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Wildlife
03/21/19 01:38 AM
On March 15, 2019, the U.S. Fish and Wildlife Service (“Service”) issued a proposed rule to remove the gray wolf (Canis lupus) from the List of Endangered and Threatened Wildlife. As we reported here, the Service announced its intention to issue the proposed rule earlier this month. According to the Service, the species’ population has rebounded considerably since it was originally listed in 1978, when the population estimate was approximately 1,000 individuals. Now, the Service estimates there is a Great Lakes meta-population with approximately 4,400 individuals, along with an eastern Canadian meta-population of 12,000-14,000 individuals (with connectivity to the Great Lakes population) and a Rocky Mountain/western Canadian meta-population with approximately 16,000 individuals that continues to expand into Oregon, Washington, and California. The Service believes these meta-populations are sufficiently stable to warrant delisting.

The Service has previously struggled with proposals to delist or reclassify the gray wolf. To that end, the proposed rule includes a chart identifying the numerous past legal and regulatory actions that have involved the gray wolf since the late 1970s.

Delisting the gray wolf will return wolf management to the states. The Service recognizes that the public response to this may be mixed, stating that it “expect[s] that some segments of the public will be more tolerant of wolf management at the State level because it may be perceived by some as more flexible then Federal regulation, whereas other segments may continue to prefer Federal management due to a perception that it is more protective.” According to the Service’s statement in the Federal Register, comments on the proposed rule will be accepted until May 14, 2019.

Source: Lexology
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Federal Legislation
03/18/19 02:07 AM
To amend the Federal Advisory Committee Act to increase the transparency of Federal advisory committees, and for other purposes.

Introduced: Mar 7, 2019
Status: Passed House (Senate next) on Mar 12, 2019

This bill passed in the House on March 12, 2019 and goes to the Senate next for consideration.


Proposed bill text is available at GovTrack[url=https://www.govtrack.us/congress/bills/116/hr1608/text][/url]
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Legal Issues
03/14/19 03:20 PM
The Ninth Circuit affirmed the district court's grant of summary judgment to the Forest Service in an action challenging travel management plans implemented by the Forest Service to permit limited motorized big game retrieval in three Ranger Districts of the Kaibab National Forest.

The panel held that the Forest Service did not violate the plain terms of the Travel Management Rule absent authority requiring a strictly geographic interpretation of the words "limited" and "sparingly." Determining that plaintiffs had standing to bring their claims under the National Environmental Policy Act (NEPA), the panel held that the Forest Service took the requisite hard look and its determinations were neither arbitrary nor capricious. In this case, the Forest Service did not violate NEPA by declining to prepare environmental impact statements based on the plans' environmental impacts. Finally, the panel held that the Forest Service satisfied its procedural obligations under the National Historic Preservation Act (NHPA) by conducting the required prefield work, consulting the appropriate entities, and reaching a determination consistent with the evidence before it.

Court Description: Environmental Law. The panel affirmed the district court’s summary judgment in favor of the United States Forest Service in an action by plaintiff environmental groups challenging travel management plans implemented by the Forest Service to permit limited motorized big game retrieval in three Ranger Districts of the Kaibab National Forest. The Travel Management Rule, promulgated by the U.S. Department of Agriculture for Forest Service lands, generally prohibits off-road, motorized travel, but permits the “limited” use of motor vehicles within a specified distance of “certain” forest roads for the purposes of camping or retrieval of downed big game animals. The panel rejected plaintiffs’ contention that the Forest Service violated the Travel Management Rule by implementing plans that did not sufficiently limit motorized big game retrieval in the Ranger Districts. The panel concluded that In an action challenging travel management plans implemented by the Forest Service, the Forest Service followed the Travel Management Rule and fulfilled its procedural obligations under the National Environmental Policy Act and the National Historic Preservation Act.

Source: Lexology
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Access Roundtable
03/13/19 05:02 PM
The California Environmental Protection Agency (CalEPA) directs some of the most important environmental agencies in the state. Those sub-agencies oversee a broad swath of industries and regulate areas including toxic air pollution, greenhouse gases, brownfield redevelopment, water quality, and food and consumer product labeling laws. It’s no small effort: The proposed 2019-2020 budget for CalEPA and its sub-agencies totals $4.2 billion, with over 5,900 staff positions. Under President Trump, the federal EPA’s leadership has embraced deregulation, and several reports have claimed that federal enforcement activity is declining. Early actions by California’s new Governor, Gavin Newsom, and his recent appointment to lead CalEPA, Jared Blumenfeld, suggest that the California will be taking a different tack.

Prior to his appointment as the CalEPA Secretary, Mr. Blumenfeld served as the federal EPA’s Region IX Administrator in the Obama Administration, from 2009 to 2016. Before that, he served as Director of San Francisco’s Department of the Environment during Governor Newsom’s tenure as mayor. At CalEPA, Secretary Blumenfeld now manages the State’s key environmental agencies: the Air Resources Board (air quality regulations), the Department of Toxic Substances Control (hazardous waste regulations and enforcement), the State Water Resources Control Board (water quality regulations and enforcement), and the Office of Environmental Health Hazard Assessment (implementing Proposition 65 and establishing public health goals for drinking water and other media), among others.

Secretary Blumenfeld is responsible for coordinating the activities of these agencies. While CalEPA itself does not bring environmental enforcement actions—typically the sub‑agencies or the California Department of Justice do—Secretary Blumenfeld’s oversight role will allow him to set both regulatory and enforcement priorities. And although Governor Newsom is considered somewhat pro-business (at least by California standards), his initial budget proposal and recent comments suggest support for an active CalEPA agenda.

We expect water quality issues to be an area of early emphasis. In his recent State of the State Address, Governor Newsom discussed the need to address the “literally hundreds of water systems across the state contaminated by lead, arsenic, or uranium.” Although the comment was one in a long list of policy goals outlined in the speech, Mr. Blumenfeld’s past comments confirm a focus on water quality in line with Governor Newsom’s State of the State comments. As a federal EPA Regional Administrator, Mr. Blumenfeld notably criticized California for failing to use federal grants to address safe drinking water issues. Last year, he wrote an opinion piece in the San Francisco Chronicle criticizing the State Water Resources Control Board (SWRCB) and regional water boards for “falling short when it comes to levying fines against polluters.” Mr. Blumenfeld recommended that the State set enforcement goals, review permits to ensure enforceability, and take back water quality enforcement authority from SWRCB and regional water boards if enforcement failed to improve.

If Secretary Blumenfeld stays true to these statements, regulated industries, developers, water districts, and municipalities can expect increased water quality permit scrutiny and enforcement.

