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Federal Facilities

Corps Weighs Uniform Method For Calculating Limits Of Water Act's Reach

The Army Corps of Engineers is considering developing a uniform methodology for EPA and other regulators to use in determining the ordinary high water mark (OHWM), a legal concept used to measure the lateral limits of Clean Water Act (CWA) jurisdiction for non-tidal waterbodies.

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McCarthy Urges State TSCA Reform Push, Vows To Clarify CWA's Scope

EPA Administrator Gina McCarthy is urging state environmental officials to seize a “window of opportunity” for pushing action on Senate legislation to reform the Toxic Substances Control Act (TSCA), while vowing that the agency will take steps to clarify the Clean Water Act's (CWA) scope -- policy goals long sought by several states.

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Forest Service Eases Some NEPA Rules

The U.S. Forest Service, the nation's largest landowner, is easing its environmental review requirements for some  restoration projects, issuing a final rule that codifies three new categorical exclusions that the service hopes will help speed reviews required by the National Environmental Policy Act (NEPA).

In a final rule published in the Federal Register Sept. 12, the service excluded from NEPA reviews activities that restore lands negatively impacted by water control structures, “disturbance events” – which the agency defines as floods, hurricanes, tornadoes, and mechanical and engineering failures – and roads and trails.

“These will allow the Forest Service to more efficiently analyze and document the potential environmental effects of soil and water restoration projects that are intended to restore the flow of waters into natural channels and floodplains,” the Forest Service writes in its final rule. Those projects include: removing water control structures, such as dikes, ditches, culverts and pipes; restoring lands and habitat to pre-disturbance conditions by removing debris and sediment following “disturbance events”; and restoring lands occupied by roads and trails to natural conditions.

NEPA generally requires agencies to assess environmental impacts of projects and programs and to mitigate the effects of preferred options. But the implementing regulations also allow agencies to identify categories of actions that normally do not result in individual or cumulative impacts on the environment and do not require an Environmental Assessment (EA) or Environmental Impact Statement (EIS) under NEPA, and exclude them from review requirements.

The agency made some minor modifications and clarifications to its new exclusions in response to public comments after first proposing them in June 2012.

Some commenters expressed concerns that a categorical exclusion for water control structure restoration projects “could have significant indirect effects by reducing flows to livestock watering holes and wildlife habitat” and were also concerned that removal of such structures could cause direct and indirect effects that would warrant documentation in an EA or EIS.

The agency assured those commenters that the “reduced documentation” that comes along with a categorical exclusion “does not mean that the projects avoid or escape environmental analysis.”

“Rather, a thorough environmental analysis is conducted by paperwork is limited commensurate with an agency's experience conducting similar actions and with full regard to the potential for extraordinary circumstances that warrant preparation of an EA or EIS,” the agency writes.

Others suggested that the proposal was not specific enough, asking what constitutes minimal ground disturbance required for a water control structure project to qualify for the exclusion. In response, the agency narrowed the category to “not allow altering or canceling existing rights or special use authorizations; provided a specific example of a type of culvert to be replaced; and specific type and hazard potential of dams proposed for removal, replacement, or modification.”

The agency also removed references to “natural” and “human” caused events in its categorical exclusion for disturbance events, and further defined which projects related to “disturbance events” qualified for the exemption. Other respondents – including some environmental groups – requested that the agency clarify its use of the term “human caused events,” suggesting that the term was ambiguous and overly broad.

“The intent of the category is for restoration activities that remove debris and sediment following disturbance 'events', not correcting chronic sources of debris and sediment,” the agency writes in its response to comments.

The final notice also clarified that the exclusions will not apply “where there are extraordinary circumstances such as adverse effects on threatened and endangered species or their designated critical habitat, wilderness areas, inventoried roadless areas, wetlands, and archeological or historic sites.”

Conservation groups called the exceptions “new and improved policy.” In a Sept. 11 statement, Trout Unlimited said the exceptions would support “healthier fish and game habitat” on Forest Service lands.

“These new exclusions will minimize delay for critical restoration work on federal forest lands, resulting in benefits to fish and wildlife resources, and improving opportunity for the many hunters, anglers and outdoor enthusiasts who enjoy these public lands,” the group said in the statement.

In a separate Federal Register notice published the same day, the service announced plans to make permanent an interim ecological restoration policy and sought comment on the proposal. “The proposed directive would provide broad direction for restoring National Forest System lands and associated resources to achieve sustainable management and ecological integrity. This policy would recognize the adaptive capacity of ecosystems, the role of natural disturbances, and uncertainty related to climate and other environmental change,” the notice says.

Comments on the proposal are due by Nov. 12.

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Groups Spar Over EPA's Implementation Of Systematic Review For IRIS

Industry and environmental groups are sparring over how EPA's influential Integrated Risk Information System (IRIS) program should implement systematic review, an evolving literature review and analysis process EPA is considering adopting to improve its chemical assessment program.

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EPA Plans To Withdraw Controversial Rule On Brownfields Due Diligence

EPA will withdraw a controversial direct final rule updating brownfields due diligence requirements used to assess whether parties are exempt from cleanup liability, following adverse comment from observers who warned the plan risked creating regulatory confusion given that the agency also continues to endorse an earlier standard.

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Advocates See TSCA Bill's Safety Threshold Upending EPA Cancer Analyses

Environmentalists are concerned that language in the bipartisan Senate bill reforming the Toxic Substances Control Act (TSCA) could overturn the agency's strict policy for assessing chemicals' cancer risks, which assumes that some chemicals have no safe exposure level and subjects them to conservative risk assessment methods and regulatory limits.

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Push For PFCs Assessment In New Jersey Could Spur Broader Actions

Environmentalists are asking a federal health agency to assess public health impacts from a perfluorocarbon (PFC) contaminating southern New Jersey drinking water wells, an effort that could put pressure on EPA and other regulators to increase their attention to PFCs -- a currently unregulated class of chemicals that studies are finding are persistent and toxic, sources who follow the issue say.

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Backing Industry, Reviewers Urge EPA To Revise TSCA Assessment Of TCE

Several panelists reviewing EPA's draft risk assessment of trichloroethylene (TCE) are urging the agency to overhaul the document with additional exposure data, backing industry claims that the first such assessment in the agency's novel effort to evaluate and possibly regulate chemicals is inadequate for regulatory purposes.

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EPA Grants Industry Request To Extend EtO Assessment Comment Deadline

EPA is extending the public comment period on its recently released draft assessment of the risks that ethylene oxide (EtO) poses to human health, following requests from industry groups citing their need for more time to review research the agency cited in its assessment.

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EPA-DHS Data Conflict Cited In Call For Facility Security Program Changes

Rep. Henry Waxman (D-CA), ranking member on the energy committee, is citing a conflict between EPA and Department of Homeland Security (DHS) data on the security of a gas storage facility in his district to highlight what he says are broader problems with DHS' security program that warrant "significant changes" to the policy.

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