U.S. Fish and Wildlife Service Finalizes Changes to Voluntary Endangered Species Act Programs and Related Permitting Process
On Friday, April 12, 2024, the U.S. Fish and Wildlife Service (the Service) issued a Final Rule making changes to 50 CFR part 13 to clarify and expedite the process for issuing enhancement of survival permits and incidental take permits pursuant to Section 10(a)(1)(A) and (B), respectively, of the Endangered Species Act. The regulatory changes are intended to provide the Service greater flexibility in implementing the permitting process and generate greater conservation results by encouraging additional engagement in voluntary programs associated with these permits, including safe harbor agreements (SHAs), candidate conservation agreements with assurances (CCAAs), and habitat conservation plans (HCPs).
EPA Issues Amendment to Waters of the U.S. Rule Following Sackett Decision
The U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), on August 29, 2023, issued a direct final rule amending the scope of “Waters of the United States” as defined in Clean Water Act (CWA) regulations. The final rule implements the U.S. Supreme Court’s recent decision in Sackett v. EPA, in which the Court held that only wetlands adjacent to Waters of the U.S. with a continuous surface connection to relatively permanent waters adjoining interstate navigable waters are to be regulated as jurisdictional waters.
Spring 2023 Agenda Previews Continued U.S. Significant Environmental Regulatory Action
On June 13, 2023, the Biden administration released the 2023 Spring Unified Agenda of Regulatory and Deregulatory Actions (Agenda). The Agenda lists federal agencies’ planned “short-term” regulatory actions to be taken over the next 12 months and “long-term” actions under development. The dates listed in the Agenda are based on publication dates in the Federal Register. Stakeholders should take note, as the Agenda provides a window into the administration’s priorities and strategies:
Biden Administration Reaffirms and Reflects on Commitment to Environmental Justice
The Biden administration has recently reinforced the President’s environmental justice (EJ) agenda through two actions. Stakeholders who engage with the federal government should be aware of how the administration is expanding these efforts, which inform the government’s enforcement actions and review of projects under the National Environmental Policy Act (NEPA).
EPA Proposes Granting Louisiana Primacy Over Carbon Sequestration Well Program
The U.S. Environmental Protection Agency (EPA) proposed to approve Louisiana’s request for control over the permitting of carbon sequestration wells in the state. EPA’s approval would provide Louisiana authority under the Safe Drinking Water Act (SDWA) Underground Injection Control (UIC) program to administer a “Class VI” injection well program for the geologic sequestration of carbon dioxide, following similar such approvals for North Dakota and Wyoming. Stakeholders should take note of this proposed action because EPA approval of Louisiana’s program could advance carbon capture and sequestration (CCS) projects stymied by the backlog of permit applications pending before the EPA.
Biden Administration Advances Overhaul of Regulatory Review Processes
On April 6, 2023, President Joe Biden signed an executive order (EO), “Modernizing Regulatory Review,” amending President Bill Clinton’s EO 12866, which has served as the foundation for regulatory review and analysis across administrations for nearly 30 years. The following day, the White House Office of Management and Budget (OMB) issued several related actions. These included proposed revisions to guidelines for benefit-cost analysis and processes for public participation in the regulatory review process.