On November 2, 2021, the Environmental Protection Agency (“EPA”) proposed a suite of New Source Performance Standard (“NSPS”) program rules that, if adopted, will have a significant impact on the upstream and midstream oil and gas sectors, reversing some Trump administration rules that had reversed Obama administration rules regulating volatile organic compound (“VOC”) and methane emissions from the sector.

EPA’s broad proposal is comprised of three distinct pieces. First, the proposal will update the existing NSPS Subpart OOOOa (“Quad Oa”) rules to address a June 30, 2021 Congressional Joint Resolution adopted under the Congressional Review Act, which disapproving the Trump administration’s 2020 Policy Rule. The Trump-era Policy Rule rescinded VOC and methane emission standards for transmission and storage sectors and rescinded methane emission standards for the production and processing sectors. With passage of the resolution and EPA’s proposed revisions, it is as though the 2020 Policy Rule never took effect. The methane standards adopted prior to the 2020 Policy Rule will be reinstated. Ultimately, the Quad O/Oa proposals are expected to include the original 2016 methane standards for applicable production and processing oil and gas segments.

Second, EPA proposed a new subpart, Subpart OOOOb (“Quad Ob”), that will impact new, modified, and/or reconstructed sources in the oil and natural gas sector. The applicability date of the rules for these sources will be determined by the publication of the final rule in the Federal Register. NSPS Quad Ob will create several new requirements at applicable sites, including:

• Storage Vessels: EPA’s proposal changes the NSPS applicability for a storage vessel to depend on the VOC emissions from the storage tank battery. For new, modified, and reconstructed storage tanks or tank batteries with a PTE of 6 or more tons of VOC per year, owners and operators would be required to reduce VOC and methane emissions by 95 percent. This proposal will likely expand the number of storage vessels subject to NSPS applicability and requirements.
• OGI Inspections: EPA’s proposal would require more frequent optical gas imaging (“OGI”) inspections to find and fix fugitive emissions at applicable facilities. EPA’s proposal would require quarterly OGI inspections at facilities with methane emissions greater than 8 tons per year and semi-annual OGI inspections at facilities with methane emissions greater than 3 tons per year. That said, EPA has requested comment to evaluate whether it should shift from the proposed quarterly OGI monitoring to a monitoring program using alternative measurement technologies.
• Well Liquids Unloading: EPA’s proposal also includes an increase in well liquids unloading control and best management practices. The proposal would require that well liquids unloading activities result in zero emissions, unless technically infeasible or unsafe. If an operator can demonstrate technical infeasibility or safety issues, the well liquids unloading activities would be subject to the use of best management practices. Importantly, although included in Quad Ob (as applicable to new, modified and/or reconstrued facilities), EPA notes that any instance of an existing facility conducting a well unloading activity would be considered a modification. Accordingly, from the date of that unloading activity, an existing facility would be subject to these proposed requirements.
• Pneumatic Controllers: EPA’s proposal also targets pneumatic controllers, requiring new and existing sources to use “zero-emission” pneumatic controllers.
• Flaring Requirements: EPA’s proposal prohibits flaring of natural gas unless the operator shows that a gas sales line is not accessible. EPA does not clearly define what determines whether a sales line is “accessible,” but it solicits comment on this question.

Third, EPA has proposed NSPS Subpart OOOOc (“Quad Oc”), which would create emission guidelines that target existing oil and natural gas sources. These emission guidelines are intended to inform state regulators regarding the development, submittal, and implementation of state specific plans that meet or exceed emission reduction standards for oil and natural gas facilities. The Quad Oc requirements largely mirror the Quad Ob proposal, with different applicability thresholds. EPA’s Quad Oc proposal includes:

• Storage Vessels: For existing storage tanks or tank batteries with a PTE of 20 or more tons of methane per year, owners and operators would be required to reduce VOC and methane emissions by 95 percent.
• OGI Inspections: EPA’s proposal would require more frequent optical gas imaging (“OGI”) inspections to find and fix fugitive emissions at existing facilities. For well sites, EPA creates three tiers of inspection frequencies. For well sites with less than 3 TPY, EPA’s proposal would require verification of the facility’s actual emissions. For well sites greater than 3 TPY, EPA proposed two alternatives. The first would require quarterly inspections at all facilities greater than 3 TPY. Alternatively, EPA proposed semi-annual inspection frequency for facilities with PTE between 3 and 8 TPY, while requiring quarterly inspections at all facilities with PTE greater than 8 TPY. The proposal would also require quarterly inspections at compressor stations.
• Well Liquids Unloading: As noted above, any single instance of a well unload will subject any existing facility to the Quad Ob requirements.
• Pneumatic Controllers: Similar to Quad Ob, Quad Oc also targets pneumatic controllers, requiring the use “zero-emission” pneumatic controllers at existing facilities.
• Flaring Requirements: Once again similar to Quad Ob, QuadOc prohibits flaring of natural gas unless the operator shows that a gas sales line is not accessible.

Following the finalization of the Quad Oc emission guidelines, each state must create regulations that meet EPA’s proposal. Following the promulgation of the final Quad Oc regulation, states are expected to take several years to develop and submit their plans. Following submittal, EPA will then review and potentially approve the plan. This process will likely extend to 2025 or beyond.

In addition to the sources and regulations described above, EPA is soliciting comment on several other potential emission sources that may be included in a supplemental rule. EPA is evaluating several different emissions sources, including:

• Financial assurance and fugitive emissions monitoring at plugged and abandoned wells.
• Reducing the frequency of pigging events, eliminating or reducing the volume of gas vented during pigging blowdowns, and/or using add-on controls that are applied to blowdown emissions during pigging.
• Require emission controls during truck loadout operations.
• Additional avenues to ensure control devices are operating functionally, including additional flare monitoring or testing.

The precise timing and next steps of Quad Ob and Quad Oc remain unclear. EPA did not propose rule language or create firm deadlines for its requests for additional comments. However, EPA has scheduled training sessions to discuss these proposals in the coming weeks. Stakeholders can reasonably expect that EPA will publish its proposal and rule language in the Federal Register in the first half of 2022. Following that publication, stakeholders will have 60 days to comment on the proposed rule, including specific items for which EPA has requested feedback. After the 60-day comment period, EPA will evaluate these comments before publishing the final rule. Quad Ob will likely be final and effective in late 2022. However, state regulations addressing EPA’s Quad Oc emission guidelines may not be promulgated until 2025 or later.

