AGC spoke out against proposed guidelines that would make establishing new mitigation banks more onerous. The draft guidelines would make investment in mitigation less attractive and increase the cost of projects that rely on robust mitigation banks to comply with legal requirements and stay on budget. Furthermore, provisions in the proposed guidelines go beyond what is required by the U.S. Army Corps of Engineers’ 2008 Mitigation Rule and work against recent executive orders that prioritize regulatory reform and environmental streamlining. Proposed by the Fort Worth District of the USACE, AGC is concerned that the guidelines may be adopted by other districts.
Tell Congress to Invest in Infrastructure NOW
In the first few weeks of 2018, the federal government released a series of memoranda officially announcing a host of significant changes in how it will enforce violations of environmental laws – ranging from restricting payouts to “settle” lawsuits outside of court, to deferring to states on enforcement matters, to limiting the practice of regulating through guidance. In addition, the U.S. Environmental Protection Agency (EPA) finalized its 2018 penalty rule that increased the maximum civil penalties per violation of an environmental statute or agency regulation.
AGC has been involved in efforts to streamline the environmental review and permitting process since the late 1990s to allow transportation and other infrastructure projects to progress to construction quicker. While there have been many successes, the effort continues to today as AGC works with the Trump Administration and the Congress in an effort to remove bottlenecks and eliminate delays. In response to Congressional direction, the General Accountability Office (GAO) released a report this week assessing the use of these provisions and whether they have accelerated project delivery. GAO reports that since 2005, over 30 provisions have been enacted in law to speed up the delivery of highway and transit projects, mainly by streamlining the NEPA review process. These project delivery provisions included new categorical exclusions which allow for a less intense environmental review on certain projects, and a provision allowing US DOT to assign federal NEPA approval authority to states.
Matt Handal, Founder of Help Everybody Every DayIn a fiercely competitive environment, as we’ve been experiencing over the past few years, small differences can play a major role in whether you win or lose a proposal competition.
On Dec. 14, the U.S. Environmental Protection Agency (EPA) released its Semiannual Agenda of Regulatory and Deregulatory Actions and Regulatory Plan as part of the government-wide Unified Agenda—setting the path for the agency over the next year. Of particular interest to contractors, the Regulatory Agenda includes the repeal and replacement of the 2015 Waters of the United States Rule (see related article), which will remain a focus for the agency. AGC also notes that the agency is reworking the 2015 coal combustion residual disposal rule (e.g., fly ash).
On January 22, 2018, the U.S. Supreme Court issued a ruling that legal challenges to the 2015 Waters of the United States (WOTUS) rule belong in the district rather than appellate courts. In short, this Supreme Court decision will result in lifting an appellate court’s nationwide stay of the 2015 WOTUS rule that has been in effect since Oct. 2015. The definition of WOTUS dictates the scope of the federal government’s control and Clean Water Act permitting authority over construction work in water and wet areas. Whereas this ruling may be a victory for industry in the long term, the timing of the decision is unfortunate as the Administration is still working to repeal and replace the 2015 WOTUS rule. In the short term, we anticipate confusion as the process plays out.
House Transportation Committee Considers Environmental Streamlining
On Jan. 5, AGC urged the U.S. Fish and Wildlife Service (FWS) to remove the goal of “net conservation gain” from the Service’s Mitigation Policy and Endangered Species Act (ESA)–Compensatory Mitigation Policy, finalized in late 2016. AGC asserts that that the “improvement” goal is not supported under the ESA; the goal fails to provide a clear limit on how much mitigation is necessary and blurs the line between recommendations and requirements.