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 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.
One-Track Mind: Unanimous SCOTUS Decision on Rail Line Approval Further Narrows Scope of NEPA
On May 29, the Supreme Court issued a unanimous opinion in Seven County Infrastructure Coalition v. Eagle County, Colorado that dramatically changes the way courts scrutinize federal agencies’ environmental reviews under the National Environmental Policy Act (NEPA). Justice Brett Kavanaugh, writing for a five-justice conservative majority (with Justice Neil Gorsuch abstaining), held that (a) courts must afford federal agencies “substantial judicial deference” regarding both the scope and contents of their environmental analyses; and (b) courts do not need to consider the effects of the action to the extent they are “separate in time or place” from the proposed project. The ruling gives federal agencies permission to greatly streamline their NEPA analyses at a time when those agencies are rapidly being drained of their resources and facing increasing pressure to expedite lengthy permitting processes.
California’s AB 550: A Blueprint for Balancing Development and Species Conservation
California’s drive toward a net-zero carbon economy by 2045 is sparking innovative solutions to harmonize environmental conservation with infrastructure development. Assembly Bill (AB) 550, sponsored by Assembly Member Petrie-Norris, aims to amend the California Endangered Species Act (CESA) by permitting renewable energy projects to take unlisted but “at-risk” species. The proposed legislation recognizes the dual imperative of advancing clean energy while conserving California’s biodiversity.
No Harm, No Foul? Services Propose to Remove Harm Definition from Endangered Species Act Regulations
On April 17, the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together Services) published a proposed rule to rescind the long-standing definition of “harm” under the Endangered Species Act (ESA). The proposal appears to be one of the first in response to President Trump’s April 9 Presidential Memorandum, “Directing the Repeal of Unlawful Regulations,” which directs federal agencies to revise or rescind regulations that conflict with the plain meaning of the underlying statute. If adopted, it will significantly change the ESA’s implementation. The FWS and NMFS are taking comments on the proposed rule from April 17 through May 17.