Hydro Newsletter – Volume 8, Issue 11

U.S. District Courtroom for the Northern District of California Vacates EPA’s Clear Water Act Part 401 Certification Rule

On October 21, 2021, the U.S. District Courtroom for the Northern District of California (“Court”) vacated the U.S. Environmental Safety Company’s (“EPA”) 2020 Clear Water Act (“CWA”) Part 401 “Certification Rule” (“the 2020 Rule”).  In re Clear Water Act Rulemaking, No. 20-cv-4636, et al. (Oct. 21, 2021).  The impact of the Courtroom’s ruling is to reinstate EPA’s earlier Certification Rule, which had been in impact since 1971 (“the 1971 Rule”). It’s clear that the Courtroom intends its ruling to have nationwide impact: by vacating the 2020 Rule, federally permitted initiatives requiring Part 401 certification all through the nation will once more be topic to the 1971 Rule.

The 2020 Rule was promulgated by the Trump Administration to help in expediting and streamlining the federal authorities’s allowing course of for initiatives that require a CWA Part 401 water high quality certification.  The Biden Administration sought remand with out vacatur of the 2020 Rule, however somewhat than granting the Biden Administration’s request, the Courtroom vacated the 2020 Rule. In accordance with the Courtroom, the 2020 Rule restricted somewhat than expanded the states’ management over setting and implementing water high quality requirements by focusing solely on the “discharge” and never additionally on “the compliance of the applicant.” The Courtroom additionally thought-about the disruptive results of vacatur and concluded that, as a result of the 2020 Rule had been in impact solely 13 months, and that the 1971 Rule had been in impact for nearly 50 years, there was inadequate time for regulated entities to have developed any reliance pursuits on the brand new rule.

The District Courtroom’s resolution to vacate the 2020 Rule over EPA’s opposition, and with out having carried out a whole assessment the Rule on its deserves, could also be grounds for problem.  Different district courts within the Ninth Circuit have opined that vacatur is acceptable even within the absence of a deserves assessment of company motion, however the Ninth Circuit itself doesn’t seem to have so held.  It stays to be seen whether or not EPA or business intervenors supporting the 2020 Rule will enchantment the choice.

Assuming the Courtroom’s resolution stands, it might seem that, not less than till Spring 2023 when EPA has mentioned it intends to have a brand new Part 401 rule in place, Part 401 water high quality certifications might be based mostly on the 1971 Rule.  In consequence, certifications will probably be much less vulnerable to problem as in extra of state authority below Part 401 of the CWA than if the 2020 Certification Rule had been allowed to stay in impact.

For extra on this subject, please see our alert.

Division of Power Report Examines the U.S. Hydropower Allowing Course of

The U.S. Division of Power  has revealed a technical report presenting the outcomes of its examination of the hydropower licensing and federal authorization course of, together with quantitative and qualitative analyses of licensing and approval timelines, undertaking attributes that will affect these timelines, and their mixed impact on prices and dangers to builders. The report was ready with enter from a stakeholder working group composed of representatives of the hydropower business, the Federal Power Regulatory Fee (“FERC”), federal and state useful resource companies, Tribes, and conservation organizations.  The report doesn’t suggest any particular suggestions to enhance the present hydropower licensing course of, however is meant to assist resolution makers establish areas for reform.  The report examined a big pattern of licenses issued since 2005.

Key findings within the report embody:

  • For hydropower traders and homeowners, the time and prices of the federal licensing course of create danger and uncertainty that discourage new hydropower funding and will make relicensing of present hydropower initiatives economically infeasible.

  • Regardless of bigger initiatives having greater licensing prices total, smaller initiatives on common had greater licensing prices below a prices/kilowatt metric.

  • Selection of FERC course of (Different, Built-in, or Conventional Licensing Course of) is related to variations in licensing prices and timelines.

  • Relicensing takes longer and prices greater than unique licenses—nonetheless, this seems to be as a result of fashionable builders are intentionally selecting websites with fewer environmental impacts for growth.

  • The CWA Part 401 water high quality certification course of is a significant driver of licensing delay, though state water high quality companies had been capable of challenge well timed certifications or waived certification in 73 % of research circumstances.

