During the third quarter of 2023, there were several regulatory developments involving federal agencies. These updates are summarized in the following subsections.
UNITED STATES ARMY CORPS OF ENGINEERS AND ENVIRONMENTAL PROTECTION AGENCY
Waters of the United States Definition
On August 29, 2023, the United States (U.S.) Army Corps of Engineers and U.S. Environmental Protection Agency (EPA) announced a final rule amending the 2023 “waters of the United States” (WOTUS) definition to be consistent with the Supreme Court decision in Sackett v. EPA, which was previously discussed in our Q1 and Q2 2023 Update.
Revisions to the WOTUS categories and definitions include the following:
- removing the implementation of the significant nexus test when identifying tributaries, adjacent wetlands, and other waters;
- narrowing the definition of “adjacent” wetlands to mean wetlands that have a continuous surface connection to a jurisdictional water;
- clarifying that interstate wetlands are no longer considered interstate waters; and
- clarifying that wetlands and streams are no longer considered “additional waters.”
The amendments to the January 2023 rule do not affect the eight exclusions that are listed under the WOTUS definition, which include prior converted cropland, waste treatment systems, ditches, artificially irrigated areas, artificial lakes or ponds, artificial reflecting pools or swimming pools, waterfilled depressions, and swales and erosional features.
The final rule will only take effect in the 23 states that are not involved in lawsuits challenging the previous version of the rule. The other 27 states will continue to use the WOTUS definition that is consistent with pre-2015 regulatory guidance and the Sackett v. EPA decision until the lawsuits are resolved. The nationwide pause on issuance of approved jurisdictional determinations has been lifted and issuance will resume under the appropriate regulatory regime for that state.
A public webinar will be hosted on September 20, 2023 to provide more clarification on updates to the WOTUS definition.
COUNCIL ON ENVIRONMENTAL QUALITY
National Environmental Policy Act
The Council on Environmental Quality (CEQ), a division of the Executive Office of the President, oversees implementation of the National Environmental Policy Act (NEPA). As discussed in our Q2 2022 Update, on April 20, 2022, the CEQ issued Phase 1 of a final rule to amend NEPA, restoring regulatory provisions that were in effect for decades before the 2020 rule modified them.
Later, on July 28, 2023, the CEQ announced the “Bipartisan Permitting Reform Implementation Rule,” also known as the Phase 2 Notice of Proposed Rulemaking. The proposed rule was published to the Federal Register on July 31, 2023. Under Phase 2, the CEQ is tasked with implementing amendments to NEPA that were introduced in the Fiscal Responsibility Act of 2023 (FRA). Some of the notable proposed amendments to NEPA are as follows:
- Limiting environmental analysis to reasonably foreseeable environmental effects.
- Clarifying that an agency’s alternatives “must be technically and economically feasible and meet the purpose and need of the proposed action.” This updates the act to reiterate that an alternative must not vary widely from the project’s original intent.
- Clarifying the definition of a “major federal action” to mean that a federal agency maintains “substantial” control and responsibility; when federal control is limited, the project is subject to state and local control and will be exempt from NEPA review.
- Designating a single lead agency to coordinate the environmental review process when there are multiple federals agencies with jurisdiction over a project.
- Setting page limits of 75 pages for an environmental assessment (EA) and 150 pages for an environmental impact statement (EIS), with a maximum of 300 pages for complex projects.
- Setting time limits for completion to 1 year for an EA and 2 years for an EIS. The time limit begins at the soonest of the following three triggers: “(1) the date on which the agency determines an environmental impact statement or environmental assessment is required, (2) the date when the agency notifies an applicant that their right-of-way application is complete (if applicable), or (3) the date the agency issues a notice of intent to prepare an environmental impact statement or environmental assessment.” Project applicants will now be able to petition the courts to enforce these time limits.
- Allowing agencies to establish categorical exclusions individually or jointly; if categorical exclusions are established jointly, “agencies may use a shared substantiation document and list the [categorical exclusions] in both agencies’ NEPA procedures or identify them through another joint document.”
Four virtual public meetings were held by CEQ in August and September to review the Phase 2 proposed rule and provide verbal comments. All comments on the proposed rule are due by September 29, 2023.
