seeking Greater Protection of River Herring Denied
On June 7, the U.S. Fish and Wildlife Service (FWS) issued a proposed rule titled, “Endangered and Threatened Wildlife and Plants; Designation of Experimental Populations.” In issuing the proposed rule, FWS re-affirms its authority to designate and introduce experimental populations of protected species into areas of habitat outside of their historical range when climate change, invasive species, or other threats have affected or will affect that range. Importantly, this proposal only applies to species managed by FWS. Species managed by NMFS are governed by separate regulations, which NMFS updated back in 2016. These changes will make the FWS regulations more similar to those of NMFS. Pursuant to NMFS’ existing regulations, experimental populations of salmon have been re-introduced in certain waterways in the Western United States. FWS’s proposal could result in similar re-introduction of experimental populations of terrestrial and freshwater species. Continue Reading FWS Proposes to Account for Climate Change When Designating Experimental Populations
On April 20, the Council on Environmental Quality (CEQ) issued a Final Rule, revising certain sections of its regulations implementing the National Environmental Policy Act (NEPA). The Final Rule represents “Phase 1” of the Biden administration’s plan to reverse the Trump-era rulemaking, which significantly revised the NEPA regulations for the first time since 1978.
NEPA, sometimes referred to as a “paper tiger,” requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects but does not mandate any particular outcome. In July 2020, the Trump administration issued its Final Rule, which represented the first update to the NEPA regulations in over 40 years. The 2020 rule contained numerous revisions, many of which were intended to speed up infrastructure projects by reducing delays and paperwork during NEPA reviews. It also revised the definition of “effects,” which traditionally included “direct, indirect, and cumulative effects,” by reducing it to one short paragraph and eliminating references to these three categories, and instead providing that “effects” should not be analyzed “if they are remote in time, geographically remote, or the product of a lengthy causal change.” Continue Reading Biden Administration Releases “Phase 1” of NEPA Revisions
On June 1, the Environmental Protection Agency (EPA) released a pre-publication version of its proposal to re-write the Clean Water Act Section 401 rule (Certification Proposal), which, if finalized, is expected to have far-reaching impacts on hydroelectric licensing and relicensing. The Certification Proposal is intended by EPA to replace the version of the rule finalized under the Trump administration in 2020 (2020 Rule). While the Certification Proposal maintains some aspects of the 2020 Rule, it differs in some significant areas and in many ways reverts back to the 1971 regulations.
The U.S. Environmental Protection Agency (EPA) this week added five PFAS chemicals for a total of six PFAS chemicals to a list of risk-based values. EPA uses these values to determine if response or remediation activities are needed. The five PFAS additions include: hexafluoropropylene oxide dimer acid and its ammonium salt (HFPO-DA — sometimes referred to as GenX chemicals), perfluorooctanesulfonic acid (PFOS), perfluorooctanoic acid (PFOA), perfluorononanoic acid (PFNA), and perfluorohexanesulfonic acid (PFHxS). EPA added the first PFAS substance, perfluorobutanesulfonic acid (PFBS), to the Regional Screening Level (RSL) and Regional Removal Management Level (RML) lists in 2014 and updated it in 2021 when EPA released its updated toxicity assessment for PFBS.
Tracy Mehan joins Dave Ross and Anna Wildeman to discuss his work as executive director of government affairs with the American Water Works Association and the flood of water topics inundating the drinking water sector, including new infrastructure funding, affordability as an environmental justice issue, AWWA’s perspective on PFAS and its associated superfund liability question, and updates to the lead and copper rule.
In a move consistent with EPA’s recent uptick in oversight of state regulatory programs, EPA has proposed to establish federal water quality standards (WQS) for human health criteria (HHC) for Washington state. The proposal comes less than two months after the Office of Water rescinded a memorandum that directed EPA regions to comply with Clean Water Act statutory deadlines and give sufficient deference to technical determinations made by states that administer EPA-approved delegated Clean Water Act programs. While the proposal itself is not surprising — EPA telegraphed that it would take this action early in this administration — the timing of the proposal is somewhat surprising.
On April 3, representatives of the hydropower industry, Native American tribes, and conservation organizations provided a package of proposed legislative reforms to the Federal Power Act (FPA) to the ranking members of the U.S. Senate’s Energy and Natural Resources Committee and the U.S. House of Representatives’ Energy and Commerce Committee. The package, which was developed as part of the Stanford University Uncommon Dialogue on hydropower and river conservation, is the result of year-long intense negotiations between a variety of hydropower stakeholders.
Anna and Dave welcome Iowa Agriculture Secretary Mike Naig to talk soil health, creative financing, and the future of watershed management in Iowa. They also discuss the state’s ongoing work as part of the Hypoxia Task Force.
The Securities and Exchange Commission (SEC or Commission) published proposed rules on March 21 that, for the first time, would codify the Commission’s expectations regarding what kinds of climate-related disclosures public companies must make in their required filings to the SEC. Prior to now, companies have had to rely on 2010 guidance from the Commission to determine what information they should disclose to investors regarding their climate-related risks. Continue Reading SEC Publishes Proposed Rule Requiring Climate Disclosures