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WOTUS Litigation Continues to Ebb and Flow
by outdoorwire. 08/21/18 01:23 PM
S. 3193: Protect Utah’s Rural Economy Act
by outdoorwire. 08/12/18 06:30 PM
H.R. 6520: Arizona Sonoran Desert Heritage Act of 2018
by outdoorwire. 08/12/18 06:09 PM
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Access Roundtable
08/21/18 01:23 PM
On August 16, 2018, a federal district court judge in South Carolina issued a nationwide injunction which halts the effectiveness of USEPA’s “Delay Rule.” 83 Fed.Reg. 5200 et seq. The Delay Rule purported to delay the effectiveness of the Obama WOTUS Rule until February 2020. Because of this new ruling, the Obama WOTUS Rule is now in effect in 26 states, including Ohio, Pennsylvania, and Texas. Other states in which the Obama WOTUS Rule is now in effect are: California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Oklahoma, Oregon, Rhode Island, Tennessee, Vermont, Virginia and Washington.

Despite the South Carolina Court’s nationwide injunction of the Delay Rule, the Obama WOTUS Rule is still not effective in the other 24 states, including, bizarrely enough, South Carolina. This is due to two other federal district court judges (in North Dakota and Georgia) previously issuing injunctions halting the effectiveness of the Obama WOTUS Rule itself, but only in certain states that were parties to those cases. The Georgia decision is currently under appeal to the 11th Circuit Court of Appeals. The South Carolina decision itself is likely to be appealed, and litigation also continues against both the Delay Rule and the Obama WOTUS Rule in other district courts across the nation.

As a backdrop to all of this litigation, USEPA continues to move forward with a regulatory process to repeal the Obama WOTUS Rule and replace it with a definition of Waters of the United States more in keeping with the late Justice Scalia’s opinion in the Rapanos case, which should represent a more limited view of federal authority. A public comment period on the “repeal” portion of USEPA’s rulemaking efforts closed on August 13, 2018. USEPA has yet to finalize the repeal, or propose a different definition.

The morass of injunctions, appeals, rulemakings, and other assorted legal and regulatory actions surrounding the Obama WOTUS Rule and the various USEPA efforts to delay, repeal, and replace the Obama WOTUS Rule shows no signs of abating anytime soon. We will continue to provide updates as the status of the applicability of the Obama WOTUS Rule continues to shift.

Source: Lexology
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Access Roundtable
08/13/18 01:50 PM


On August 2, 2018, the Department of Transportation’s National Highway Traffic Safety Administration (“NHTSA”) and the Environmental Protection Agency (“EPA”) issued two related, proposed rulemakings, which together comprise the Safer Affordable Fuel-Efficient (“SAFE”) Vehicles Rule. The proposed rule, if adopted, would curb NHTSA’s Corporate Average Fuel Economy (“CAFE”) standards and EPA’s tailpipe carbon dioxide (CO2) emissions standards for passenger cars and light trucks for model years (“MY”) 2021 through 2026 that were issued in 2012. The proposal also asserts that the Energy Policy and Conservation Act of 1975 (“EPCA”), which requires NHTSA to set national fuel economy standards for new motor vehicles, preempts any state, including California, from imposing or enforcing its own vehicle fuel economy standard.

The proposed rule would maintain the CAFE and CO2 standards applicable in MY 2020 for MYs 2021 through 2026. The estimated CAFE and CO2 standards for MY 2020 are 43.7 mpg and 204 g/mi for passenger cars and 31.3 mpg and 284 g/mi for light trucks, projecting an overall industry average of 37 mpg, as compared to 46.7 mpg under the standards issued in 2012. These revised standards would constitute a single set of national fuel economy standards. The proposal also seeks to exclude CO2-equivalent emission improvements associated with air conditioning refrigerants and leakage (and, optionally, offsets for nitrous oxide and methane emissions) after MY 2020.

The proposal is a de novo rulemaking and, according to the agencies, based on an “entirely new analysis reflecting the best and most up-to-date information available” demonstrating that the standards currently in place are not feasible from an economic standpoint.

In support of the proposed rulemaking, NHTSA and EPA project that the rule will reduce the number of lives lost annually in fatal vehicle crashes by 1,000 individuals, reduce the average ownership cost of new vehicles by $2,340, and save manufacturers $252.6 billion in regulatory costs through MY 2029. The agencies also acknowledge that the rule would increase daily fuel consumption by 2-3%, increase global average temperature, and increase the atmospheric CO2 concentration.

