Aerosol Cans, Lead Paint (English and Spanish), and Process Wastewater The Construction Industry Compliance Assistance Center (the CICA Center) has updated its information on the Aerosol Can Universal Waste rule, the Lead Renovation, Repair and Painting program, and process water. Supported by the U.S. Environmental Protection Agency, the CICA Center provides “plain language” resources on federal and state environmental requirements pertaining to construction activities. AGC recommends the center as a resource for members and has contributed content to the site. Check out the recent changes below.

On November 23, the U.S. Department of Transportation (U.S. DOT) issued a proposal to update its procedures for implementing the National Environmental Policy Act (NEPA). AGC is currently reviewing the proposal to prepare a response ahead of the December 23, 2020 deadline for public comment. The revision to U.S. DOT’s implementing rules is necessary to align with the new, over-arching NEPA regulation that took effect in September of this year. Furthermore, the proposal incorporates environmental review requirements from recent bipartisan infrastructure legislation: SAFETEA-LU, MAP-21, and the FAST Act.

On November 27, the U.S. Fish and Wildlife Service released for 30 day public comment the final Environmental Impact Statement (EIS) associated with the new Migratory Bird Treaty Act (MBTA) rulemaking. The final EIS is available for public review for 30 days, after which the Service will issue a Record of Decision. The new, AGC-supported MBTA rule is undergoing review at the Office of Management and Budget and is expected to be final around the new year. Contractors employ multiple strategies to avoid migratory birds on projects; however, following the law does not reduce risk should an "incidental take" occur.

On November 13, 2020, AGC submitted comments generally supportive of recently proposed revisions to the Nationwide Permits (NWP). The U.S. Army Corps of Engineers proposal included revisions to several NWPs, including modifications to the thresholds for streambed loss for certain permits, establishment of a new mitigation requirement, and clarifications to the pre-construction notification process. The Corps also intends to reissue the entire suite of NWPs for a new five-year cycle on an earlier timeframe (they are currently set to expire in 2022).

On Oct. 5, 2020, the U.S. Environmental Protection Agency (EPA) released a draft National Recycling Strategy for public input. The strategy organizes high-level actions around three strategic objectives to improve the U.S. recycling system: 1) reduce contamination, 2) increase processing efficiency, and 3) improve markets. The draft strategy is available for public comment through December 4, 2020.

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?

On September 22, AGC sent a letter of support for the Endangered Species Act (ESA) Amendments of 2020 introduced by Senate Environment and Public Works Committee Chairman John Barrasso (R-WY) ahead of a September 23 hearing on the bill. The bill complements and builds on changes the Trump Administration made last year by further empowering States and Tribes in the recovery of species, permitting the prioritization of resources, promoting recovery and delisting, and incentivizing engagement in voluntary conservation efforts. AGC also supports studying the administrative and litigation expenses associated with the ESA.

On September 21, AGC CEO Stephen Sandherr expressed support of a bill to streamline the federal environmental review process for infrastructure projects. Key Republicans in the U.S. House of Representatives introduced the bill, BUILDER Act -- Building U.S. Infrastructure through Limited Delays & Efficient Reviews, this week. “Congressional Committee leaders’ newly-introduced legislation will provide needed enhancements to the National Environmental Policy Act,” Sandherr said.

The U.S. Army Corps of Engineers (Corps) is proposing to reissue and modify its Nationwide Permits that provide a streamlined process for the Corps to authorize discharges of “dredged or fill material” under Section 404 of the Clean Water Act and Section 10 of the River and Harbors Act. Nationwide (general) Permits (NWP) cover construction (and other activities) that, after adherence to identified conditions and mitigation measures, have been determined to result in minimal adverse environmental impacts to federally jurisdictional waters and wetlands (i.e., waters of the United States). The Corps is proposing modifications across the program in addition to creating new NWPs and dividing the current NWP 12 into three separate NWPs. This article highlights the potential top impacts of these developments on the construction industry and invites member feedback to better inform the association’s response to the proposed changes.

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service are proposing to add a definition of “habitat” to the regulations that implement section 4 of the Endangered Species Act (ESA). The proposed definition – which would be used in the context of making critical habitat designations – comes following a recent U.S. Supreme Court decision that concluded “critical habitat” must first be habitat (Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018)) (see AGC article). The Act prohibits adverse modification to “critical habitat” of listed species but it currently does not define “habitat.” A definition of habitat may help developers and contractors identify and avoid those areas, which would better inform ESA consultations during the planning and permitting process for projects.