The Fall Unified Agenda Continues to Advance Multiple Environmental Policy Terms

Over the last year and a half, the Federal Government has initiated a fast-paced agenda for reviewing and revising environmental policies.  AGC has tracked and responded to relevant changes through the pre-proposal and proposal processes.  The Fall Unified Agenda, released this week, signals that the agencies have no plans to slow their pace.

Army Corps of Engineers

• Propose in March 2019 revisions to the rules covering the review and approval of mitigation banks and in-lieu fee programs for compensatory mitigation.
• Align rules for tribal consultations and historic properties with current requirements as amended.  (Advanced Notice of Proposed Rulemaking: February 2019)
• Propose in June 2019 modifications of select nationwide permits to meet requirements of Executive Order 13783 re: energy independence.
• Revise the administrative appeal process under the Corps’ regulatory program regarding Approved Jurisdictional Determinations (Proposal: June 2019)

Council on Environmental Quality

• Propose in February 2019 updates to the existing CEQ regulations implementing the procedural requirements of the National Environmental Policy Act (NEPA) re: the environmental review process pursuant to Executive Order 13807. (AGC commented on the advanced notice of proposed rulemaking in the summer of 2018.)

Environmental Protection Agency

• Repeal and replace the 2015 Waters of the United States Rule; EPA anticipates finalizing the repeal in March 2019, releasing the proposed replacement rule in October 2018 and finalizing that rule approximately a year later in 2019 (with the Army Corps of Engineers).
• Finalize decision not to issue a new rule on spill prevention rule for hazardous substances; Finalize rule adding aerosol cans to the universal waste regulations; Finalize new dust-lead hazard standards and the definition of lead-based paint.  (AGC commented on all three of these proposals in the summer of 2018.)
• Propose rule in May 2019 on increasing consistency and transparency in considering costs and benefits in the rulemaking process.  (AGC commented on the advanced notice of proposed rulemaking the summer of 2018.)
• Propose rule in June 2019 to consider, at minimum, changes to EPA's Clean Water Act Section 404(c) review process that would govern the future use of EPA's section 404(c) authority (i.e., EPA’s veto authority over Corps-issued 404 permits).
• On the long-term agenda, EPA plans to update its regulations for when states can assume administration of the Clean Water Act 404 permits.  Meaning that states, not the Corps, could make wetlands decisions for projects.
• Also on the long-term agenda are: 1) Consideration of expanding the current lead paint “work practice” rules to public and commercial buildings; 2) Application and program updates to the National Pollutant Discharge Elimination System; 3) Clarification of state certification procedures under Section 401 of the Clean Water Act; 4) Amendments and streamlining of the Emergency Planning and Community Right-to-Know Act; 5) Review of the national ambient air quality standards for particulate matter; and 6) Strengthening transparency in the regulatory science.

Fish and Wildlife Service

• Issue final rules in November 2018 to: 1) Clarify and improve rules governing interagency cooperation related to Endangered Species Act Section 7 implementation; 2) Revise regulations for listing of species and for designation of critical habitat; and 3) Remove blanket Section 4(d) for threatened species. (AGC commented on these proposed rulemakings in the fall of 2018.)
• Propose further revisions in April 2019 to regulations for the designation of critical habitat to clarify its consideration of the benefits of both including and excluding specific habitat segments in such designations.
• Propose a rule in February 2019 to streamline regulations for permitting of rights-of-way (ROWs) for infrastructure by aligning U.S. Fish and Wildlife Service (FWS) processes more closely with those of other Department of the Interior bureaus.
• Propose in December 2018 revisions to the regulations that implement section 10 of the ESA re: permit issuance for the take of endangered/threatened species.
• Propose a rule in November 2018 to codify the policy that incidental take resulting from an otherwise lawful activity is not prohibited under the Migratory Bird Treaty Act.  And, in a related action, update list of migratory birds.
• Additionally, a new action on the long-term agenda would propose in November 2019 revisions of the regulations implementing the Wild Bird Conservation Act of 1992.

For more information on environmental issues in the regulatory agenda, contact Melinda Tomaino at tomainom@agc.org or (703) 837-5415 or Leah Pilconis at pilconisl@agc.org or (703) 837-5332.