During the last quarter of 2021, there were several federal regulatory developments involving the Migratory Bird Treaty Act (MBTA), federal Endangered Species Act (ESA), Clean Water Act (CWA), National Environmental Policy Act (NEPA), and the definition of waters of the United States (U.S.). Summaries of each of these developments are provided in the following sections.
Regulations Governing Take of Migratory Birds
On October 4, 2021, the U.S. Fish and Wildlife Service (USFWS) published a final rule revoking the January 7 rule, which returns the USFWS’s interpretation of the MBTA to prohibiting incidental take and applying enforcement with discretion. The final rule is consistent with judicial precedent and agency practice prior to 2017. For additional details on the January 7 rule, refer to our Q1 Update and our Q3 Update. The final rule does not codify this interpretation of the MBTA; it simply revokes the January 7 rule, which codified a different interpretation of the MBTA. However, the USFWS separately published an advanced notice of proposed rulemaking that will initiate the process to codify this interpretation, which is discussed further in the Proposed Rulemaking section of this update.
With the final rule, the USFWS also released Director’s Order No. 225, which clarified its enforcement policies and the status of other guidance and opinions related to the MBTA. The USFWS will prioritize enforcement of incidental take that:
- is the result of illegal activity;
- results from activities by a public- or private-sector entity that are otherwise legal;
- is foreseeable; and
- occurs where known general or activity-specific beneficial practices were not implemented.
Whereas, the following will not be a priority for enforcement:
- a member of the general public conducting otherwise legal activities that incidentally take migratory birds;
- a federal agency conducting activities in accordance with a signed memorandum of understanding with the USFWS; or
- a public- or private-sector entity conducting activities in accordance with applicable beneficial practices for avoiding and minimizing incidental take.
The final rule and Director’s Order went into effect on December 3, 2021.
More information is also available at the USFWS MBTA regulations webpage.
Threatened Species Status and Designation of Critical Habitat for Hermes Copper Butterfly
On December 21, 2021, the USFWS published the final rule listing Hermes copper butterfly (Lycaena [Hermelycaena] hermes) as a threatened species under the federal ESA, citing significant population decline and habitat loss due to wildfires. In addition, approximately 35,027 acres were designated as critical habitat in San Diego County, California—specifically in the Lopez Canyon, Miramar/Santee, and southeast San Diego areas. The species’ flight season occurs from May through July, when females lay eggs exclusively on spiny redberry (Rhamnus crocea) in coastal sage scrub and chaparral vegetation. Its primary nectar source is California buckwheat (Eriogonum fasciculatum).
Flexibility was built into the rule to allow wildfire prevention and habitat restoration activities. Take resulting from following activities is considered exempt:
- habitat management or restoration activities that have been coordinated with and reported to the USFWS in writing and approved;
- activities necessary to maintain the minimum clearance requirement from any occupied dwelling, occupied structure, or to the property line, whichever is nearer, to provide reasonable fire safety and to reduce wildfire risks consistent with California fire codes or local fire codes or ordinances;
- fire management actions on protected/preserve lands that maintain, protect, or enhance coastal sage scrub and chaparral vegetation and are coordinated with and reported to the USFWS in writing and approved; and
- maintenance of existing fuel breaks identified by local fire authorities to protect existing structures.
The final rule went into effect on January 20, 2022.
Reissuance and Modification of Nationwide Permits
On December 27, 2021, the U.S. Army Corps of Engineers (USACE) published a final rule that reissued 40 existing Nationwide Permits (NWPs) and issued one new NWP under Section 404 of the CWA and Section 10 of the Rivers and Harbors Act of 1899. The NWPs in this rule replace the 2017 versions of those permits, and are effective starting February 25, 2022. They will expire on March 14, 2026. All activities authorized by the 40 NWPs from 2017 remain authorized until March 18, 2022, as long as the permittee has commenced construction or executed a contract for the NWP activity before February 25, 2022. The NWP general conditions and definitions published in a January 13, 2021 final rule apply to the 41 NWPs included in this final rule.
