U.S. District Court for the Northern District of California drops EPA Clean Water Act Section 401 certification rule

On October 21, 2021, the United States District Court for the Northern District of California (“Court”) overturned Section 401 “Certification Rule” of the Clean Water Act (“CWA”) 2020 of US Environmental Protection Agency (“EPA”) Rule 2020 “). Regarding the development of the rules of the Clean Water Act, No. 20-cv-4636, et al. (October 21, 2021). The court’s decision restores the old EPA certification rule, which had been in effect since 1971 (the “1971 rule”). Clearly the court intends its ruling to have nationwide effect: by rescinding the 2020 rule, federally authorized projects requiring Section 401 certification across the country will again be subject to the 1971 rule.

The 2020 rule was enacted by the Trump administration to help speed up and streamline the federal government’s approval process for projects requiring CWA Section 401 water quality certification. The Biden administration requested the dismissal without setting aside the 2020 rule, but rather than granting the Biden administration’s request, the court set aside the 2020 rule. According to the court, the 2020 rule limited rather than ‘Expanded state control over the establishment and enforcement of water quality standards by focusing only on “discharge” and not also on “applicant compliance”. The Court also examined the disruptive effects of the vacuum and concluded that, since the 2020 rule had only been in effect for 13 months and the 1971 rule had been in effect for almost 50 years, regulated entities no ‘did not have enough time to work out the trust interests on the new rule.

The district court’s decision to overturn the 2020 rule on EPA’s opposition, and without having conducted a full substantive review of the rule, may be grounds for challenge. Other Ninth Circuit district courts have held that vacatur is appropriate even in the absence of a substantive review of the agency’s action, but the Ninth Circuit itself does not appear to have judged it. . It remains to be seen whether the EPA or industry stakeholders supporting the 2020 rule will appeal the ruling.

Assuming the court ruling stands, it would appear that, at least until the spring of 2023, when the EPA announced its intention to implement a new Section 401 rule, the quality certifications of Section 401 water will be based on the 1971 rule. As a result, the certifications are likely to be less likely to be challenged as exceeding state authority under Section 401 of the CWA than if the 2020 certification rule had been allowed to remain in force.

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Department of Energy report examines U.S. hydropower licensing process

The U.S. Department of Energy released a technical report presenting the results of its review of the hydropower licensing and federal licensing process, including quantitative and qualitative analyzes of licensing and approval timelines, the attributes of the project that may influence these timelines and their combined effect on costs. and the risks to developers. The report was prepared with input from a task force comprised of representatives from the hydroelectric industry, the Federal Energy Regulatory Commission (“FERC”), federal and state resource agencies, tribes and conservation organizations. The report makes no specific recommendations for improving the current hydropower licensing process, but aims to help policymakers identify areas for reform. The report examined a large sample of licenses issued since 2005.

The main findings of the report include:

• For investors and hydropower owners, the time and cost of the federal authorization process creates risks and uncertainty that discourage new hydropower investments and can make it economically impractical to renew the authorization of existing hydropower projects.

• While larger projects had higher licensing costs overall, smaller projects on average had higher licensing costs based on a cost / kilowatt metric.

• The choice of the FERC process (alternate, integrated or traditional licensing process) is associated with differences in license costs and times.

• Renewing licenses takes longer and costs more than the original licenses, but this seems to be due to modern developers deliberately choosing sites with less environmental impact for development.

• The CWA Section 401 water quality certification process is one of the main factors behind delays in approvals, although state water quality agencies have been able to issue certifications in timely or waived certification in 73% of the case studies.

The report also includes a comparison of the US hydropower regulatory framework with other types of power and water infrastructure in the United States, as well as a comparison of the state hydropower licensing process. United and that of three other major hydropower producing countries: Canada, Norway and Sweden. The main findings of this comparison include:

• All types of infrastructure projects reviewed in the United States and other Western countries aim to protect the same resource concerns and potential impacts (e.g., water quality, species, cultural resources, recreation).

• The granting of hydroelectric licenses under the Federal Power Act (“FPA”) is unique from other infrastructure projects in the United States in that the FPA requires equal consideration of developmental values ​​and not development-related.

• Hydroelectric licensing in the United States requires greater involvement of federal agencies and stakeholders than other types of infrastructure in the United States or hydroelectric projects in other Western countries.

Changes to the Migratory Birds Treaty Act Enforcement Regime Take Off

On October 4, the US Fish and Wildlife Service (“FWS”) announced three measures that will dramatically change the way the Migratory Bird Treaty Act (“MBTA”) ban on the “capture” of migratory birds will be enforced. . First, FWS issued a final rule repealing the January 7, 2021 rule of the previous administration, which established that the MBTA does not prohibit the accidental (i.e. unintentional) taking of a migratory bird ( see previous alert from VNF). Second, in an effort to clarify its current law enforcement position, FWS Acting Director Martha Williams has issued a Director’s Order outlining how the FWS will use its enforcement discretion to prosecute. accidental taking of migratory birds. Finally, the FWS issued an advance notice of a regulatory proposal requesting public input on potential options for a regulatory permit regime that would allow the incidental take of migratory birds. Continuing the recent trend of competing interpretations of the MBTA, and reverting to FWS enforcement discretion, these actions increase the uncertainty associated with MBTA compliance pending the development of a licensing regime for the taking. accidental migratory birds.

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Biden administration proposes to revisit key Trump-era NEPA regulatory changes

On October 7, 2021, the Environmental Quality Council (“CEQ”) issued a Notice of Proposed Regulatory Proposal (“Proposed Rule”) to reverse several key changes made under the Trump administration to the National Environmental Policy CEQ Act (“NEPA”) implementing regulations. The proposed regulation – the first phase of a two-phase process to reconsider and revise the July 2020 “NEPA Procedural Rules Update” (“July 2020 Rule”) – announces a package limited, but important, of the proposed changes, which the CEQ says “would better align NEPA’s regulations with the expertise of the CEQ and agencies, as well as with the statutory objectives and purpose of NEPA to promote informed, informed decisions. on science ”. It proposes to restore three aspects of the July 2020 rule to previous regulations with minor modifications: (1) the “purpose and necessity” of a proposed action; (2) the definition of “effects”, restoring the previous definitions of direct, indirect and cumulative effects; and (3) the agency’s flexibility to develop NEPA implementation procedures that go beyond government-wide NEPA regulations.

The CEQ intends to undertake a broader review of the July 2020 rule and to propose further revisions in the second phase to ensure effective and efficient environmental reviews, provide regulatory certainty, promote better take decision-making and meet the objectives of climate change and environmental justice. It is reasonable to expect that some of these additional changes will aim to improve public participation, transparency and science-based decision-making, which could expand the requirements associated with NEPA reviews. The timing of the second phase is not yet clear. In the meantime, while it is not clear whether the July 2020 rule has had much practical effect, the focus on re-establishing the consideration of indirect and cumulative impacts in the proposed rule could lead to agencies to pay greater attention to climate change and the environment. justice-related impacts (as environmental justice communities can suffer from aggravated impacts from multiple sources of pollution and emissions). Those undergoing an environmental review under NEPA will want to pay particular attention to the CEQ’s progress with the proposed rule and potentially more extensive changes in the second phase of its NEPA rule-making effort. . Comments on the draft rule are expected by November 22, 2021.

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