On February 6, U.S. Rep. Mike Simpson (R-Idaho) introduced a proposal that would attempt to restore northwest salmon populations by breaching four dams managed by the Bonneville Power Administration (BPA) on the Lower Snake River in Idaho.
Biden Administration Announces Tribal Consultation Policy
The Biden administration has highlighted Tribal sovereignty and the federal trust responsibility to Tribal Nations as the cornerstones of its federal Indian policy. The involvement of Native American tribes is also a component of the Biden administration’s environmental justice initiatives. Accordingly, on January 26, the Biden administration issued a “Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships” (Presidential Memorandum), which seeks to prioritize regular, meaningful, and robust federal consultation with Tribal Nations. According to the Presidential Memorandum, “History demonstrated that we best serve Native American people when Tribal governments are empowered to lead their communities, and when federal officials speak with and listen to Tribal leaders in formulating federal policy that affects Tribal Nations.”
FWS Finalizes Rule for Excluding Areas from Critical Habitat Designations
The U.S. Fish and Wildlife Service (FWS) continues its push to finalize pending rules before the new administration takes office next year. Following a publication of a final rule defining “habitat” under the Endangered Species Act (ESA) earlier this week, today the agency published a final rule establishing the agency’s process for excluding certain lands from critical habitat designations.
Fish and Wildlife Service Issues “Warranted but Precluded” Finding for Monarch Butterfly
In accordance with a settlement between the U.S. Fish and Wildlife Service (FWS) and the Center for Biological Diversity (CBD), the FWS was required to make an Endangered Species Act (ESA) listing determination for the monarch butterfly by December 15, 2020. On December 17, 2020, the FWS announced that it had determined that adding the monarch butterfly to the list of threatened and endangered species is “warranted but precluded” by higher-priority listing actions.
Final Rule Defining “Habitat” under the Endangered Species Act Issued
In a case involving the question of when unoccupied habitat may be designated “critical habitat” under the Endangered Species Act (ESA), the U.S. Supreme Court held that critical habitat land must first be habitat before it could be “critical habitat.” Weyerhaeuser Co. v. U.S. FWS, 139 S.Ct. 361 (2018). Given that neither the ESA nor its implementing regulations define habitat, the Court remanded the case for further consideration. In response to this opinion, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) issued a final rule defining habitat on December 16, 2020. The rule becomes effective on January 15, 2021.
EPA Issues Long-Awaited Update to CWA Financial Capability Assessment
The COVID-19 pandemic has elevated fiscal concerns of water and sewer service providers, with many states imposing a moratorium on the collection of delinquent bills and the termination of service. The affordability of water and sewer service has also been a central topic in environmental justice discussions. In the midst of this heightened interest, the United States Environmental Protection Agency (“EPA”) released its long-awaited proposed updates to its Clean Water Act (“CWA”) affordability guidance. The pre-publication version of its 2020 Financial Capability Assessment for CWA Obligations (“2020 FCA”) was released on September 15, 2020. The proposal builds on EPA’s prior guidance, issued in 1997, as well as its 2014 Financial Capability Assessment Framework. The purpose of the guidance is to establish criteria for EPA consideration of the impact of water quality, stormwater, and drinking water requirements on affordability. This information can then be used to prioritize different regulatory requirements and establish longer compliance schedules in permits and enforcement actions.
FWS Issues Additional Habitat Proposal
In the wake of the U.S. Supreme Court’s decision in Weyerhaeuser Co. v. U.S. FWS, 139 S.Ct. 361 (2018), the United States Fish and Wildlife Service (FWS) has issued a series of proposals to refine the scope, meaning, and criteria for designating critical habitat for species listed under the Endangered Species Act (ESA). The most recent proposal will be published in the Federal Register on September 8, 2020, kicking off a 30-day public comment period.
New Jersey Passes Significant Environmental Justice Legislation
Environmental justice has received greater attention in 2020, both because it is an election year, but also because of the increased focus on racial inequality since the killing of George Floyd in May 2020. Many states are considering legislation on this topic, but on August 27, 2020, New Jersey passed a significant environmental justice bill, the first to require denial of a permit on environmental justice ground.
Definition of Habitat Proposed for the ESA
On July 31, 2020, the Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) released an advance copy of a proposed rule defining “habitat” under the Endangered Species Act (ESA). The proposed rule is expected to be published in the Federal Register this week, kicking off a 30-day public comment period.
CEQ Final Rule Overhauls NEPA Regulations
On July 16, 2020, the Council on Environmental Quality (CEQ) published its long-awaited final rule to amend its regulations implementing the National Environmental Policy Act of 1969 (NEPA), introducing important changes to the 40-year-old review process. The statute requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects, but does not mandate any particular outcome. The final rule follows CEQ’s June 2018 Advanced Notice of Proposed Rulemaking (ANOPR) and the January 2020 Notice of Proposed Rulemaking (NOPR), which we previously discussed here.