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.

Continue Reading Environmental Protection Agency Issues Guidance on Approving State Permit Programs under the WIIN Act

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 The EO requires agencies to identify at least two existing regulations to be repealed for every one newly promulgated regulation.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costs of all new regulations finalized in Fiscal Year (FY) 2017 to be offset by eliminating costs associated with repealed regulations. Continue Reading OIRA Issues Guidance on “Two-for-One” Rule

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.

Continue Reading Army Corps rolls out guidance to help determine jurisdiction

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. Continue Reading EPA Withdraws Guidance and Announces a Rulemaking to Clarify Clean Water Act Jurisdiction

Following its March 2022 proposal to uplist the northern long-eared bat (NLEB) to endangered status, U.S. Fish and Wildlife Service (FWS or Service) finalized the proposal on November 30, 2022.  As of January 30, 2023, new protections for the NLEB take effect.  In addition, the agency proposed to list the tricolored bat as endangered on September 14, 2022. FWS has also indicated that it expects to issue a proposed listing decision regarding the little brown bat this summer.

Continue Reading FWS Finalizes NLEB Uplisting and Advances Tricolored Bat Listing

Yesterday, EPA announced a proposed rule that would revise the agency’s regulations to include a requirement that water quality standards protect reserved tribal treaty rights. This proposal is a major milestone for the agency that has tried to incorporate reserved tribal treaty rights into its water quality standards program since at least 2015.

Continue Reading EPA Proposes Water Quality Standards Revisions Requiring Consideration of Tribal Treaty Rights

On April 20, the Council on Environmental Quality (CEQ) issued a Final Rule, revising certain sections of its regulations implementing the National Environmental Policy Act (NEPA). The Final Rule represents “Phase 1” of the Biden administration’s plan to reverse the Trump-era rulemaking, which significantly revised the NEPA regulations for the first time since 1978.

NEPA, sometimes referred to as a “paper tiger,” requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects but does not mandate any particular outcome. In July 2020, the Trump administration issued its Final Rule, which represented the first update to the NEPA regulations in over 40 years. The 2020 rule contained numerous revisions, many of which were intended to speed up infrastructure projects by reducing delays and paperwork during NEPA reviews. It also revised the definition of “effects,” which traditionally included “direct, indirect, and cumulative effects,” by reducing it to one short paragraph and eliminating references to these three categories, and instead providing that “effects” should not be analyzed “if they are remote in time, geographically remote, or the product of a lengthy causal change.” Continue Reading Biden Administration Releases “Phase 1” of NEPA Revisions

On February 16, the White House Council on Environmental Quality (CEQ) published in the Federal Register new interim guidance that is intended to facilitate the review and deployment of carbon capture, sequestration, utilization, and storage (CCUS) technologies. For those hoping for specific guidance that would accelerate the deployment of CCUS, the interim guidance is likely to disappoint. Congress recently signaled strong interest in accelerating CCUS as a national decarbonization strategy by providing billions of dollars of new investment to support the industry, but the guidance is largely silent on how the executive branch will match the urgency in ensuring on-the-ground deployment in the foreseeable future. Comments on CEQ’s guidance are due to CEQ by March 18. Continue Reading Carbon Capture Utilization and Storage: Administration Action (and Inaction)

Landowners and permit applicants received an email notification this week that the Army Corps of Engineers (Army Corps) would not be processing their requests for coverage under a variety of Clean Water Act (CWA) Section 404 Nationwide Permits (NWPs). NWPs are general permits that authorize activities under Clean Water Act Section 404 that “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.” CWA Section 404 (e)(1).

Continue Reading Army Corps Halts Coverage Under Nationwide Permits