Lastly, recent developments in the U.S. Supreme Court may have additional implications for the oil and gas sector. On October 29, 2021, the U.S. Supreme Court agreed to review the D.C. Circuit’s decision striking down the Trump administration’s rollback of Obama-era greenhouse gas (“GHG”) emissions standards for existing power plants in four separate cases. In its review of these cases, the Supreme Court will review the scope of EPA’s authority to regulate GHGs under Section 111(d) of the Clean Air Act. And while the Supreme Court’s ruling in these cases will be specific to the power sector, it could also have legal implications for other existing sources of GHGs, like those in the oil and natural gas sector affected by the proposed regulations in Quad Ob and Oc, and EPA’s future development of Control Technique Guidelines following the adoption of those additional NSPS subparts.

If you have any questions regarding the proposed NSPS revisions or would like to discuss whether to prepare comments on the proposed revisions, please contact Randy Dann or John Jacus.

On September 29, 2021, the U.S. Fish and Wildlife Service (USFWS) released a final rule (“Final Rule”) that revoked a prior rule, finalized only in January 2021, that had interpreted the Migratory Bird Treaty Act (MBTA) as not prohibiting incidental take of migratory birds. Incidental take is defined as take that results from, but is not the purpose of, an action.

USFWS also released an advance notice of proposed rulemaking (ANPR) to develop regulations to authorize incidental take of migratory birds under certain circumstances or conditions. These regulatory changes will affect conventional and renewable energy development on federal and nonfederal lands, as well as other land uses that present a risk of incidental take of migratory birds. Presently, the Final Rule and ANPR have not yet been published in the Federal Register.

Final Rule Revoking USFWS’s Prior Interpretation of the MBTA

The Final Rule revoked a January 7, 2021 rule (“January 2021 Rule”) that was released in the waning days of the Trump administration and had taken effect on March 8, 2021. The January 2021 Rule expressly stated that the MBTA does not prohibit incidental take of migratory birds.

USFWS had based the January 2021 Rule on a 2017 legal opinion of the Solicitor of the Department of the Interior, Solicitor’s Opinion M‒37050. A federal court vacated this opinion last year, Natural Res. Defense Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020), and the Deputy Solicitor of the Interior withdrew this opinion in March 2021.

By revoking the January 2021 Rule, USFWS reinstates its prior interpretation that the MBTA prohibits incidental take of migratory birds. Notably, USFWS did not replace the January 2021 Rule with an alternative regulation but stated in the preamble to the Final Rule that it plans to introduce “a proposed regulation codifying an interpretation of the MBTA that prohibits incidental take.”

With the Final Rule, USFWS also released Director’s Order No. 225 providing guidance to the agency on how to implement the agency’s current interpretation of the MBTA.

Most significant, the Director’s Order prioritizes enforcement of incidental take in the following circumstances:

• Incidental take that:
  • results from activities by a public- or private-sector entity that are otherwise legal;
  • is foreseeable; and
  • occurs where known general or activity-specific beneficial practices were not implemented; or
• Incidental take that is the result of an otherwise illegal activity.

By contrast, the Director’s Order identifies incidental take resulting from the following activities as not an enforcement priority:

• A member of the general public conducting otherwise legal activities that incidentally take migratory birds;
• A federal agency conducting activities in accordance with a signed memorandum of understanding with the Service developed under Executive Order 13186 for the conservation of migratory birds; or
• A public- or private-sector entity conducting activities in accordance with applicable beneficial practices for avoiding and minimizing incidental take.

The Director’s Order also revokes and replaces an April 11, 2018 Director’s memorandum titled “Guidance on the Recent M-Opinion Affecting the Migratory Bird Treaty Act.”

ANPR for Regulations Authorizing Incidental Take of Migratory Birds

The ANPR announced USFWS’s intent to develop regulations to authorize incidental take of migratory birds under certain circumstances or conditions. USFWS is accepting public comment response to the ANPR for 60 days after its publication in the Federal Register.

USFWS is considering three mechanisms to authorize incidental take: (1) categorical exceptions to the incidental take prohibition; (2) general permits; and (3) specific or incidental permits.

With respect to exceptions, USFWS explained it is considering developing exceptions for two general types of activities: first, noncommercial activities, such as homeowner activities that take migratory birds, and second, “certain activities where activity-specific beneficial practices or technologies sufficiently avoid and minimize incidental take.” USFWS would codify any exceptions in a regulation.

With respect to general permits, USFWS explained that it is considering developing general permit regulations for the following activities that are “common sources of bird mortality”:

• Communication towers,
• Electric transmission and distribution infrastructure,
• Onshore wind power generation facilities,
• Offshore wind power generation facilities,
• Solar power generation facilities,
• Methane and other gas burner pipes,
• Oil, gas, and wastewater disposal pits,
• Marine fishery bycatch,
• Transportation infrastructure construction and maintenance, and
• Government agency activities.

USFWS envisions that general permits would be authorized through a registration system. An entity would register, pay a fee, and agree to adhere to activity-specific conditions and implement beneficial practices. General permits would include reporting requirements.

Finally, USFWS anticipates that activities that do not qualify for an exemption or general permit would be eligible to obtain an individual permit authorizing incidental take. USFWS will develop eligibility criteria and permitting procedures.

Notably, USFWS also explained that it is considering offsets associated with general and/or individual permits. Specifically, USFWS is considering whether to adopt a compensatory mitigation approach, where mitigation is developed and implemented specific to a given project or activity, or a general conservation fee structure, where fees go to a specific, dedicated fund.

USFWS is seeking a wealth of information and data to inform its rulemaking process, including information regarding:

• Human-caused migratory bird death and injury from onshore and offshore wind power generation facilities, solar power generation facilities, methane and other gas burner pipes, and oil, gas, and wastewater disposal pits.
• Beneficial practices to avoid and minimize migratory bird death and injury;
• Activity-specific beneficial practices that should be considered as conditions of the authorization;
• Criteria (such as infrastructure design, beneficial practices, geographic features, etc.) to qualify as excepted from a permit, for general permit registration, or to apply for a specific permit;
• Economic costs and benefits of implementing beneficial practices that require retrofitting existing infrastructure;
• Economic costs and benefits of implementing beneficial practices in new construction instead of current designs;
• Economic costs and benefits of implementing beneficial practices that do not affect infrastructure;
• Other economic information useful for setting required compensatory mitigation or a conservation fee; economic information on the benefits of migratory birds, such as ecosystem services, recreation, and other benefits; and
• Any potential effects on small entities, such as small businesses, small non-profit organizations or small governmental entities with a population under 50,000.

