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A discussion of the National Environmental Policy Act and related regulations and their implications for project development.

Under the National Environmental Policy Act (NEPA), federal agencies must determine if their proposed major federal actions (including permit authorizations for projects sponsored by private entities) will significantly affect the human environment and consider the environmental and related social and economic effects. This means that virtually any project that requires a federal permit or authorization may be required to undergo a NEPA review. Development of broadband infrastructure, roads, bridges, oil and gas pipelines, and renewable energy facilities are just a few examples of the types of activities that may trigger NEPA review.

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Continue Reading The Shifting NEPA Landscape and Implications for Project Development

On January 7, the US Fish and Wildlife Service (USFWS or Service) published a final rule providing that the scope of the prohibition of take under the Migratory Bird Treaty Act (MBTA or Act) applies “only to actions directed at migratory birds, their nests, or their eggs,” and does not prohibit incidental take (i.e., take that is not the purpose of an activity).  86 Fed. Reg. 1134 (January 7, 2021).  The rule, which lists an effective date of February 8, 2021, represents the latest in a series of efforts by recent presidential administrations to implement competing interpretations of the MBTA.  If it stands under the incoming administration, this rule will have important implications for the wind energy industry, among other sectors.…
Continue Reading USFWS Issues Rule Excluding Incidental Take from the Migratory Bird Treaty Act: Implications for the Wind Energy Industry

A December 2020 final rule defining “habitat” could have important consequences for future designations of lands and waters as “critical habitat” under the Endangered Species Act (ESA). Designation of critical habitat by the U.S. Fish and Wildlife Service or National Marine Fisheries Service (jointly, the “Services”) can affect projects that require federal agency permits or funding, because ESA section 7 requires federal agencies to ensure through consultation with the Services that their actions are not likely to adversely modify or destroy designated critical habitat.

On December 16, 2020, the Services adopted, for the first time, a regulatory definition of habitat, as follows:

For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.…
Continue Reading Federal Wildlife Agencies Issue Final Regulatory Definition of “Habitat”

Before yesterday only two states had received approval to administer the Clean Water Act (CWA) section 404 program (Michigan and New Jersey), and no state had received approval since 1994.  Now, for the first time in over 25 years, the U.S. Environmental Protection Agency (EPA) has approved the formal transfer of section 404 permitting authority to a third state: Florida.  Once EPA’s approval is published in the Federal Register, the Florida Department of Environmental Protection (FDEP) will “assume” 404 permitting authority from the U.S. Army Corps of Engineers (Corps) in certain waters, significantly altering the 404 permitting process in Florida.  EPA’s decision has broader implications for the 404 program on a national scale, as other states, including Oregon and Minnesota, consider whether to pursue assumption.
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Continue Reading Florida Receives EPA Approval to Assume Clean Water Act Section 404 Program

On November 9, 2020, EPA’s Office of Research and Development (ORD) released its long-awaited draft handbook that details the office’s process for developing chemical hazard assessments for its Integrated Risk Information System (IRIS) Program. The ORD Staff Handbook for Developing IRIS Assessments (IRIS Handbook) gives useful insight into ORD’s process to develop its IRIS assessments, which provide important toxicological information that federal and state environmental agencies consider when making regulatory and cleanup decisions under multiple statutory programs. EPA will accept comments on the draft handbook and charge questions until March 1, 2021.
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Continue Reading EPA Releases Long-Awaited IRIS Handbook, But has Anything Changed?

One of the most frequent terms heard in conjunction with President-Elect Biden’s energy and environmental agenda is “environmental justice,” which is often described as an overarching objective as well as a key component of the incoming administration’s climate agenda.  This post looks at how the Biden Administration may translate environmental justice principles into concrete executive actions, and how project proponents can prepare for increased focus on environmental justice in their permitting.
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Continue Reading Preparing for Increased Focus on Environmental Justice Issues in a Biden Administration

BSEE’s August 2020 update of its Notice to Lessees signals renewed interest in decommissioning of aging oil & gas platforms offshore of California. While so-called “rigs to reefs” in-place decommissioning is a potential option, uncertainty remains surrounding decommissioning methods and timing for platforms, pipelines and related infrastructure located in state and federal waters off the coast of California.…
Continue Reading BSEE Renews Offshore Platform Decommissioning Guidelines

The first comprehensive revision of the NEPA implementing regulations in over forty years goes into effect today. Litigants sought a preliminary injunction to block implementation of the rule nationwide, but their motion was denied by a district court late last week. While litigation is ongoing in three district courts, the new rule will apply to all new NEPA reviews started on or after September 14, 2020, and agencies will have discretion to apply the new rule to ongoing NEPA reviews initiated before September 14.…
Continue Reading After Surviving Preliminary Injunction Motion, New NEPA Rule Becomes Effective Today

Flaring has the attention of RRC, Producers and Stakeholders

Flaring has the attention of the Texas Railroad Commission (RRC), oil and natural gas companies and stakeholders such as royalty owners, investors and environmental groups. Requests for RRC authorization of flaring has been on the increase in the Permian Basin. As a result, a number of interested parties are looking at regulatory changes. Some interested parties voice concern that a valuable resource is being wasted, others state that the definition of natural gas ‘waste’ is too limited, still others are concerned about methane emissions and some all of the above. Though the interested parties may not always be aligned, there is a general sense that regulatory amendments are needed.…
Continue Reading RRC Flaring Rules – Still Up in the Air

On July 16, 2020, the Council on Environmental Quality (CEQ) published its highly anticipated final rule to improve its National Environmental Policy Act (NEPA) regulations.  The update, which largely mirrors the proposed rule, is the first comprehensive amendment to the regulations since their original publication in 1978.  The final rule is designed to streamline the NEPA review process, clarify important NEPA concepts, and codify key guidance and case law. …
Continue Reading CEQ Releases Long-Awaited Final Rule to Improve NEPA Regulations