The report additionally features a comparability of the U.S. hydropower regulatory framework with different forms of vitality and water infrastructure in the USA, and a comparability between the U.S. hydropower licensing course of and people in three different prime hydropower-producing international locations: Canada, Norway, and Sweden. Key findings of this comparability embody:

  • All infrastructure undertaking sorts reviewed in the USA and in different western international locations goal to guard the identical useful resource issues and potential impacts (e.g., water high quality, species, cultural sources, recreation).

  • Hydropower licensing below the Federal Energy Act (“FPA”) is exclusive in comparison with different infrastructure initiatives in the USA in that the FPA requires equal consideration of developmental and non-developmental values.

  • U.S. hydropower licensing requires extra federal company and stakeholder involvement than different forms of infrastructure in the USA or hydropower initiatives in different western international locations.

Adjustments to the Migratory Hen Treaty Act Enforcement Regime Take Flight

On October 4, the U.S. Fish and Wildlife Service (“FWS”) introduced three actions that can considerably change how the Migratory Hen Treaty Act’s (“MBTA”) prohibition on “take” of migratory birds might be enforced. First, FWS revealed a last rule revoking the prior administration’s January 7, 2021, rule which established that the MBTA doesn’t prohibit the incidental (i.e., unintentional) take of a migratory chicken (see VNF’s previous alert).  Second, in an effort to make clear its ongoing enforcement place, appearing FWS Director Martha Williams issued a Director’s Order offering steering on how FWS will use its enforcement discretion to prosecute the incidental take of migratory birds. Lastly, FWS revealed an Superior Discover of Proposed Rulemaking requesting public enter on potential choices for a regulatory allowing regime that might authorize the incidental take of migratory birds.  Persevering with the current development of competing interpretations of the MBTA, and by reverting again to reliance on FWS’s enforcement discretion, these actions improve the uncertainty related to MBTA compliance pending the event of a allowing regime for incidental take of migratory birds.

For extra on this subject, please see our alert.

Biden Administration Proposes to Stroll Again Key Trump Period NEPA Regulation Adjustments

On October 7, 2021, the Council on Environmental High quality (“CEQ”) revealed a discover of proposed rulemaking (“Proposed Rule”) to reverse a number of key adjustments made below the Trump administration to CEQ’s Nationwide Environmental Coverage Act (“NEPA”) implementing rules. The proposed rulemaking—the primary section of a two section course of to rethink and revise the July 2020 “Update to the Regulations Implementing the Procedural Provisions of NEPA” (“July 2020 Rule”)—publicizes a slim, however necessary, set of proposed adjustments, which the CEQ states “would better align the NEPA regulations with CEQ and agency expertise, as well as NEPA’s statutory goals and purpose to promote sound decisions informed by science.” It proposes to revert three facets of the July 2020 Rule again to the prior rules with minor modifications: (1) the “purpose and need” of a proposed motion; (2) the definition of “effects,” restoring the prior definitions of direct, oblique, and cumulative results; and (3) company flexibility to develop NEPA implementation procedures that transcend the federal government-large NEPA rules.

CEQ intends to undertake a broader revisitation of the July 2020 Rule, and to suggest additional revisions within the second section to make sure environment friendly and efficient environmental opinions, present regulatory certainty, promote higher resolution-making, and handle local weather change and environmental justice targets. It’s affordable to count on that a few of these extra adjustments might be geared toward enhancing public participation, transparency, and knowledgeable science-based mostly resolution-making that might increase the necessities related to NEPA opinions. The timing of the second section shouldn’t be but clear. Within the interim, although it isn’t clear that the July 2020 Rule has had a lot in the way in which of sensible impact, the deal with restoring consideration of oblique and cumulative impacts within the Proposed Rule might end in companies giving larger consideration to local weather change and environmental justice-associated impacts (as environmental justice communities can endure from compounded impacts from a number of air pollution and emission sources). These topic to environmental assessment below NEPA will need to pay shut consideration as CEQ strikes forward with the Proposed Rule and probably extra expansive adjustments within the second section of its NEPA rulemaking effort. Feedback on the Proposed Rule are due by November 22, 2021.

For extra on this subject, please see our alert.

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