USFWS will release draft regulations for public comment before issuing any final regulations. Additionally, USFWS will prepare environmental analysis under the National Environmental Policy Act before issuing any final regulations.

These regulations are critical to the Biden administration achieving its renewable energy goals. USFWS’s reinstated interpretation of the MBTA presents considerable uncertainty for both renewable and conventional energy projects that carry risk of incidental take of migratory birds. For this reason, the Obama administration had taken initial steps toward a permitting program, which was never finalized.

USFWS explained that it seeks to provide “regulatory clarification and certainty” with permitting regulations. Currently, land users lack formal assurances that they will not be subject to enforcement if their activities cause incidental take. Further, these regulations could produce efficiencies for land users by establishing uniform criteria for projects seeking incidental take authorizations.

These regulations will likely attract considerable attention and public comment. Land users who may utilize this program should submit comments in response to USFWS’s requests for information.

If you have any questions regarding the Migratory Bird Treaty Act, please contact Katie Schroder.

Did You Agree to Share Your Home Wi-Fi Network?

On June 6, 2021, Amazon launched, and automatically enrolled users with compatible devices into, “Sidewalk,” its new internet-sharing wireless mesh network. Sidewalk crowdsources data and bandwidth from home Wi-Fi connections via Amazon Echo smart speakers and smart displays, Ring devices, and Tile trackers. If you have these devices in your home, your internet bandwidth is likely now being shared to help other Sidewalk devices that are in range—like a neighbor’s Echo—connect to the internet.

Amazon is following the path forged by Comcast’s Xfinity unit with “xfinitywifi.” Since 2014, Xfinity customers have had access to a widespread public Wi-Fi SSID outside of their home. This public Wi-Fi network, named “xfinitywifi,” is made possible by customers accessing routers that other Xfinity customers lease from Comcast.

Despite criticism of the potential security and privacy concerns,[1] customers are automatically enrolled in these programs without a separate contract. Most customers don’t realize they are sharing their Wi-Fi, much less of the need to opt out of it.[2]

Automatic Opt-In Contracts

Amazon binds users of Echo, Ring, and other devices to Sidewalk’s terms with a “sign-in-wrap” agreement when they log into their account. That the consent is buried in their device contracts would surprise most users, not to mention their automatic opt-in to Wi-Fi sharing just by continuing to use their device. Similarly, many Xfinity customers are likely unaware they are sharing the Wi-Fi generated by their leased modem via the public “xfinitywifi” channel.

There is widespread concern about, and proposed legislative limitations on, automatic opt-ins that may affect the privacy of consumers’ personal information.[3] However, there is much less discussion about whether automatic opt-in to unrelated terms in connection with an online purchase of goods or services is (or should be) enforceable.

Most online purchases of goods or services are just as legal and enforceable as traditional paper-and-ink contracts, thanks to the federal Electronic Signatures in Global and National Commerce Act (ESIGN). In addition, most states have adopted either the Uniform Electronics Transactions Act (UETA) or their own e-signature laws that confirm the legal validity of electronic signatures and contracts. (see, e.g., Colo. Rev. Stat. § 24-71.3-103). Online consumers nowadays consent to contractual terms with an electronic signature or, most commonly, by clicking an “I accept” button. Neither UETA nor ESIGN, however, provide specific guidance on the limitations of passive consent and automatic opt-ins so it is left to the courts, applying traditional contractual principles, to determine their validity and enforceability in specific situations.

Courts generally focus on whether the user had reasonable notice of the terms, actual or constructive, and the extent to which there was express assent.[5] Some courts put the responsibility on the consumer to read and understand the terms, and accept the notion that clicking “I agree” or continuing to use the platform is binding acceptance of the terms, whether read or not.[6] Other courts have found it unreasonable to bind a consumer to terms they were never prompted to read or, in some cases, required to read.[7]

In Berkson v. Gogo LLC,[8] when the user “signed up,” Gogo automatically enrolled them in a recurring service, rather than for a single month as the plaintiff alleged. The federal district court in Berkson concluded that Gogo’s website and sign-in screen, which requested the user’s username and password, and underneath the text: “By clicking ‘Sign in’ I agree to the terms of use and privacy policy,” did not give the user sufficient notice of the terms. Forced to apply a confusing combination of New York, California, and Illinois contracts law, the Berkson
court used a four-part test (1) Is there “substantial evidence” that a user understood they were agreeing to actual terms and conditions? (2) Does the website’s design make the terms clearly available to the user? (3) Does the website’s design encourage the user to review the binding terms, as opposed to minimizing their importance? (4) Does the contract clearly draw the user’s attention to material terms?

In Kemenosh v. Uber Techs., Inc.,[9] Uber’s rider registration screens, as viewable from the iPhone application, were not “inconspicuous but rather failed to adequately communicate” the website’s terms:

It is generally understood that Uber offers transportation in exchange for money. Therefore, the words “by creating an Uber account you are agreeing to the Terms of Service and Privacy Policy” convey that by creating an Uber account one is agreeing to pay money in exchange for transportation, and to the terms of a privacy policy. They do not convey an offer to arbitrate or notify the user in any way that the offered Terms of Service contain a waiver of jury trial and an arbitration clause.

The Kemenosh court suggested that, if Uber had required the user to check a box, “I read and agree to the Terms of Service,” or even included a pop-up message, “Please read the Terms of Service before continuing,” then that might have been sufficient to form a contract with an iPhone enrollee that included the disputed terms.

Conclusion

Without statutory guidance on the enforceability of passive consent and automatic opt-in terms, courts are left to their own devices (pun intended) in determining whether a buried term causing automatic opt-in to an ancillary service like Sidewalk or xfinitywifi should be enforceable. Companies seeking to create valid and enforceable agreements for meaningful but unnecessary issues or for ancillary services are well advised to require the online consumer to expressly confirm review of such terms, or even to visit the terms page before allowing such consent. Notwithstanding such steps, however, online businesses should not assume the effectiveness of consumer consent to entirely distinct matters from the subject of the contract, like Sidewalk services in a Ring or Echo agreement. An enforceable agreement to such collateral terms may require a specific consent focused on those terms.