In addition, Secretary Blumenfeld’s agenda will undoubtedly extend beyond water‑related issues. We expect him to focus on improving performance at the much-criticized California Department of Toxic Substances Control (DTSC). Air pollution will also likely remain a priority. We also expect that the California Air Resources Board will continue to aggressively implement programs and policies aimed at reducing toxic emissions and addressing climate change.

Just two months after Governor Newsom’s appointment of Jared Blumenfeld to the lead California’s environmental agenda, it is still too soon to predict all the coming changes for regulated entities. But given the early signs, the old truism seems apt: Change is inevitable.

Source: Lexology
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Access Roundtable
03/08/19 07:53 PM
The unfortunate trend of increased wildfires across the western landscape continued in 2018, both as to the number of fires and the acreage burned. Most disturbing is the growing severity and impacts of these fires in terms of human lives and lost property. California is at the epicenter of this trend, and experienced both its largest and deadliest fires in the state’s history within the span of a couple of months near the end of last year.1 The legal and public policy implications of more destructive wildfires continue to reverberate throughout the West and nationally. And while many sectors of the economy are at risk from the increasing impacts and potential liability posed by wildfire, most of the recent attention in this area has been focused on the energy sector, primarily electric utilities.

As a result, companies impacted by the growing threat of wildfire across the West, including electric utilities, should continue to monitor state and federal regulatory changes designed to address this risk. Key recent developments in California and other states, as well as noteworthy activity on this issue at the national level, are described in more detail below.

Recent State Activity

The most recent visible impact of wildfire on the utility sector is Pacific Gas and Electric’s (PG&E) decision to file for bankruptcy in the face of billions of dollars of potential liability resulting from a link between its transmission infrastructure and the ignition of wildfires in California during the past two years.2 With respect to liability, California is unique in that its courts have long imposed strict liability on utilities for wildfire damages.3 The theory behind strict liability is that the risk for public improvements (e.g., transmission infrastructure) should be spread across the public and therefore recoverable through rate adjustments. However, that theory was undermined in November 2017 when the California Public Utility Commission (CPUC) determined that San Diego Gas & Electric was not permitted to recover $379 million in wildfire-related liability costs because it had not acted reasonably in maintaining and operating its transmission system to minimize wildfire risks.4

In the aftermath of the destructive 2017 fire season, California enacted far-reaching legislation addressing the implications of wildfire risk.5 Included in this legislation were provisions to address the CPUC’s 2017 decision and create new standards to assess whether the recovery of wildfire-related costs is “just and reasonable.” There were other provisions to fund and accelerate projects to improve forest health and reduce fuel loads; to create a Commission on Catastrophic Wildfire Cost & Recovery with the responsibility to report on issues related to socializing wildfire costs by July 1, 2019; and to require utilities to comply with new operation and maintenance standards and file new Wildfire Mitigation Plans with the CPUC starting in February 2019. And cognizant of the threat to PG&E’s financial stability, the legislation limited the impact of liability from the 2017 fires through the use of new liability rules, a financial stress test applied to the utilities and new financial tools (e.g., rate recovery bonds). Despite this, the 2018 fire season resulted in new potential liabilities for PG&E, which led to the company’s bankruptcy filing.

The implications of the filing are widespread, raising significant concerns about its possible impact on (1) the cost of electric service to ratepayers, (2) long-term power purchase agreements that could affect renewable energy projects and climate-related goals, and (3) the ability of the victims of wildfire to recover damages for wildfire-related losses. As the bankruptcy moves forward, policy-makers will be paying close attention to how these issues are addressed in the proceedings.

While other states have not been as active as California in developing new legal and regulatory standards in response to the threat of wildfire, that is likely to change given the increasing risk overall and elevated focus on climate change in many states. Of note, there has already been activity at both the public utility commission level and the legislature in several states. In 2013, the Colorado General Assembly established a Wildfire Matters Review Committee, which has been active in recent years. In New Mexico, the Public Regulation Commission convened a wildfire task force in June 2013 in response to a utility-caused wildfire. One of its goals is to examine best practices for wildfire prevention and address issues such as utility easements, fuel clearing and vegetation management plans. And last year, Utah considered legislation to impose liability for firefighting costs under certain circumstances.6 Finally, while it does not appear that the courts in other states have yet adopted a strict liability standard for damages associated with utility infrastructure, there are (not surprisingly) examples of plaintiffs asserting such claims.7 Moreover, there are cases in Colorado and elsewhere holding that utilities are subject to a higher standard of care in negligence suits because the transmission of electricity is an inherently dangerous activity.8

Recent Federal Activity

Activity in this area has not been limited to the state level. The federal government has been increasingly responsive to the wildfire threat, and several of its actions can and should be of interest to the electric utility sector.9 In late 2018, the president issued an Executive Order to increase federal activity and investment on actions to reduce the fire risk associated with federally managed forests and rangelands.10 In addition to directing specific actions to reduce hazardous fuel loads and high-risk conditions on federal lands, the order calls for the creation of a strategy to support the development of projects and partnerships that protect habitat and communities and reduce risks to physical infrastructure. The order also directs collaborative efforts with the private sector.

The momentum to address the growing risk of wildfire at the federal level has continued into early 2019. On January 2, 2019, then-Secretary Zinke signed Secretarial Order 3372, Reducing Wildfire Risks on Department of the Interior Land Through Active Management, directing the Department of the Interior to take several steps to implement the Executive Order and “ensure that the American people receive the maximum benefits from new and existing regulatory mechanisms designed to reduce the impacts of catastrophic wildfires.”11 The order directs the agency to take steps to address wildfire issues, including ensuring that all land management plans include fire management best practices; collaborating with the US Department of Agriculture on several actions designed to maximize wildfire management efforts among the agencies; and utilizing active land and vegetation management techniques to reduce fuel loads such as thinning, cutting and controlled burns.

Additionally, on February 15, 2019, the Bureau of Land Management issued a Finding of No Significant Impact and Record of Decision for a programmatic environmental assessment (pEA) on hazardous tree removal and vegetation management activities across approximately 551,000 acres of BLM-managed land in central and northern California.12 The decision would allow treatments within 200 feet of critical infrastructure on forest and woodlands managed by the BLM, though the scope of the treatments cannot exceed 20 percent of BLM-managed public land within a single watershed over a 10-year period. The decision does not authorize site-specific hazardous tree removal or vegetation management treatments; instead, each project will require a separate Decision Record and Finding of No Significant Impact to authorize treatments consistent with the pEA.

