Administrative Rulemaking

On March 2, 2020, the Environmental Protection Agency (EPA) proposed its new Multi-Sector General National Pollutant Discharge Elimination System Permit (MSGP), which authorizes the discharge of stormwater associated with industrial activity. 85 Feb. Reg. 12,288 (March 2, 2020). The 2015 MSGP expires on June 4, 2020. The MSGP authorizes stormwater discharges associated with a wide range of facilities and activities, including oil and gas, mining and mineral processing and manufacturing, among other operations.

The MSGP authorizes discharges in only those states where EPA is still the NPDES permitting authority (Idaho, Massachusetts, New Hampshire and New Mexico), Indian country, US Territories and other select jurisdictions. However, most states model their state-specific industrial stormwater permits on the EPA’s MSGP, which makes this permit important as the trendsetter.
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On January 9, 2020, the Council on Environmental Quality (CEQ) released its highly anticipated proposed rule to improve its National Environmental Policy Act (NEPA) regulations. The proposed changes would be the first comprehensive amendment of the NEPA regulations since their original publication in 1978. CEQ’s proposed changes are designed to streamline and speed the NEPA review process, clarify important NEPA concepts, and codify key guidance and case law. CEQ’s Proposal is informed by comments it received on last year’s Advanced Notice of Proposed Rulemaking.

NEPA requires that federal agencies analyze the environmental effects of their proposed federal actions. This means that virtually any project that requires a federal permit or authorization could 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 could trigger NEPA. A NEPA review can take significant agency and applicant resources, can substantially delay permits and can provide a basis for a federal court challenge to the project.
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Yesterday, EPA and the US Army Corps of Engineers (together, the Agencies) signed and made available a pre-publication version of the highly anticipated repeal of the 2015 WOTUS Rule, which will place the entire country under the pre-2015 Rule regime while the Trump administration works to complete its replacement WOTUS definition.
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On August 12, 2019, the US Fish and Wildlife Service and the National Marine Fisheries Service signed final rules instituting the first comprehensive revisions to Endangered Species Act regulations in 33 years. The Services made substantial revisions to their regulations concerning listing and delisting species, critical habitat designations, consultation with federal agencies and the process for establishing protections for threatened species. Two states and numerous environmental groups have signaled their plan to challenge the new rules.
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The Trump Administration’s recent executive order signals potentially significant changes to the regulatory landscape for domestic energy infrastructure generally and LNG in particular. Among the notable features of the order are the provisions directing US DOT to (1) update its 49 C.F.R. Part 193 regulations for LNG facility safety; and (2) issue regulations allowing LNG to be transported in approved rail tank cars.
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On March 21, 2019, the Federal Energy Regulatory Commission (Commission or FERC) held its monthly open meeting. Highlights of the meeting included the following: