During the first quarter of 2024, there were several regulatory developments involving federal and state agencies. These updates are summarized in the following sections.
FEDERAL REGULATORY UPDATES
Bureau of Land Management: Draft Programmatic Environmental Impact Statement for Utility-Scale Solar Energy Development
A notice of availability was published in the Federal Register on January 19, 2024 for the Draft Programmatic Environmental Impact Statement (EIS) for Utility-Scale Solar Energy Development. The Programmatic EIS was prepared by the Bureau of Land Management (BLM) to update the BLM’s Approved Resource Management Plan (RMP) Amendments/Record of Decision for Solar Energy Development in Six Southwestern States, which currently includes Arizona, California, Colorado, Nevada, New Mexico, and Utah. The Programmatic EIS would expand the BLM’s solar energy planning to include the states of Idaho, Montana, Oregon, Washington, and Wyoming. In addition, the Programmatic EIS would facilitate siting of utility-scale solar energy development on BLM-managed land by designating areas with fewer resource conflicts as “solar application areas” and areas with a higher potential for resource conflicts as “exclusion areas.” The BLM’s preferred alternative prioritizes making BLM-managed land within 10 miles of existing or planned transmission lines (greater than 100 kilovolts) available for solar applications unless otherwise excluded due to resource conflicts.
The BLM held two virtual and six in-person public meetings on the Programmatic EIS during the comment period from February 5 to April 18, 2024. The Proposed RMP Amendments/Final Programmatic EIS is anticipated to be available in August 2024.
Environmental Protection Agency: Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review
As previously discussed in our Q3 and Q4 2022 Update, on December 6, 2022, the Environmental Protection Agency (EPA) issued a supplemental notice of proposed rulemaking to update, strengthen, and expand the Standards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review. This latest development aims to augment the New Source Performance Standards (NSPS) that the EPA first established in 2012 through subpart OOOO (Quad O) under 40 Code of Federal Regulations (CFR) Part 60. On March 8, 2024, the EPA published the final rule intended to prevent approximately 58 million tons of methane emissions from entering the atmosphere from 2024 to 2038 by implementing new source performance standards. The new standards for new, reconstructed, and modified covered sources would require the following:
- add control requirements for oil and gas sources of emissions (e.g., well sites, storage tanks and vessels, process controllers, well liquids unloading operations, compressors, pumps, well completions, equipment leaks, and flares);
- set new monitoring requirements for emissions sources (e.g., well sites);
- phase out routine flaring of natural gas over two years; and
- require natural gas to be routed to a sales pipeline, used for another useful purpose, or recovered and re-injected into a well.
The new standards require each state to submit a State Implementation Plan (SIP) to the EPA for approval. The SIP establishes a standard of performance that meets or exceeds the EPA standards. The EPA has provided a summary table that provides the NSPS for methane and volatile organic compounds, as well as presumptive standards for methane for existing sources, for each covered source.
This final rule also establishes the Super Emitter Program, which assigns an EPA-certified third party to remotely monitor an oil and gas facility for super-emitter events defined as when a “quantified emission rate of 100 kilogram per hour of methane or greater” occurs. The EPA will enforce the Super Emitter Program and will direct an operator to take corrective action if a super-emitter event is recorded.
This final rule will be effective on May 7, 2024. New, reconstructed, and modified sources must meet new standards within 2 years of the effective date, and existing sources will be required to meet the new standards within 5 years.
United States Army Corps of Engineers: New Regulatory Request System
On January 31, 2024, the United States (U.S.) Army Corps of Engineers (USACE) launched its new Regulatory Request System (RRS) to streamline the permit request process. The RRS allows applicants to submit pre-application meeting requests and jurisdictional determination requests. In spring 2024, USACE is expected to update the RRS to provide the ability for users to electronically submit individual and general permit applications.
United States Army Corps of Engineers: 2022 National Wetland Plant List
On February 13, 2024, the USACE published the 2022 National Wetland Plant List (NPWL), which should be used when conducting wetland delineations. It includes information on wetland indicator status ratings and guidance for wetland restoration, establishment, and enhancement projects. For example, two species reviewed for the NWPL 2022 update include Menzies’ goldenbush (Isocoma menziesii) and Fremont cottonwood (Populus fremontii), which occur in the Arid West region and were rated as Facultative (FAC) in the 2020 NWPL. In the 2022 NWPL, Menzies’ goldenbush is rated as Facultative Upland (FACU) and Fremont cottonwood is rated as Facultative Wetland (FACW).
United States Fish and Wildlife Service: Permits for Incidental Take of Eagles and Eagle Nests
On February 12, 2024, the U.S. Fish and Wildlife Service (USFWS) issued a final rule to revise the regulations of permit issuance under the Bald and Golden Eagle Protection Act; this rule became effective on April 12, 2024. As previously discussed in our Q3 and Q4 2022 Update, the proposed rule aimed to simplify and expedite the permitting process authorizing incidental take of eagles and improve compliance with the Bald and Golden Eagle Protection Act by introducing a new general permit system for four activities that are considered lower risk to eagles—wind-energy generation projects, power line infrastructure, disturbance of breeding bald eagles, and bald eagle nest take—as an alternative to the current specific permit (also known as individual permit) process. Specific permits often include more avoidance, minimization, and mitigation requirements.