On the regulatory side, the North American Electric Reliability Corporation (NERC) has been active in promulgating and revising its mandatory and enforceable reliability standard related to transmission vegetation management.13 While NERC’s standards are focused specifically on reliability issues and not on wildfire risk, there is no doubt that vegetation management issues have been a factor in both wildfires and increased risk to the reliability of the bulk power system. More focus in this area is likely; NERC recently noted an increase in reported outages from non-compliance with its vegetation management standards and announced it would be “considering what additional efforts to undertake to address the increase in these types of cases.”14 In addition to regulation and enforcement, it is important to note that the federal government has been aggressive in recent years in asserting broad damage claims associated with wildfires caused by companies with operations on or adjacent to federal lands. The courts have upheld these claims, which in several instances have resulted in settlements in excess of $100 million for losses associated with firefighting costs, lost timber, loss of access to public lands and post-fire restoration work.15

Finally, on Capitol Hill, the new Democratic majority in the House of Representatives has already held several hearings on climate change. With increasing risk and a heightened recognition of the implications of wildfires in the aftermath of PG&E’s bankruptcy, it is very likely that wildfires will be the focus of several committees, including Natural Resources, Energy and Commerce, and the new Select Committee on the Climate Crisis.

Conclusion

Undeniably, the implications of wildfire are increasing the array of issues facing the electric utility industry. First, the increased risk of wildfire due to climate change and other factors poses a corresponding increased risk of liability for those operating transmission infrastructure. Second, and closely related, is simply the increased number of claims being filed against utilities associated with damages from wildfire, even where causation has yet to be determined. Third, there is a more active regulatory environment with new mandatory requirements, compliance monitoring and the need for new investments to protect and harden infrastructure. Fourth, given the financial implications associated with liability and increased operating costs, there is a greater need for public policy debates associated with liability standards and how to appropriately spread the costs associated with destructive wildfires; for local codes related to development in the wildland-urban interface; for actions to reduce the risk associated with poorly managed state and federal lands; and for an increase in public-private partnerships to reduce high-risk conditions leading to wildfire activity and to develop and deploy new technologies to improve situational awareness and better combat and suppress wildfires.

Source: Lexology
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Access Roundtable
03/05/19 04:19 PM

On Tuesday, February 26, 2019, the U.S. House of Representatives voted to enact landmark legislation that promotes conservation, recreation, historical preservation and cultural resources across the country. The Natural Resources Management Act (also referred to as the John D. Dingell Jr. Conservation, Management and Recreation Act), which was overwhelmingly approved by the Senate earlier in February, received broad bipartisan support in the House. President Trump is expected to sign the bill into law.

The Act, originally introduced by Energy and Natural Resources Chairwoman Senator Lisa Murkowski (R-AK), is a compilation of more than 100 land and water bills and constitutes the largest public lands package in a decade, since the Omnibus Public Lands Management Act of 2009 (Pub. L. No. 111-11). The Act’s conservation, recreation and preservation measures impact public lands in nearly every state. Below are just some of the Act’s most noteworthy provisions:

Permanent Authorization for the Land and Water Conservation Fund (LWCF). One of the most celebrated provisions in the Act is the permanent reauthorization of the LWCF, a conservation tool created by Congress in 1964 that uses royalties paid to the federal government from offshore oil and gas extraction to fund onshore conservation programs. The LWCF is a widely popular program and is viewed as an important source of funding for key conservation initiatives. Despite this, authorization for the fund has lapsed several times in recent years (including most recently on September 30, 2018). By permanently reauthorizing the LWCF, the Act eliminates the uncertainty around future authorizations. It is important to note, however, that the Act does not mandate funding for the LWCF, which has historically been funded well below its authorized level of $900 million. The level of funding appropriated for the LWCF in the annual congressional budget process will be worth watching.

Wilderness Designations, National Monuments and National Park Size Increases. The Act designates more than one million acres of wilderness across Utah, New Mexico, Oregon and California, and increases the size of Death Valley National Park and Joshua Tree National Park in California. It also creates four new national monuments: the Mill Springs Battlefield National Monument and Camp Nelson Heritage National Monument, commemorating Civil War sites in Kentucky; the Medgar and Myrlie Evers Home National Monument in Mississippi, recognizing the civil rights activists; the Saint Francis Dam Disaster National Memorial and Monument in California, honoring the victims of the Saint Francis Dam disaster of March 12, 1928; and the Jurassic National Monument, created to preserve the paleontological, scientific, educational and recreational resources in this area of Utah. While national monuments can be designated administratively by the President, a legislative designation is much more durable and can only be reversed by a future act of Congress.

Wildfire Technology Modernization. The Act also includes measures to address the increasing risk of catastrophic wildfires, which have had devastating impacts across the West in recent years. For example, the Act directs the Department of the Interior and the Department of Agriculture to take steps to promote the use of best-available technologies to facilitate effective and cost-efficient wildfire responses, including establishing a research and development program to assess the effectiveness of utilizing unmanned aircraft system technologies in wildfire management operations. It also directs these federal agencies to coordinate with state wildfire agencies to develop technology such as GPS tracking systems to remotely locate fire resources for firefighters.

Mineral Withdrawals Near National Parks. The Act withdraws more than 370,000 acres of National Forest System land from disposition under federal mining laws. Specifically, the permanent mineral withdrawals apply to approximately 30,000 acres in Montana north of Yellowstone National Park and approximately 340,000 acres in Washington’s Okanogan-Wenatchee National Forest outside of North Cascades National Park. As with all such mineral withdrawals, the removal is subject to valid existing rights.

Increased Access for Recreational Activities on Public Lands. In addition to conservation and preservation issues, certain provisions in the Act are also designed to increase access to federal lands for recreational activities. In particular, the Act aims to expand opportunities for sporting activities by codifying that federal lands are open to hunting, fishing and recreational shooting unless otherwise expressly forbidden. It also details the process that the Department of the Interior and Department of Agriculture must follow before prohibiting these activities on federally managed lands, and makes clear that any such limitations may only cover “the smallest area for the least amount of time that is required for public safety, administration, or compliance with applicable laws.”

The Act ultimately represents a significant victory for public lands advocates, including not just conservationists, but also recreationalists looking for expanded opportunities on federal land. By codifying certain measures that could have otherwise been accomplished through administrative or executive action—such as monument designations and mineral withdrawals—Congress has protected those actions from reversal through litigation or future executive action. On the other hand, the Act leaves certain decisions, such as potential recreation access restrictions, to be accomplished through executive action, opening the door to the possibility of legal challenges. Moreover, the Act’s provisions directed at modernizing the federal government’s approach to wildfires show that the government remains focused on addressing this continuously increasing risk for states across the West. Finally, the Act’s passage by large majorities in both chambers signals that there may be opportunities to achieve bipartisan compromise on other public lands issues, even in an otherwise divided political climate.

