AGC’s efforts to engage with the Trump Administration on environmental streamlining and regulatory reform are seeing results. Throughout the year, AGC further developed our relationships with the federal regulatory agencies through increased dialogue and meaningful collaboration. In the following article, AGC provides a snapshot of those efforts during 2018, which touch on some of the most important environmental concerns for the construction industry from “approvals” to “wetlands.”
AGC participates in roundtable discussion with EPA Acting Administrator Andrew Wheeler. Photo courtesy of EPA.
AGC Supports Cooperative Programs to Promote Collaborative Relationships between Contractors and Regulators
Throughout 2018, AGC worked in partnership with the U.S. Environmental Protection Agency (EPA) through the agency’s Smart Sectors program. Our partnership goals aim to promote better-informed rulemaking, reduce regulatory burden while remaining protective of the environment, and increase transparency about environmental performance. The partnership provided AGC with multiple opportunities to interact with prior-EPA Administrator Pruitt and Acting Administrator Wheeler, as well as, Acting Deputy Administrator Darwin and top officials from each program office on environmental permitting, duplicative regulatory processes, and innovative enforcement initiatives.
This collaboration was further demonstrated at AGC’s 2018 Construction Environmental Conference where representatives from many EPA program offices, as well as, the U.S. Army Corps of Engineers (Corps), and the U.S. Fish and Wildlife Service provided AGC members with updates on their latest initiatives and answered members’ questions.
AGC Advocates for Environmental Review Streamlining and Permitting Reforms
- On Jan. 18, AGC testified before the House Transportation and Infrastructure Committee in support of further federal environmental review and permit streamlining measures. The Committee is exploring funding strategies for infrastructure. Corps officials joined AGC on the panel.
- AGC’s testimony highlighted how the uncertainty of the project permitting process is driving up construction costs. AGC showcased its flowchart that illustrates the long and duplicative permitting/review process for large infrastructure projects. AGC offered opportunities where Congress could help minimize delays; the top three of which are to implement a “One Federal Decision” process, to merge the main environmental review and permitting processes so that they run concurrently instead of sequentially, and to reduce duplication in the many required studies and consultations.
- In Feb. 2018, the Trump Administration released an infrastructure plan/proposal that included many items put forth by the AGC Environmental Steering Committee. The document reflects that the administration seriously considered several of AGC’s recommendations, including support of “One Federal Decision” for project reviews, firm deadlines for environmental reviews and permits, consolidated reviews, expansion of existing streamlining programs, and more.
- On April 9, the Trump administration unveiled an AGC-backed “One Federal Decision” memorandum of understanding signed by more than a dozen federal agencies that establishes a coordinated and timely process for environmental reviews of major infrastructure projects.
- On May 3, AGC participated in an Industry Initiative Permitting Stakeholder Session with the U.S. Army Corps of Engineers. The Corps has since initiated several efforts to accelerate project delivery and improve permitting.
- Also in line with AGC recommendations, this fall: 1) the White House launched a performance, accountability system to track environmental approvals for major infrastructure projects; and 2) the Federal Highway Administration finalized rule to improve and streamline environmental review processes.
AGC Advocates for Sensible and Protective Environmental Rules and Regulatory Reform
U.S. Army Corps of Engineers
- On Mar. 12, AGC filed Joint comments challenging Fort Worth District, USACE, Proposed Mitigation Guidelines that would limit new mitigation banks and drive up project costs.
- On Apr. 6, AGC submitted comments on USACE directive to concurrently process two related permitting reviews when a project needs them: Section 408 permissions under the Rivers and Harbors Act (RHA) and Clean Water Act (CWA) Section 404 dredge and fill permits – in line with AGC’s recommendations.
- The Corps is also heavily engaged with the Administration’s effort to repeal and replace the 2015 Waters of the United States (WOTUS) rule (see EPA’s section below).
U.S. Environmental Protection Agency (EPA)
- Most of 2018 was spent “between proposals” related to the repeal of the 2015 WOTUS rule (proposed in 2017) and the replacement rule (proposed in Dec. 2018). However, AGC remained engaged with the Administration on this issue, meeting with both EPA and the Office of Management and Budget. Furthermore, AGC submitted an Aug. 13 letter to EPA and the Corps supporting a supplement to the proposal to repeal the 2015 WOTUS rule. (Also, signing on to comments with Waters Advocacy Coalition, Federal Stormwater Association, and joint comments specific to applying the SWANCC decision.) See related AGC article about the official release of the proposed replacement rule on December 11, 2018.
- On May 15, AGC submitted comments supporting proposed changes to recycling aerosol cans that introduce efficiency in the disposal process, which could save construction firms time and money.
- On May 21, AGC commented (and submitted joint comments) on “Pre-proposal Input on Regulatory Options for Discharges to Groundwater” challenging EPA’s consideration of using the CWA permit program to regulate discharges to groundwater eventually making their way to a jurisdictional surface water.
- From June through Dec. 2018, EPA has been piloting an interim inspection policy that, although stops short of a full “find and fix” policy that AGC supports, pointedly addresses many AGC concerns: it promotes onsite feedback, prompt correction of potential problems, and the issuance of timely reports from the agency post-inspection.
- On Aug. 13, AGC summited a letter on an ANPR on better using cost-benefit analysis in the rulemaking process; urging EPA to use accurate data and consider full range of costs in cost-benefit analysis.
- On Aug. 16, AGC comments on EPA proposal to tighten the lead-dust hazard standard; EPA proposed not to change definition of LBP. AGC supports EPA’s recognition that more data is needed on the reliability of available technologies at those lower levels.
- On Aug. 24, AGC also filed joint comments in support of EPA proposal not to initiate a new “spill prevention, control, and countermeasures” regulatory program under the Clean Water Act for discharges of hazardous substances.
U.S. Federal Highway Administration (FHWA)
- In May 2018, FHWA rescinded requirement for state departments of transportation to establish greenhouse gas performance measures; AGC submitted multiple comment letters to the agency and White House.
U.S. Fish and Wildlife Service (FWS)
- On Jan. 5, AGC urged 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. FWS rescinded those policies in Aug. 2018.
- On Sept. 24, AGC commented on three proposed rules that would revise the Endangered Species Act (ESA) re: the listing and delisting of species and plants, the designation of critical habitat, and the interagency consultations that are part of the approval process for projects that involve federal permits or funding.
White House Council on Environmental Quality (CEQ)
- On Aug. 20, AGC provided preliminary comments in a letter on CEQ’s Advanced Notice of Proposed Rulemaking (ANPR) to update the procedural regulations that implement National Environmental Policy Act. AGC pressed for consistency in the application of terms/provisions; limits on the “range of alternatives” analysis; clarity on what project changes warrant re-evaluation and the shelf-life for data/documentation, etc.
AGC looks forward to working with the Trump Administration in 2019 on completing many of the initiatives above. For a look at what’s on the Federal Government’s to-do list for 2019, read AGC’s article on the environmental actions in the latest Unified Agenda.
For more information, contact Melinda Tomaino at tomainom@agc.org or Leah Pilconis at pilconisl@agc.org.