By contrast, for important but not necessarily assumed terms, like mandatory arbitration, waiver of jury trial, and limitations on damages, it seems likely that consumer confirmation of having read and accepted the terms will be sufficient in most circumstances. Online businesses should appreciate, however, that evaluating the reasonableness of such consent may consider everything from the hyperlink’s color and placement, the design elements elsewhere on the screen, the size of the print, and the language used to draw the user’s attention. In the absence of federal or uniform legislative action, these subjective standards may continue to foster inconsistency and uncertainty for businesses and consumers as to the binding effect of nonessential contractual terms in online transactions.

[1] Even the Washington Post, owned by Amazon Chairman and Founder Jeff Bezos, has expressed alarm about the privacy and security issues inherent in Sidewalk. https://www.washingtonpost.com/technology/2021/06/07/amazon-sidewalk-network/.

[2] Instructions to disable Sidewalk on Echo devices, https://www.amazon.com/gp/help/customer/display.html?nodeId=GZ4VSNFMBDHLRJUK, and Ring devices, https://support.ring.com/hc/en-us/articles/360032524592-Opting-In-and-Out-of-Sidewalk. Instructions for disabling xfinitywifi sharing, https://www.xfinity.com/support/articles/disable-xfinity-wifi-home-hotspot?view=app.

[3] See, e.g., https://arstechnica.com/tech-policy/2021/05/privacy-bill-would-force-big-tech-to-offer-tracking-opt-out-breach-notices/.

[4] 15 U.S.C.S. § 7001 et seq.

[5] Cullinane v. Uber Techs., Inc., 893 F.3d 53 (1st Cir. 2018) (does the online agreement provide “reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms”); Schnabel v. Trilegiant Corp., 697 F.3d 110, 120 (2d Cir. 2012) (“where the purported assent is largely passive, the contract-formation question will often turn on whether a reasonably prudent offeree would be on notice of the term at issue”); Specht v. Netscape Communs. Corp., 306 F.3d 17, 29-30 (2d Cir. 2002) (“clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms”).

[6] See, e.g., Vernon v. Qwest Commc’ns Int’l, Inc., 925 F. Supp. 2d 1185, 1191 (D. Colo. 2013) (users chose to agree to the conditions, even without reading them and must “accept the consequences” of being bound); Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 839-40 (S.D.N.Y. 2012) (user had ample opportunity to review via provided hyperlink and thus assented to terms by clicking “sign in” button); Swift v. Zynga Game Network, Inc., 805 F. Supp. 2d 904, 911-12 (N.D. Cal. 2011) (user with opportunity to review terms, chose not to, and clicked “I agree” anyway had sufficient notice).

[7] See, e.g., Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171, 1179 (9th Cir. 2014) (contract unenforceable because consumers cannot be expected to look for hyperlinks with binding terms and conditions they may never be prompted to review); Specht, 306 F.3d at 20 (screen requiring user to follow links to more than one webpage not reasonable notice of terms to “reasonably prudent Internet user”); Berkson v. Gogo, 97 F. Supp. 3d 359, 399 (the text “By clicking ‘Sign In’ I agree to the terms of use and privacy policy” provided insufficient notice, because website did not draw user’s attention to terms with any signifiers of importance, and did not require user to click on terms).

[8] 97 F. Supp. 3d 359 (E.D.N.Y. 2015).

[9] No. 181102703, 2020 WL 254634 (Pa. Ct. Common Pl. Jan. 3, 2020).

On June 24, 2021, Governor Polis signed into law a bill to advance the state’s goal to reduce greenhouse gas (“GHG”) emissions from gas distribution utilities. Senate Bill 21-264 requires gas distribution utilities (“GDUs”) to implement clean heat plans which demonstrate the GDU’s strategy to meet specified clean heat targets.

The bill defines a GDU as a gas public utility with over 90,000 retail customers. Each GDU must file a clean heat plan with the Colorado Public Utilities Commission (“PUC”) that explains their proposal to reduce carbon dioxide and methane emission levels by 4% in 2025 (only 1% can be from recovered methane) and 22% in 2030 (only 5% can be from recovered methane). The calculation for baseline and projected emissions must include (1) leaked methane from the transportation and delivery of gas, (2) carbon dioxide emissions resulting from gas combustion, and (3) leaked methane emissions from gas delivery to local distributors. Each GDU’s clean heat plan must address the following scenarios:

1. The GDU will use the maximum practicable clean heat resources, comply with the cost cap (determined by the PUC), list leak reductions, and may or may not meet the clean heat targets, but demonstrates overall reductions in methane emissions; and
2. The GDU will meet the clean heat targets, using only clean heat resources, but will not meet the cost cap.

The GDU has discretion to include additional scenarios and the PUC may also request supplementary scenarios. Colorado’s largest GDU (determined by volume of gas sold) must submit a clean heat plan by August 1, 2023. All other GDUs must submit their plans by January 1, 2024.

The new legislation also provides clean heat plan requirements for municipal GDUs (a municipally owned utility that provides gas services to over 90,000 customers) and small GDUs (a public utility providing gas services to 90,000 customers or less). A municipal GDU must implement a clean heat plan by February 1, 2023 that demonstrates compliance with the 4% reduction of GHG emissions by 2025 and 22% reduction by 2030 and the plan must be approved by the entity’s governing body. A small GDU may file a clean heat plan pursuant to the same requirements as a GDU or it may submit a plan that proposes its own reduction targets, subject to the cost cap.

Colorado GDUs are encouraged to use already available tools, including energy efficiency, biomethane, hydrogen, recovered methane, beneficial electrification of customer end uses, and cost-effective leak reductions on the utility’s distribution systems to achieve GHG emission reductions. Additionally, where practicable, GDUs are requested to use their own employees to implement clean heat plan projects. For projects that require competitive solicitation, the GDU must inquire about the use of Colorado-based and out-of-state labor.

When approving a clean heat plan, the PUC must consider a cost test that includes the social cost of carbon and methane. Moreover, the PUC must ensure the clean heat plan advances the public interest, by analyzing the use of clean heat resources, the air quality, environmental and health benefits of the plan, the reliability and cost of the plan, and whether investments in the plan prioritize communities historically impacted by pollution.

