After years of consensus building and fine tuning with all parties to the process involved and providing input on reforms to the Apprenticeship Certification and Recognition process (reported on by CIRT over the years), President Biden has revoked with the stroke of his pen through an Executive Order.  The demise was sudden, complete, and not entirely understandable, other than it was an initiative pursued in the Trump Administration (spearheaded by Ivanka Trump) that focused attention, energy, and dollars on alternative private sector participation in training and apprenticeships that warranted certification and recognition. Given the repudiation of the reforms, one can assume the older arcane system is back in place for the foreseeable future unless and until new reforms are proposed and adopted.

The Trump era Industry-Recognized Apprenticeship Program, or IRAP, was rescinded by Biden’s E.O.  Whereas Trump’s order directed the Labor Department to lead industry-recognized apprenticeship programs, Biden’s will “instead focus on the Labor Department’s traditional registered apprenticeships favored by organized labor—which require tougher standards for program operators—as the pathway to expand the nation’s earn-as-you-learn job-training system,” according to published Bloomberg Law reports.  Notwithstanding, the revocation will turn-back gains under the previous Administration that were touted by Ivanka Trump: “POTUS has invested more than $800 million for apprenticeships with more than 860,000 NEW apprentices since 2017 + created the Industry-Recognized Apprenticeship Program (IRAP) to grow apprenticeships in new and emerging fields” (01/17/2021).

In just the first five days in office (thru January 25^th), newly inaugurated President Joe Biden has SHATTERED all previous presidents use of Executive Orders, actions, proclamations, memorandum, and agency directives. Of the total thirty-three (33) policy directives, (21) are E.O.’s and still counting.  As a result, Biden has eclipsed any recent president by magnitudes of ten fold in the first week of a new presidency. For comparison purposes: during their first (7) days in office former President Bill Clinton signed two E.O.’s in 1993, George W. Bush signed two in 2001, Barack Obama signed five in 2009 and Donald Trump signed four in 2017.  Biden’s pace is far above the norm and suggests an approach that is not only seeking to erase Trump’s legacy, but replace it without involvement of Congress or agency rulemaking.

In addition to the executive presidential actions, the new Administration also intends to pursue an aggressive process to review and/or revisit a host of agency actions, policies, and initiatives.  [See, attached “Biden-Harris Rules for Review” document].

Newly inaugurated President Joe Biden signed seventeen (17) Executive Orders upon completion of the swearing-in ceremonies. So far, with promises of more to come, the orders and directives can be grouped around the following topics or themes: those designed to repeal or replace policies implemented by former President Trump, those addressing the ongoing COVID-19 health emergency (vaccine rollout), some that freeze Trump decisions, while others are intended to set the nation in an entirely different direction.

[See attached “Upcoming Executive Orders” for a detailed breakdown and summary of the first day actions].

What may turn out to be a critically important reaffirmation of state authority (or may be referred to as “devolution”), today the U.S. Environmental Protection Agency (EPA) announced that the State of Florida is the first state in more than 25 years to apply for and receive approval to implement a Clean Water Act (CWA) Section 404 program, joining Michigan and New Jersey as the only states in the country with such authority. Today’s action formally transfers permitting authority under CWA Section 404 from the U.S. Army Corps of Engineers (Corps) to the State of Florida for a broad range of water resources within the State. This action allows the State to more effectively and efficiently evaluate and issue permits under the CWA to support the health of Florida’s waters, residents, and economy.  EPA Administrator Andrew Wheeler noted that: “A considerable amount of effort has gone into Florida’s assumption of the Clean Water Act 404 program.”  Moreover, he pointed out: “Federal authorities don’t delegate this type of permit often, but Florida has, beyond question one of the greatest environmental records of any state, . . . (and) . . . has shown it can meet the strict national standards EPA sets to protect human health and the environment.”

If this becomes a trend, CIRT member firms may find their state clients/relationships will replace formally federal controlled project permitting handled by the U.S. Army Corps of Engineers.

