On Aug. 11, 2020, the U.S. District Court for the Southern District of New York (SDNY) invalidated the 2017 Department of the Interior legal opinion (M-37050) that had reversed prior policy by stating that the Migratory Bird Treaty Act (MBTA) does not prohibit incidental take. The SDNY judge disagreed and concluded the MBTA prohibits take “by any means or in any manner.” The court’s decision adds a new twist to ongoing efforts at the agency to finalize an AGC-supported rule intended to codify the now vacated legal opinion.

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers have released new implementation tools for the Navigable Waters Protection Rule that went into effect earlier this summer. These tools are available online for the public to view and include educational resources, new forms, and “implementation memos” to provide greater clarity and consistency implementing the rule across the country.

AGC Supports Streamlined Environmental Review Procedures, Analyses and Transparency Measures

Administration’s Final Reforms to the Federal Environmental Review Process Fix Problems with Prior Process, Maintain Environmental Rigor, and Accelerate Needed Infrastructure Improvements

Twice a year the Administration updates its Unified Agenda with projected timelines for rulemakings and other actions. The spring agenda, released June 30, 2020, shows some delay in movement on key water programs that AGC has been tracking due to their relevance to the construction industry. AGC summarizes these developments below.

The Navigable Waters Protection Rule (NWPR) is in effect as of June 22, 2020. AGC has advocated every step of the way in this multi-year effort and supports the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers’ new rule. The rule appropriately distinguishes between federal and state waters and should bring greater clarity in the field. AGC provided a summary of the rule when the agencies finalized it in January of this year.

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The Trump Administration recently issued two executive orders (EO) that focus on supporting economic recovery during the pandemic and recovery that could bring opportunity for environmental regulatory relief as well as risk.

On May 19, 2020, the U.S. Environmental Protection Agency (EPA) proposed a rule to establish consistent requirements and procedures for the issuance of guidance documents. AGC has raised concerns previously with the use of guidance documents as “back-door regulations.” EPA Administrator Andrew Wheeler called the proposal, “…[A] major step toward increasing transparency in EPA processes and ensuring that EPA is not creating new regulatory obligations through guidance.” Comments are due on the proposal by June 22, 2020.

AGC’s Construction Safety, Health & Environmental Conference is the industry’s foremost annual conference to hone in on the most critical safety, health and environmental compliance and risk issues impacting the business of construction. As a leader in construction safety, health and environment, our top priority is the safety and health of our members, attendees, speakers and staff. We have been closely monitoring the progression of the COVID-19 pandemic and, due to phased re-opening restrictions in our host city, Louisville, Kentucky, we will be pivoting to a completely virtual experience for our July 14-16 schedule of events. Join us, wherever you are, for the same superior educational content and peer-to-peer engagement that you have come to expect from AGC.