Public comments will be accepted for 60 days, until October 1, 2018.

Implications for California’s Independent Emissions Programs

Not only does the proposed rule find that EPCA preempts California’s fuel economy standards, it also attempts to foreclose California from adopting or imposing emission standards independent from the federal program. Specifically, the proposed rule would withdraw EPA’s January 9, 2013, Clean Air Act (“CAA”) waiver of preemption for California’s Advanced Clean Car program, its Zero Emissions Vehicle mandate, and its Greenhouse Gas standards applicable to model years 2021 through 2025.

In that regard, Title II of the CAA generally provides that California may obtain from EPA a waiver of the CAA’s Section 209(a) preemption clause. Without such a waiver, Section 209(a) prohibits states from (1) adopting or enforcing an emissions-related standard for motor vehicles or motor vehicle engines and (2) requiring certification, inspection, or other approval relating to emissions-controls. Prior regulatory interpretation and case-law have been applied to provide that California is presumably entitled to receive such a waiver unless the EPA Administrator finds one of the following: (i) California’s determination that its standards in the aggregate will be at least as protective of public health and welfare as applicable Federal standards is arbitrary and capricious; (ii) California does not need independent standards in order to meet compelling and extraordinary conditions; or (iii) California standards and accompanying enforcement procedures are inconsistent with Section 202(a), which requires the EPA to establish standards applicable to the emissions of any air pollutant, including GHGs, for new motor vehicles.

In proposing to withdraw California’s waiver, the rule concludes that California’s programs are unnecessary to meet “compelling and extraordinary” conditions because California programs address environmental considerations related to CO2 that are neither specific to California, nor caused by consequences of CO2 emissions that are unique to California such that the programs’ standards would provide a remedy that would also be unique to California.

Conclusions and Implications

The proposed changes to national fuel economy and emissions standards will likely meet substantial opposition from environmental and consumer groups alike. The larger challenge here, however, will almost certainly involve the courtroom battle that will take place between California and the federal government if the proposed rulemaking becomes final. California has already announced its intention to fight this proposed rulemaking and to work diligently to maintain its right to a waiver under the CAA, noting little hesitancy when it comes to suing both EPA and NHTSA.

While the proposed rule may release new vehicle manufacturers from meeting more burdensome regulatory standards, the impact of the rulemaking may be an extended period of uncertainty in the automotive industry and two potentially conflicting markets.

Source: Lexology
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Federal Legislation
08/12/18 06:30 PM
A bill to limit the establishment or extension of national monuments in the State of Utah.

Introduced:

Jul 11, 2018
Status:

Introduced on Jul 11, 2018

This bill is in the first stage of the legislative process. It was introduced into Congress on July 11, 2018. It will typically be considered by committee next before it is possibly sent on to the House or Senate as a whole.

Proposed bill text is available at GovTrack
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Federal Legislation
08/12/18 06:23 PM
Passed Senate with Changes (back to House)

The Senate passed the bill with changes not in the House version and sent it back to the House to approve the changes.

See changes at https://www.govtrack.us/congress/bills/115/hr6147/text/eas#compare=eh
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Federal Legislation
08/12/18 06:09 PM
H.R. 6520: Arizona Sonoran Desert Heritage Act of 2018

To designate certain public lands in the Sonoran Desert of the State of Arizona as national conservation areas and wilderness areas, and for other purposes.

Introduced:

Jul 25, 2018
Status:

Introduced on Jul 25, 2018

This bill is in the first stage of the legislative process. It was introduced into Congress on July 25, 2018. It will typically be considered by committee next before it is possibly sent on to the House or Senate as a whole.

Proposed bill text is available at GovTrack
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Federal Legislation
08/12/18 05:53 PM
H.R. 5556: Environmental Compliance Cost Transparency Act of 2018

To provide for transparency and reporting related to direct and indirect costs incurred by the Bonneville Power Administration, the Western Area Power Administration, the Southwestern Power Administration, and the Southeastern Power Administration related to compliance with any Federal environmental laws impacting the conservation of fish and wildlife, and for other purposes.

