President Biden has signed into law the results of debt ceiling negotiations between the White House and House Republicans.  Among other things, the bipartisan law includes a series of substantive amendments to the National Environmental Policy Act (NEPA), intended to streamline federal environmental review and permitting.  Highlights include:

• A new statutory section codifying standards by which the lead agency is to make a “threshold determination” of NEPA’s applicability;
• Provisions designed to clarify a project proponent’s ability to directly prepare NEPA documents – including Environmental Impact Statements (EISs) – subject to the lead agency’s independent review;
• A series of “feasibility” and “reasonableness” modifiers to NEPA’s broad EIS requirements, most of which serve to codify case law from the 1979 to 2020 time period;
• Several provisions designed to minimize delays through imposition of time limits, mandatory schedule consultations with project proponents, and judicial review of agency failures to meet schedule commitments;
• Page limits of 150 pages for EISs (unless the action is “extraordinarily complex”) and 75 pages for Environmental Assessments (EAs);
• A clear statement that federal agencies may adopt and rely on categorical exclusions originally promulgated by other federal agencies; and
• Standards designed to add certainty to – and facilitate agency reliance on – programmatic environmental reviews.

It is worth noting that several of these amendments effectively codify proposals (or versions of proposals) originally raised in the context of rulemaking undertaken by the Council on Environmental Quality (CEQ).  In addition to the legislative amendments described above, practitioners, project proponents, and other stakeholders should keep a close eye on further developments in CEQ’s ongoing NEPA rulemaking process.

In the coming days, a more detailed analysis will be posted to our website.  In the meantime, please contact Matthew Adams, Peter Kirsch, Catherine van Heuven, or William Mumby for more information.

On March 13, 2023, the United States Environmental Protection Agency (“EPA”) issued a prepublication notice of a proposed rule that would set the first binding nationwide drinking water standard for six per- and polyfluoroalkyl substances (“PFAS”) under the federal Safe Drinking Water Act (“SDWA”).  The proposal, if finalized, would regulate PFOA and PFOS, the two most well-known and widely used PFAS, as individual contaminants with a regulatory limit of 4 parts per trillion (“ppt”) in public drinking water systems throughout the country.  The proposed regulatory standard is lower than the non-binding lifetime Health Advisory Level (“HAL”) set in 2017 (70 ppt for PFOA and PFOS combined) but higher than the interim HALs set in 2022, which were 0.004 ppt and 0.02 ppt for PFOA and PFOS, respectively.  EPA notes that 4 ppt is the lowest concentration that laboratories can reliably measure for PFOA and PFOS, and indicates it would have selected a lower standard if feasible by proposing that the health-based value, or Maximum Contaminant Level Goal “(MCLG”), for PFOA and PFOS should be zero.  The proposed rule would also regulate four other PFAS chemicals (PFNA,  PFHxS, PFBS and GenX) as a group, using a new hazard index calculation that would determine if combined levels posed a potential risk to human health. 

If finalized, the rule would require public water systems nationwide to monitor for these chemicals and to notify the public and reduce PFAS if levels exceed the proposed standards.  Public drinking water systems will have to implement programs for monitoring, notification, and plans for PFAS remediation if and when needed.  Other entities that may be sources of PFAS contamination, including entities that manufacturer PFAS or PFAS-containing products, municipal solid waste landfills, and airports, can expect that the new standards will increase both regulatory and public scrutiny and increase the potential for regulatory enforcement and/or private party lawsuits.  

This rule may be just the tip of the iceberg for federal regulation of PFAS via the SDWA, as there are thousands of different PFAS compounds, and EPA is already in the process of testing water systems for over twenty more types of PFAS beyond those covered in this proposal. 

Note that the proposed drinking water standard also comes as EPA is the process of finalizing another significant PFAS rulemaking: its proposal to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act.  The designation would expand EPA’s authority to investigate and remediate sites with PFAS contamination and create liability for various entities deemed responsible for PFAS releases. 

Together, these rules are foundational to the Biden Administration’s PFAS Strategic Roadmap. In addition to these two rules, however, further EPA action to address PFAS also is expected over the next few years, such as a proposal to regulate certain PFAS under the Resource Conservation and Recovery Act, as well as agency guidance on key topics like its PFAS enforcement policy and revised guidance on PFAS disposal and destruction.  Stay tuned.

For a link to the pre-publication version of EPA’s Proposed Rulemaking to set the nation’s first PFAS drinking water standards under the SDWA, click here. 

For more information on EPA’s Proposed Rulemaking to designate some PFAS as CERCLA hazardous substances, visit our client alert on that regulatory proposal here.

For more information about PFAS, the proposed rule, or how PFAS regulation or liability may impact your organization, please contact Thomas A Bloomfield, Polly B. Jessen, Sara V. Mogharabi, or Nicholas M. Clabbers.

Kaplan Kirsch & Rockwell is pleased to announce four attorneys have been selected for inclusion to the 2023 Colorado Super Lawyers^® list.

2023 Colorado Super Lawyers:

• Polly B. Jessen  Environmental 
• Peter J. Kirsch  Aviation and Aerospace
• Lori J. Potter  Environmental
• Sarah M. Rockwell  Land Use/Zoning 

Super Lawyers^® utilizes a rigorous selection process based on peer nominations and independent research evaluating 12 indicators of peer recognition and professional achievement. This multi-phase process ensures that all Super Lawyers lists provide users with a credible, comprehensive list of outstanding attorneys in the state. Only the top 5 percent of outstanding lawyers in Colorado are rated by Super Lawyers.

Kaplan Kirsch & Rockwell is proud to announce eleven of our attorneys are listed among The Best Lawyers in America© 2023. Thomas Bloomfield, Sara Dutschke, Heather Haney, Polly Jessen, Stephen Kaplan, Peter Kirsch, Lori Potter, Robert Randall, Sarah Rockwell, and Charles Spitulnik were selected by their peers for inclusion in this year’s list. For the 2023 edition of The Best Lawyers in America, more than 12 million votes were analyzed, which resulted in more than 71,000 leading lawyers being included in the new edition.

The Best Lawyers in America

• Thomas Bloomfield – Energy Regulatory Law; Environmental Law
• Sara Dutschke – Native American Law
• Heather Haney – Real Estate Law
• Polly Jessen – Construction Law; Environmental Law
• Stephen Kaplan – Land Use and Zoning Law; Real Estate law
• Peter Kirsch – Litigation – Environmental
• Lori Potter – Litigation – Environmental
• Robert Randall – Environmental Law; Litigation – Environmental; Natural Resources Law
• Sarah Rockwell – Land Use and Zoning Law; Real Estate Law
• Charles Spitulnik – Railroad Law; Transportation Law

Air Carrier Incentive Programs (ACIPs) have become increasingly important for airport sponsors.  These programs serve as valuable tools for many sponsors in attracting and promoting new air service and competition at their airports.  Currently, the FAA’s only written guidance on ACIPs comes from its Air Carrier Incentive Program Guidebook, which has not been updated since its issuance in September 2010.  Today, the FAA released a “Draft Policy Regarding Air Carrier Incentive Programs,” indicating it is planning to replace the 12-year-old Guidebook with a new policy.

In its Draft Policy, the FAA indicates that neither federal law nor policy has substantially changed since the 2010 Guidebook, but that its experience reviewing ACIPs for compliance in the time since the Guidebook’s publication warrants issuance of a formal policy. 

The FAA’s Draft Policy states that its “intention is to provide more flexibility for airport sponsors to design particular incentive programs while remaining in compliance with Federal obligations.”  Nonetheless, the proposed policy statement largely restates principles from the 2010 Guidebook and the Grant Assurances.  Notably, in some areas, the proposed policy would provide additional explicit limitations or conditions on how sponsors may conduct ACIPs – potentially narrowing the ability of sponsors to continue existing ACIPs or implementing new ones.