Background
Section 404 of the CWA requires a permit before dredged or fill material may be discharged into waters of the United States. Section 404(g) of the CWA gives states and tribes the option of assuming, or taking over, the permitting responsibility and administration of the Section 404 permit program for certain waters. Section 404 permits for those assumed waters would be issued by the state or tribe instead of the Corps. The CWA provides that the Corps retains permitting authority in certain tidal waters and other specified waters that are currently used or may be used in the future to transport interstate or foreign commerce. State and tribal Section 404 programs must be at least as stringent as federal permitting.

State and tribal regulators are generally more familiar with local aquatic resources, issues, and needs. An efficient state- or tribal-run program can help reduce delays and save money for permit applicants. States and tribes can also integrate dredged and fill permitting with traditional water quality programs, such as monitoring and water quality standards, or state/tribal land use planning requirements. Under an assumed program, Section 404 permit applicants may need only a single state or tribal permit for dredged or fill material discharges. Since more than a dozen states and tribes currently administer dredged and fill programs separate from the federal program, assuming the Section 404 program allows states and tribes to streamline the review process and reduce unnecessary paperwork and duplication. It may also reduce the potential for conflict between federal and state or tribal decisions or permitting conditions.  More information: https://www.epa.gov/cwa404g/basic-information-about-assumption-under-cwa-section-404

Yesterday, the U.S. Environmental Protection Agency (EPA) announced a final rule that will help accelerate and promote the construction of important energy infrastructure across the United States, while ensuring the nation’s drinking water and waterways are protected. The agency’s final rule increases the transparency and efficiency of the Clean Water Act Section 401 (Section 401) certification process in order to promote the timely review of infrastructure projects.

EPA finalized this rule pursuant to the direction of Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth.” In this Executive Order, President Trump directed EPA to review Section 401 and EPA’s related regulations and guidance to determine whether the agency’s policies should be updated or clarified. In the final rule, EPA conducted the first comprehensive analysis of the text, structure and legislative history of Section 401. Key elements of the final rule include:

• Specifies statutory and regulatory timelines for review and action on a Section 401 certification—requiring final action to be taken within one year of receiving a certification request.
• Clarifies the scope of Section 401, including clarifying that 401 certification is triggered based on the potential for a project to result in a discharge from a point source into a water of the United States. When states look at issues other than the impact on water quality, they go beyond the scope of the Clean Water Act.
• Explains EPA’s roles under Section 401.
• Reaffirms the agency’s statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process.
• Promotes early engagement and coordination among project proponents, certifying authorities and federal licensing and permitting agencies.

To read the final rule and about the Clean Water Act Section 401 water quality certification process, please visit https://www.epa.gov/cwa-401.

CIRT submitted comments today in strong support for the Administration’s decision to direct the Council on Environmental Quality (CEQ) to propose updates to the regulations implementing procedural provisions of the National Environmental Policy Act (NEPA) that will have a significant impact on infrastructure projects.

Read the comment letter here.

The Administration’s decision to direct the Council on Environmental Quality (CEQ) to propose updates to the regulations implementing procedural provisions of the National Environmental Policy Act (NEPA) will have a significant impact on infrastructure projects. CIRT has consistently and actively supported the notion of streamlining regulatory requirements (particularly those associated with EIS rules) as a means to improve efficiencies both as to costs and time it takes to advance projects.  Under NEPA Federal agencies are required to evaluate the potential environmental impacts of major projects such as roads and bridges, rail and water infrastructure, energy projects, etc.  Yet, CEQ views the regulatory requirements of the law as having become “unnecessarily complex and time consuming,” which has resulted in the delay of some infrastructure projects. The proposal marks the first update to the NEPA law in over 40 years.

