Paulina Williams January 10, 2019 · Paulina Williams. January 10, 2019. Federal Regulatory Update....
Transcript of Paulina Williams January 10, 2019 · Paulina Williams. January 10, 2019. Federal Regulatory Update....
CONFIDENTIAL© Copyright Baker Botts 2018. All Rights Reserved.
Paulina WilliamsJanuary 10, 2019
Federal Regulatory Update
BAKER BOTTS 2
“The Only Thing That Is Constant Is Change”
― Heraclitus
BAKER BOTTS 3
2017 – 2018
• Over two years, federal agencies issued – 176 deregulatory actions
• 57 of which are significant deregulatory actions and
– 14 significant regulatory actions- Fall 2018 Regulatory Plan,
- Office of Information and Regulatory Affairs- Office of Management and Budget
BAKER BOTTS 4
Federal Regulatory Update
What’s on the Administration’s Agenda
Where WOTUS Stands and the Pending Proposal404 Delegation and 401 Issues
Pending Rule Proposals
Regulatory Reform Laundry List
Waters of the United States and Clean Water Act 404 Issues
Endangered Species
BAKER BOTTS 5
Issued … Proposed … Pending …
Endangered Species Listing for TX Hornshell Mussel
Withdrawal of Mitigation Policies
Rural Development Environmental Regulation for Rural Infrastructure Projects
Effective March 12, 201811 other Texas fresh water mussels remain under considerationCites impairment of water quality, loss of flowing water, climate change, etc. 83 Federal Register 5720
Withdrawal of the: ESA Compensatory Mitigation Policy published Dec. 17, 2016 and Mitigation Policy published Nov. 21, 2016
Service specifically states that the ESA neither requires a net conservation gain nor a no net loss outcome for mitigation.83 Federal Register 36469
USDA Direct Final Rule Eff. Jan. 7, 2019
Allow limited flexibility to obligate federal funds for infrastructure projects prior to completion of the environmental review while ensuring full compliance with NEPA procedures prior to project construction and disbursement of any RD funding83 Federal Register 59269
DOI Policy of Deference to State Wildlife Management
Water Supply Rule Other Pending Rules
Memorandum provides that DOI is committed to deferring to States on fish and wildlife management, except as otherwise required by Federal law.Implementation plan within DOI expected ~Feb 2019
Corps policies governing use of Corps reservoirs for domestic, municipal, and industrial water supply Proposed December 2016Comment closed Nov 2017Action Expected Aug 2019
NPDES Program Update Rule Phase I and New NPDES Forms final action ~Winter/Spring 2019Phase II on longer timeline
Hazardous Substance Spill PreventionPropose no new rules instead of SPCC-like rules
Consent Decree requires final action by Aug. 16, 2019
BAKER BOTTS 6
… On the Horizon
Lead & Copper Rule Emerging Contaminants
Modification of Nationwide Permits
White Paper 2016 on existing rule implementationProposal Expected ~ Feb 2019
Designation of Per-and Polyfluoroalkyl Substances as Hazardous SubstancesEvaluating need for a MCLDeveloping PFAS Management PlanDeveloping groundwater cleanup recommendations
Proposed Rule expected ~ June 2019
9 NWPs favoring energy sector including NWP 3 (Maintenance) and NWP 12 (Utilities)
NEPA Reform Peak Flows Management
Clean Water Act Groundwater-Based Liability
CEQ Advanced Notice of Proposed Rulemaking - 83 Fed. Reg. 28951 (June 20, 2018)CEQ Proposal Expected ~ Feb 2019USDA NEPA Reform Proposal ~ March 2019
Proposed Rule expected ~ July 2019POTWs with separate sanitary sewer systems Ensuring consistent national permitting approach that allows efficient POTW operation managing and treating peak flows under wet weather conditions while protecting the public from potential adverse health effects of inadequately treated wastewater
CWA liability based on discharge to WOTUS through groundwaterDOJ Amicus Brief encouraging Supreme Court Review filed 1/3/19Unidentified agency action expected ~Spring 2019
BAKER BOTTS 7
Waters of the United States
Texas A&M Agrilife Extension
Why are we talking about this?
Why are we STILL talking about this?
BAKER BOTTS 8
Why Does this Rule Matter?
• CWA 404 Permitting– Any foot print expansion, ever?– Any new, replaced, or significant maintenance of
infrastructure?– Do you have any schedules for the above?