Senate Bill 21-264 also requires the PUC to propose rules establishing recovered methane protocols by September 1, 2022. Further, the PUC must evaluate requisite resources for the effective regulation of GHG sequestration and report its findings by December 1, 2021.

Similarly, in Governor Polis’ 2021 GHG Pollution Reduction Roadmap,[1] the state government announced its plan to form a task force on carbon capture, use, and sequestration to research policies and action plans that align with Colorado’s GHG emission reduction goals. As the state government’s role in carbon sequestration policy grows, it is important for inquiries into sequestration regulation to address pore space ownership, the balance between carbon sequestration and advancing reductions in pollution, public incentives, and economic development related to carbon capture.

The purpose of Senate Bill 21-264 is to equitably and reasonably reduce Colorado’s greenhouse gas emissions and transition to a decarbonized economy. Implementation of these clean heat plans, along with support from the PUC, will promote Colorado’s overall goals to reduce GHG emissions to slow global warming and protect our environment.

If you have further questions, please contact John Jacus or Kelsey Johnson.

[1] https://drive.google.com/file/d/1jzLvFcrDryhhs9ZkT_UXkQM_0LiiYZfq/view

Welcome to another edition of the Davis Graham Privacy & Data Security Legal Update! The goal is to keep you apprised of the latest developments in privacy and data security law. If you have any comments, questions, suggestions, or feedback, please reach out to the author,Camila Tobón.

In this edition, we focus on privacy bills at the U.S. state and federal levels. The states have been the most active, with nearly half the states considering some form of comprehensive privacy legislation. A few bills have also been introduced at the federal level. It’s possible that another one or two states will join California and Virginia with a privacy law. But a federal privacy law still seems far off.

U.S. Developments

Comprehensive privacy legislation pending in several U.S. states

On March 19, 2021, Colorado Senators Rodriguez and Lundeen introduced a bill providing additional protections for the personal data of Colorado residents called the Colorado Privacy Act (SB21-190). To read more about this bill, read our March update here. The bill came up for hearing before the Senate Business, Labor & Technology Committee on May 5, 2021. The Committee approved amendments to the bill, including:

• Clarifications to the definitions of “sale” and “targeted advertising”;
• Narrowing the right to opt-out to targeted advertising, sale, or profiling;
• Shifting sensitive data processing from an opt-in basis to notice and opt-out;
• Adding a notice and 60-day period to cure before an enforcement action can be initiated.

The bill now moves to the Senate Appropriations Committee.

In our prior editions we also covered bills introduced in Alabama, Florida, Minnesota, New York, Oklahoma, Utah, Virginia, and Washington. The Virginia bill has now become law, when it was signed by the governor on March 2, 2021. The Virginia Consumer Data Protection Act (VCDPA) will apply to personal information collected on or after January 1, 2022 and takes effect on January 1, 2023. The law follows a different model than the California Consumer Privacy Act (CCPA). To read more on it, please see our prior update here.

Several other states introduced privacy bills this legislative session. Below is a chart of the currently pending state bills.

State	Bill No.	Summary
Alabama	HB 216	This bill is similar to the CCPA. It is before the House Committee on Technology and Research.
Alaska	SB 116 and HB 159	These bills are a modified version of the CCPA and include provisions for a data broker registry. Both bills have been referred to Labor & Commerce.
Colorado	SB 190	This bill is like the new law in Virginia except that the opt-out applies to all personal data processing. It is pending before the Senate Appropriations Committee.
Connecticut	SB 893	This bill is like the new law in Virginia. A public hearing was held in late February and a substitute bill was then filed. The bill is now before the full Senate.
Illinois	HB 3910	This bill is like the CCPA. It is before the House Rules Committee.
Massachusetts	SD 1726	The Senate bill differs from the other bills because it creates duties of care, loyalty, and confidentiality and requires consent before personal information is collected and processed. It has been referred to the committee on Advanced Information Technology, the Internet and Cybersecurity.
Minnesota	HF 36 and HF 1492	HF 36 is like the CCPA while HF 1492 is like the new Virginia law. Both bills have been referred to the Commerce Finance and Policy Committee.
New Jersey	AB 3283 and AB 3255	AB 3283 is like the GDPR in that it requires a legal basis for processing personal information. AB 3255 is like the CCPA. Both bills are before the Science, Innovation and Technology Committee.
New York	S 567, A 6042 and A 680	SB 567 is like the CCPA. A6042 would require opt-in consent for processing personal information. A680 requires consent to use, process, and disclose, and imposes a fiduciary duty of care. These bills are pending in committee.
North Carolina	SB 569	This bill is like the VCDPA. It passed first reading in the Senate and has been referred to committee.
Pennsylvania	HB 1126	This bill is like the CCPA. It was referred to the Consumer Affairs Committee in the House.
Texas	HB 3741	This bill is different from the CCPA and Virginia law. It imposes restrictions on use of personal information, in addition to providing consumer rights. The bill is before the Business & Industry Committee.

Bills filed in Arizona, Florida, Kentucky, Maryland, Mississippi, North Dakota, Oklahoma, Utah, Washington, and West Virginia have died.

From this legislative activity it is clear that two distinct models are emerging – the CCPA model and the VCDPA model. Although both focus on transparency – where covered entities provide clear notice of their personal data handling practices – and control – where consumers are given specific rights with respect to their data – the requirements and implementation differ. As legislative sessions come to a close in the coming weeks, it will be interesting to see which states join California and Virginia and which model emerges as the leading standard.

Four federal privacy bills introduced in 2021

Rep. Suzan DelBene, D-WA, introduced the Information Transparency and Personal Data Control Act in March. The bill directs the Federal Trade Commission (FTC) to enact regulations governing the use of sensitive personal information (SPI), which broadly includes data typically associated with breach notification laws as well as information considered sensitive under the CCPA and VCDPA as well as the content of communications and personal call detail records. With regard to non-SPI, the bill establishes a right to opt out any personal information processing. No private right of action is provided. Instead, enforcement would be by the FTC and state attorneys general.

