From the Clean Air Act (CAA) to the Resource Conservation and Recovery Act (RCRA), the directives that protect the earth come in many forms. Air pollution, pesticides, and solid waste represent some of the ever-evolving environmental challenges our nation faces, causing these regulations to shift continuously.
In the final quarter of 2023, we find ourselves looking back and thinking about all the regulatory changes this year has brought to American environmental laws. From debate over who owns specific natural resources to rules intended to accelerate permitting to giving wildlife a boost, we've seen a variety of environmental protections.
Three changes from this year include the Supreme Court decision of Sackett v. EPA, the Bipartisan Permitting Reform Implementation Rule, and the Recovering America's Wildlife Act of 2023. Let's look at each of these and what they mean for land development.
Sackett v. EPA
Sackett v. EPA is yet another ruling in a long line of changing interpretations of both the Waters of the United States (WOTUS) and the Clean Water Act (CWA) rules.
TL;DR: The Idaho property owned by the Sacketts did not have a significant nexus with adjacent wetlands, and therefore, their development plans, halted for years due to environmental concerns, could proceed.
As we've discussed before, in Sackett v. EPA, the Supreme Court reinterpreted the 51-year-old CWA to shrink the federal jurisdiction of wetlands dramatically. They found that only wetlands with a "continuous surface connection" to WOTUS (streams and rivers considered navigable waters, i.e., those that can be used for interstate navigation) are covered by WOTUS protections. This leaves about 50 percent of the nation's wetlands without protection – drastically less coverage than before – and forced the Environmental Protection Agency to amend the rule.
Amendments to WOTUS by federal agencies and various administrations have notoriously confused developers and local governments alike regarding the current federal statutes in effect. These changes by the federal government have created a domino effect on state laws. Many states have begun to follow California's lead and clarify or amend state water quality protections to safeguard environmental and human health.
The decision also has repercussions for permitting and regulation that apply to land developers, causing confusion and potential delay. Further, the "final ruling" has caused an uproar in the public arena and is currently under review again as of September 30, 2023.
The Permitting Reform Implementation Rule
The Bipartisan Permitting Reform Implementation Rule is a proposal meant to streamline the permitting process and reduce the compliance bottleneck while simultaneously protecting the environment.
The Whitehouse Council on Environmental Quality proposed it in keeping with the Fiscal Responsibility Act of 2023 to "modernize and accelerate environmental reviews under the National Environmental Policy Act (NEPA), encourage early community engagement, accelerate America's clean energy future, strengthen energy security, and advance environmental justice."
The proposed rule includes changes to environmental review and decision-making, including:
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Establishing lead agencies
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Reducing redundancies
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Applying categorical exclusions from one agency to the others involved
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Setting page limits for environmental impact statements
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Creating reasonable timelines for review
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Delineating the correct course of public engagement
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Removing unnecessarily onerous rules set by the previous administration
The goal is for NEPA reviews to uphold environmental policy without delaying other processes – the better to hit targets for fighting climate change, generate clean energy, avoid litigation, and speed development along.
You can read more about the Permitting Reform Implementation Rule and its potential impacts on developers in our eBook. At the time of this writing, the act has not yet passed.
Recovering America's Wildlife Act
After failing to pass the Senate at the end of 2022 and expiring at the close of the 117th Congress, the Recovering America's Wildlife Act received a stay of execution at the hands of U.S. Senators Martin Heinrich (D-N.M.) and Thom Tillis (R-N.C.).
RAWA, for short, the bipartisan wildlife conservation legislation was reintroduced this year and seeks to become the most comprehensive species protection following the Endangered Species Act (ESA). It would provide $1.4 billion annually for conservation efforts, fund the conservation goals of tribal nations to the tune of almost $100 million a year, accelerate recovery efforts for 1,600 at-risk species, and direct wildlife agencies in their recovery plans.
The main goal of the joint Republican and Democrat endeavor is to minimize the risk of extinction, maximize biodiversity, stabilize ecosystems, respond to climate change impacts on wildlife species, ensure federal funding over the long haul, and protect outdoor recreation for future generations.
The bipartisan bill will receive final comments in October.
Transect: Helping You Stay Up to Date With Ruling Changes
Staying up to date with rule changes – especially as congressional debate is underway and no final rules have emerged – can be demanding for land developers. Each of the above regulatory changes will have unavoidable consequences for developers, from altering which waterbodies are more vulnerable to toxic substances and removing permitting bottlenecks for renewable development to help lower our carbon emissions.
Automated tools allow developers to stay informed regarding the most up-to-date and site-specific permitting information for their project site. Transect enables developers to identify potential project red flags as well as current state and federal environmental regulations that apply to their site in seconds.
Want to learn more about how automated, shareable reports will protect a project development from avoidable risks? Book a demo today!
Transect Team: Apr 24, 2024
