Regulatory Roundup: Birds, Water & Climate

ARTBA submitted Dec. 13 comments to the U.S. Fish and Wildlife Service (FWS) opposing two agency proposals to roll back Trump-era reforms to the Endangered Species Act (ESA) that focus on the definition of ‘critical habitat.’ ARTBA contends the new proposals would negate earlier reforms designed to prevent overly broad critical habitat designations from delaying transportation project improvements. ARTBA also submitted Dec. 3 comments to FWS on a proposed permitting system for incidental bird strikes. The issue is important to the transportation construction industry because migratory birds are sometimes unintentionally injured or killed on construction sites. ARTBA thanked FWS for acknowledging that current regulations in this area are confusing and stressed that any future permitting system should focus on predictability and reducing unnecessary delays.

In other regulatory news:

• The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers Dec. 7 released a proposed regulation rescinding the Trump administration’s Navigable Waters Protection Rule (NWPR), which explicitly stated that roadside ditches are not protected ‘waters of the United States’ (WOTUS). The new proposal, however, would withdraw this clarification and create confusion over the jurisdiction of ditches. The agencies are taking comments on the proposal through Feb. 7, 2022. ARTBA is working with our partners in the Waters Advocacy Coalition and will submit comments opposing the new regulation.
• President Joe Biden Dec. 8 issued an executive order on ‘Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability.’ It sets climate goals for all agencies and focuses on transitioning the federal vehicle fleet to electric vehicles. The order also establishes a ‘Buy Clean’ requirement for future federal purchases, including materials purchases. Exactly what pollutants, materials, and federal programs will be covered by the new ‘Buy Clean’ requirement will be determined through agency guidance in the next six months.