COURT ORDER FOR VACATUR
Clean Water Act Section 401 Certification Rule
The CWA Section 401 certification process is governed by the regulations that the Environmental Protection Agency (EPA) promulgated in 1971, formerly codified as 40 Code of Federal Regulations (CFR) Part 121. On July 13, 2020, the EPA finalized and published the 2020 Clean Water Act Section 401 Certification Rule (2020 Rule), which among other changes included new pre-filing meeting requirements and updates to the time period allowable for a state or tribe to make a decision on a request for Section 401 certification. On October 21, 2021, the U.S. District Court for the Northern District of California issued an order remanding and vacating (i.e., invalidating) the 2020 Rule based on the determination that the rule is inconsistent with Supreme Court caselaw. The vacatur is nationwide and requires a temporary return to the EPA’s 1971 Rule until a new certification rule can be finalized.
As a result of this vacatur, the USACE temporarily paused any permit decisions reliant on a Section 401 certification completed under the 2020 Rule. However, on November 18, 2021, the USACE resumed making decisions on all permit applications and NWP verifications. In addition, the EPA posted a Q&A on December 17, 2021, clarifying applicable Section 401 requirements and procedures, such as how the EPA does not expect to revisit certification actions completed while the 2020 Rule was effective and how the 1971 Rule will be implemented.
Prior to the court order, the EPA had published a notice of intent to revise the 2020 Rule on June 2, 2021 and held several virtual listening sessions with stakeholders in June. The EPA will continue the rulemaking process and expects to propose a new rule in Spring 2022. Details regarding future outreach and engagement efforts for the new rule will be included on the EPA Section 401 outreach webpage as they become available.
Definition of Waters of the United States
On December 7, 2021, the EPA and USACE published a proposed rule to revise the definition of “waters of the U.S.” For more background information on this issue, see our Q2 Update and our Q3 Update. For a more detailed look at the proposed rule, see our in-depth summary published on December 22, 2021.
Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat
As discussed in our Q2 Update, the USFWS and National Marine Fisheries Service (NMFS) announced a plan to revise, rescind, or reinstate five federal ESA regulations promulgated in 2019 and 2020. As part of this plan, the USFWS and NMFS proposed to rescind two 2020 final rules associated with designating critical habitat on October 27, 2021. The first rule would rescind the 2020 final rule that established a regulatory definition of “habitat,” and the second rule would rescind the 2020 final rule clarifying how areas can be excluded from a critical habitat designation. Both rules would cause the relevant regulations and policies to revert to what was in place before the two 2020 final rules were published.
The USFWS and NMFS are proposing to rescind the definition of “habitat” that was included in the 2020 final rule for the purposes of designating critical habitat. The USFWS and NMFS determined that this definition excludes areas that could be considered habitat in the future if restoration or other changes occur. In addition, they found creating a “single, one-size-fits-all” definition resulted in vague terminology that makes the definition unclear and confusing to implement, as well as potentially inconsistent with other federal regulations and programs. Going forward, the USFWS and NMFS intend to consider whether an area is habitat for a particular species on a case-by-case basis using the best scientific data available.
The USFWS is also proposing to rescind the 2020 final rule that allowed the USFWS to exclude areas from a critical habitat designation in certain circumstances (e.g., due to economic and national security issues) and revert to a 2016 joint policy between the USFWS and NMFS. The USFWS believes that the 2020 final rule gives undue weight to outside parties (i.e., “proponents of particular exclusions”), is overly rigid in process and requirements, and does not actually provide the clarity and transparency intended for the critical habitat exclusion process. Going forward, the USFWS will provide an explanation for the decision to not exclude areas from critical habitat. Comments on the proposed rules were initially due on November 26, 2021, but were extended to December 13, 2021.
