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On April 21, 2020 the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) published the final rule narrowing the meaning of the Clean Water Act (“CWA”) term “waters of the United States,” which represents the culmination of one of President Trump’s key environmental agenda items. The Trump Administration’s repeal and replace approach clears up years of uncertainty in the wake of the Obama Administration’s 2015 rule. The final rule, called the “Navigable Waters Protection Rule,” will become effective on June 22, 2020.

Todd Fracassi, Pepper Hamilton
Mitchell Guc, Pepper Hamilton
Randy Brogdon, Troutman Sanders
Patrick Fanning, Troutman Sanders

In the three weeks since the U.S. Environmental Protection Agency (EPA) issued its much-discussed coronavirus (COVID-19) enforcement discretion policy (Policy), governmental and environmental group opposition to the Policy has continued to intensify. This article outlines both the nature of the opposition as it currently stands, as well as some best practices for those businesses struggling to keep up with the environmental enforcement tug-of-war unfolding before their eyes.

The onset of the public health crisis caused by the spread of the coronavirus (COVID-19) has led to a global shortage of hand sanitizer. Businesses attempting to cope with new challenges presented by COVID-19 may be interested in retooling current manufacturing or other processes to begin developing hand sanitizer for external distribution or even internal use. In support of these efforts, the federal Food and Drug Administration (FDA) has issued guidance for both companies that are not currently authorized by the FDA to manufacture hand sanitizer companies and pharmacists in state-licensed, federal, or registered outsourcing facilities compounders that may be interested in producing hand sanitizer. Companies that adhere to this guidance and maintain sufficient documentation should be able to manufacture hand sanitizer for external distribution or internal use without enforcement exposure from the FDA.

The U.S. Court of Federal Claims (CFC) recently decided two cases related to flood events during Hurricane Harvey in Southeast Texas in 2017—one finding a taking by the United States Army Corps of Engineers (USACE) for flood control management and allowing landowner recovery, with the other holding that no taking occurred during the same event. As the incidence of flooding events may become more prevalent and unpredictable in a changing climate, these two decisions provide guidance for dam operators, including hydroelectric project operators, that conduct flood management activities in cooperation with, and sometimes at the direction of, USACE or other governmental entities.

On January 30, 2020, the U.S. Fish and Wildlife Service (“USFWS”) released its anticipated Migratory Bird Treaty Act (“MBTA”) proposed rule. The purpose of the proposed rule is to codify the December 2017 Department of Interior (“DOI”) Solicitor opinion (“M-Opinion”) limiting liability under the MBTA. The M-Opinion overturned an earlier Obama Administration M-Opinion explicitly finding that MBTA liability applied to incidental take.

On January 10, 2020, the Council on Environmental Quality (CEQ) published the long-awaited proposed rule to amend its regulations implementing the National Environmental Policy Act of 1969 (NEPA).  The statute, sometimes pejoratively referred to as a “paper-tiger,” requires a federal agency to take a hard look at the environmental impacts of certain proposed projects, but does not mandate any particular outcome.

EPA’s New Source Review (NSR) reform efforts have been in full swing over the past month or so as the Agency released two final guidance documents, issued a pre-publication version of a proposed rule, took final action to end a years-old reconsideration of a 2007 rulemaking, and released its Fall Unified Agenda detailing dates for a number of upcoming NSR-related actions. While these actions may not have immediate consequences for many regulated sources, they are evidence that EPA continues to pursue its NSR reform agenda. 

On June 7, 2019, the Advisory Council on Historic Preservation’s (ACHP) Office of General Counsel issued a memorandum to ACHP staff, clarifying the distinction between direct and indirect effects in meeting obligations under section 106 of the National Historic Preservation Act (NHPA).  ACHP’s memorandum is important to utilities, industrial, commercial and other entities because federal licensing and permitting agencies (e.g., U.S. Army Corps of Engineers (Corps), Federal Energy Regulatory Commission, U.S. Forest Service, and U.S. Department of the Interior) are required under NHPA section 106 to evaluate effects of the license or permit on properties that are listed, or eligible for listing, in the National Register of Historic Places.  ACHP’s memorandum clarified that direct effects may be the result of a physical connection, but may also include visual, auditory, or atmospheric impacts as well.

For most federal rules, you don’t need a map to figure out in which states they’re the current law.  But you do for the 2015 “Clean Water Rule,” which significantly expanded the reach of the Clean Water Act by redefining the term “waters of the United States.”  That’s one reason why, on September 12, 2019, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released a new rule to repeal the Clean Water Rule and restore prior regulations.  This “repeal rule” will take formal effect 60 days after its publication in the Federal Register.

EPA published a proposed rule in the Federal Register on August 9, 2019 that addresses how facilities undertaking a project involving multiple air emission units are to account for emission increases and decreases associated with the project. The proposed rule incorporates an interpretation of EPA’s New Source Review (NSR) regulations originally advanced in a March 2018 guidance document from Administrator Scott Pruitt entitled “Project Emissions Accounting Under the New Source Review Preconstruction Permitting Program.”