Sen. Brian Schatz, D-HI, introduced the Data Care Act in March. The bill requires online service providers to (1) reasonably secure individual-identifying data from unauthorized access, (2) refrain from using such data in a way that will result in reasonably foreseeable harm to the end user, and (3) not disclose such data to another party unless that party is also bound by the duties established in the bill. The bill authorizes the Federal Trade Commission and specified state officials to take enforcement actions with respect to breaches of such duties.

Sen. Ron Wyden, D-OR, introduced a bill to amend the FTC Act in late April. As of May 13, 2021, the bill text has not been received for S.1444. But a bill summary states that it establishes requirements and responsibilities for entities that use, store, or share personal information, to protect personal information, and for other purposes.

Sen. Jerry Moran, R-KS, introduced A bill to protect the privacy of consumers also in late April. As of May 13, 2021, text has not been received for S.1494.

The late April rally to introduce new legislation signals a continued interest in data privacy issues. However, it is unlikely that any of these bills will gain traction in the near term. The activity continues to be focused at the state level.

In January 2021, the Federal Permitting Improvement Steering Council (“FPISC” or “Council”) voted to include mining infrastructure projects as an eligible sector for coverage under the Fixing America’s Surface Transportation Act (“FAST-41” or “Act”). The purpose of the Act is to streamline the Federal environmental review process for large-scale infrastructure projects. Renewable energy projects have been eligible for FAST-41 review since 2015, when the Act was passed by Congress. Mining and renewable energy development are necessarily intertwined from a supply chain standpoint, and the addition of the mining sector to FAST-41 is an indicator that the federal government is conscious of the need to shore up related domestic industries if the U.S. is going to be able to reach its carbon reduction goals through mass deployment of renewable projects around the country.

FAST-41 established a program to improve the timeliness, predictability, and transparency of the analysis and permitting phases for infrastructure proposals. The Act enhances federal coordination by requiring all agencies relevant to a project’s review to develop a plan and schedule outlining the necessary steps for project authorization within 60 days of a project’s FAST-41 eligibility being established. FAST-41 limits an agency’s ability to revise their timeline within 30 days of the original posted deadline, and the FPISC acts to ensure each agency meets its deadline. To deter delays, FAST-41 requires the FPISC to report to Congress whenever a modification to the timeline results in a 150% delay of the original schedule.

The Act implemented the Permitting Dashboard, a public website displaying the actual and scheduled timeframes for current projects, allowing for increased transparency related to the permitting process. FAST-41 also set the statute of limitations to challenge a project’s authorization at two years, and established guidelines for judicial review and dispute resolution, all in an effort to minimize delays caused by litigation.

To be eligible for FAST-41 coverage, the project:

1. Must be located in the United States and require environmental review and authorization by a federal agency;
2. Must be subject to NEPA review;
3. Must be likely to require an investment of $200,000,000 or more; and
4. Must not qualify for any other abbreviated environmental review.

If a project sponsor believes their infrastructure proposal qualifies for FAST-41 coverage, they must submit a FAST-41 Initiation Notice to the Executive Director of the FPISC and the facilitating Federal agency. The FPISC will coordinate with the lead agency to determine eligibility, potential concerns and mitigation, and the first necessary steps in the permitting process. A decision regarding the project’s eligibility must be issued by the lead agency within 14 days. If the project is approved, the relevant agencies will create a Coordinated Project Plan and the project’s permitting process will immediately begin.

The federal environmental review process is often plagued with long delays and sluggish progress. At its induction, FAST-41 covered renewable and conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, and manufacturing. Since the Act’s passage, 23 renewable energy generation projects have been deemed eligible for streamlined permitting, and nine large-scale renewable projects have already been completed. In light of such a successful track record, the addition of mining as an eligible sector has drawn both praise and criticism, with some applauding the decision to expedite the permitting process (mining project review typically takes seven to ten years) and increased access to battery minerals and other mining products necessary for renewable energy production, while others oppose any acceleration of the development of the mining sector.

If you have further questions, please contact Almira Moronne or Kelsey Johnson.

On March 19, 2021, Senators Rodriguez and Lundeen introduced the Colorado Privacy Act (“CPA”) bill, which would provide additional protections for the personal data of state residents. If passed, the bill would have a far-reaching impact on businesses collecting and using personal information about Colorado residents, whether operating inside or outside the state. We will continue to monitor developments, but if you have any questions or would like to discuss specific issues in the bill, please reach out to Camila Tobón.

Davis Graham will be hosting a webinar to discuss the bill on Tuesday, April 13, 2021 from noon to 1 p.m. You can register here.

To whom does the CPA bill apply?

The CPA aims to protect the personal data of “consumers,” which means a natural person who is a Colorado resident acting in an individual or household context. It does not include a natural person acting in a commercial or employment context.

The CPA refers to “controllers” and “processors.” A controller determines the purposes and means of processing personal data. A processor processes personal data on behalf of the controller. The CPA bill also introduces the concept of a “third party,” which is defined as “a person, public authority, agency, or body other than a consumer, controller, processor, or affiliate of the processor or the controller.”

To be subject to the CPA, legal entities would have to:

1. Conduct business in Colorado or produce products or services that are intentionally targeted to Colorado residents; and
2. Either:
   1. Control or process the personal data of 100,000 consumers or more during a calendar year; or
   2. Derive revenue or receive a discount on the price of goods or services from the sale of personal data and process or control the personal data of 25,000 consumers or more.

What does the CPA bill protect?

The CPA bill protects “personal data,” which means any information that is linked or reasonably linkable to an identified or identifiable individual. It does not include deidentified data or publicly available information.

The CPA bill excepts certain data sets, including:

• “Protected health information” and other listed patient and health information, as well as information maintained in the same manner by covered entities, business associates, health care facilities or health care providers, and a program or qualified service organization as defined in 42 C.F.R. § 2.11;
• Personal data bearing on a consumer’s creditworthiness that is regulated by the Fair Credit Reporting Act and processed by a consumer reporting agency, a furnisher of information, or a user of a consumer report;
• Personal data collected, processed, sold, or disclosed pursuant to the Gramm Leach Bliley Act (GLBA);
• Personal data collected, processed, sold, or disclosed pursuant to the federal Driver’s Privacy Protection Act;
• Personal data regulated by the federal Children’s Online Privacy Protection Act and the federal Family Educational Rights and Privacy Act; and
• Data maintained for employment records purposes.