The proposed changes will reduce the average time it takes to complete an Environmental Impact Statement (EIS) through increased interagency coordination. Typically, project sponsors must acquire approval from various agencies on permitting decisions to advance their project, which are usually done sequentially – NOT concurrently.  As a result, the average environmental impact statement (EIS) process takes 4.5 years, or even longer for highway projects, according to CEQ data. The NEPA changes would codify aspects of Trump’s One Federal Decision policy, which improves coordination and communication between Federal agencies. The policy sets a two-year average goal for completion of environmental reviews for major infrastructure projects. The federal environmental reviews will still be done, administration officials said, but with greater efficiency. The administration announced this will help spur more investment in infrastructure projects.

The CEQ proposal was published in the Federal Register [See, (https://www.regulations.gov/document?D=CEQ-2019-0003-0001)].  
Public Comment is open until March 10, 2020.  [If your company is interested in submitting comments, you may in accordance with the following: Identify your comment by docket number CEQ-2019-0003, using the following method: Federal eRulemaking Portal: https://www.regulations.gov.]

Summary of Proposals:
CEQ would revise and modernize its NEPA regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies. The proposed updates and clarifications to its regulations are based on CEQ's record evaluating the implementation of its NEPA regulations and on comments provided in response to the ANPRM. The proposed updates and clarifications seek to advance the stated objectives of the current regulations, as adopted in 1978, “[t]o reduce paperwork, to reduce delays, and at the same time to produce better decisions [that] further the national policy to protect and enhance the quality of the human environment.” To that end, the following are the key provisions of the proposal:

•  CEQ specifically proposes various revisions to align the regulations with the text of the NEPA statute, including revisions to reflect the procedural nature of section 102(2) of NEPA.
  
  
• CEQ also proposes revisions to ensure that environmental documents prepared pursuant to NEPA are concise and serve their purpose of informing decision makers regarding the significant potential environmental effects of proposed major Federal actions and the public of the environmental issues in the pending decision-making process.
  
  
• CEQ also proposes revisions to ensure that the regulations reflect changes in technology, increase public participation in the process, and facilitate the use of existing studies, analyses and environmental documents prepared by States, Tribes, and local governments.
  
  
• CEQ also proposes revisions to its regulations consistent with the One Federal Decision policy (“OFD policy”) established by E.O. 13807 for multi-agency review and related permitting and other authorization decisions. The E.O. specifically instructed CEQ to take steps to ensure optimal interagency coordination, including through a concurrent, synchronized, timely, and efficient process for environmental reviews and authorization decisions. In response to the ANPRM, CEQ received many suggestions to codify key aspects of the OFD policy in the NEPA regulations, including by providing greater specificity on the roles and responsibilities of lead and cooperating agencies. Commenters also suggested that the regulations require agencies to establish and adhere to timetables for the completion of reviews, another key element of the OFD policy. In response to these comments and to promote interagency coordination and more timely and efficient reviews, CEQ proposes to codify and make generally applicable a number of key elements from expedited procedures and the OFD policy, including development by the lead agency of a joint schedule, procedures to elevate delays or disputes, preparation of a single EIS and joint ROD to the extent practicable, and a two-year goal for completion of environmental reviews. Consistent with section 104 of NEPA (42 U.S.C. 4334), codification of these policies will not limit or affect the authority or legal responsibilities of agencies under other statutory mandates that may be covered by joint schedules, and CEQ proposes language to that effect in § 1500.6.
  
  
• CEQ also proposes revisions to clarify the process and documentation required for complying with NEPA by amending part 1501 to add sections on threshold considerations and determining the appropriate level of review; add a section on CEs; and revise sections on EAs, FONSIs, and EISs in part 1502. CEQ further proposes a number of revisions to promote more efficient and timely environmental reviews, including revisions to promote interagency coordination by amending sections of parts 1501, 1506, and 1507 relating to lead, cooperating agencies, timing of agency action, scoping, and agency NEPA procedures. CEQ proposes additional revisions to promote a more efficient and timely NEPA process by amending parts 1501, 1506, and 1507 relating to applying NEPA early in the process, scoping, tiering, adoption, use of current technologies, and avoiding duplication of State, Tribal, and local environmental reviews; revisions to parts 1501 and 1502 to provide for presumptive time and page limits; and revisions to clarify the definitions by amending part 1508.
• CEQ also includes provisions to promote informed decision making and to inform the public about the decision-making process. CEQ seeks amendments to ensure agencies solicit and consider relevant information early in the development of the draft EIS. In particular, CEQ wants to direct agencies in the notice of intent (NOI) to request public comment on potential alternatives and impacts, and identification of any relevant information and analyses concerning impacts affecting the quality of the human environment.
  
