On January 15, 2026, the Environmental Protection Agency (EPA) published the long-awaited proposed rule Updating the Water Quality Certification Regulations (Proposed Rule), which, if adopted, would largely reinstate the previous Trump administration’s 2020 Clean Water Act Section 401 Certification Rule (2020 Rule). EPA’s proposal seeks to limit the scope of state-issued water quality certifications (WQCs) under Section 401 of the Clean Water Act (CWA) to water quality impacts associated with discharges authorized by federal agency actions. The Proposed Rule also addresses concerns raised by applicants for federal licenses and permits (including for hydroelectric projects, natural gas pipelines, and other energy and infrastructure projects) that certain states have overstepped their Section 401 authority to impose onerous terms and conditions unrelated to water quality and artificially extended the statutory time limits for issuing WQCs.
US Army Corps of Engineers Finalizes 2026 Nationwide Permit Package
On January 8, 2026, the U.S. Army Corps of Engineers finalized 57 Nationwide Permits first proposed in June of last year. Nationwide Permits (NWPs) are streamlined federal permits for activities that affect waters of the United States, ranging from routine development and infrastructure projects to major projects. In this action
Spin Doctor: Court Strikes Down Wind Permitting Freeze As Illegal
On Monday, the U.S. District Court for the District of Massachusetts struck down the freeze on federal permits for wind energy projects — a central component of the Wind Presidential Memorandum (the Wind Order) issued on the first day of the current administration. Judge Patti Saris’s opinion held that the Wind Order is arbitrary and capricious and contrary to law under the Administrative Procedure Act (APA), and directed that it be vacated in full — meaning the ruling applies nationally. The decision was previewed in the court’s preliminary order in July indicating that the Wind Order was on shaky legal ground, citing a lack of administrative record to support the Wind Order and precedent from cases involving analogous moratoriums for offshore oil and gas. Despite the major win for wind, though, there is still significant uncertainty regarding how this administration will respond to the ruling and how it will affect wind energy permitting going forward.
Navigating a New WOTUS Definition: Agencies Redefine the Line
Over the past decade, the definition of “waters of the United States” (WOTUS) has shifted repeatedly, creating uncertainty for permitting and project planning. Building on the Supreme Court’s Sackett v. EPA decision, the EPA and the U.S. Army Corps of Engineers (together, the agencies) announced a proposal this week to further refine which water features qualify as WOTUS by narrowing key definitions and codifying — and expanding — exclusions. The proposal would apply across all Clean Water Act (CWA) programs that rely on WOTUS, including permitting under Sections 404 and 402, water quality certifications under Section 401, and Total Maximum Daily Loads (TMDLs) for impaired waters under Section 303. The proposal is directionally deregulatory, meaning fewer waters are likely to be considered federally jurisdictional and therefore regulated. The new definition was published in the Federal Register on Thursday, marking the start of a 45-day public comment period through January 5, 2026. The public comment page can be accessed here.
Groundhog Day: Proposed Revisions to ESA Regulations (Mostly) Reinstate the 2019 Rules
This article was republished in the December 2025 edition of E-Outlook, the Environmental & Natural Resources Section of the Oregon State Bar’s newsletter.
This week, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the Services) proposed revisions to the Endangered Species Act (ESA) regulations that, if finalized, will generally restore the regulations adopted in 2019, during President Trump’s first term. The proposed regulations were published in the Federal Register on November 21, 2025, starting a 30-day public comment period that ends on December 21, 2025.
One Stop Shop: Court Confirms Exclusive Jurisdiction of U.S. Courts of Appeals Over Review of Licensed Hydropower Projects
In a significant victory for the hydropower industry, last week the U.S. District Court for the District of Oregon issued an order in Cascadia Wildlands v. EWEB (Case No. 6:25-00446), reaffirming that the U.S. courts of appeals, on review of orders of the Federal Energy Regulatory Commission (FERC), have exclusive jurisdiction over controversies related to fish passage and other environmental measures included in hydropower licenses issued by FERC. This decision adds to precedent making clear that project opponents may not collaterally attack fish passage conditions in FERC licenses via citizen suits filed under the Endangered Species Act (ESA).
Illegal Eagles: DOI Sinks Its Talons Even Deeper Into Wind Energy
The frenetic pace of anti-renewable actions from the U.S. Department of the Interior (DOI) has continued into this week with the issuance of a new memorandum from Greg Wischer, deputy chief of staff for policy, directing the U.S. Fish and Wildlife Service (FWS) to ratchet up enforcement of the Bald and Golden Eagle Protection Act (BGEPA) against wind energy projects, and to scrutinize the eagle permit program that the FWS adopted in 2024 after many years of development.
Renewables in the Crosshairs: DOI and DOT Announce Numerous New Anti-Wind and Solar Orders and Policies
During the week of July 28, the Trump administration unleashed a new burst of actions aimed squarely at blocking wind and solar energy with the announcement of two new secretarial orders (SO) and three new policies by the Department of the Interior (DOI), plus one from the Department of Transportation (DOT). These latest measures follow on the heels of the recent internal directive from DOI Deputy Chief of Staff for Policy Gregory Wischer implementing three new levels of political review for a comprehensive list of approvals, consultations, and interim steps in the permitting processes for wind and solar projects with a nexus to DOI’s regulatory authority. Although couched in terms of curbing “preferential treatment” for wind energy, the measures go well beyond any leveling of the playing field, instead significantly disadvantaging wind and solar — which the DOI refers to as “foreign-controlled energy sources” — compared to other sources of energy or uses of public lands.
FERC Revises Regulations Implementing NEPA; Adopts Two Hydropower-Related Categorical Exclusions
On July 3, 2025, the Federal Energy Regulatory Commission (FERC) issued a final rule revising its regulations implementing the National Environmental Policy Act of 1969 (NEPA) to remove references to the recently rescinded regulations implementing NEPA originally promulgated in 1978 by the White House’s Council on Environmental Quality (CEQ). On the same day, FERC issued an order adopting two categorical exclusions under NEPA for certain hydropower-related activities.
Déjà vu? FWS Solicits Feedback to Update Section 10(a) of the ESA
On Monday, June 9, the U.S. Fish and Wildlife Service (FWS) opened a short, 30-day public comment period soliciting information and comments to, “improve the overall efficiency and effectiveness” of Section 10(a) take permitting under the Endangered Species Act (ESA). If it seems like Section 10(a) just underwent a comment period not too long ago, that’s because it did. In 2023, under the Biden Administration, FWS solicited comments on proposed revisions to the regulations implementing that section, which were finalized last April. Now, the Trump Administration is seeking suggestions on how to further revise its ESA permitting rules.