Federal Regulations

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Protecting progress in challenging times

The federal regulatory landscape has been very active since President Trump's Executive Orders, "Reducing Regulation and Controlling Regulatory Costs" and "Promoting Energy Independence and Economic Growth," were issued in 2017.

One order directed federal agencies like EPA to identify at least two existing regulations to be repealed to offset the costs of any new regulations. The other directed agencies to review various environmental rules and determine how they might be changed to help industry or be repealed altogether. Numerous changes have been proposed that will affect the Chesapeake Bay and the implementation of the Blueprint, the historic federal and state partnership to restore the Bay. CBF is actively monitoring these developments and opposes any rollbacks that will impede efforts to restore the Bay.

WOTUS (WATERS OF THE UNITED STATES)

In 2015, EPA finalized the Clean Water Rule, defining "Waters of the United States" (WOTUS) in a way that provided clarity about what types of wetlands require Section 402 and Section 404 Clean Water Act permits, which are essential to Bay restoration. In response to President Trump's Executive Order 13778 entitled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule," EPA and the Army Corps of Engineers initiated a two-step process to repeal and replace the Clean Water Rule. On September 12, 2019, the agencies finalized the repeal of the rule. Their replacement rule is expected later this year.

Among other things, the proposed replacement narrows the definition of WOTUS so that features that contain water only during or in response to rainfall (ephemeral features), groundwater, many ditches (including most roadside or farm ditches), prior converted cropland, stormwater control features, and waste treatment systems would not be included. This limited reading will have the greatest impact upstream. It is also a significant problem for Delaware, West Virginia and the District of Columbia, which are governed by federal law and rely on the federal definition of WOTUS for the protection of these features and the protection of wetlands in their jurisdiction. This loss of these safeguards will have impacts to the watershed as a whole.

CBF and more than 2,000 of our members submitted comments opposing this replacement rule. We are now waiting for the agencies to finalize the proposal.

"These actions continue the Administration's assault on clean water," said CBF Vice President for Environmental Protection and Restoration Lisa Feldt. "The repeal ignores EPA's own science and the lengthy and inclusive process that was used to develop the 2015 rule. Maintaining the health of these waterways and wetlands is crucial to protecting downstream waters.

"The Chesapeake Clean Water Blueprint is designed to put practices on the ground to restore water quality in local rivers, streams, and the Chesapeake Bay. Reoving wetland protections will make the Blueprint more difficult to achieve."

We are closely monitoring the agencies' announcement of their replacement rule.

AIR EMISSIONS FROM ANIMAL WASTE AT FARMS

EPA proposed amending its regulations under the Emergency Planning and Community Right-to-Know Act (EPCRA) to exempt farms from reporting air emissions from animal waste. This includes the reporting of ammonia emissions that are problematic for the Bay and for the health of those living and working within the watershed.

CBF opposed this change as the reporting under EPCRA is important for an environmental accounting of the emissions and as a source of information for local authorities and those that live and work near Confined Animal Feed Operations (CAFOs). We also questioned EPA's application of a similar reporting exemption under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to EPCRA. While the exemption was granted for CERCLA reporting under the Fair Agricultural Reporting Method Act (FARM Act), Congress did not intend to apply this exemption to EPCRA reporting requirements.

MOTOR VEHICLE OR CAFE STANDARDS

Cars and light-duty trucks are a large source of greenhouse gas (GHG) emissions and NOx. If vehicles can travel farther on a gallon of gas, they will burn less fuel and emit less GHGs and NOx.

EPA and the National Highway Traffic Safety Administration (NHTSA) recently announced changes to the current Corporate Average Fuel Economy (CAFE) and GHG efficiency standards (tailpipe emissions). If implemented, those standards would have resulted in significant decreases to nitrogen deposition to the Bay and would have helped to address climate change issues from which the Bay is suffering. Their new proposal, entitled the Safer Affordable Fuel-Efficient Vehicles Rule (SAFE) would relax standards for Model Year 2021-2026 vehicles. One of the proposals is to freeze these standards at the levels set for 2020.