Source: Lexology
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Socio-Ecomonics
03/05/19 04:16 PM
Last year NOHVCC asked for Partners and others to share recent OHV economic impact studies so NOHVCC could make them available to the OHV community. As usual our Partners responded. In addition, staff has collected various other economic impact studies that we were aware of. Take a look below to read a brief description of each study and click the link to download a pdf version.

These studies can be used to show the dramatic positive impact OHV recreation (and, in some cases, all recreation) can have on communities. They can also serve as inspiration for those who are seeking to quantify the impact of OHV use in their area.

These studies can be downloaded from NOVHCChttps://www.nohvcc.org/ohv-economic-impact-studies-available/

Additional economic impact studies are available from MUIRNet-News

Source: 4x4Wire.com
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Wildlife
03/05/19 04:12 PM
On February 26, 2018, the U.S. Fish and Wildlife Service issued a proposed rule to delist the Borax Lake chub (Gila boraxobius), a small fish that currently resides primarily in a single Oregon lake. Currently listed as an endangered species, the proposed rule states that the best available scientific and commercial information “indicates that the threats to the Borax Lake chub have been eliminated or reduced to the point where the species no longer meets the definition of an endangered or threatened species under the Endangered Species Act . . . .” The Federal Register notice states that the Service will accept comments on the proposed rule that are received or postmarked on or before April 29, 2019.

Borax Lake, the chub’s primary habitat, is a geothermally heated, alkaline spring-fed lake. The chub was the subject of an emergency listing in 1980. The emergency listing was prompted by proposed geothermal development in and around Borax Lake, and human modification of the lake, all of which threatened the chub’s survival. After the emergency listing ended, the Service formally listed the Borax Lake chub as an endangered species in 1980.

While delisting proposals are often contentious, the Borax Lake chub’s proposed delisting has been met with approval by some environmental groups who are touting the proposed delisting as another ESA success story. (See Center for Biological Diversity, Tiny Oregon Fish Recovered by Endangered Species Act, dated Feb. 25, 2019.)

Source: Lexology
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Climate Change
03/05/19 04:09 PM
In October 2018 the UN Intergovernmental Panel on Climate Change published its Special Report on Global Warming of 1.5°C, which provided a sobering update on the state of the environment. According to the report, “unprecedented changes” are needed to achieve the target of keeping global warming to a maximum of 1.5°C, after which the risk of extreme weather conditions – such as droughts, floods and forest fires – will significantly increase.

It’s not all bad news though. In need of hope, I turned to Lexology to see how lawmakers are responding to global calls for action and found that many countries are taking positive steps in this regard. Here are five recent developments from around the world which may actually help to mitigate the risks of climate change.

1. US Green New Deal

As the second highest emitter of carbon dioxide after China, many of us have a vested interest in what action the United States takes to mitigate global warming. One positive step in this regard may be Representative Alexandria Ocasio-Cortez’s Green New Deal, the outline for which was made public on 7 February 2019. According to Bergeson & Campbell PC, the policy package aims to reduce greenhouse gas emissions through the transformation of the US economy. Among other things, the deal calls for:

a transition to 100% renewable energy;
investment in infrastructure and industry; and
a commitment to clean air and a sustainable environment.

Of course, the proposed package is just that – a proposal. As Hunton Andrews Kurth LLP has pointed out, Cortez’s deal calls for action on issues well beyond the environment, and broad proposals such as these often struggle to attract sufficient consensus to gain approval.

2. The end of Australian coal mines?

On 8 February 2019 the New South Wales Land and Environment Court issued a landmark decision which some – such as Baker McKenzie – have speculated may signal the end of new coal mines in the state. In its decision, the court rejected an application to develop an open cut mine in the Gloucester Valley based on the impact that it would have on both climate change and the community. According to Johnson Winter & Slattery, this is the first time that an Australian court has refused an application based on greenhouse gas emissions and the associated impact on climate change. Thus, as Maddocks points out, it opens the door for future objectors to raise climate change effects as a reason to refuse consent for projects.

3. Increase in sustainable goods

The fashion industry has long since come under fire for its contribution to global warming. Just last week protestors took to the London streets to campaign against the levels of waste and pollution created by the industry. However, change may be afoot. DLA Piper recently provided an interesting overview of how major fashion brands are responding to consumer calls for sustainability and ethical manufacturing. For example, in 2017 the Green Carpet Fashion Awards were established to celebrate the commitment of luxury fashion houses to sustainability. In addition, Victoria Beckham recently announced that she would stop using exotic leather and adidas has pledged to use only recycled plastic by 2024.

Commercially, brands would be wise to listen to consumer demands for ethical fashion. According to Fox Williams LLP, the total global market for sustainable goods was estimated to be €2.5 trillion in 2017, which looks set to grow. Further, more than one-quarter of UK consumers avoided a product or service in 2018 because of its negative social or environmental impact.

4. Changing food industry

Consumer ethics are also driving change in the food industry, with many individuals now opting for a meat and dairy-free diet in order to reduce their environmental impact. Thankfully, Slaughter and May has advised that new technologies (eg, point-of-origin tags) are emerging, which should make it easier for consumers to determine whether certain foods are contributing to environmental degradation.

Further, on 16 January 2019 the EAT-Lancet commission published its groundbreaking report on sustainable food systems, which aims to revolutionise the human diet in order to help meet the UN Sustainable Development Goals and the Paris Agreement. According to Baker McKenzie, if implemented, the report is expected to influence supply chains and will have a significant impact on not only consumer behaviour, but also the regulation of food producers.

5. War on plastic

As well as having harmful effects for marine life and soil quality, scientists now believe that plastic may be contributing to global warming – during both its production (which requires the burning of fossil fuels) and its degradation (when it releases methane and ethylene). Fortunately, steps are being taken to mitigate the disastrous effects that plastic is having on the environment. For example, Kilburn & Strode LLP recently reported on the launch of the EU Strategy for Plastics, which aims to revolutionise the design, use, production and recyclability of plastics and help the European Union to use resources in a more sustainable way.

Here in the United Kingdom, the government recently proposed four initiatives to reduce single-use plastic (as reported on by Gowling WLG):

a new tax on plastic packaging manufactured in the United Kingdom, or imported (unfilled) into the United Kingdom, with less than 30% recycled content;
a new deposit return scheme for drinks containers;
a revamped packaging producer responsibility system; and
enhanced recycling rules for consumers.

Globally, we still have a long way to go to achieve the Paris Agreement’s target of a maximum global temperature increase of 2°C (which the United Nations now argues is too high). However, there have been some positive developments in the legal space in recent months which should hopefully help to drive meaningful change.

