During the third quarter of 2021, there were several federal regulatory developments from the United States (U.S.) Fish and Wildlife Service (USFWS), U.S. Environmental Protection Agency (EPA), U.S. Army Corps of Engineers (USACE), and National Marine Fisheries Service (NMFS). A court order resulted in changes to the definition of “waters of the U.S.,” findings were made on petitions to list species, advance notice of proposed rulemaking was announced for simplifying incidental take permits for eagles, and new resources related to environmental justice were published. In addition, the California State Water Resources Control Board (State Water Board) proposed a General Order for restoration projects. Summaries of each of these developments with links containing additional information and details are provided in the following subsections.
COURT ORDER FOR REMAND
Definition of Waters of the United States
As discussed previously in our Q2 Update, the EPA and USACE (the agencies) announced their intention on June 9, 2021 to initiate a new rulemaking process to revise the definition of “waters of the U.S.” On Aug. 4, 2021, the agencies announced the start of a two-step rulemaking process, which includes first proposing a rule to rescind the Navigable Waters Protection Rule (NWPR) and temporarily replacing it with the regulatory definition used prior to 2015, and then proposing a rule that includes a new definition. Opportunities for public feedback were provided through a series of six virtual public hearings that took place in August and early September. In addition, the agencies announced their intention to host a series of 10 regional field hearings to solicit feedback on what has and has not worked in different geographic areas under previous definitions of the “waters of the U.S.” More information is located here: https://www.govinfo.gov/content/pkg/FR-2021-08-04/pdf/2021-16643.pdf.
On August 30, 2021, a U.S. District Judge presiding in the District of Arizona issued an order vacating and remanding the NWPR in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. On September 3, 2021, the agencies announced that they would be reverting to a pre-2015 definition of “waters of the U.S.” until they are able to promulgate a new rule and would continue to pursue the two-step rulemaking process. The pre-2015 rules were enacted in 1986 and later modified by two Supreme Court decisions and associated agency guidance. In Solid Waste Agency of Northern Cook County (SWANCC) v. United States, the Supreme Court issued a decision that restricted the USACE’s jurisdiction to navigable waterways (and associated tributaries and wetlands) and determined that protection of “isolated” wetlands does not fall under the jurisdiction of the Clean Water Act. In Rapanos v. United States, a plurality of justices concluded that regulatory authority should only extend to wetlands/waters with a “continuous surface connection” to a navigable waterway. Supreme Court Justice Anthony Kennedy proposed a “significant nexus” test for determining federal Clean Water Act jurisdiction, which said that a water body would only be subject to federal regulation if that water body would significantly affect the “chemical, physical, and biological integrity” of a downstream navigable waterway. The agencies issued guidance documents after both SWANCC and Rapanos, which are still applicable to the pre-2015 regulatory regime.
Information on current guidance and implementation related to waters of the U.S. is available here: https://www.epa.gov/wotus/current-implementation-waters-united-states.
FINDINGS ON PETITIONS TO LIST A SPECIES
12-Month Findings on Petitions to List Southern Oregon and Northern California Coastal Spring-Run Chinook Salmon
As discussed previously in our Q1 Update, the NMFS announced a 90-day finding on the petition to list the Southern Oregon and Northern California Coastal spring-run Chinook salmon (Oncorhynchus tshawytscha) on March 16, 2021, concluding that the spring-run Chinook salmon may qualify as separate Evolutionarily Significant Units (ESUs; i.e., genetically distinct) from the fall-run Chinook salmon. On August 17, 2021, the NMFS determined that listing the spring-run Chinook salmon populations as threatened or endangered ESUs is not warranted. The spring-run and fall-run Chinook salmon populations are genetically similar due to ongoing interbreeding and a recent common ancestry; thus, the spring-run Chinook salmon populations do not meet the reproductive isolation and genetic legacy criteria to be considered ESUs separate from the fall-run Chinook salmon populations, and do not meet the statutory definition of a species under the Endangered Species Act.
More information is available here: https://www.govinfo.gov/content/pkg/FR-2021-08-17/pdf/2021-17211.pdf.
