On 8 September 2023, the United States Environmental Protection Agency (EPA) and the Army Corps of Engineers (the Corps) published a final rule revising the regulatory definition of “waters of the United States” (WOTUS) in response to the Supreme Court’s May 2023 decision in Sackett v. EPA. Consistent with Sackett, the rule eliminates the “significant nexus test” for all waters and clarifies that wetlands must have a continuous surface connection to WOTUS to qualify for federal Clean Water Act (CWA) jurisdiction. The rule was not circulated for public notice and comment and became effective immediately [...]
The decision might prove costly to the Biden Administration and others invested in a relatively broad definition of WOTUS. This week the Ninth Circuit issued yet another Clean Water Act ruling in what is now the 13th year of the Sackett v. EPA litigation, a case about the U.S. Environmental Protection Agency’s authority to regulate a 0.63-acre residential lot near Idaho’s Priest Lake that has already generated one important Supreme Court decision. After rejecting EPA’s arguments that its recent withdrawal of the compliance order at the heart of the matter mooted the case, the [...]
The Trump Administration’s Navigable Waters Protection Rule (“NWPR”) is on its way out.A long list of blue states and environmental groups have challenged the Trump-era rule across more than a dozen cases, and the Biden Administration has begun asking the courts to remand—but not vacate—the rule so it can repeal and replace it through rulemaking. One federal trial court has already granted the Administration’s request, and rulings from several others are expected soon. Meanwhile, the Administration recently announced a series of public meetings to take comments on its two-part, repeal-and-replace strategy that will take place [...]
A 17 December 2020 trial court order largely prohibits the California Water Resource Control Board (State Board) from applying new rules that greatly expand California’s regulatory control over wetlands and dredge and fill activities throughout the state. The effect of the ruling may be temporary, however. The rules, which took effect on 28 May 2020, were in large part an attempt to regulate waters not covered by the narrowed scope of the federal Clean Water Act under the Trump administration. The rules were overturned almost seven months later when the court in San Joaquin [...]
Supreme Court Reinstates Army Corps’ Nationwide Permit 12 Except As Applied to the Keystone XL Pipeline
On 6 July 2020, the U.S. Supreme Court lifted a nationwide vacatur on the use of the Army Corps of Engineers’ (Corps) Nationwide Permit 12 (NWP 12) for the construction of new oil and gas pipelines. However, the Court declined to lift the vacatur as it applies to the Keystone XL Pipeline from which the original order arose. The decision is a blow to Keystone XL but a relief to other oil and gas pipeline developers who may once again employ NWP 12 to permit pipeline crossings over jurisdictional waters of the United States.
Emergency Relief or Business as Usual? Trump’s Latest Executive Order Aims to Streamline Environmental Permitting on Questionable Grounds
On 4 June 2020 the White House issued an Executive Order (EO) directing federal agencies to invoke emergency procedures under the National Environmental Policy Act (NEPA), the Endangered Species Act, the Clean Water Act, and other environmental statutes in order to expedite infrastructure projects as a means of accelerating the nation’s economic recovery from the COVID-19 emergency.
Offshore wind energy development is in its infancy in the United States compared to Europe. The nation’s first operational project came online in 2016 off the coast of Rhode Island. A few other projects have since gained traction up and down the Eastern seaboard. Deep, crowded waters and technological barriers have largely kept the West Coast out of the discussion. But, as floating turbine technologies become commercially feasible and open up the potential for massive amounts of wind power in California waters, recent inter-agency cooperative efforts have begun to clear a path, and developers are lining up.
On 11 May 2020, the federal district court in Montana partially walked back its 15 April 2020 order vacating U.S. Army Corps of Engineers’ (Corps) Nationwide Permit 12 (NWP 12), allowing renewable energy developers and other non-pipeline projects to continue using NWP 12 while the Corps conducts further environmental review.
Does the Supreme Court’s New “Functional Equivalent” Test Clear the Way for Trump’s Clean Water Act Rule?
April was a busy month for the Clean Water Act (“CWA”). On April 21, 2020 the Environmental Protection Agency (“EPA”) and U.S. Corps of Engineers (“Corps”) formally published their Navigable Waters Protection Rule, which limits the scope of the CWA by redefining “waters of the United States.”
On 15 April 2020, a federal district court in Montana issued a sweeping decision to vacate the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit 12 (NWP 12) authorization in response to a challenge to the Keystone XL Pipeline.