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Last week, the U.S. Fish and Wildlife Service (FWS) released two revised compensatory policies. The Mitigation Policy and the ESA Compensatory Mitigation Policy reject the stringent goal of net conservation gain used by the FWS during the Obama administration. Instead, both policies include the goal of no net loss, which means maintaining the current status of affected resources. While the policies are nonbinding, they will guide how the FWS evaluates compensatory mitigation in the context of incidental take permitting, conservation benefit agreements for candidate species, and ESA Section 7 consultation. Both policies do not apply retroactively to completed actions, but the FWS may elect to apply the Mitigation Policy’s principles to actions under review. Both policies continue to favor advance compensatory mitigation over other mitigation options.…

Continue Reading Fish and Wildlife Service Revises Its Mitigation Policies

On February 8, the U.S. Fish and Wildlife Service (FWS) proposed regulatory changes (Proposed Rule) focused on the application and approval process for Endangered Species Act (ESA) permits issued under Section 10. Section 10 of the ESA authorizes FWS to permit take of listed species where such take is necessary for scientific purposes or the enhancement of propagation or survival of the species, or where the take is incidental to an otherwise lawful activity. Section 10 permits are used for Candidate Conservation Agreements with Assurances and Safe Harbor Agreements, which are voluntary landowner agreements designed to benefit candidates or listed species, respectively. Section 10 permits also have been used to allow the take of listed species incidental to private development activities through a Habitat Conservation Plan (HCP), which involves the project proponent committing to certain conservation activities.…

Continue Reading Fish and Wildlife Service Proposes New Section 10 Regulations Under the Endangered Species Act

Anna Wildeman welcomes Oklahoma Secretary of Energy and Environment Ken Wagner to the podcast. In this episode Ken, Dave Ross, and Anna touch on the diversification of Oklahoma’s energy portfolio, including its pursuit of renewable energy sources, such as hydrogen, and its confluence with the water sector.
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Continue Reading H2Oklahoma: Interview with Secretary Ken Wagner

On January 18, the White House Council on Environmental Quality (CEQ) urged the Fourth Circuit, U.S. Court of appeals to affirm the pre-application dismissal of environmentalists’ litigation over a Trump era rule that significantly altered how agencies utilize the National Environmental Policy Act (NEPA), including their climate analysis. …
Continue Reading White House CEQ Asks Fourth Circuit for a “Do Over” on NEPA

On October 7, the Council on Environmental Quality (CEQ) issued a Notice of Proposed Rulemaking (NOPR) to revise its regulations implementing the National Environmental Policy Act (NEPA), which requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects, but does not mandate any particular outcome. The NOPR is focused on revisions the July 2020 rulemaking completed by the Trump administration, which was the first significant overhaul of the NEPA regulations since their initial promulgation in 1978. The Trump rulemaking included provisions to streamline the NEPA review process, as well as substantive changes to the scope of the review. CEQ’s NOPR follows an announcement early in 2021 by the incoming Biden administration that it planned to review the July 2020 rulemaking. In the NOPR, the Biden administration outlines the aspects of the rule it plans to change: the purpose and need of a proposed agency action, agency procedures for implementing CEQ’s regulations, and the definition of “effects” of a proposed action.
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Continue Reading Notice of Proposed Rulemaking for NEPA Revisions Announced

Following the Council on Environmental Quality’s (CEQ) July 2020 overhaul of regulations implementing the National Environmental Policy Act (NEPA), environmental plaintiffs filed a series of lawsuits challenging the rule in federal courts in California, Virginia, New York, and the District of Columbia. The plaintiffs argued that CEQ violated NEPA itself in promulgating the final rule by failing to prepare an environmental assessment (EA) or environmental impact statement (EIS). They also argued that CEQ ran afoul of the Administrative Procedure Act (APA) by failing to follow notice-and-comment requirements, by issuing a final rule that is “arbitrary and capricious,” and by improperly narrowing both the scope of projects under review and the types of impacts agencies should consider.
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Continue Reading NEPA Litigation Update

The Biden administration has already taken several actions that signal its intention to shift to a more federally focused environmental enforcement approach. Although the Trump administration generally adopted a “hands off” approach that afforded states broad deference in deciding when to initiate and prosecute environmental enforcement actions, the new administration appears to be moving toward a more robust federal role in environmental enforcement.
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Continue Reading Preparing for a More Aggressive Federal Environmental Enforcement Regime

On July 1, 2020, New Jersey’s Governor Phil Murphy signed the Permit Extension Act of 2020 (“PEA 2020”) into law. The PEA 2020 tolls certain state and local permit approvals, including approvals of soil erosion and sediment control plans granted by a local soil conservation district and waterfront development permits, during the pendency of the public health emergency caused by COVID-19. Additionally, the PEA 2020 extends the deadlines for those approvals that would have otherwise expired during the public health emergency for an additional six months beyond the end of the COVID-19 extension period. Importantly, the PEA 2020 does not impact those approvals that expired prior to March 9, 2020 (the beginning of the public health emergency) or apply to those that will expire after the public health emergency ends.
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Continue Reading New Jersey: Permits and Approvals Must Be Registered With NJDEP By October 8, 2020 to Claim PEA 2020 COVID-19 Extension

The EPA has issued a rule requiring all significant agency guidance to undergo a public notice and comment process prior to issuance, modification or withdrawal (Rule). The new Rule was adopted pursuant to Executive Order 13891, which also required the agency to distinguish active guidance from inactive guidance, and to limit documents available through the official EPA guidance portal (Order). As of June 27, 2020 only guidance available through the official agency guidance portals qualifies as active guidance.
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Continue Reading EPA Adopts Measures to Improve the Transparency of Significant Agency Guidance

On May 5, 2020, the Illinois Attorney General filed a complaint against a developer and its contractors responsible for demolishing the smokestack of a former coal-fired power plant in Chicago. The suit provides a good reminder that careful planning for the control of fugitive dust emissions is critical during decommissioning activities—and that state legal offices and regulators will keep their eyes on potential environmental issues at coal-fired plants until the last brick comes down.
Continue Reading Coal Plant Demolition Triggers Illinois Air Quality Lawsuit