  
• Additionally, CEQ proposes to direct agencies to include a new section in the draft and final EIS summarizing all alternatives, information, and analyses submitted by the public and to request comment on the completeness of the summary included in the draft EIS.  To that end, CEQ further seeks to make revisions to part 1503 to ensure that comments are timely submitted on the draft EIS and on the completeness of the summary of information submitted by the public, and that comments are as specific as possible. Additionally, CEQ proposes a provision in § 1502.18 to require that, based on the summary of the alternatives, information, and analyses section, the decision maker for the lead agency certify that the agency has considered such information. This will advance the purposes of the directive in E.O. 11991 to ensure that EISs are supported by evidence that agencies have made the necessary environmental analyses. See E.O. 11991, § 1 amending E.O. 11514, § 3(h). Upon certification, the proposed provisions in §§ 1500.3 and 1502.18 would establish a conclusive presumption that the agency has considered such information. In conjunction with the certification requirement, this presumption is consistent with the longstanding presumption of regularity that government officials have properly discharged their official duties. See U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) (“[W]e note that a presumption of regularity attaches to the actions of government agencies.” (citing United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). This is also consistent with case law upholding regulatory presumptions. See, e.g., Allentown Mack Sales & Serv. v. Nat'l Labor Relations Bd., 522 U.S. 359 (1998); Fed. Commc'ns Comm'n v. Schreiber, 381 U.S. 279 (1965).
  
  
• Finally, CEQ proposes changes to make the regulations easier to understand and apply. This includes proposed revisions to simplify and clarify key definitions in § 1508.1. CEQ also proposes certain changes to move and consolidate operative language from the definitions to the relevant regulatory provisions, while leaving the definitional language in the definitions section. In the existing regulations, provisions on certain topics are scattered throughout, making it unnecessarily difficult to navigate the requirements. In some cases, the NEPA regulations address topics in multiple sections and sometimes multiple parts. CEQ proposes to revise the regulations to consolidate provisions and reduce duplication. Such consolidation, reordering, or reorganizing also would promote greater clarity and ease of use.

Background:
Most recently, in 2015 Congress enacted Title 41 of the FAST Act (FAST-41), to provide for a more efficient environmental review and permitting process for “covered projects.” See Public Law 114-94, § 41001-41014, 129 Stat. 1312, 1741 (42 U.S.C. 4370m—4370m-12). These are projects that require Federal environmental review under NEPA, are expected to exceed $200 million, and involve the construction of infrastructure for certain energy production, electricity transmission, water resource projects, broadband, pipelines, manufacturing, and other sectors. Id. FAST-41 codified certain roles and responsibilities required by the NEPA regulations. In particular, FAST-41 imports the concepts of lead and cooperating agencies, and the different levels of NEPA analysis—EISs, EAs, and CEs. Consistent with 40 CFR 1501.5(e) through (f), CEQ is required to resolve any dispute over designation of a facilitating or lead agency for a covered project. 42 U.S.C. 4370m-2(a)(6)(B). Section 4370m-4 codified several requirements from the CEQ regulations, including the requirement for concurrent environmental reviews, which is consistent with 40 CFR 1500.2(c), 1501.7(a)(6) and 1502.25(a), and the tools of adoption, incorporation by reference, supplementation, and use of State documents, consistent with 40 CFR 1506.3, 1502.21, 1502.9(c) and 1506.2.  Finally, 42 U.S.C. 4370m-4 addresses interagency coordination on key aspects of the NEPA process including scoping (40 CFR 1501.7), identification of the range of reasonable alternatives for study in an EIS (40 CFR 1502.14), and the public comment process (40 CFR part 1503).

