The U.S. Department of the Army’s Assistant Secretary for Civil Works has issued a policy directive memorandum requiring the U.S. Army Corps of Engineers (USACE) to adhere to a “default time period” of 60 days for states to act on a request for water quality certification under Clean Water Act Section 401 with regard to USACE’s issuance of dredge and fill permits under CWA Section 404.  The policy memorandum also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water quality certification.

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On December 28, 2018, the U.S. Environmental Protection Agency (“EPA”) released a pre-publication version of a proposal revisiting the cost analysis underlying the Mercury and Air Toxics Standards (“MATS Rule”) for coal- and oil-fired electric generating units (EGUs) and conducting the residual risk and technology review required by the Clean Air Act (“Proposal”).  The Proposal would reverse a previous finding, issued by EPA under the Obama Administration, that regulation of hazardous air pollutant (“HAP”) emissions from EGUs under the MATS Rule was “appropriate and necessary” but would nonetheless leave the rule in effect.  The Proposal also concludes that more stringent HAP emission limits are not warranted by the required risk and technology reviews.

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On March 1, 2018, EPA released a final rule defining nonattainment area classifications under the 2015 ozone standard, along with attainment deadlines for each classification.  The rule finalizes the classifications and deadlines that were originally proposed by the Obama administration in a proposed rule issued on November 17, 2016. (81 Fed. Reg. 81,276).  According to

On December 20, 2017, EPA took the next step in completing the area designation process under the 2015 ozone standard.   Specifically, the Agency issued “120-day letters” to the states proposing designations for all areas of the U.S. that were not designated as part of the Agency’s November 6, 2017 rulemaking designating 2,646 areas as either attainment or unclassifiable under the 2015 ozone standard.  Under the Clean Air Act, states recommend area designations and if EPA intends to modify a state’s recommended designation, it must notify the state no later than 120 days prior to making the final designation and give the state an opportunity to respond.

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In an October 16, 2017 order signed by EPA Administrator Scott Pruitt, EPA reversed a position it has held for many years — that the Agency has authority, in the context of Title V permitting, to review previous state-level decisions on the applicability of new source permitting requirements.  The new policy outlined in the October 16 order removes the Title V petition to object as an avenue for citizens to seek EPA review of state preconstruction permitting decisions.

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EPA issued what the Agency is calling “Round 1” of final area designations under the 2015 ozone standard on November 6, 2017. The designations, which will be published in the Federal Register tomorrow, November 16, and become effective 60 days later, include only those counties, tribal areas, and territories that EPA has designated “attainment/unclassifiable” — totaling 2,646 counties. EPA also designated 3 counties in the state of Washington as “unclassifiable.” EPA did not designate any nonattainment areas as part of the final rule, but simply noted that it is “not yet prepared to issue designations” for the remaining areas of the U.S.

EPA is currently facing litigation over its June 2017 announcement extending the deadline for designating areas under the 2015 ozone NAAQS by one year, to October 2018, even though the Agency later reversed that decision. On July 12, 2017, a dozen environmental and public health groups sued EPA in the D.C. Circuit Court of Appeals, claiming the Agency did not have authority to extend the deadline for designating areas under the Clean Air Act. Fifteen states followed in their footsteps, filing their own lawsuit challenging the delay on August 1. EPA responded the following day by publicly announcing its intent to withdraw the deadline extension and published official notification of the withdrawal in the Federal Register on August 10. (82 Fed. Reg. 37,218.)
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FERC released a policy statement on October 19, 2017, revising its longstanding approach to setting the license terms for hydroelectric projects.  The new policy establishes a default term of 40 years for non-federal projects, which can be shortened or extended in certain identified circumstances.  According to Section 6 of the Federal Power Act, the term of a license may not exceed 50 years — the Act sets no minimum license term.  It has been FERC’s policy to set a 50-year term for licenses issued to federal projects and to base the license term for non-federal projects on the level of redevelopment, new construction, or environmental mitigation and enhancement slated for the project.  For projects involving little to no activity, FERC has set a 30-year term, for a moderate amount of activity, a 40-year term, and for extensive activity, a 50-year term.


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