Introduced: Apr 18, 2018
Status: Ordered Reported on Jul 18, 2018

The committees assigned to this bill sent it to the House or Senate as a whole for consideration on July 18, 2018.

Proposed bill text is available at GovTrack
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NEPA
07/26/18 12:56 PM
On July 19, 2018, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) announced three proposed rulemakings that would revise the regulations pursuant to which the Services have implemented the Endangered Species Act (ESA). These initiatives were the result of public comments solicited by the Services in response to Executive Order 13777, 82 Fed. Reg. 31576 (July 7, 2017), which sought comments on how federal agencies could improve the effectiveness and efficiency of federal regulations and the regulatory process.

The proposed rules fall into three categories:

1. Proposed rules to adjust how FWS and NMFS decide to remove, add or reclassify species on protected lists pursuant to Section 4 of the ESA and to designate critical habitat. The proposals in this initiative include the following:

♦ Clarifying that, while the Services will continue to base determinations solely on biological information, there are situations in which the public are appropriately apprised of economic or other impacts of the determination.

♦ Clarifying that the Services will determine endangered/threatened status using the same standards regardless of whether the species is listed at the time; the standard for delisting shall be the same as the standard for listing in the first place.

♦ Clarifying that “foreseeable future” as to threatened species determination will be case-by-case and will extend only so far as the Services can reasonably determine that the circumstances are probable.

♦ Proposing a non-exhaustive list of situations when it is not prudent to designate critical habitat. As to unoccupied areas, the Services will first evaluate the areas occupied by the species and then determine whether designation of unoccupied areas is essential for conservation of the species; there must be a reasonable likelihood that the unoccupied area will contribute to conservation.

2. A proposed rule that would rescind the current rule that automatically extends the protections of ESA section 9 to species listed or reclassified as threatened. Under this proposal, the prohibitions in section 9 of the ESA (which include the “taking” prohibition) would continue to apply to threatened species listed as such as of the effective date of the rule. For species listed or reclassified as threatened after that date, the prohibitions will apply only if the FWS publishes a species-specific rule. This approach was described as consistent with the approach currently followed by NMFS for threatened species.

3. Proposed rules to simplify the consultation process that federal agencies must go through with FWS or NMFS under Section 7 of the ESA to ensure that administrative actions do not jeopardize protected species. Proposals here include:

♦ Revised definitions of “destruction or adverse modification of critical habitat;” “effects of the action;” “environmental baseline;” and “programmatic consultation.”

♦ Revisions to the rule as to when agencies are not required to consult under section 7.

♦ A 30-day deadline for informal consultation.

♦ Clarification as to when it is necessary to initiate formal consultation.

♦ Clarification of the responsibilities of the Services during formal consultation.

♦ An amendment that the Services can adopt all or part of an agency’s initiation package in the Service’s biological opinion.

♦ A new provision for expedited consultation.

♦ Revisions to the provision on re-initiation of consultation.

The proposed rules will be published in the Federal Register on July 25 and the deadline for comments is September 24.

Source: Lexology
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NEPA
07/24/18 12:32 PM
On July 20, the U.S. Fish Wildlife Service (“USFWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) released pre-publication versions of three proposed rules that would significantly affect applicability and implementation of the Endangered Species Act (“ESA”). These regulations relate to the process and standards for listing species and designating critical habitat, the scope of protections for threatened species, and the process for consultations with federal agencies under Section 7.

In addition to implementing the Trump Administration’s general deregulatory goals and Executive Order 13777, several of these proposed changes appear directly responsive to negative court precedent from the Ninth Circuit that the Services indicate improperly have extended the ESA beyond its intended scope, while other changes are intended to rollback expansions that were implemented by the Obama Administration.

The package of proposals includes a number of provisions that are intended to streamline and clarify the scope of the ESA, including the ability to use programmatic consultations and proposing to include an expedited consultation process under Section 7. Nevertheless, the most significant and controversial changes likely are those that are focused on shrinking the scope of the ESA, rolling back Obama-era revisions, and responding to negative court precedent. If finalized as proposed, among other changes, these regulatory revisions would:

Remove the blanket “take” prohibition from threatened species;
De-emphasize the role of unoccupied habitat in critical habitat designations by reversing 2016 regulations implemented by the Obama Administration;
Establish a framework for and limit the scope of the “foreseeable future” for purposes of threatened species listings;
Allow economic impacts to be identified – though not considered – in listing decisions;
Narrow the definition of adverse modification to further de-emphasize unoccupied critical habitat in the Section 7 consultation process; and
Clarify that the environmental baseline is not part of the action to be evaluated as part of Section 7 consultations and to propose a limiting definition that would better explain how to perform consultations for ongoing actions.