Source: Lexology
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All About Water
03/05/19 04:05 PM
The proposed rule evidences the HHS' and the Administration's continued interest in reducing federal spending for pharmaceutical products.

On February 6, 2019, the Department of Health and Human Services ("HHS") published in the Federal Register a proposed rule to significantly curtail discount safe harbor protections afforded under the Anti-Kickback Statute ("AKS"), currently codified at 42 CFR §1001.952(h).

Specifically, the proposed rule would revise the regulatory definition of "discount" to remove from safe harbor protection under the AKS most prescription drug rebates paid to pharmacy benefit managers ("PBMs"), health care plan sponsors paid under Medicare Part D, and Medicaid managed care organizations ("MCOs"). By doing so, HHS aims to eliminate what the agency has publicly called a "perverse incentive" that rewards prescription drug list price increases and to incentivize manufacturers to lower list prices and to encourage PBMs to negotiate greater discounts. Given that the Center for Medicare & Medicaid Services is the single largest payor of prescription drugs in the nation, HHS aims to reduce government drug spending from federal health care programs and ultimately lower out-of-pocket costs for consumers.

To accomplish these twin goals, the proposed new rule also would establish new safe harbor protections for certain arrangements with pharmaceutical manufacturers. Specifically, the two delineated protections would apply directly to (i) certain point-of-sale price reductions offered by manufacturers on prescription pharmaceutical products payable by a plan sponsor under Medicare Part D or MCO, and (ii) specific fixed fee arrangements between manufacturers and PBMs for services provided by the PBMs. Importantly, HHS does not intend for the proposed rule to have any effect upon existing protections for value-based arrangements.

The proposed rule evidences the HHS' and the Administration's continued interest in reducing federal spending for pharmaceutical products. HHS proposes that the amendments, if finalized, would come into effect on January 1, 2020. The public can weigh in on the proposed rule, available in the Federal Register here, during the open comment period through April 8, 2019. Interested parties have an opportunity to voice concerns and propose specific definitional language for the rule. Additionally, submissions can indicate whether the proposed effective date gives affected entities a sufficient transition period to fully restructure any arrangements that might fall outside the revised AKS discount safe harbor.

Source: Lexology
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Legal Issues
02/27/19 03:54 PM
In Sierra Club v. County of Fresno (S219783), the California Supreme Court unanimously reaffirmed that the substantial evidence standard of review does not always apply when a lead agency prepares an environmental impact report (“EIR”) for a development project. Rather, the court determined that the less deferential de novo standard applies if the EIR’s discussion of a potentially significant impact has been omitted or is factually insufficient. In other words, while a lead agency has considerable discretion as to the methodology and analysis it employs to analyze a potentially significant impact, an EIR must reasonably describe the nature and magnitude of the impact (i.e., include a meaningful explanation of why an impact is significant or not) if it is to survive judicial scrutiny. In County of Fresno, the court employed the de novo standard and held that the EIR’s air quality analysis was inadequate because it did not explain the connection between the project pollutants and negative health effects or explain why it could not make such a connection.

While some may view this decision as narrowing the scope of the substantial evidence standard, the court’s analysis relied heavily on existing precedent, including Laurel Heights Improvement Ass’n v. Regents of Uni. of Cal. (1988) 47 Cal.3d 376 and Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215. Following the rationale in these cases, the court in County of Fresno furthered the fundamental principle that, if an EIR omits basic information necessary for informed decisionmaking and public participation, that failure is prejudicial.

It is unclear how project opponents will attempt to exploit County of Fresno, in particular its discussion of the two standards of review: de novo and substantial evidence. Going forward, CEQA practitioners will not only need to ensure that the air quality analyses in EIRs (and perhaps, to some extent, in initial studies) include meaningful discussions of how project pollutants would affect people, but also consider whether other project impacts (e.g., construction noise) implicate human health and require similar discussion. In the meantime, we recommend the following best practices:

Do not assume you can rely on the substantial evidence standard of review if your EIR includes insufficient information or analysis of a project impact. An impact analysis that does not disclose the nature and magnitude of the impact will likely not survive de novo review if challenged, even if the EIR concludes that the impact would be significant.
Your EIR should make a reasonable effort to connect a project impact with its likely health consequences, at least with respect to air quality. If it is not scientifically possible to demonstrate fully the connection, the EIR should explain why.
The air quality analysis in your EIR should (a) provide a description of the impact each pollutant would have on human health and (b) provide the concentration levels at which pollutants would trigger the identified symptoms. However, a full-blown health risk assessment is not necessarily required.
If a proposed mitigation measure would “substantially mitigate” a significant project impact, or mitigate it to a level of insignificance, your EIR should explain why, in quantitative terms (e.g., quantified reduction in pollutant levels) where possible and qualitative terms otherwise.

A more detailed analysis of the case follows.

Background

In 2011, the County of Fresno approved the Friant Ranch project, a master-planned, pedestrian friendly community with 2,500 single-family and multi-family residential units, 250,000 square feet of commercial space and 460 acres of open space on a 942-acre site (the “Project”).

The petitioners challenged the County’s certification of the EIR on several grounds, including that: (1) the EIR was inadequate because it failed to include an analysis that correlated the Project’s emission of air pollutants to its impact on human health; (2) the mitigation measures for the Project’s long-term air quality impacts were vague, unenforceable and lacked specific performance criteria; and (3) the statement that the air quality mitigation measures would substantially reduce the Project’s significant air quality impacts was unexplained and unsubstantiated.

The trial court rejected all of those claims, but the Court of Appeal reversed. The Supreme Court granted the developer’s petition for review and framed the issues as follows:

The standard of review a court must apply when adjudicating a challenge to the adequacy of an EIR’s discussion of adverse environmental impacts and mitigation measures.
Whether CEQA requires an EIR to connect a project’s air quality impacts to specific health consequences.
Whether a lead agency impermissibly defers mitigation measures when it retains the discretion to substitute later adopted measures in place of those proposed in the EIR.
Whether a lead agency may adopt mitigation measures that do not reduce a project’s significant and unavoidable impacts to a less than significant level.

The Court’s Decision

Standard of Review

The court first discussed the appropriate standard of review. Under CEQA, a lead agency can abuse its discretion either by (1) failing to proceed in the manner required by law (i.e., in the manner CEQA provides) or (2) by reaching factual conclusions unsupported by substantial evidence. The court recognized that “[j]udicial review of these two types of errors differs significantly: While we determine de novo whether the agency has employed the correct procedures…we accord greater deference to the agency’s substantive factual conclusions.”

The court found that whether an EIR provides sufficient information is a mixed question of law and fact that requires courts to apply the less deferential de novo review. According to the court, the key question when determining whether an impact analysis contains sufficient information to satisfy CEQA is whether the EIR includes “sufficient detail” to “enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.”