To ensure a timely NEPA process so that important infrastructure projects can move forward, Congress has also established shorter statutes of limitations for challenges to certain types of projects. SAFETEA-LU created a 180-day statute of limitations for highway or public transportation capital projects, which MAP-21 later reduced to 150 days. 23 U.S.C. 139(l). The Water Resources Reform and Development Act of 2014 established a three-year statute of limitations for judicial review of any permits, licenses, or other approvals for water resources development project studies. 33 U.S.C. 2348(k). Most recently in FAST-41, Congress established a two-year statute of limitations for covered projects. 42 U.S.C. 4370m-6.

Yesterday, the Council on Environmental Quality (CEQ) is proposing to update its regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA). CEQ has not comprehensively updated its regulations since their promulgation in 1978, more than four decades ago. This proposed rule would modernize and clarify the regulations to facilitate more efficient, effective, and timely NEPA reviews by Federal agencies in connection with proposals for agency action. The proposed amendments would advance the original goals of the CEQ regulations to reduce paperwork and delays, and promote better decisions consistent with the national environmental policy set forth in section 101 of NEPA. If finalized, the proposed rule would comprehensively update and substantially revise the 1978 regulations. CEQ invites comments on the proposed revisions.

The Corps of Engineers and the Environmental Protection Agency issued a final rule to repeal the 2015 Clean Water Rule: Definition of 'Waters of the United States,' and to restore the regulatory text that existed prior to the 2015 Rule. The agencies will implement the pre-2015 Rule regulations informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice. Effective December 23, 2019.  CIRT has weighed-in on the rulemaking numerous times over the past few years, arguing that the Obama-era 2015 rule was too broad and overly inclusive going well beyond the logical reading of Supreme Court interpretation of the relevant statutory language.  [See, 84 FR 56626 (10/22/2019) at: https://www.federalregister.gov/documents/2019/10/22/2019-20550/definition-of-waters-of-the-united-states-recodification-of-pre-existing-rules]

The National Labor Relations Board (NLRB) has issued a Notice of Proposed Rulemaking (NPRM) that includes changes to its representation case procedures that potentially may affect both construction employers and building trades unions. The proposed rule, could benefit employees by protecting their right to choose; while also potentially protecting construction employers from unwittingly adopting a “permanent” bargaining relationship without establishing it has a majority of workers in support. Those interested, must file their comments to the NPRM by October 18, 2019. [To file a comment to the NLRB regarding this matter either: electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.]

Background: Due to the complexity and fluidity of construction job sites and the number of workers (often on limited engagements), unionization/representation requirements for construction were modified to accommodate these unique challenges. As such, section 8(f) of the Act allows construction employers to recognize unions and to adopt collective bargaining agreements (CBAs) without a showing of majority employee support — even, without any showing of employee support for the union at all. Over time NLRA case law interpretations created a boilerplate recognition process substituting for the normal Section 9(a) requirements. The result, the accommodation and process has ignored the rights of employees — those rights the NLRA was intended to protect, which the proposed rulemaking seeks to redress.

The Board majority, in issuing the NPRM, seeks to adopt the more recent Circuit Court Colorado Fire Sprinkler rationale. Under this proposal the NLRB would mandate that Section 9(a) recognition in the construction industry be based upon a contemporaneous showing of majority employee support. The Board majority also said that employee rights to self-determination by majority rule is so important that Staunton Fuel (the older case interpretation) should not be reversed merely by issuing a new decision, but by promulgating a formal rule. The rulemaking process eliminates the risk of the Staunton Fuel rationale being restored without public notice by another later case decision.