• NPDES– Point source discharges– 316(b) applicability for cooling water intakes
• SPCC
BAKER BOTTS 9
Applicability as of January 1, 20192015 WOTUS and 1986/1988 WOTUS
BAKER BOTTS 10
2015 Waters of the U.S. Definition
• Categorically In – Broad definitions of tributaries and adjacent waters
• Categorically Out– Express exclusion for waste treatment systems, certain
upland ditches & ponds, etc.• Some remaining case-by-case• Fundamental basis →"Significant nexus“• Agencies stressed judgments in rule
were based on:– "The science"
• Connectivity Report– The law– Their experience and expertise
BAKER BOTTS 11
2018 Proposed Waters of the U.S. Definition
• Categorically In– Six categories– Definition of tributary and adjacency limited
• Categorically Out– Exclusions even if otherwise would be in– Catchall that if not categorically in then categorically out,
including clarifications for specific features• Fundamental basis → CWA Statutory Text• Agencies stress judgments in rule are based on:
– The law & policy derived from the text of the CWA– Informed by the science reflected in the Connectivity
Report to the extent allowed under the text of the CWA
BAKER BOTTS 12
Primary Waters and Impoundments
1986/1988 Rules 2015 WOTUS Rule 2018 Proposed WOTUS Rule
Primary Waters
Traditionally navigable waters
Territorial Seas
Interstate waters
Traditionally navigable waters
Territorial Seas
Interstate waters
Traditionally navigable waters
• Including the Territorial Seas
Interstate waters
Impoundments
Impoundments of otherwise jurisdictional waters
Impoundments of otherwise jurisdictional waters
Impoundments of otherwise jurisdictional waters
BAKER BOTTS 13
Tributaries and Ditches
1986/1988 Rules 2015 WOTUS Rule 2018 Proposed WOTUS RuleTributaries
Undefined Ordinary highwater mark and bedand banks
Ephemeral streams to extent volume,frequency, and duration of flowestablish bed and banks and ordinaryhighwater mark
Natural, man-altered, or man-made
Contributes flow either directly orthrough another water to a TNW
Perennial or Intermittent Flow in a“typical year”
No ephemeral streams, meaningthose that flow only in response toprecipitation
Natural, man-altered
Contributes flow either directly orthrough another water to a TNW
DitchesIncluded ditches with flow toPrimary Waters, except those:
excavated wholly in and drainingonly uplands and
that do not carry a relativelypermanent flow of water
Included ditches with flow toPrimary Waters, except those with:
ephemeral flow that were not built in& did not relocate a tributary or
intermittent flow and not built in anddid not relocate a tributary and didnot drain wetlands
Only ditches that
meet the definition of “tributary”and are
constructed in tributary or
constructed in a wetland
BAKER BOTTS 14
Lakes and Ponds
1986/1988 Rules 2015 WOTUS Rule 2018 Proposed WOTUS Rule
Lakes and Ponds
Itself a TNW
Extent of Commerce Clause but
Not an isolated water; may requiresignificant nexus to TNW
Itself a TNW
“Adjacent” to otherwisejurisdictional waters or
Analyzed case-by-case forsignificant nexus if within 4000 feetof tributary
Itself a TNW
Contributes perennial or intermittentflow to TNW in a “typical year”through a feature—whetherjurisdictional or not—that itselfcontributes perennial or intermittentflow or
Receives flood waters in a typicalyear via overtopping from anotherwise jurisdictional water
BAKER BOTTS 15
Adjacency
BAKER BOTTS 16
2018 Exclusions
1) Waters that are not specifically identified as jurisdictional
2) Groundwater
3) Ephemeral surface features
4) Ditches that are not specifically identified as jurisdictional
5) Prior converted cropland
6) Artificially irrigated areas
7) Artificial lakes and ponds constructed in upland
8) Water-filled depressions created in upland incidental to mining or construction
9) Stormwater control features excavated or constructed in upland
10) Wastewater recycling structures constructed in upland and
11) Waste treatment systems – Newly Defined
BAKER BOTTS 17
Path Forward
• Opportunity to comment on the proposal– EPA says 60 days from publication in the Federal Register
• Recognize will not be a settled definition until completion of judicial review– That also assumes no intervening regulatory action
• Consider proactive management of risk– Approved JDs good for five years– Evaluating projects conservatively depending on backdrop and timing
• Consider if you want to support Texas seeking 404 delegation– Corps issued guidance on what it will treat as non-assumable waters
• Retains Section 10 waters and adjacent wetlands• Clears major hurdle for states seeking delegation
• State 401 Certifications increasingly weaponized
BAKER BOTTS 18
Proposed Revisions to ESA Regulations
• In July 2018, the Services released three proposed rules that, if finalized, would revise portions of the regulations implementing Sections 4 and 7 of the ESA
• Comment period closed September 24, 2018
• Now at OMB – Final Step
BAKER BOTTS 19
Three Proposed ESA Rules
1. Procedures and criteria used for listing or removing species from the T&E lists and designating critical habitat (Section 4)
2. Interagency consultation processes to make them more efficient and consistent (Section 7)
3. Species newly listed as threatened will require specific rule to trigger endangered species protections [no longer a blanket, automatic 4(d) Rule) (Section 4(d) and Section 9)]
83 Federal Register 35174 et seq. (July 25, 2018)
• 36 distinct proposals– Many codifications of existing practice
BAKER BOTTS 20
A Sampling of the Proposed Changes
• Critical Habitat– Designation of unoccupied critical
habitat• Related development - Supreme
Court just ruled 8-0 that must be “habitat” to be critical habitat remanding case where unoccupied land was designated critical habitat
– When not prudent to designate critical habitat
• Removes prohibition on referencing economic impacts in the listing decision, though retains prohibition on considering economic impacts
• Defines “foreseeable future” which is the timeline used in evaluating listing decisions
• Clarifies criteria for delisting species
• Address alternative consultation mechanisms
• Revise the definitions of “destruction or adverse modification” & “effects of the action”
• Address certainty of mitigation proposed by action agencies
• Otherwise improve the consultation process
AUSTIN
BEIJING
BRUSSELS
DALLAS
DUBAI
HONG KONG
HOUSTON
LONDON
MOSCOW
NEW YORK
PALO ALTO
RIYADH
SAN FRANCISCO
WASHINGTON
bakerbotts.com
©Baker Botts L.L.P., 2018. Unauthorized use and/or duplication of this material without express and writtenpermission from Baker Botts L.L.P. is strictly prohibited. Excerpts and links may be used, provided that full andclear credit is given with appropriate and specific direction to the original content.