With the new rule, general permits will be valid for 5 years, with the exception of a 1-year limit for nest and disturbance take. Specific permits will continue to be authorized for any duration up to 30 years, with the exception of a 5-year permit limit for nest and disturbance take. The final rule revised the monitoring requirement for general permits and most specific permits from USFWS-led monitoring to concurrent monitoring performed by operations and maintenance personnel. Additional monitoring may be required for specific permits. The final rule also eliminated specifying a take limit for general and specific permits.
General permit registration for incidental take of eagles by wind-energy generation projects and power line infrastructure projects is anticipated to be available on May 6, 2024. General permit registration for disturbance of eagles and take of eagle nests is anticipated to be available on July 8, 2024.
STATE REGULATORY UPDATES
California Department of Fish and Wildlife: Western Joshua Tree Conservation Act Conservation Plan
As previously discussed in our Q3 2023 update, the Western Joshua Tree Conservation Act (WJTCA) was enacted in July 2023. It authorizes the California Department of Fish and Wildlife (CDFW) to issue permits for the incidental take of western Joshua trees, as well as permits for the removal of dead western Joshua trees and the trimming of live western Joshua trees under certain circumstances.
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. The CDFW requested public feedback to develop the conservation plan through a virtual meeting held on April 4, 2024. Questions or comments were also requested any time before or after the meeting. A complete draft of the plan is due by December 31, 2024 to the California Fish and Game Commission (CFGC).
In addition, starting in February 2024, delegation agreements are now available. These agreements allow the CDFW to delegate take authorization to cities and counties for residential development and public works projects.
Additional information about the WJTCA and conservation plan can be found on the CDFW’s Western Joshua Tree Conservation webpage.
California Department of Fish and Wildlife: Petition to List the Greater Sage-Grouse Under the California Endangered Species Act
On March 8, 2024, the CDFW announced that it was seeking public comments and data on the Center for Biological Diversity’s (CBD’s) petition to list the greater sage-grouse (Centrocercus urophasianus) under the California Endangered Species Act (CESA). The CBD submitted a petition to the CFGC on November 21, 2022. On June 30, 2023, the CFGC published findings of its decision to make the species a candidate for listing as threatened or endangered under CESA. The CDFW has 12 months from the date of the decision to conduct a status review of the species, including soliciting public comments and data. The deadline to submit any information was April 12, 2024.
While the CDFW conducts a review of the petition, the greater sage-grouse is a CESA-candidate species, so until the review process is complete, the bird species will receive the same protections as CESA-listed species. The greater sage-grouse is present in sagebrush habitat within two regions of California: one area in Alpine, Mono, and Inyo counties, and another in Modoc, Lassen, Plumas, and Sierra counties. Threats to the greater sage-grouse include climate change, predation, habitat loss, modification and habitat fragmentation, disease, and loss of genetic diversity.
California Energy Commission: Draft California Energy Commission Assembly Bill 525 Offshore Wind Strategic Plan
The California Energy Commission (CEC) released a Draft California Energy Commission Assembly Bill (AB) 525 Offshore Wind Strategic Plan on January 19, 2024. The plan is one component of the requirements set forth in AB 525, which was passed by the California Legislature and signed by the governor on September 23, 2021. AB 525 requires the CEC to complete the following:
- identify the maximum offshore wind energy generation capacity in waters off the California coast,
- create 2030 and 2045 planning goals for offshore wind, and
- coordinate the development of a five-part strategic plan for offshore wind development with state and local agencies.
The plan was drafted in coordination with other federal, state, and local agencies, as well as tribal governments and other stakeholders. Part of the plan includes avoidance and minimization approaches on fishermen, environmental justice and underserved communities, and tribal nation members; the plan also includes potential permitting processes for future offshore wind development in California, as well as transmission and port infrastructure to support development. Two public workshops for the plan were held on March 20 and 29, 2024; the deadline to provide public comments was April 22, 2024.
Governor’s Office of Planning and Research & California Natural Resources Agency: California Environmental Quality Act Assembly Bill 52
In the Koi Nation of Northern California (Koi Nation) v. City of Clearlake judgment on December 22, 2023, the Lake County Superior Court upheld the determination made by the City of Clearlake (City). The City asserted that no tribal cultural resources (TCRs), as defined in California Public Resources Code (PRC) Section 21074, were present on the project site and formal consultation requirements set forth under AB 52 were followed with the Koi Nation. AB 52 updated Appendix G of the California Environmental Quality Act (CEQA) guidelines to include additional questions related to TCRs, and it requires public agencies to consult with California Native American tribes during the CEQA process.
In the lawsuit, the Koi Nation asserted that the City did not adequately consult with them and that the project site contained TCRs. Under California Public Resources Code Section 21080.3.1, tribes have 30 days to request consultation after being provided a formal notification by the lead agency. The City said in the lawsuit that the Koi Nation did not respond to the City with a formal consultation request. The City maintained that no TCRs were present on the project site based upon evidence that included a cultural report provided by an expert consultant; therefore, using its discretion under California PRC Section 21074(2), the City determined that no TCRs were present.
In summary, the court’s decision reinforces the following main points:
- Lead agencies are not required to consult with tribes under AB 52 if the tribes do not request consultation within 30 days of receiving a formal notification.
- Lead agencies have the discretion to determine if a resource is a TCR if the TCR is not listed or eligible to be listed on the California Register of Historical Resources or a local register. The agencies’ determination must be supported with substantial evidence.