These changes, if finalized as proposed, would represent a significant departure from historical application and scope of the ESA, especially to threatened species. The changes also are intended to clarify and explain the Section 7 consultation process as well as the listing and critical habitat designation process, which could provide additional certainty and clarity to the regulated community on these important issues to project development. Comments on all three proposals will be due 60 days after the proposals are published in the Federal Register.

Source: Lexology
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NEPA
07/24/18 12:29 PM
Services Propose Highly Anticipated Revisions to ESA Regulations on Critical Habitat Designation, Section 7 Consultation, and Protections for Threatened Species

The US Fish & Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) issued three significant, highly anticipated, proposals to revise the Endangered Species Act (ESA) regulations on July 19. The proposals address critical habitat designation, ESA section 7 consultation, and protection of threatened species. Once published in the Federal Register, there will be a 60 day comment period for all three proposals. The proposals would make important changes in each area, and are likely to garner substantial attention in public comments. Some key highlights follow.

Among the major issues at stake are: (1) concerns by industry, landowners and other stakeholders that critical habitat designations often draw into federal regulation broad areas of land and water that have little or no current demonstrated value to the species, resulting in costly burdens without proportionate benefits to the species, and (2) that ESA section 7 consultations on federal agency actions (like permits) often evolve into broad evaluations of activities that extend beyond the regulatory jurisdiction and control of the agency, leading to lopsided project restrictions and uneconomic outcomes. To avoid these and other problems, groups often urge the Services to ensure that (1) when an area of land or water is designated as critical habitat, it is truly critical to the species at the time of designation – and concerns about theoretical future habitat need be held for future revisions to the designation, as contemplated by Congress in the statute, and (2) consultation focuses on the specific agency action under consultation and those effects that are caused by the action and subject to the agency’s regulatory jurisdiction and control.

1. Critical Habitat Designation

Following settlement of challenges brought by industry and State groups to critical habitat rules promulgated in 2016, the Services have now proposed revisions to the critical habitat regulations.

The proposed rule would return to the prior two-step approach to designating critical habitat under which the Service first considers designation of occupied habitat, then considers designation of areas outside of occupied habitat only if a designation limited to the species’ present range would be inadequate to ensure the conservation of the species.
The proposal would thereby change the current process under which the Service immediately and automatically considers designation of unoccupied areas.
The Services propose important clarifications to and limits on the designation of unoccupied areas as critical habitat:
Designation of unoccupied areas would be allowed only when a designation limited to occupied areas would (1) be inadequate to ensure the conservation of the species, or (2) result in less-efficient conservation for the species.
This change is intended to add predictability to the process of determining when designation of unoccupied habitat may be appropriate.
For an unoccupied area to be considered essential to conservation, the Secretary must determine that there is a “reasonable likelihood that the area will contribute to the conservation of the species,” taking into account the best available science regarding species-specific and area-specific factors.
As an example, the Services state that they might conclude that an area is unlikely to contribute to the conservation of the species where “it would require extensive affirmative restoration that does not seem likely to occur such as when a non-federal landowner or necessary partners are unwilling to undertake or allow such restoration.”

2. Section 7 Consultation

The Services have proposed revisions to the ESA section 7 consultation regulations, including the definition of “destruction or adverse modification” of designated critical habitat.

The proposal would revise the definition of adverse modification by removing the controversial second sentence in the current definition, which includes impacts to land that “preclude or significantly delay development of [physical or biological] features” essential to the conservation of a species.
The proposal would create a “but for” standard of causation for determining the effects of an action.

3. Protections for Threatened Species

Current FWS regulations extend to threatened species most of the ESA’s prohibitions that otherwise apply only to endangered species, including the take prohibition. The proposal would require FWS, pursuant to ESA section 4(d), to determine on a species-by-species basis which, if any, prohibitions are appropriate for species the Service lists as threatened in the future (including the take prohibition).

Source: Lexology
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