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.

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

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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