The court noted that, if an agency omits a required discussion or provides a “patently inadequate one-paragraph discussion devoid of analysis,” the EIR will be inadequate as an informational document. Similarly, an EIR with a conclusory discussion of a significant environmental impact that does not disclose the nature and magnitude of the impact can be determined by a court to be inadequate as an informational document without reference to substantial evidence. The court rejected the developer’s argument that the de novo standard should only apply if a required discussion has been omitted altogether, while the substantial evidence standard should govern if the claim is that a required discussion is insufficient, and held that the de novo standard applies in either case. Simply put, if the analytical discussion itself is insufficient, the more deferential substantial evidence standard cannot be employed.

The court confirmed, on the other hand, that the substantial evidence standard would continue to apply to (1) an agency’s decision to determine the manner of the discussion of the potentially significant impacts in an EIR and (2) an agency’s decision to select (or reject) a particular methodology to analyze a project impact, which are factual questions that warrant more deference.

The court reiterated past precedent that “technical perfection or scientific certainty” is not required and that “[a]n agency has considerable discretion to decide the manner of the discussion of potentially significant effects in an EIR.”

Air Quality and Specific Health Impacts

The court then applied the de novo standard to assess the sufficiency of the air quality discussion in the EIR. It acknowledged that the EIR described the types of pollutants and tons per year and provided a general description of each pollutant and how it affects human health (including symptoms).

The court held, however, that this was not enough. It stated that the EIR failed to disclose the nature and magnitude of the significant impact by failing to correlate the increase in Project emissions with the adverse impacts on human health. The court determined the EIR should have provided the concentration levels at which pollutants would trigger the identified symptoms. In addition, even though the EIR provided some detail about ozone concentration levels, it did not provide the anticipated parts per million that would have resulted from the Project. Without this, the health impacts disclosed could not meaningfully inform the public of the Project’s impact on human health.

As the court succinctly put it, “after reading the EIR, the public would have no idea of the health consequences that result when more pollutants are added to a nonattainment basin.”

The County and the developer attempted to explain why the connection between emissions and human health could not be provided, given the current state of environmental science modeling. That might be true, the court somewhat glibly stated, but that explanation belonged in the EIR, not court briefs. The upshot is that, if an environmental impact cannot be analyzed, or fully analyzed, in an EIR, the EIR needs to say that and explain why. The EIR “must adequately explain what the agency does know and why, given existing scientific constraints, it cannot translate potential health impacts further.”

Importantly, the court recognized that CEQA does not mandate an in-depth health risk assessment for all projects. However, it remains to be seen how far much information and analysis regarding human health impacts will be “enough.” It also remains to be seen if the court’s reasoning will be applied to other impact analyses that may affect human health, such as noise and vibration, greenhouse gas emissions and hazards. Project opponents may also attempt (wrongly, we believe) to apply the court’s reasoning to the more limited analysis in an initial study supporting a mitigated negative declaration.

Mitigation Measures

With regard to the Project’s significant air quality impacts, the EIR stated that the proposed mitigation measures would “substantially reduce” that significant impact, but not to a level that was insignificant. This “bare conclusion” was not supported by any explanation or factual support. The court determined this was unlawful because it did not satisfy CEQA’s disclosure requirement.

The court rejected three other claims relating to the air quality mitigation measures. First, it addressed whether the County impermissibly deferred mitigation, based on a mitigation measure that partially reduced impacts and included a clause for the County to substitute new measures as “new technology and/or other feasible measures become available.” The court held that “[a]llowing future substitutions for equal or more efficient technology to mitigate a project’s acknowledged significant effects promotes CEQA’s goal of environmental protection and is not an impermissible deferral of mitigation or an abuse of discretion.”

Second, the court determined that the County did not violate CEQA by including mitigation measures that would not reduce significant environmental impacts to a less-than‑significant level. It affirmed that a public agency may approve a project with unmitigated significant impacts after adopting all feasible mitigation measures and a statement of overriding considerations.

Finally, the court turned aside the petitioners’ claim that mitigation measures requiring installation of HVAC systems and tree planting were vague and unenforceable. It found the measures sufficiently enforceable since the HVAC measure specified the brand and feasible cost of the units and the tree planting measure provided guidance to select appropriate shade trees.

Source: Lexology
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NEPA
02/27/19 03:38 PM
The decision gives landowners and developers a powerful tool to protect their interests and raises the bar for future critical habitat designations in unoccupied habitat.

The Supreme Court’s unanimous ruling in Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 586 U.S. (2018) has important implications for landowners facing “critical habitat” designations under the Endangered Species Act (ESA) for areas that are unoccupied by listed species. The timing of this decision likely means the US Fish and Wildlife Service (FWS) will incorporate it into forthcoming final regulations the FWS is currently promulgating.

Background

In Weyerhaeuser, the US Supreme Court considered two main questions:

Can critical habitat include areas where the species cannot currently survive?
Is the FWS determination not to exclude a particular piece of land as critical habitat reviewable by a court?

At the center of the dispute is a three-inch long frog, called the dusky gopher frog, that spends the majority of its time in burrows and stump holes. The FWS designated the dusky gopher frog as an endangered species in 2001 when the frog’s population had dwindled to a group of 100 living in a single pond in Mississippi. Under the ESA, when the FWS designates a species as threatened or endangered, it must also designate critical habitat for that species unless it is not prudent or determinable. Critical habitat may include areas that are currently occupied by the species, and areas unoccupied by the species if those unoccupied areas are essential for the conservation of the species. Before designating critical habitat, the ESA requires the Secretary “to take into consideration the economic impact” of the designation and authorizes him or her to “exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of [designation].”

In 2010, the FWS designated four areas known to have populations of the dusky gopher frog as critical habitat because they each possessed three physical and biological features “essential to the conservation” of the frog:

Ephemeral ponds
Upland open-canopy forest containing the holes and burrows in which the frog could live
Open-canopy forest connecting the two

The FWS determined that the four designated occupied critical habitats would not be enough to ensure the frog’s conservation and so designated an area of unoccupied critical habitat consisting of a 1,544-acre privately-owned site in St. Tammany Parish, Louisiana. The FWS dubbed this area “Unit 1.” The last known dusky gopher frog on Unit 1 was seen in 1965. Since that time, the majority of Unit 1 had become a closed-canopy timber plantation. Despite not having open-canopy forests necessary for designation as critical habitat, the FWS determined that an open-canopy forest could be restored with reasonable effort.

When proposing Unit 1 as critical habitat, FWS also considered the economic impacts of the designation. Despite finding that the economic impact could reach US$33.9 million, the FWS concluded the potential costs were “not disproportionate” to the conservation benefits of designation and thus would not exercise its discretion to exclude Unit 1 from the dusty gopher frog’s critical habitat designation.

