Twice a Year the Administration Updates its Unified Agenda

Twice a year the Administration updates its Unified Agenda with projected timelines for rulemakings and other actions.  The spring agenda, released June 30, 2020, shows some delay in movement on key water programs that AGC has been tracking due to their relevance to the construction industry.  AGC summarizes these developments below.

Army Corps of Engineers

• Review rules related to the review and approval of mitigation banks and in-lieu fee programs for compensatory mitigation (proposal pushed to Sept. 2020).
• Modify select nationwide permits to meet the requirements of Executive Order 13783 (related to energy independence); the Corps also is considering reissuing the remaining nationwide permits to keep all 52 nationwide permits on the same five-year cycle (proposal was pushed to June 2020, not yet released).

Council on Environmental Quality

• Update existing CEQ regulations implementing the procedural requirements of the National Environmental Policy Act (NEPA) pursuant to Executive Order 13807 (related to the environmental review process) (final anticipated in Sept. 2020).

Environmental Protection Agency

• Update regulations for when states can assume administration of the Clean Water Act (CWA) 404 permits (proposal pushed back to Aug. 2020).  Meaning that states, not the Corps, could make wetlands decisions for projects.
• Revise regulations on Water Quality Certification, which is a required step to obtain CWA 404 permits (final rule signed June 2020).
• Consider changes to the EPA's Section 404(c) review process that would govern the future use of the EPA's Section 404(c) authority, i.e., when the EPA Administrator can revoke a Corps-issued CWA 404 permit (proposal pushed back to Aug. 2020).
• Make regulatory determinations for Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfate (PFOS) –two types of PFAS-- under the Safe Drinking Water Act (proposed in Mar. 2020; final anticipated in 2021).
• Designate PFOA and PFOS as CERCLA hazardous substances, requiring the reporting of releases that meet or exceed the reportable quantity assigned to these substances (proposal pushed to Aug. 2020).
• Review and add certain per- and polyfluoroalkyl substances (PFAS) to the Toxics Release Inventory (final published June 22, 2020).
• Evaluate data on current NOx (nitrogen oxides) emissions from heavy-duty vehicles and engines, and options available to improve control of all criteria pollutant emissions through revised emissions standards (proposal expected in Sept. 2020).
• Initiate the five-year review and if appropriate revise the air quality criteria and national ambient air quality standards (NAAQS) for particulate matter(final expected in Dec. 2020).
• Initiate the five-year review and if appropriate revise the air quality criteria and national ambient air quality standards (NAAQS) for ozone (proposal expected in July 2020).
• Review of dust-lead post-abatement clearance levels (proposal published June 24, 2020; final anticipated in Sept. 2020) -- the consideration of expanding the current lead paint “work practice” rules to public and commercial buildings remains on the long-term agenda.

Although not on the spring agenda, U.S. EPA is working on reissuance of the Multi-Sector General Permit for stormwater discharges from industrial activities—completion expected for 2020.  U.S. EPA also will begin the process for reissuing its Construction General Permit for stormwater discharges—due in 2022.

Fish and Wildlife Service

• Review and revise regulations for listing of species and for designation of critical habitat; will include a definition of the term “habitat” (proposal was expected in June 2020).
• Revise policy on interpretation of the phrase "significant portion of its range" in the Endangered Species Act's (ESA) definitions of "endangered species" and "threatened species" (proposed policy pushed back to Oct. 2020)
• Establish new regulation governing the take of migratory birds to codify the legal opinion in the Department of the Interior Solicitor’s Opinion M-37050 that incidental take resulting from an otherwise lawful activity is not prohibited under the Migratory Bird Treaty Act (final expected in Oct. 2020).