CBF submitted comments opposing this proposal because it will impede the success of the Chesapeake Clean Water Blueprint and lead to worsening climate change. Go to the docket

THE REPEAL AND REPLACEMENT OF THE CLEAN POWER PLAN

The 2015 Clean Power Plan (CPP) set the first-ever limits on carbon pollution from U.S. power plants. It would have resulted in significant reductions of nitrogen oxides (NOx) and greenhouse gas (GHG) emissions from the power sector, but it was never implemented.

On July 8, 2018, EPA finalized the repeal and replacement of the Clean Power Plan. The Agency's plan, entitled the "Affordable Clean Energy" Rule, is designed to boost the coal industry. It requires no state limits on carbon dioxide and, as compared to the Clean Power Plan, will permit increases in nitrogen oxide pollution. CBF submitted comments opposing both the repeal of the Clean Power Plan and EPA's replacement, and on August 29, 2019 we filed a Petition for Judicial Review in the D.C. Circuit Court of Appeals. Find out more about the CPP on our blog.

As with the SAFE proposal, CBF opposes ACE because it will impede the success of the Chesapeake Clean Water Blueprint and lead to worsening climate change. Go to the docket

MERCURY AIR TOXIC STANDARDS (MATS)

In December of 2018, EPA proposed a change in how it looks at the costs and benefits of the Mercury Air Toxics Standards. The proposal states that, "After considering the cost of compliance…the EPA proposes…that it is not 'appropriate and necessary' to regulate HAP (hazardous air pollutant) emissions from coal- and oil-fired EGUs (electric utility steam generating units)…" While this proposed rule does not in and of itself change the emission standards and other requirements of the MATS rule, it opens the rule up for future challenges and also puts future analyses of costs and benefits in rulemaking in jeopardy.

On April 17, 2019, CBF filed comments opposing this change. Visit the federal register to see the comment submitted by CBF and other interested parties.

SCIENTIFIC STUDIES AND COST-BENEFIT ANALYSIS

EPA proposed a new rule that would limit the use of scientific studies when issuing regulations. As one example, human health studies that don't reveal the identity of patients would no longer be considered when issuing regulations regarding air pollution. There is also a proposed exemption clause that allows the Administrator to determine—separately from the requirements of the proposed rule—when he/she can consider science that doesn't meet the parameters of the proposed rule. Should this rule be finalized it will result in a loophole that allows EPA to consider what is has called "secret science" selectively.

In another EPA notice, the Agency suggests that it will review its policies regarding how cost-benefit analysis are to be conducted in issuing regulations. One concern that CBF has is that EPA will propose a rule that narrows or limits the consideration of ancillary benefits in its rulemaking. For example, in looking at the costs and benefits of reducing pollution from power plants, it is important to consider both the human health benefits as well as the benefits of reducing pollution to local rivers, streams, and the Chesapeake Bay.

In response to these two proposals, CBF submitted comments encouraging EPA to consider all available science and all of the benefits associated with environmental regulations when promulgating its rules. We continue to monitor developments for both of these proposals.

NEPA (THE NATIONAL ENVIRONMENTAL POLICY ACT)

NEPA is often referred to as the "Magna Carta" of environmental laws. It provides the public with an opportunity to weigh in on the development of major federal actions, like the approval of the Atlantic Coast Pipeline. The Council on Environmental Quality (CEQ) requested comment on whether, among other things, these processes should be streamlined. They hinted at efforts to reduce opportunities for public participation and reducing the thoroughness of environmental reviews.

CBF opposes any efforts that weaken NEPA and reduce opportunities for citizens to be involved in decisions that will impact the Chesapeake Bay. We continue to monitor developments and await CEQ's announcement of a proposed rule.

METHANE REGULATIONS

CBF signed on to comments with other organizations opposing EPA's regulatory rollback weakening the 2016 Methane Standards. Methane emissions from oil and gas sources are a danger to human health and welfare and are a potent greenhouse gas that contribute to climate change. The Agency's proposal ignores these harms and, if finalized and implemented, will result in a loss of hundreds of thousands of tons of methane emissions reductions that were anticipated under the 2016 standard.



We encourage our members to get involved and to check our website often for updates regarding regulatory changes that will impact the Chesapeake Bay. Visit our Action Center for more ways you can help.

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Founded in 1967, the Chesapeake Bay Foundation (CBF) is the largest independent conservation organization dedicated solely to saving the Bay.

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