Unit 1’s owners, the Weyerhaeuser Company and family landowners, sued the FWS in an attempt to vacate Unit 1’s designation as critical habitat. Weyerhaeuser made two principle arguments in its suit:

That the FWS could not designate Unit 1 as critical habitat because the dusty gopher frog could not survive there in its current state. In other words, Unit 1 cannot be critical habitat because it is not currently suitable as habitat for the dusty gopher frog.
That the FWS determination to not exclude Unit 1 from the frog’s critical habitat was arbitrary, capricious, and an abuse of discretion because FWS did not adequately weigh the benefits of designating Unit 1 against the economic impact.

The US District Court for the Eastern District of Louisiana rejected both arguments, holding that Unit 1 met the statutory definition of critical habitat and that the FWS determination not to exclude Unit 1 was “committed to agency discretion by law” and therefore not reviewable. The US Court of Appeals for the Fifth Circuit affirmed and the US Supreme Court granted certiorari.

Does critical habitat have to be “habitat”?

In determining whether critical habitat must also be “habitat,” the Court looked to both the ordinary understanding of how adjectives work along with the statutory source of authority for critical habitat designations. He first noted that “‘critical habitat’ is the subset of ‘habitat’ that is ‘critical’ to the conservation of an endangered species.” Then, looking at the statutory language, which states that the Secretary must “designate any habitat of such species which is then considered to be critical habitat,” he concluded that “[o]nly the ‘habitat’ of the endangered species is eligible for designation as critical habitat.”

While holding that critical habitat must also be habitat, the Court acknowledged that the lower courts did not have the occasion to interpret the term “habitat” or determine whether Unit 1 could qualify as “habitat” under the ESA. Therefore, the Court remanded those questions back to the Court of Appeals for consideration.

Is the FWS determination not to exclude an area from critical habitat designation reviewable by a court?

The Court easily came to the conclusion that the FWS determination not to exclude an area from critical habitat designation is reviewable. “[T]his case involves the sort of routine dispute that federal courts regularly review: An agency issues an order affecting the rights of a private party, and the private party objects that the agency did not properly justify its determination under a standard set forth in the statute.”

The Court rejected the argument that this type of decision was “committed to agency discretion by law.” That exception in the Administrative Procedure Act (APA) has been read quite narrowly restricting it to “rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Here, the statute requires the Secretary to consider economic impact and relative benefits before deciding whether to exclude an area from critical habitat or to proceed with designation. This, the Court said, sets forth enough of a standard against which to judge the Secretary’s exercise of discretion.

This issue too was remanded to the Court of Appeals to “consider whether the [FWS] assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision not to exclude Unit 1 arbitrary, capricious, or an abuse of discretion.”

What this means for developers and landowners

First, while the lower courts will still need to decide on the exact contours of the FWS’ powers to designate critical habitat, the Court sent clear signals that it believed FWS overstepped its authority. The practical effect, however would likely be smaller critical habitat designations, and more property excluded from critical habitat designations. Indeed, even before this ruling, the FWS routinely excludes areas from critical habitat designation that have been developed, such as paved roads, buildings and other impervious surfaces that are no longer natural in nature.

Second, by ruling that the FWS determinations to not exclude an area as critical habitat are judicially reviewable, the Court gave landowners and developers a powerful tool to protect their interests and to challenge their lands’ designations as not meeting the strict criteria of “habitat.” This means that the FWS will need to carefully document its decision-making process such that a court will not find its ultimate decision to be arbitrary or capricious.

Additionally, as described in our August 2018 Client Alert, the FWS and National Marine Fisheries Service (NMFS) has proposed numerous reforms to the ESA implementing regulations, including those related to critical habitat designations. These reforms, which some commentators described as an attempt by the Trump administration to dismantle species and habitat conservation under the ESA, are intended to streamline and accelerate federal environmental reviews and permitting for various projects.

The Weyerhaeuser decision likely provides further support for at least one of the proposed reforms. Current regulations, promulgated by the Obama administration in 2016, allow the FWS to evaluate both occupied and unoccupied areas concurrently when designating critical habitat, without any step-wise considerations. The proposed rules would restore the pre-2016 requirement that the FWS “first evaluate areas occupied by the species” when designating critical habitat, and to consider unoccupied areas only when the unoccupied areas are essential because either:

Occupied areas are inadequate to ensure the conservation of the species
The result would be a less efficient conservation of the species

The preamble to the proposed rule states that restoration of the pre-2016 rule is meant to address concerns that “the Services intended to designate as critical habitat expansive areas of unoccupied habitat” and that the proposed rule changes “will provide additional predictability to the process of determining when designating unoccupied habitat may be appropriate.” The FWS presents a hypothetical that mirrors the facts in Weyerhaeuser as an example of how the agency can take into account the amount of restoration required to turn unoccupied areas into suitable habitat: “For example, the Services 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.”

The final regulations were anticipated to be issued in December 2018, but have been delayed. With the Court’s ruling in Weyerhaeuser, we anticipate that the FWS will take the Court’s decision into consideration in developing its final rule, and could codify these developments as logical outgrowths of the proposed rules.

Next steps

The case has been remanded to the Fifth Circuit for consideration of the two issues set forth by the Supreme Court. The Fifth Circuit is expected to remand to the Eastern District of Louisiana to reconsider in light of the Supreme Court’s decision. While the ruling was a blow to environmentalists, property rights groups including the Cato Institute applauded the decision, declaring it “an important win for property owners against arbitrary agency decisions.”

Source: Lexology
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All About Water
02/27/19 03:31 PM
On February 14, 2019, the Environmental Protection Agency and the Department of the U.S. Army Corps of Engineers (collectively "the agencies") published the "Waters of the United States" ("WOTUS") proposed rule in the Federal Register. 84 Fed. Reg. 4154-4220 (Feb. 14, 2019)(to be codified at 33 C.F.R. pt. 328). According to the agencies, this proposed rule is intended to provide a clearer definition of which "navigable waters" are federally regulated under the Clean Water Act ("CWA").

The CWA regulates discharges of pollutants and other activities related to "navigable waters," which the CWA describes as "waters of the United States." 33 U.S.C. 1362(7). The CWA does not specifically define WOTUS, but the proposed rule will determine which bodies of water are under the jurisdiction of the agencies for regulation under various federal programs including: the National Pollutant Discharge Elimination System Program, National and Local Pretreatment Standards, Dredge or Fill Discharge Permit Program, Sewage Sludge Use and Disposal Program and Water Quality Management.