Highlights include the following:

• The FAA proposes revising its definition of “new service” to clarify new service must be nonstop if not by a new entrant carrier and eliminating increased frequency of flights as a permissible basis for an incentive.
• The Draft Policy would define “seasonal service” as service offered for less than six months of the calendar year and would permit sponsors to provide incentives for seasonal service for up to 3 years from the start of service.  The 2010 Guidebook does not currently recognize repeated seasonal service as new service. 
• The FAA proposes continuing the ban on incentives based on type or size of aircraft while allowing limited incentives for upgauging.  However, the Draft Policy references the FAA’s decision in 2011 to grant a petition by Clark County Department of Aviation to allow upgauging as a basis for an incentive program, with certain conditions including that the recipient carrier could not contract its schedule and upgauging could not be the only incentive in the sponsor’s ACIP.  The Draft Policy then explicitly requests comment on whether it should exclude similar conditional upgauging incentives in the revised policy statement.
• The proposed policy clarifies that incentives may be offered for new cargo service in addition to passenger service. 
• The proposed policy would include direction from the FAA that airport sponsors must make ACIPs public, including by consulting with incumbent carriers regarding the ACIP before and after implementation.  Previously, such consultation was recommended but not required. 
• Community-sponsored ACIPs that do not use airport revenue would continue to be permissible.  However, such programs previously had to be, essentially, walled off from airport sponsor staff.  The Draft Policy proposes that, with certain conditions (including a prohibition on commingling non-airport incentive funds with airport funds), airport sponsor staff may be consulted on a non-sponsor entity’s ACIP.
• Though airport sponsors may pay for marketing and advertising costs in connection with service provided under the ACIP, the 2010 Guidebook recommended the sponsor pay these costs directly to the advertising entity and not the air carrier.  The proposed policy would make clear this is not a recommendation but a requirement, and the provision of such funds directly to an air carrier would constitute revenue diversion.

Under the new policy, existing incentive programs that are inconsistent with the new guidance would be grandfathered and could continue until their planned expiration.  The FAA notes, however, that any such ACIPs would necessarily expire within two years of the issuance date of a final policy statement, and warns that new incentives under such existing ACIPs initiated during that two-year period must conform to guidance in the final policy statement. 

AAAE reports that it expects the deadline for public comments on the Draft Policy to be April 4, 2023.  Airport sponsors with existing ACIPs or considering implementing a new program to attract air service should review the Draft Policy with care.  Airport sponsors who need additional information or want to submit comments are welcome to contact Sarah Wilbanks, Dave Bannard, or Peter Kirsch. 

On December 29, 2022, Congress passed the Charitable Conservation Easement Program Integrity Act as part of the year-end omnibus spending bill. The Act puts an end to abusive, syndicated conservation easement transactions that have cost taxpayers and tarnished the reputation of the conservation tax incentive and the land conservation community.  

For landowners who hold important historic, natural, and agricultural property, a conservation easement is a practical way to meet land preservation goals while gaining eligibility to certain tax deductions. The state of Colorado also offers a generous tax credit for conservation easements. Most of these donations are genuine endeavors for important land protection, however some have misused this deduction by obtaining artificially inflated land appraisals.

The Act aims to close loopholes in conservation easement donations and shut down this tax avoidance scheme. A key provision of the Act provides:

1. A contribution by a partnership shall not be treated as a qualified conservation contribution for purposes of this section if the amount of such contribution exceeds 2.5 times the sum of each partner’s relevant basis in such partnership unless:
   1. The contribution meets a 3-year holding period test or
   2. The contributing partnership is owned by members of a family

For more information on conservation easements and how to preserve your land, please contact Bill Silberstein or Heather Haney.

Firm attorneys Bill Silberstein and Hanna Gustafsson assisted client Lewis Family Investments in converting its farm located near Berthoud, Colorado to a teaching farm. A conservation easement was conveyed to the Colorado Cattlemen’s Agricultural Land Trust and the farm was conveyed to The Trust for Public Land. The Colorado FFA Foundation is expected to take full ownership and management of the Lewis Heritage Farm within the year and  will operate the site as an immersive agricultural experience for youth and the public. This extraordinary transaction took over four years of patient planning and execution and drew on the real estate and conservation law knowledge and experience of the firm’s lawyers.  

Read more about the project in CCALT’s Annual Impact Report for Fiscal Year 2021/2022.

Kaplan Kirsch & Rockwell is pleased to announce the firm has been nationally and regionally recognized by Best Lawyers® as one of the 2023 “Best Law Firms”. The publication’s 13th annual report was assembled through its trusted methodology that incorporates an extensive review process to evaluate more than 22,000 of the country’s top law firms, of which only 10% received a national ranking. 

