Following the nationwide vacatur of the 2020 definition of waters of the United States (WOTUS) under the Clean Water Act, the U.S. Army Corps of Engineers (Corps) reverted to using the 1980s regulatory regime with prior guidance when making decisions on federal jurisdiction over waters and wetlands. The Biden Administration has also moved forward with its two-step process to repeal and replace the 2020 rule. On Dec. 7, they published a proposal to reinstate the 1980s regulatory regime with changes that would codify the Administration’s interpretations of the relevant Supreme Court rulings. AGC is preparing comments in advance of the Feb. 7 deadline.

On Dec. 3, AGC submitted comments to the U.S. Fish and Wildlife Service on proposed changes that would codify the Biden Administration’s interpretation that the Migratory Bird Treaty Act prohibits incidental take---injury or harm that occurs incidental to otherwise lawful activities. If a bird or nest is injured or harmed in the normal course of construction activities, then this could expose contractors to criminal liability should the Service take enforcement action. The Service also sought feedback on a potential new permitting program for incidental take.

On Dec. 13, AGC submitted comments (click here and here) on two proposals that seek to rescind rules put in place by the Trump Administration governing how the U.S. Fish and Wildlife Service (FWS) designates critical habit for endangered and threatened species. The first proposal would remove the definition of habitat that was implemented in response to a U.S. Supreme Court ruling that determined critical habitat first be habitat for the species in question. The second proposal would rescind a rule that guides how the Service considers impacts caused by critical habitat designations and whether it will exclude areas from listing.

The White House Council on Environmental Quality (CEQ) recently announced several proposed changes to CEQ’s NEPA rules, which impose environmental review requirements on all federal agencies that carry out, authorize, permit, or fund actions with potential environmental impacts. The Biden Administration released a statement that this is part of their whole-of-government approach to tackling climate change and confronting environmental justice. AGC submitted comments on the November 22 deadline and also signed on to a coalition comment letter in response to the proposal.

On December 8, President Biden signed Executive Order (EO) on Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability that expands on the federal sustainability goals of prior administrations—setting aggressive timelines for achieving reductions in greenhouse gas (GHG) emissions. Of most relevance to the construction industry, the EO calls for net-zero emissions from federal procurement, including sustainable purchasing and the development of a “buy clean” policy to promote the use of construction materials with lower embodied carbon* emissions – specifically calling out concrete and steel. The buy clean policy would extend to federally funded projects. It also directs federal agencies to reduce GHG emissions from their supply chains, which includes tracking the disclosure of climate and sustainability data from their major suppliers.

The U.S. Fish and Wildlife Service (U.S. FWS) has undertaken several recent policy changes related to the incidental take (injury or harm) of migratory birds. On October 4, the Service officially reversed the Trump Administration’s policy that decriminalized take that was incidental (not the intended action) to an otherwise lawful activity. The Service also recently released a Director’s Order on Incidental Take (No. 225) to address how they plan to approach incidental take implementation and enforcement. Lastly, the Service released an advanced notice of proposed rulemaking (ANRPM) to solicit feedback on a potential permitting program that would authorize the incidental take of migratory birds. Feedback is due December 3.

Each year, AGC seeks nominations for qualified and motivated individuals from the AGC Environmental Forum to serve on the steering committee for the forum. Would you like to play a leadership role in AGC of America’s environmental advocacy, education and outreach efforts? If so, please respond to AGC’s call for volunteers and complete this form signifying your interest. The Volunteer Interest Form is also available through your AGC profile.

On October 21, 2021, the U.S. District Court for the Northern District of California vacated the 2020 State Water Quality Certification (WQC) Rule, which is considered to apply nationwide.  Subsequently, some U.S. Army Corps of Engineers Districts have advised permittees that they will not finalize permit decisions that rely on a Clean Water Act (CWA) Section 401 WQC or a waiver under the now vacated 2020 State WQC rule (click here for an example, scroll to “Latest News”).  This halt in permitting appeared to include the use of sixteen CWA Section 404 Nationwide Permits that the Corps finalized earlier this year.  Update: On Dec. 2, the Corps posted a notice on its website that it had resumed making decisions on all permit applications and requests for nationwide permit verifications.

The U.S. Environmental Protection Agency (U.S. EPA) released a proposal on Nov. 18, 2021, that would return to the 1980’s regulatory framework, with some changes, on Waters of the United States (WOTUS). As previously reported in September, a district court vacated the 2020 Navigable Waters Protection Rule (NWPR), which the Biden Administration has interpreted as a nationwide vacatur. Since then, the regulated community has been following the 1980’s regulatory regime and guidance on relevant U.S. Supreme Court rulings. Earlier this summer, the U.S. EPA announced its intention to remove and replace the Trump Administration’s NWPR. The first step is the proposal the U.S. EPA just released as a pre-publication version. Comments will be due within 60 days of its publication in the Federal Register. AGC will respond to the proposal.

Get Involved with AGC: Share your Expertise & Advance the Industry Deadline to complete interest form: November 30