Search results for: guidance document

California agencies are beginning to provide clarification and directives to guide regulatory compliance following local “shelter in place” orders to slow the spread of COVID-19 in the San Francisco Bay Area, and Governor Gavin Newsom’s state-wide “stay at home” order issued on March 19, 2020. While the State Department of Public Health is taking the lead in coordinating the state-level response, other regulatory agencies responsible for essential services and facilities have begun to issue their first formal directives related to environmental compliance and safety.

The emphasis of regulatory directives thus far are clear: all requirements related to critical infrastructure remain in effect, with special provisions for immediate notification if there are circumstances or current government directives that could impede timely compliance.

Yesterday, Susan Bodine, EPA’s Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA), issued final guidance for EPA regions regarding interactions between the Agency and the states in civil enforcement and compliance assurance matters.  Under the new guidance, EPA will generally defer to a state as having primary jurisdiction over inspections and enforcement, but it also sets out a number of important exceptions where EPA may take direct action.  The final guidance replaces previous interim guidance issued in January 2018.

The guidance is split into three parts and expands upon the interim guidance by providing additional procedures and outlining various principles and approaches for coordination between EPA regions and states.  The changes are the result of input from EPA regional offices, states, and a workgroup on compliance assurance that EPA and the Environmental Council of States convened in September of 2017.

On June 21, 2019, the White House Council on Environmental Quality (CEQ) released a new draft guidance redefining the process federal agencies will use to evaluate greenhouse gas (GHG) emissions under the National Environmental Policy Act (NEPA). In marked contrast to GHG guidance issued by CEQ under the Obama Administration in 2016, the draft guidance encourages federal agencies undertaking NEPA review to follow the “rule of reason” and use their “expertise and experience” to decide whether and to what degree the agency will analyze particular effects of GHG emissions. Therefore, the draft guidance moves to a more deferential approach to agency review under NEPA than the Obama Administration’s prescriptive guidance. The draft guidance will be published in the Federal Register for public review and comment. If finalized, it will replace the Obama Administration’s 2016 guidance, which was withdrawn effective April 5, 2017, after President Trump issued Executive Order (EO) 13783, “Promoting Energy Independence and Economic Growth.” 

On August 15, 2017, EPA issued non-binding guidance providing insight of EPA’s expectations for states to assume regulation authority over coal combustion residuals (CCRs).   Comments on this guidance are due September 14, 2017. Under the Water Infrastructure and Improvements for the Nation Act, states may develop their own CCR permit programs that are “at least as protective” as the federal CCR rule.  EPA must review these programs at least every 12 years.  Upon the submission of a program application by a state, EPA will have 180 days to act, which includes a period of public notice and comment.  States may choose not to submit such a program, and instead opt to remain under the federal scheme.

On February 2, 2017, the Office of Information and Regulatory Affairs (OIRA) issued Guidance in order to clarify last week’s Executive Order (EO) regarding the issuance of administrative rules. The EO requires 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.

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.

The U.S. EPA announced the availability of a 331-page report entitled “Connectivity of Streams and Wetlands to Downstream Waters,” which compiles and evaluates peer-reviewed literature on the impacts and connectivity of smaller, isolated water bodies to larger downstream waters.  The Agency announced that a final version of the report “will serve as a basis for a joint EPA and Army Corps of Engineers rulemaking aimed at clarifying the jurisdiction of the Clean Water Act.”  With this announcement, EPA has charted a new path for its attempts to more clearly delineate the scope of Clean Water Act jurisdiction.

Burrowing owl female with three owlets at Pawnee National Grasslands, Danita Delimont, Unsplash License

The western burrowing owl was just recently elevated to a “candidate species” under the California Endangered Species Act (CESA) by the California Department of Fish and Wildlife (CDFW). As a candidate species, the owl now has…

On April 8,  U.S. Environmental Protection Agency (EPA) Administrator Michael S. Regan signed a final rule regulating six per- and polyfluoroalkyl substances (PFAS) under the Safe Drinking Water Act (SDWA). The final rule, which will become effective 60 days after publication in the Federal Register, sets individual maximum contaminant levels…

Effective April 12, a new eagle take permitting regime will be in place. The eagle take permitting scheme has been criticized because of its overly conservative and burdensome requirements. These concerns culminated in a lawsuit filed against the U.S. Fish and Wildlife Service (FWS). Debra Shearwater et al. v. FWS, Case No. 14-CV-02830 (N.D. Cal 2015). The changes to the permitting regulations published on February 8 are the outcome of that litigation.