On December 27, 2021, the U.S. Army Corps of Engineers (Corps) issued a final rule reissuing 40 existing Nationwide Permits (NWPs) with modifications and issuing a new NWP for water reclamation and reuse facilities. The 40 existing NWPs that the Corps reissued includes NWP 17, which authorizes the discharge of dredged or fill material associated with certain small hydroelectric projects.

As the U.S. Environmental Protection Agency (EPA) prepares its Clean Water Act (CWA) Section 401 rule proposal, litigation regarding the 2020 Trump-era rule (Certification Rule) continues. Currently, the issue of whether to re-instate the Certification Rule is proceeding before U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit). The U.S. District Court for the Northern District of California had vacated and remanded the Certification Rule, and intervenors and several states appealed the vacatur. Appellants, including several industry groups, have filed motions to stay the District Court’s vacatur pending the outcome of the appeal and are now awaiting the Ninth Circuit’s ruling that could, at least temporarily, re-instate the Certification Rule.

On February 17, the Federal Energy Regulatory Commission (FERC or Commission) announced two new, significant policies that may have a profound impact on both natural gas pipeline projects before the Commission and the industry in general. Headlining these policies is FERC’s new interim greenhouse gas (GHG) policy statement (Interim GHG Policy Statement), pursuant to which FERC will presume any gas project with 100,000 metric tons per year of carbon dioxide equivalents (CO2e) emissions to have a significant impact on climate change and will trigger the preparation of an Environmental Impact Statement (EIS). Notwithstanding the interim nature of FERC’s new Interim GHG Policy Statement – where FERC is accepting comments by April 4, 2022 – FERC clarified that it will apply both policies to all pending and new project applications, effective immediately.

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the “Corps”) (together the “Agencies”) have continued working on a proposed rule to revise the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA or Act), which will soon move to the next stage of agency consideration.[1] The outcome of these rulemaking efforts will impact countless regulated parties, from solar developers to manufacturers, and heavily regulated industry.

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.

On January 11, the U.S. Environmental Protection Agency (EPA) issued a new interpretation of its coal combustion residual (CCR) regulations: CCR landfills or surface impoundments “cannot be closed with coal ash in contact with groundwater.” Although EPA claims it has “consistently held” this interpretation, this is the first time EPA has expressly articulated this view. Perhaps acknowledging the novelty of its position, EPA also announced its intent to “review … state-level CCR program applications to ensure they are as protective as federal regulations” and to proceed toward a federal CCR permitting framework.

Gearing up for a potential final rule in summer 2023, the U.S. Environmental Protection Agency (EPA) on January 10 submitted a proposed rule to the White House Office of Management and Budget (OMB) to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). OMB reviews are generally targeted to be completed within 90 days, but they can last much longer — or be concluded more quickly — depending on the rule being studied. The submittal is consistent with what EPA forecasted in its October 2021 PFAS Roadmap and its Unified Agenda.

To help reboot after the holiday break, here is a list of air topics we expect to make news in 2022 with a short discussion of why each one may be important to you.

In November 2021, the secretaries of the U.S. Department of the Interior, Department of Agriculture, Department of Transportation, Department of Energy, Environmental Protection Agency, White House Council on Environmental Quality, the Advisory Council on Historic Preservation, and the Tennessee Valley Authority (the participating agencies) entered into a voluntary Memorandum of Understanding (MOU) to “improve the protection of, and access to, Indigenous sacred sites through enhanced and improved interdepartmental coordination, collaboration, and action.”

On October 26, the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (the Services) proposed to rescind two Trump-era final rules: the Habitat Definition Rule and the Designating Critical Habitat Rule. Both rules deal with the designation of critical habitat — a Service-designated area determined to be essential to an endangered species’ conservation and recovery, which may be occupied by a species when designated or unoccupied. Both rules are also a direct result of the U.S. Supreme Court’s 2018 decision in Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361, which remanded a critical habitat decision to the U.S. Court of Appeals for the Fifth Circuit, noting, among other things, that a determination of habitat is needed before FWS can determine what is considered critical habitat.