The CPA bill also includes an entity-level exemption for financial institutions or affiliates of a financial institution that are subject to the GLBA. Any personal data processed by these entities would be out of scope of the CPA bill, not just the personal data handled pursuant to the GLBA and its implementing regulations.

Does the CPA define “sale” of personal data?

The CPA defines “sale” as the exchange of personal data for monetary or other consideration by a controller to a third party for purposes of licensing or selling personal data at the third party’s discretion to additional third parties. It includes several exceptions:

• Disclosing data to a processor that processes personal data on behalf of the controller;
• Disclosing personal data to a third party with whom the consumer has a direct relationship for purposes of providing a product or service requested by the consumer or otherwise in a manner that is consistent with a consumer’s reasonable expectations considering the context in which the consumer provided the personal data to the controller;
• The disclosure or transfer of personal data to an affiliate of the controller; or
• The disclosure or transfer of personal data to a third party as an asset that is part of a merger, acquisition, bankruptcy, or other transaction in which the third party assumes control of all or part of the controller’s assets.

What consumer rights does the CPA bill provide?

The CPA would provide consumers with the following rights:

• The right to opt-out of the processing of personal data concerning the consumer, including the right to authorize another person to opt-out of personal data processing for purposes of targeted advertising or “sale” of the consumer’s personal data.
• The right to confirm whether a controller is processing personal data concerning the consumer and access to those data.
• The right to correct inaccurate personal data collected from the consumer.
• The right to delete personal data concerning the consumer.
• The right to obtain personal data in a portable and, to the extent technically feasible, readily usable format that allows the consumer to transmit the data to another entity without hindrance (data portability). This right may be exercised no more than twice per calendar year.

Controllers would have 45 days to respond to requests to exercise consumer rights, which could be extended to 90 days where reasonably necessary. Controllers must provide information free of charge except that a fee (to be calculated pursuant to the state public records statute) may be charged for the second or subsequent request within a twelve-month period.

The CPA bill requires controllers to establish an internal process for consumers to appeal a refusal to act on a request to exercise any of their consumer rights. If the consumer has concerns about the result of the appeal, they can contact the Attorney General.

What does the CPA bill require of “controllers”?

Controllers must provide consumers with a privacy notice describing the categories of personal data collected or processed, the purposes for processing, an estimate of how long personal data will be retained, how and where consumers may exercise their rights, the categories of personal data shared with third parties, and the categories of third parties with whom personal data are shared. If a controller sells personal data to third parties or processes personal data for targeted advertising, it must disclose such sale or processing as well as the manner in which the consumer may exercise the right to object to such sale or processing.

Other requirements imposed on controllers include:

• Purpose specification – collection of personal data must be limited to what is reasonably necessary for the specified purpose;
• Data minimization – controllers must collect only what is reasonably necessary for the specific purpose;
• Secondary uses – controllers must avoid secondary uses that are not reasonably necessary to or compatible with the purposes for which the data are processed;
• Duty of care – controllers must employ reasonable security measures to protect personal data against unauthorized acquisition during both storage and use;
• Nondiscrimination – controllers cannot increase the cost of or decrease the availability of a product or service based solely on the exercise of a right and may not process personal data in violation of state and federal laws prohibiting unlawful discrimination against consumers.

Controllers must get consent to process “sensitive data,” which include:

• personal data revealing racial or ethnic origin, religious beliefs, mental or physical health condition or diagnosis, sex life or sexual orientation, or citizenship or citizenship status;
• genetic or biometric data for the purpose of uniquely identifying a natural person; and
• personal data from a known child.

Controllers must also conduct data protection assessments for processing activities presenting a heightened risk of harm to consumers, which include targeted advertising or profiling; the sale of personal data; and sensitive data processing. Such data protection assessments must be made available to the Attorney General upon request.

What does the CPA bill require of “processors”?

Processors must process personal data according to the controller’s instructions and must assist controllers with the fulfillment of their obligations under the CPA. Processing by a processor must be governed by a binding contract setting out the processing instructions to which the processor is bound.

How would the CPA be enforced?

The CPA would be enforced by the Colorado Attorney General and District Attorneys. Violators would be subject to an injunction and a civil fine as specified in Colo. Rev. Stat. § 6-1-112 (setting out civil penalties in various contexts). There is no private right of action in the CPA bill.

When would the CPA take effect?

The law would take effect on January 1, 2023.

In the last decade, solar energy development has grown annually at an average rate of 49%.[1]
As more land is used for this renewable resource, increased conflicts with the owners of minerals underlying those lands are inevitable. A recent case in Texas, Lyle v. Midway Solar, LLC,[2] highlights how courts may address such conflicts. The court acknowledged that the “accommodation doctrine” may limit the rights of mineral owners to interfere with solar facilities overlaying their minerals. However, application of the doctrine to determine surface rights can only occur after the mineral owner attempts to develop its minerals.

The Facts

The Lyles own 27.5% of the mineral rights in a 315-acre tract in Pecos County, Texas derived from a 1948 Deed. Gary D. Drgac owns 100% of the surface rights in the same tract. The Lyles never leased their mineral interest to an oil and gas operator and have no current plans to develop the minerals. They commissioned no geological studies on the property and never received any offers to lease or purchase the mineral estate. In 2015, Mr. Drgac leased the surface of the property to Midway Solar, LLC (“Midway”) to build a solar energy facility on the property. Under the terms of the lease, Midway could place solar panels on the property, as well as transmission lines, electrical lines, and cable lines. The solar lease acknowledged that the minerals had been severed and identified the rights of the mineral owner as an “encumbrance” on the land.

Drgac and Midway amended the lease to identify “Designated Drillsite Tracts” for future operators to explore for and access minerals. These tracts were exempt from solar facility construction. Midway’s solar facility eventually covered 70% of the surface of the property, leaving the two drillsite tracts undisturbed. Midway obtained surface waiver agreements from adjoining mineral interest owners for purposes of accessing the property but did not obtain a waiver from the Lyles.

The Lawsuit

After construction of the facility, the Lyles sued Midway and Drgac alleging they had breached the terms of the 1948 Deed, denying reasonable access to the minerals by covering 70% of the surface with solar panels and transmission lines. The Lyles also argued that Drgac and Midway were trespassing on their mineral estate. They sought damages for trespass and breach of contract arguing that the solar facility had “destroyed and/or greatly diminished the value” of their minerals.