Decades of controversy, including rule changes and lawsuits spanning multiple administrations, have sought to clarify the reach of federal control over the nation’s waterways. The United States Supreme Court has addressed this issue on multiple occasions beginning in 1985 and most recently in Rapanos v. United States, 547 U.S. 715 (2006). On February 19, 2019, the Supreme Court agreed to consider a Ninth Circuit opinion that held the CWA gives the government the authority to regulate discharges through groundwater, a provision that is an exception in the proposed rule as currently drafted. Hawai’i Wildlife Fund v. Cnty. Of Maui, 886 F.3d 737 (9th Cir. 2018).

As a brief background, in 2015, under the Obama Administration, the agencies published the "Clean Water Rule: Definition of 'Waters of the United States' (80 Fed. Reg. 37054, June 29, 2015)" that created an expanded definition of WOTUS. This definition substantially broadened the previous interpretation of WOTUS and subjected more bodies of water to the requirements of the CWA on the basis that they share a "significant nexus" with larger bodies of WOTUS like rivers, lakes and oceans. This "significant nexus" test was premised upon Justice Kennedy’s concurring opinion in Rapanos. This new 2015 rule was immediately challenged in the courts and stayed by the 6th Circuit. See, i.e., In re: Environmental Protection Agency and Department of Defense Final Rule; "Clean Water Rule: Definition of Waters of the United States," 80 Fed. Reg. 37,054 (June 29, 2015), Nos. 15-3799/3822/3853/3887, (6th Cir., 2015); Carolina Coastal Conservation League v. Pruitt, D.S.C., No. 18-00330, 8/16/18.

On February 28, 2017, President Trump issued Executive Order 13778 titled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule" which charged the agencies to "publish for notice and comment a proposed rule rescinding or revising the [2015] rule, as appropriate and consistent with law." 82 Fed. Reg. 12497 (March 3, 2017).

The proposed rule as published in the Federal Register creates six different categories of regulated waters including the following to be codified under 33 C.F.R. §328.3(a):

1) Waters (Traditional Navigable Waters), including the territorial seas, waters subject to the ebb and flow of the tide and waters currently or in the past used in interstate and foreign commerce. 84 Fed. Reg. 4203, (to be codified under 33 C.F.R. §328.3(a)(1));

2) Tributaries that contribute perennial or intermittent flow to traditional navigable waters. 84 Fed. Reg. 4203 (to be codified under 33 C.F.R. §328.3(a)(2)), see also, 84 Fed. Reg. 4155;

3) Certain ditches that satisfy the requirements in (a)(1) -- traditional navigable waters or connected waters with a tributary or adjacent wetland that meets the definition of tributary. 84 Fed. Reg. 4203 (to be codified under 33 C.F.R. §328.3(a)(3)). Generally, ditches are not meant to be considered "waters of the United States", however specific ditches, including some adjacent wetlands as defined, may be included if specific requirements enumerated in the rule are satisfied. See also, 84 FR. 4155 and 4179.

4) Certain lakes and ponds that satisfy any of the conditions in a traditional navigable water are proposed to be included. 84 Fed. Reg. 4204 (to be codified under 33 C.F.R. §328.3(a)(4));

5) Impoundments have historically been determined by the agencies to be jurisdictional because impounding a "water of the United States" generally does not change the water body’s status as a "water of the United States." Most impoundments do not cut off a connection between upstream tributaries and a downstream traditional navigable water or territorial sea. 84 Fed. Reg. 4204 (to be codified under 33 C.F.R. §328.3(a)(5)), see also, 84 Fed. Reg. 4172; and

6) Adjacent Wetlands includes all adjacent wetlands to traditional navigable waters, including the territorial seas; tributaries to those waters; jurisdictional ditches; jurisdictional lakes and ponds; and impoundments of otherwise jurisdictional waters. 84 Fed. Reg. 4204 (to be codified under 33 C.F.R. §328.3(a)(6)).

The proposed rule also includes 11 exemptions to be codified under 33 C.F.R. §328.3(b) as follows:

1) Waters or water features not referred to as a covered WOTUS. 84 Fed. Reg. 4204 (to be codified under 33 C.F.R. §328.3(b)(1));

2) Ephemeral features and diffuse stormwater runoff. 84 Fed. Reg. 4204 (to be codified under 33 C.F.R. §328.3(b)(3)) (i.e. waterbodies that only exist for a short period due to rain, snow melt or other precipitation);

3) Groundwater, including groundwater drained through such surface drainage systems. 84 Fed. Reg. 4204 (to be codified under 33 C.F.R. §328.3(b)(2)), see also, 84 Fed. Reg. 4190;

4) All ditches except those traditional navigable "waters of the United States" or ditches constructed in a tributary as long as those ditches also satisfy the conditions of the tributary definition; or ditches constructed in an adjacent wetland as long as those ditches also satisfy the conditions of the tributary definition. 84 Fed. Reg. 4204 (to be codified under 33 C.F.R. §328.3(b)(4));

5) Prior converted cropland. 84 Fed. Reg. 4204 (to be codified under 33 C.F.R. §328.3(b)(5));

6) Artificially irrigated areas including fields of flooded rice or cranberry growing that would revert to an upland if the irrigation ceased. 84 Fed. Reg. 4204 (to be codified under 33 C.F.R. §328.3(b)(6));

7) Artificial lakes and ponds constructed in an upland such as water storage reservoirs, farm and stock watering ponds, and log cleaning ponds 33 C.F.R.. 84 Fed. Reg. 4204 (to be codified under §328.3(b)(7));

8) Water filled depressions created in upland incidental to mining or construction activity and pits excavated for fill, sand or gravel. 84 Fed. Reg. 4204 (to be codified under 33 C.F.R. §328.3(b)(8));

9) Stormwater control features excavated or constructed in upland to convey, treat, infiltrate or store stormwater runoff. 84 Fed. Reg. 4204 (to be codified under 33 C.F.R. §328.3(b)(9));

10) Wastewater and recycling structures constructed in upland, such as detention, retention and infiltration basins and ponds, groundwater recharge basins. 84 Fed. Reg. 4204 (to be codified under 33 C.F.R. §328.3(b)(10)); and

11) Waste treatment systems. 84 Fed. Reg. 4204 (to be codified under 33 C.F.R. §328.3(b)(11)).

The agencies are accepting public comment on the proposal. The public comment period will close on April 15, 2019.

Source: Lexology

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Federal Legislation
02/20/19 08:32 PM
H.R. 806: Portable Fuel Container Safety Act of 2019.

Introduced: Jan 28, 2019
Status: Introduced on Jan 28, 2019

This bill is in the first stage of the legislative process. It was introduced into Congress on January 28, 2019. 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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