90-Day Finding on a Petition to List the American Bumble Bee and Long Valley Speckled Dace
On September 29, 2021, the USFWS announced a 90-day finding on several petitions, including two species that occur in California: American bumble bee (Bombus pensylvanicus) and Long Valley speckled dace (Rhinichthys osculus ssp.). The USFWS found the petitions to present information indicating that the petitioned actions may be warranted, and announced that it plans to initiate status reviews of these species and issue 12-month petition findings based on the reviews.
Potential threats to the American bumble bee that were identified in the petition include habitat destruction, loss of genetic diversity, climate change, and competition from non-native honeybees; potential threats to the Long Valley speckled dace include geothermal development, habitat alteration, disease, invasive species, and climate change.
More information is available here: https://www.federalregister.gov/documents/2021/09/29/2021-20963/endangered-and-threatened-wildlife-and-plants-90-day-findings-for-five-species.
On September 14, 2021, the USFWS announced that it was providing advance notice of proposed rulemaking and soliciting public comment to expediate and simplify the permit process authorizing incidental take of eagles. Permits for the incidental take of eagles were established in 2009 (74 Code of Federal Regulations 46877). Due to the increased number of permit applications in recent years, the USFWS is seeking comments regarding creation of a more streamlined permitting framework. Specifically, the USFWS is requesting comments about the portions of the current application process that hinder processing and implementation and new regulatory approaches that would reduce the time and cost for permitting. In addition, the USFWS is seeking recommendations for guidance that could be developed under the current regulations and/or targeted revisions to the current regulations that would reduce the time and cost for applying for permits. Comments can be submitted on or before October 29, 2021.
More information is available here: https://www.fws.gov/policy/library/2021/2021-19717.pdf.
New Resources Related to Environmental Justice
On July 29, 2021, the EPA published graphs, datasets, and interactive maps that combine information on air pollution emitted by fossil fuel-fired power plants collected by the EPA and the Department of Energy’s Energy Information Administration with key demographical data on communities within 3 miles of each plant from the EPA’s EJSCREEN. The graphs compare six key population groups (i.e., people with low income, people of color, those with less than a high school education, people who are linguistically isolated, children under 5, and those over age 64) near power plants to the rest of the nation.
The creation of these resources is a result of the Power Plants and Neighboring Communities initiative, which aims to empower the public and policymakers with tools to better understand the impacts of air pollution on nearby communities. To explore these resources, visit https://www.epa.gov/airmarkets/power-plants-and-neighboring-communities.
Restoration Projects Statewide
On July 22, 2021, the State Water Board posted a revised notice that written comments would be accepted on the proposed Order for Clean Water Act Section 401 Water Quality Certification (WQC) and Waste Discharge Requirements (WDRs) for Restoration Projects Statewide (proposed General Order) and the supporting draft Program Environmental Impact Report (PEIR). A public workshop was held on August 4, 2021, and the deadline for written comments was August 13, 2021.
Currently, there is a General WQC for small habitat restoration projects that do not exceed 5 acres or a cumulative total of 500 linear feet of stream bank or coastline and qualify for the California Environmental Quality Act Class 33 Categorical Exemption (California Code of Regulations, Title 14, Section 15333). However, because many restoration projects exceed the size limits of the General WQC, those projects need to obtain individual WQCs and/or WDRs, which is more time-consuming and costly than obtaining authorization under a general order. Thus, this proposed General Order will expediate the regulatory approval process for larger habitat restoration projects and will function as a companion to the General WQC for small habitat restoration. The proposed General Order would provide coverage for the following types of restoration projects:
- Improvements to Stream Crossings and Fish Passage;
- Removal of Small Dams, Tide Gates, Flood Gates, and Legacy Structures;
- Bioengineered Bank Stabilization;
- Restoration and Enhancement of Off-Channel and Side-Channel Habitat;
- Water Conservation Projects;
- Floodplain Restoration;
- Removal of Pilings and Other In-Water Structures;
- Removal of Nonnative Terrestrial and Aquatic Invasive Species and Revegetation with Native Plants;
- Establishment, Restoration, and Enhancement of Tidal, Subtidal, and Freshwater Wetlands; and
- Establishment, Restoration, and Enhancement of Stream and Riparian Habitat and Upslope Watershed Sites.
The draft proposed General Order and supporting draft PEIR are available here: https://www.waterboards.ca.gov/water_issues/programs/cwa401/generalordersunderdev.