The Accommodation Doctrine

In Texas, a mineral estate is “dominant,” meaning the mineral owner has the right to use the surface to extract minerals using methods reasonably necessary for extraction. The mineral estate’s dominance is limited by the “accommodation doctrine,” which requires the mineral and surface estates to exercise their respective rights with due regard for the rights of the other. The surface owner carries the burden to show that (1) the mineral owner’s use of the surface completely precludes or substantially impairs the surface owner’s existing use, (2) there is no reasonable alternative method available to the surface owner by which the existing use can be continued, and (3) there are “alternative, reasonable, customary, and industry-accepted methods available to the mineral owner” to recover the minerals. If alternative methods allow mineral development without disturbing the surface owner’s existing use, the accommodation doctrine may require the adoption of that alternative method. If only one method of extracting the minerals is available, the mineral owner may pursue that method, regardless of surface damage. Parties have the right to set their own contractual terms as they see fit, provided such rights do not violate public policy.

The Lyles argued that the 1948 Deed expressly delineated the parties’ rights. The Deed states, “Grantors further reserve unto themselves, their heirs and assigns, the right to such use of the surface estate . . . as may be usual, necessary or convenient
in the use and enjoyment of the oil, gas and general mineral estate.” The Lyles argued the word “usual” evidenced the grantor’s intent to reserve the right to drill vertical wells, the “usual” method of drilling at the time the Deed was signed. Directional and horizontal drilling had not been invented. Therefore, covering 70% of the surface with solar facilities violated that contractual right and preserving small drilling pads for vertical and horizontal wells was insufficient.

The court disagreed because it did not interpret the term “usual” as applying to a specific drilling method. Rather, it referred more generally to the right to use the surface to use and enjoy the mineral estate. The Deed made no reference to specific drilling methods and had the grantors intended such a specific meaning of “usual” they could have explicitly reserved the right to drill vertical wells. The court therefore determined that the contractual language did not override application of the accommodation doctrine, which should inform what rights each party had to the surface.

Attempt to Develop the Minerals

Midway argued that for the Lyles to maintain a claim for trespass, the Lyles must currently be using or plan to use the surface to develop their minerals. The Lyles countered that they had already suffered damages from the solar facility blocking access to the mineral estate.

The court determined that if the Lyles exercised their rights, Midway would have to yield to the degree mandated by the application of the accommodation doctrine. However, until such rights are exercised, there is nothing to be accommodated. To maintain a claim for trespass, the Lyles must have first sought to develop their minerals.

The court’s reasoning is that if a claim for trespass could be maintained without an attempt to develop, mineral owners could simply claim damages from any surface activities that could potentially hinder mineral development in the future. Furthermore, there would be no way to calculate damages since future development would be subject to different markets and technologies.

Although the Lyles’ claim for trespass was premature and therefore dismissed without prejudice, the court acknowledged that the determination of each parties’ rights to the surface would be determined in the future if an actual conflict arises.

Conclusion

Lyle v. Midway Solar, LLC should encourage solar developers to be fully aware of outstanding mineral rights on properties they seek to develop. A review of title ownership and an understanding of contractual rights reserved in mineral deeds may allow solar developers to negotiate surface uses up-front and avoid disruptions to their operations due to con

[1] https://www.seia.org/solar-industry-research-data.

[2] 2020 Tex. App. LEXIS 10385.

If you have further questions, please contact Hayden Weaver.

Under new leadership, the Bureau of Land Management (BLM) announced its termination of proposed amendments to the Desert Renewable Energy Conservation Plan (DRECP). On January 13, 2021, BLM had released draft amendments to the DRECP and a draft environmental impact statement analyzing the draft amendments. The draft amendments were described in a previous article. The draft amendments had faced public opposition from conservation groups and the California Energy Commissioner.

On March 12, 2021, the BLM announced its termination of the land use planning process for the draft amendments. The BLM cited a need to “evaluate consistency with Departmental and Executive priorities related to conservation and promotion of renewable energy development.” The BLM committed to “continue to work with cooperating agencies and stakeholders in the implementation of the existing land use plans.”

If you have further questions, please contact Katie Schroder.

On March 8, 2021, the Principal Deputy Solicitor of the Interior issued a memorandum
withdrawing Solicitor’s Opinion M-37050, which had interpreted the Migratory Bird Treaty Act (MBTA) as only prohibiting affirmative actions that purposefully take or kill migratory birds, their nests, or their eggs, and not prohibiting incidental taking or killing.

The March 8 memorandum marks the latest reinterpretation of the MBTA by the Solicitor’s Office. In the last days of President Barack Obama’s administration, the Solicitor issued Opinion M-37041 – Incidental Take Prohibited Under the Migratory Bird Treaty Act (Jan. 10, 2017). This 30-page opinion concluded that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.”

Solicitor’s Opinion M-37041, however, enjoyed a short life. On February 6, 2017, the incoming administration of President Donald Trump suspended Solicitor’s Opinion M-37041. On December 22, 2017, the Principal Deputy Solicitor issued Solicitor’s Opinion M-37050, which permanently withdrew and replaced Solicitor’s Opinion M-37041. Spanning 41 pages, Solicitor’s Opinion M-37050 concluded that the MBTA’s “prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.”

The United States District Court for the Southern District of New York, however, found this conclusion to be inconsistent with the language of the MBTA. The court vacated Solicitor’s Opinion M-37050 in its entirety. Natural Res. Defense Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020). The Biden administration did not pursue an appeal of this decision.

The March 8, 2021 memorandum cited the litigation over Solicitor’s Opinion M-37050 as justification for permanently revoking and withdrawing it. The memorandum also cited concerns raised by the Government of Canada as to whether M-37050 is consistent with one of the treaties underlying the MBTA. Notably, the memorandum did not reinstate Solicitor’s Opinion M-37041 or otherwise replace Solicitor’s Opinion M-37050.

The withdrawal and revocation of Solicitor’s Opinion M-37050 coincides with the delayed effective date a final rule that formalized the interpretation of “take” set forth in Solicitor’s Opinion M-37050. The U.S. Fish and Wildlife Service (USFWS) published this final rule on January 7, 2021, and it was scheduled to take effect on February 8, 2021. On February 9, 2021, the USFWS published an announcement that it would delay the effective date of this rule until March 8, 2021, and seek additional public comment on it.

If you have further questions, please contact Katie Schroder.