The Nickel Report

Even as COVID-19 is altering daily routines and operations within the federal agencies, all indications are that natural resource agencies continue to work on agency priorities and to advance the regulatory agenda.  Agencies including the Environmental Protection Agency (EPA), US Army Corps of Engineers (Corps), US Fish & Wildlife Service (FWS), Natural Marine Fisheries Service (NMFS), and Council on Environmental Quality (CEQ) have not indicated any plans, at this point, to delay their efforts on the Administration’s key initiatives. Public interest groups and organizations representing state and local officials have asked the White House to freeze rulemakings that are not directly related to the COVID-19 response effort.  EPA has responded to these requests by noting that it continues to be open for business and is fully functioning.

One important waypoint in the coming months is the start of the window for review under the Congressional Review Act (CRA).  The CRA requires federal agencies to submit rules to Congress before they can take effect and provides Congress with a mechanism for disapproving final rules issued by federal agencies.  Actions completed during the last 60 legislative days of this Congress (the 116th Congress will conclude on January 3, 2021) may be subject to review by the next Congress under the CRA. The lookback period for CRA review depends upon the date of adjournment of the 116th Congress.  As an example, due to the number of legislative days during the 114th Congress, the 115th Congress was able to review rules issued by the Obama administration as early as May 2016.  Accordingly, rules issued later this year will face potential CRA review.

This post provides a brief update on regulatory actions underway in the natural resources arena:

• “Navigable Waters Protection Rule” – On January 23, 2020, the EPA and Corps (jointly, the Agencies) signed a pre-publication version of the Agencies’ new regulatory definition of “the waters of the United States” to clarify the geographic scope of federal jurisdiction under the Clean Water Act (CWA). The final rule is expected to be published in the Federal Register shortly and become effective 60 days thereafter. Challenges to the rule are highly anticipated in one or more district courts across the country, which may impact whether the rule goes into effect—nationwide or in certain states—upon its effective date.
• Reissuance of Nationwide Permits (NWPs) – The Corps issues NWPs to authorize categories of activities, including linear transportation projects, bank stabilization, residential development, aids to navigation and certain maintenance activities, under Section 404 of the CWA and Section 10 of the Rivers and Harbors Act. A proposal to reissue and modify the 2017 NWPs is under interagency review by the Office of Management and Budget (OMB). Once the proposal clears OMB review, it will be published in the Federal Register for public review and comment. The current suite of NWPs remains in effect until March 18, 2022, pending NWP reissuance.
• CWA Section 401 Water Quality Certification Rule – CWA Section 401 requires, as a prerequisite for federal permits for projects that may result in a discharge into navigable waters, affected States to certify that any such discharge will comply with the CWA. On August 22, 2019, EPA proposed updates and clarifications to its CWA Section 401 water quality certification regulations and accepted public comments through October 22, 2019. EPA is expected to issue a final rule by May 2020.
• Proposed Compensatory Mitigation for Losses of Aquatic Resources Rule – In 2008, EPA and the Corps jointly promulgated the Mitigation Rule to provide more comprehensive standards for compensatory mitigation for losses of aquatic resources. In June 2019, the Agencies solicited public comments to assist them in developing proposed revisions and updates to the Mitigation Rule. The Agencies’ regulatory agenda targets early 2020 for publication of a proposed rule to update the Mitigation Rule.
• Migratory Bird Treaty Act (MBTA) Incidental Take Rule – On February 3, 2020, the FWS published a proposed rule codifying M-Opinion 37050, which expressly defines the scope of the MBTA to exclude take “that results from, but is not the purpose of, an action (i.e., an incidental taking or killing).” 85 Fed. Reg. 5915 (Feb. 3, 2020). Also on February 3, 2020, FWS issued a Notice of Intent (NOI) to prepare an environmental impact statement (EIS) under the National Environmental Policy Act. The public comment period for the proposed rule and NOI closed on March 19, 2020. Pursuant to agency guidance, FWS has one year from issuance of an NOI to complete an EIS. See DOI Secretarial Order No. 3355, Sec. 4(a)(2) (Aug. 31, 2017).
• Definition of Habitat for Purposes of the Endangered Species Act – Following the US Supreme Court’s unanimous decision in Weyerhaeuser v. U.S. Fish & Wildlife Service, 139 S. Ct. 361 (2018), the FWS and NMFS (collectively, the Services) plan to undertake a rulemaking to define the statutory term “habitat” for purposes of the ESA. The Court also held that the Secretary of the Interior’s decision not to exclude an area from critical habitat is subject to judicial review under the Administrative Procedure Act. The Services’ proposal is before OMB, and it is expected to clear interagency review soon and be made available for public review and comment.
• CEQ NEPA Regulations – On January 9, 2020, CEQ proposed updates to its NEPA regulations. The public comment period closed on March 10, 2020, with approximately 600,000 comments submitted. CEQ will now review and respond to public comments and prepare a final rule, which is expected later this year.

For more information on these regulatory developments or other undertakings by the agencies, please contact Karma Brown at kbbrown@huntonAK.com or Lauren Bachtel at lbachtel@HuntonAK.com.