Unified Agenda Highlights What Regulatory Actions to Expect in 2020

From the final rule to replace the repealed 2015 definition of Waters of the United States and a proposal to reform the National Environmental Policy Act procedures, to addressing the take of migratory birds and issuing regulatory determinations for per- and polyfluoroalkyl substances (PFAS); the most recent Unified Agenda shows the agencies striving to complete some of the Administration’s biggest environmental policy goals.  Below, AGC identifies those initiatives of most importance to the construction industry.

Army Corps of Engineers

• Review rules related to the review and approval of mitigation banks and in-lieu fee programs for compensatory mitigation (proposal in Feb. 2020).
• Align the administrative appeal process with the 2016 Supreme Court decision allowing approved jurisdictional determinations to be challenged in court (proposal in July 2020).
• Modify select nationwide permits to meet the requirements of Executive Order 13783 (related to energy independence); the Corps also is considering reissuing the remaining nationwide permits to keep all 52 nationwide permits on the same five-year cycle (proposal in Dec. 2019).

Council on Environmental Quality

• Expected soon: Proposal to update existing CEQ regulations implementing the procedural requirements of the National Environmental Policy Act (NEPA) pursuant to Executive Order 13807 (related to the environmental review process).

Environmental Protection Agency

• Replace the now repealed 2015 Waters of the United States Rule with the Army Corps of Engineers (final rule in Jan. 2020).
• Extend the deadline from December 21, 2020, to December 21, 2023, for states to implement the electronic reporting rule for general permits (stormwater) under the National Pollutant Discharge Elimination System (proposal in Dec. 2019).
• Update regulations for when states can assume administration of the Clean Water Act (CWA) 404 permits (proposal in April 2020).  Meaning that states, not the Corps, could make wetlands decisions for projects.
• Revise regulations on Water Quality Certification, which is a required step to obtain CWA 404 permits (final rule in May 2020).
• Consider changes to the EPA's Section 404(c) review process that would govern the future use of the EPA's Section 404(c) authority, i.e., when the EPA Administrator can revoke a Corps-issued CWA 404 permit (proposal in Dec. 2019).
• Make regulatory determinations for Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfate (PFOS) –two types of PFAS-- under the Safe Drinking Water Act (proposal in 2019; final anticipated in 2021).
• Designate PFOA and PFOS as CERCLA hazardous substances, requiring the reporting of releases that meet or exceed the reportable quantity assigned to these substances (proposal was expected in Nov. 2019).
• Review and add certain per- and polyfluoroalkyl substances (PFAS) to the Toxics Release Inventory (advanced notice of proposed rulemaking published Dec. 4, 2019).
• Evaluate data on current NOx (nitrogen oxides) emissions from heavy-duty vehicles and engines, and options available to improve control of all criteria pollutant emissions through revised emissions standards (advanced notice of proposed rulemaking was expected in Nov. 2019).
• Initiate the five-year review and if appropriate revise the air quality criteria and national ambient air quality standards (NAAQS) for particulate matter (proposal in April 2020).
• Initiate the five-year review and if appropriate revise the air quality criteria and national ambient air quality standards (NAAQS) for ozone (proposal in April 2020).
• Review of dust-lead post-abatement clearance levels (proposal in Mar. 2020) -- the consideration of expanding the current lead paint “work practice” rules to public and commercial buildings remains on the long-term agenda.

Fish and Wildlife Service

• Review and revise regulations for listing of species and for designation of critical habitat; will include a definition of the term “habitat” (proposal in May 2020).
• Revise policy on interpretation of the phrase "significant portion of its range" in the Endangered Species Act's (ESA) definitions of "endangered species" and "threatened species" (proposed policy in Jan. 2020)
• Propose new regulation governing the take of migratory birds to codify the legal opinion in the Department of the Interior Solicitor’s Opinion M-37050 that incidental take resulting from an otherwise lawful activity is not prohibited under the Migratory Bird Treaty Act (proposal was expected in Nov. 2019).

For more information on environmental issues in the regulatory agenda, contact Melinda Tomaino at melinda.tomaino@agc.org or Leah Pilconis at leah.pilconis@agc.org.