President Trump continues to focus on streamlining government reviews for large scale infrastructure projects. On January 24, he signed an Executive Order (EO) focused on expediting the permitting process for such projects. In the EO, President Trump stated that “[t]oo often, infrastructure projects in the United States have been routinely and excessively delayed by agency processes and procedures.”
Trump Signs Executive Order Limiting New Regulations
During the campaign, President Trump promised to remove two regulations for every new one enacted. On Monday, January 30, 2017, he made good on that promise by signing an Executive Order (EO) requiring agencies to identify at least two existing regulations to be repealed for every one newly promulgated regulation. The EO also requires the total incremental costs of all new regulations finalized in Fiscal Year (FY) 2017 to be offset by eliminating costs associated with repealed regulations.
Regulations-Cutting Rhetoric Continues
Recent statements from Myron Ebell, the leader of President Trump’s U.S. EPA transition team, continue the drumbeat from the new Administration on reducing environmental regulation. Ebell recently stated that the administration’s goal will be to reduce EPA’s 15,000-person staff to about 5,000 employees. These statements follow on statements from President Trump in mid-November in which he would like to see two old regulations eliminated for every new regulation enacted. Additionally, there is rampant speculation that EPA programs focused on climate change and environmental justice will be eliminated, and that the EPA Office of Enforcement and Compliance Assurance will be significantly overhauled.
Final Habitat Conservation Planning Handbook Issued
In late December, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, “the Services”) issued the final revised joint Habitat Conservation Planning Handbook (HCP Handbook). 81 FR 93702. The original HCP Handbook was issued in 1996 and later revised in 2000. Most recently, the Services held a 60-day comment period on draft revisions to the Handbook in June 2016, during which 54 public comments were submitted.
Fish and Wildlife Service Issues First Comprehensive Compensatory Mitigation Policy
On December 27, 2016, the U.S. Fish and Wildlife Service (FWS or the Service) issued the final Endangered Species Act (ESA) Compensatory Mitigation Policy (the Policy). 81 FR 95316. The Policy is the first comprehensive treatment of compensatory mitigation under ESA authority to be issued by the FWS following previous piece-meal and disjointed policies.
FWS Lists Rusty Patched Bumble Bee as Endangered
On January 11, the U.S. Fish and Wildlife Service (FWS) published its final listing of the Rusty Patched Bumble Bee as endangered under the Endangered Species Act (ESA). A proposed listing of the bee was previously published in September 2016. The decline in the species is due to a number of factors such as pathogens, pesticides, habitat loss and degradation, small population dynamics, and the effects of climate change.
U.S. Army Corps of Engineers Releases First Ever Proposed Rule Governing Use of Its Reservoirs for Water Supply
On December 16, the U.S. Army Corps of Engineers (the Corps) issued a proposed rule to update and clarify its policies governing the use of its reservoir projects for domestic, municipal and industrial water supply under Section 6 of the Flood Control Act of 1944, 33 U.S.C. § 708 and the Water Supply Act of 1958, 43 U.S.C. § 390b. This is the first time the Corps has proposed a rule to set policy on these important issues.
Fish and Wildlife Finalizes Helpful Revisions to Eagle Take Permit Regulations
On December 14, 2016, the United States Fish and Wildlife Service (“FWS”) finalized revisions to its regulations for nonpurposeful (or incidental) take of eagles and eagles nests under the Bald and Golden Eagle Protection Act (“Eagle Act”). According to FWS, the rule is intended to balance clean energy development and eagle conservation goals. FWS acknowledges the Obama Administration’s efforts to expand wind energy development and how the accompanying growth has impacted eagles, but emphasizes its belief that wind energy development does not pose a disproportionate risk to eagles as compared to other activities that may incidentally take eagles. FWS’s revisions are clearly drafted with the wind industry in mind.
States Challenge Critical Habitat Rules Under Endangered Species Act
On November 29, eighteen states filed suit in the Southern District of Alabama challenging a rule recently finalized by the Fish and Wildlife Service and the National Marine Fisheries Service (the “Services”), the two agencies charged with the implementation of the Endangered Species Act (“ESA”). The suit concerns the Services’ revision of the definitions of “critical habitat” and “adverse modification” in their regulations implementing the ESA. The states argue the revised definitions are inconsistent with the ESA, as the new rules expand the Services’ authority to designate areas that are not currently occupied by threatened or endangered species as critical habitat (described in another blog post here). Specifically, the states assert that the Services must explain how unoccupied areas can be “essential” to the conservation of a species, and therefore deserve protection under the ESA. Similarly, the states take issue with the Services’ new ability to designate critical habitat based on biological factors not yet present in an area.
Army Corps rolls out guidance to help determine jurisdiction
The United States Army Corps of Engineers has issued its first Regulatory Guidance Letter (“RGL”) in 8 years. The new RGL supersedes two previous guidance letters (RGL 07-01 “Practices for Documenting Jurisdiction under Sections 9 & 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act” and RGL 08-02 “Jurisdictional Determinations.”) and describe differences between “approved” jurisdictional determinations (“AJDs”) and “preliminary” jurisdictional determinations (“PJDs”). Issuance of RGL 16-01 appears to be motivated by a recent US Supreme Court decision holding that “approved” jurisdictional determinations are subject to judicial review (US Army Corps of Engineers v Hawkes Co., 136 S.Ct. 1807 (2016)) and questions on that decision’s impact on the Corps’ willingness to issue JDs.