Vulnerable to Rollback in New Administration
AGC continues to track and comment on several environmental regulatory actions relevant to construction that the Trump Administration advances in the final days of the term, including those impacting species and Clean Water Act (CWA) permitting. Several of these actions are vulnerable to change during a Biden Administration, either through legal challenges, administrative actions and delays, or revision through the regulatory process.
In the last few weeks, the administration has finalized the following regulations relevant to the construction industry—as well as a host of others (see EPA press releases during this time period).
- The final National Ambient Air Quality Standards (NAAQS) for Particulate Matter (retained prior levels), finalized and effective on December 18, 2020.
- The final NAAQS for Ozone (retained prior levels), finalized and effective on December 31, 2020.
- A revision to the regulations for designating critical habitat (to add a definition of habitat), effective January 15, 2021.
- AGC-supported reforms to the Migratory Bird Treaty Act that would remove criminal penalties for accidentally “taking” a bird, effective February 8, 2021.
- Revisions to the Nationwide Permits (general permitting program for CWA Section 404 wetlands/dredge and fill), which AGC generally supported, effective March 15, 2021.
The Multi-Sector General Permit for stormwater discharges at industrial facilities is at the White House Office of Management and Budget for review and still may be finalized, if fast-tracked. AGC highlighted several concerns with the proposed version and waits to see how the agency will respond. However, the permit is unlikely to go into effect before President-elect Biden takes office. The incoming administration has announced it will freeze all uncompleted regulatory actions until it can review them.
AGC also participated in a coalition effort to comment on a much anticipated and requested guidance document in which discharges to groundwater would require a CWA section 402 permit (National Pollutant Discharge Elimination System) following the Supreme Court's decision in the County of Maui, Hawaii v. Hawaii Wildlife, 2020. The Trump Administration may finalize the guidance; however, guidance does not have the same weight as regulation. As per customary practice, the Biden Administration will likely review and withdraw several guidance and policy documents from the prior administration, and then issue new policies that align with its goals.
Finally, AGC is tracking progress on the U.S. Department of Transportation proposal to revise its Procedures for Considering Environmental Impacts, which is how the agency implements the National Environmental Policy Act process. AGC participated in a coalition effort to comment on this proposal in late 2020. At this time, the rule is not finalized nor is it at OMB for review; therefore, it will likely fall under the regulatory freeze that the incoming Biden Administration will put in place.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.