UNITED STATES FISH AND WILDLIFE SERVICE
Endangered and Threatened Wildlife and Plants; Designation of Experimental Populations
As previously discussed in our Q3 and Q4 2022 Update, on June 7, 2022, the U.S. Fish and Wildlife Service (USFWS) published a proposed rule to revise Section 10(j) regulations under the federal Endangered Species Act (ESA), which allows the USFWS to establish and release experimental populations of ESA-listed species into the wild to aid in their recovery. On July 3, 2023, the USFWS published a final rule to revise Section 10(j) of the ESA, which became effective on August 2, 2023. The final rule includes a revision to the ESA removing language that previously restricted the introduction of experimental populations to their “historical range,” allowing for the introduction of species to habitat outside of their historical range when their current range is at risk from certain threats.
Desert Tortoise Conservation Plan
As previously discussed in our Q3 and Q4 2022 Update, the USFWS is developing a general conservation plan (GCP) for the desert tortoise (Gopherus agassizii) in California. The adoption of a GCP would allow for the standardization of incidental take permit (ITP) issuance of desert tortoises for covered activities (e.g., commercial, agricultural, residential, industrial, and infrastructure activities) that do not have a federal nexus. In addition, areas will be identified on BLM-managed lands that could be used to relocate desert tortoises displaced by covered activities. The preliminary draft GCP was posted for review on July 16, 2023.
In order to analyze the impacts and alternatives to the GCP, on July 17, 2023, the USFWS published a Notice of Intent to draft an EIS jointly with the Bureau of Land Management. The 45-day public scoping period for comments to be considered in the EIS was from July 17, 2023 to August 31, 2023.
CALIFORNIA REGULATORY UPDATES
During the third quarter of 2023, there were two regulatory developments involving the California Department of Fish and Wildlife (CDFW). These updates are summarized in the following subsections.
Senate Bill 147
On July 10, 2023, California Governor Gavin Newsom signed into law Senate Bill (SB) 147 with the goal of streamlining the permitting process for projects focused on climate change and technologies centered around renewable energy, transportation, and water infrastructure. SB 147 amends Sections 395, 3511, 4700, 5050, and 5515 and adds Section 2081.15 to the California Fish and Game Code.
Until December 21, 2033, the CDFW is authorized under SB 147 to issue a permit under the California Endangered Species Act (CESA) allowing for the take of a fully protected species resulting from a specified project that would require an ITP. Specified projects include:
- a maintenance, repair, or improvement project to the State Water Project, including existing infrastructure, undertaken by the Department of Water Resources;
- a maintenance, repair, or improvement project to critical regional or local water agency infrastructure;
- a transportation project, including any associated habitat connectivity and wildlife crossing project, undertaken by a state, regional, or local agency, that does not increase highway or street capacity for automobile or truck travel;
- a wind project and any appurtenant infrastructure improvement, and any associated electric transmission project carrying electric power from a facility that is located in the state to a point of junction with any California-based balancing authority; and
- a solar photovoltaic project and any appurtenant infrastructure improvement, and any associated electric transmission project carrying electric power from a facility that is located in the state to a point of junction with any California-based balancing authority.
In addition, by July 1, 2024, the CDFW is required to develop a plan to assess the status of fully protected species populations. By July 1, 2025, the CDFW is also required to submit a report that includes the implementation of the authorization to issue permits for the take of fully protected species. SB 147 also removed the American peregrine falcon (Falco peregrinus), brown pelican (Pelecanus occidentalis), and thicktail chub (Gila crassicauda) as fully protected species.
Western Joshua Tree Conservation Act
The Western Joshua Tree Conservation Act (WJTCA) was signed by Governor Newsom on July 10, 2023, and is the first law in California to protect a species threatened by climate change. Although the western Joshua tree (Yucca brevifolia) is currently a protected species under the CESA, the WJTCA includes additional provisions, such as allowing the CDFW to delegate limited authority to a county or city to permit the take of western Joshua trees for projects such as residential development and public works. Moreover, under the WJTCA, the CDFW is required to develop a western Joshua tree conservation plan with collaboration from the public, Native American tribes, and other government agencies.
In addition, the WJTCA “prohibits the importation, export, take, possession, purchase, or sale of any western Joshua tree in California unless authorized by CDFW.” Two types of take permits, including the WJTCA Hazard Management Permit and the WJTCA ITP, are authorized under certain circumstances (e.g., property owners who wish to trim or remove live or dead western Joshua trees).
Lastly, the WJTCA requires the establishment of a Western Joshua Tree Conservation Fund, where all in-lieu fees will be deposited and used to combat threats to the species.