Threatened and Endangered Status for Foothill Yellow-Legged Frog
On December 28, 2021, the USFWS proposed to list four of six distinct population segments (DPSs) of the foothill yellow-legged frog (Rana boylii) under the federal ESA. The South Sierra and South Coast DPSs are proposed to be listed as endangered species, and the North Feather and Central Coast DPSs are proposed to be listed as threatened species. The USFWS determined that the North Coast DPS and the North Sierra DPS do not warrant listing at this time. A map of the DPSs is shown below. Because the USFWS has not been able to obtain the necessary economic information needed to develop a proposed critical habitat designation for the foothill yellow-legged frog, it is not included in this rule. This proposed rule follows the 2020 listing by the California Fish and Game Commission of five of six genetic clades of the foothill yellow-legged frog as either endangered or threatened under the California ESA.
The foothill yellow-legged frog, named for its yellow belly and the underside of its rear legs, is found from the Willamette River system in Oregon to the Upper San Gabriel River in Los Angeles County, California. The main threats to the species include altered stream hydrology and flow regimes (e.g., from dams or surface water diversion); competition and predation from nonnative species (e.g., American bullfrogs [Lithobates catesbeianus] and smallmouth bass [Micropterus dolomieu]); disease; climate change-related effects (e.g., higher temperatures and drought); and habitat degradation, loss, and fragmentation from wildfires and human-related activities.
The public comment period ended on February 28, 2022.
National Environmental Policy Act Implementing Regulations Revisions
On October 7, 2021, the Council on Environmental Quality (CEQ) published a proposed rule to “generally” restore the NEPA regulations that were in effect prior to being modified as part of a final rule in July 16, 2020. Prior to this final rule, NEPA regulations had been in place and largely unchanged since 1978. After conducting a review of the regulatory changes, the CEQ determined that the changes may limit the scope of NEPA analysis, may not promote efforts that will prevent or eliminate damage to the environment, and may not support science-based decision making. To address these concerns, the CEQ will take a phased approach to restore the regulations. Phase 1 will include a narrow set of revisions, while Phase 2 will take a broader approach and be addressed in a separate proposed rule. The proposed revisions for Phase 1 include:
- eliminating language in the description of purpose and need for a proposed action when it is an agency’s statutory duty to review applications for authorization (40 CFR 1502.13) and making a conforming edit to the definition of “reasonable alternatives” (40 CFR 1508.1[z]);
- removing limitations on agency NEPA procedures for implementing the CEQ’s NEPA Regulations (i.e., making CEQ regulations a baseline rather than a ceiling for NEPA reviews) (40 CFR 1507.3); and
- returning to the definitions of “effects” listed in the 1978 NEPA Regulations (i.e., reinstating direct, indirect, and cumulative effects and removing limitations on the effects analysis) (40 CFR 1508.1[g]).
The public comment period ended on November 22, 2021, and two public meetings occurred in October 2021.
Authorizing the Incidental Take of Migratory Birds
On October 4, 2021, the USFWS announced that it was providing advance notice of proposed rulemaking to create a permit program that authorizes the incidental taking or killing of migratory birds. The USFWS also intends to codify its interpretation that the MBTA prohibits incidental take. While organizations that conduct activities and projects that incidentally take migratory birds already voluntarily implement beneficial practices to avoid and minimize the take of migratory birds, the USFWS is concerned that voluntary implementation may be insufficient to conserve migratory bird populations.
The USFWS is considering authorizing incidental take using the following mechanisms:
- exceptions to the MBTA’s prohibition on incidental take (e.g., homeowner activities that take birds or activities where beneficial practices sufficiently avoid and minimize incidental take);
- general permits for certain activity types; and
- specific or individual permits.
The USFWS is also considering developing permit regulations for activities that are common sources of bird mortality and/or have well-developed beneficial practices, such as:
- communication towers;
- electric transmission and distribution infrastructure;
- onshore and offshore wind power generation facilities;
- solar power generation facilities;
- methane and other gas burner pipes;
- oil, gas, and wastewater disposal pits;
- marine fishery bycatch;
- transportation infrastructure construction and maintenance; and
- government agency activities.
The public comment period ended on December 3, 2021, and three public scoping meetings occurred in November 2021. More opportunities for public comment will be available when the proposed rule is published.