• National Tier 2
  • Land Use & Zoning Law
  • Transportation Law
• National Tier 3
  • Litigation – Environmental
  • Native American Law
  • Railroad Law
• Metropolitan Tier 1
  • Colorado
    • Environmental Law
    • Land Use & Zoning Law
    • Litigation – Environmental
    • Real Estate Law
• Metropolitan Tier 2
  • Colorado
    • Construction Law
  • San Francisco
    • Native American Law
  • Washington, D.C.
    • Transportation Law
• Metropolitan Tier 3
  • Colorado
    • Energy Regulatory Law
  • Washington, D.C.
    • Railroad Law

On September 12, 2022, the United States Environmental Protection Agency (“EPA”) issued its long-awaited guidelines and FAQ for the Brownfields Cleanup Grant FY23 competition cycle. According to the new guidelines, an applicant may submit one cleanup grant application in the FY23 competition cycle requesting up to $2 million for purposes of cleaning up a brownfield site or to allocate among multiple sites (the period of performance is up to 4 years). EPA anticipates awarding an estimated total of 73 cleanup grants for an estimated total of $60 million (i.e., 40 grants up to $500,000; 25 grants between $500,000-$1 million; and 8 grants between $1-2 million). The deadline for submitting an application is November 22, 2022.

Site Ownership An applicant must be the sole owner of the site that is the subject of its cleanup grant application and must own the site by November 22, 2022, to be eligible to receive a cleanup grant. In the guidelines, EPA defines “own” to mean “fee simple title through a legal document (for example, a recorded deed); unless EPA approves a different ownership arrangement (for example, a nominee agreement or 99-year irrevocable lease).” See p. 3. EPA strongly encourages applicants to contact their regional brownfields contacts to ensure that the proposed site is eligible for funding prior to submitting an application.

Eligible Entities Entities that are eligible to apply include: state, local, and tribal governments (except for Indian tribes in Alaska) and a range of government entities (i.e., general purpose units of local governments; land clearance authorities or other quasi-governmental entities operating under the supervision and control of, or as agents of local governments, governmental entities; redevelopment agencies created or sanctioned by a state; and regional councils of government); Alaska Native Regional Corporations and Alaska Native Village Corporations and the Metlakatla Indian community; 501(c)(3) nonprofits; limited liability companies in which all managing partners are 501(c)(3) nonprofits; limited partnerships in which all general partners are 501(c)(3) nonprofits or limited corporations whose sole members are 501(c)(3) nonprofits; and qualified 45D(c)(1) community development entities, among others.

Notably, EPA also allows “other nonprofit organizations” to apply for a cleanup grant. “Nonprofit organization” is defined in 2 C.F.R. § 200.1 to include “any corporation, trust, association, cooperative, or other organization (including institutions of higher education) that is operated mainly for scientific, educational, service, charitable, or similar purpose in the public interest and is not organized primarily for profit; and uses net proceeds to maintain, improve, or expand the operation of the organization even if the organization is not exempt from taxation under 501(c)(3).”

Phase II Environmental Site Assessment Report Cleanup grant applicants must also have an ASTM E1903-19 Phase II environmental site assessment report or equivalent site investigation report completed, which indicates a basic understanding of what contaminants need to be cleaned up on the site.

Both the guidelines and FAQ provide important additional information about eligibility criteria, application requirements, site ownership, proper uses of grant funds, and other topics specifically related to brownfields cleanup grants for the FY23 competition cycle. In addition to these resources, please note that EPA also issued guidelines for the following other types of brownfields grants: multipurpose grants, community-wide assessment grants, assessment coalition grants, community-wide assessment grants for states and tribes, and revolving loan fund grants.

For more information about brownfields grants, contact  Thomas Bloomfield,  Polly Jessen, Sara Mogharabi, or Timothy A. Roth.

Yesterday, the FAA issued a draft policy that has potentially significant implications for the way the agency regulates airport sponsors’ use of airport property.  Sponsors have the opportunity to provide comments on the FAA’s proposal until October 17, 2022.  Read more about the questions posed by the proposed policy and its potential changes to airport property transactions here.