The most recent Unified Agenda, released in late May, demonstrates that a robust agenda of regulatory reform continues as a theme of this Administration, yet it also shows little movement in the relevant policy AGC has been tracking. The federal agencies have extended the projected deadlines for much of the environmental policy of interest to the construction industry as seen in the list of regulatory actions “in the works” below.
Army Corps of Engineers
- Propose in Dec. 2019 revisions to the rules covering the review and approval of mitigation banks and in-lieu fee programs for compensatory mitigation. (Delayed)
- Propose in Oct. 2019 modifications of select nationwide permits to meet requirements of Executive Order 13783 re: energy independence. (Delayed)
- Propose in Dec. 2019 revisions to the administrative appeal process under the Corps’ regulatory program regarding Approved Jurisdictional Determinations. (Delayed)
- Propose in Sept. 2019 revisions to the list of categorical exclusions for Corps’ actions that do not typically require extensive review under the National Environmental Policy Act (NEPA).
Council on Environmental Quality
- Propose in June 2019 updates to the existing CEQ regulations implementing the procedural requirements of 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.) (Delayed)
Environmental Protection Agency
- Repeal and replace the 2015 Waters of the United States Rule; EPA anticipates finalizing the repeal in Aug. 2019 and replacement rule in Dec. 2019 (with the Army Corps of Engineers). (Delayed)
- Propose rule in Nov. 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). (Delayed)
- In Mar. 2020, EPA plans to propose updates to 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.
- Propose in Aug. 2019 clarification of state certification procedures under Section 401 of the Clean Water Act.
- The agency also is reviewing the national ambient air quality standards for ozone (proposal Mar. 2020) and particulate matter (proposal Mar. 2020); and plans to release a proposal in Sept. 2019 to provide regulatory relief to the states on implementing NAAQS.
- Finalize in June 2019 the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks; Revisit the trailer provisions for on-highway heavy-duty trailers (Proposal Oct. 2019) and review emissions data to inform revisions to the standards for heavy-duty engines (Proposal Feb. 2020).
Chemicals and Waste Issues
- 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.) Final actions on these three items should be taken by the fall/end of 2019. (Delayed)
- Propose a regulatory determination under the Safe Drinking Water Act for Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic Acid (PFAS) (Dec. 2019); Propose listing PFOA and PFOS as "hazardous substances" under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (Oct. 2019); and Consider adding certain PFAS to the Toxics Release Inventory (advanced notice of proposed rulemaking Oct. 2019).
- Consider developing a commercial paint and coating removal training, certification and limited access program for Methylene Chloride (Date to be determined).
- Propose rule 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.) This action has been moved to the long-term agenda with no projected date of completion.
Fish and Wildlife Service
- Issue final rules in May 2019 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.) (Delayed)
- Propose further revisions in Dec. 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. (Delayed)
- Propose a rule in June 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. (Delayed)
- Propose in Nov. 2019 revisions to the regulations that implement section 10 of the ESA re: permit issuance for the take of endangered/threatened species. (Delayed)
- Propose a rule in June 2019 to codify the policy that incidental take resulting from an otherwise lawful activity is not prohibited under the Migratory Bird Treaty Act. (Delayed)
- FWS also plans to revise their policy interpretation of the phrase “Significant Portion of Its Range” in the ESA definitions of endangered and threatened species. Proposed policy expected in Sept. 2019.
- Additionally, a new action moved forward from the long-term agenda would propose in March 2020 revisions of the regulations implementing the Wild Bird Conservation Act of 1992.