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On July 31, 2020, the Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) released an advance copy of a proposed rule defining “habitat” under the Endangered Species Act (ESA). The proposed rule is expected to be published in the Federal Register this week, kicking off a 30-day public comment period.
Continue Reading Definition of Habitat Proposed for the ESA

On July 16, 2020, the Council on Environmental Quality (CEQ) published its long-awaited final rule to amend its regulations implementing the National Environmental Policy Act of 1969 (NEPA), introducing important changes to the 40-year-old review process. The statute requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects, but

In the past two weeks, two federal district courts reached seemingly opposite conclusions regarding the implementation of the U.S. Environmental Protection Agency’s and the U.S. Army Corps of Engineers’ (“the Agencies”) Navigable Waters Protection Rule (“the Rule”). The Rule, which took effect on June 22, narrows the term “waters of the United States” and,

Under the Clean Water Act, stormwater is considered a nonpoint source. Accordingly, benchmark standards and best management practices have been used to manage stormwater discharges. At least in California, that all changes on July 1, 2020, as amendments to California’s Statewide General Permit for Storm Water Discharges Associated with Industrial Activities (“Industrial General Permit” or

The U.S. Supreme Court issued its opinion in the consolidated cases U.S. Forest Service v. Cowpasture River Preservation Assn. (Case No. 18-1584) and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Assn. (Case No. 18-1587) addressing the U.S. Forest Service’s authority to issue authorization for the Atlantic Coast Pipeline to cross beneath the Appalachian Trail. Reversing the Fourth Circuit’s December 2018 decision, the Court held that the Forest Service has authority under the Mineral Leasing Act to grant a right-of-way on lands within the George Washington National Forest owned by the Forest Service over which the Trail crosses.

Continue Reading U.S. Supreme Court Reverses Fourth Circuit, Holds U.S. Forest Service Has Authority to Grant Right-of-Way Beneath Appalachian Trail

On June 1, the Environmental Protection Agency (EPA) released a final rule clarifying substantive authorities and procedural requirements for water quality certifications under section 401 of the Clean Water Act (CWA). EPA’s August 2019 notice of proposed rulemaking (NOPR) (summarized in our previous post) articulated the Agency’s first-ever statutory interpretation of section 401 since its enactment nearly 50 years ago, and proposed sweeping substantive and procedural changes to its section 401 regulations in conformance with its interpretation. EPA’s final rule largely adopts the regulations in its NOPR, but makes important changes in adopting new regulations that preserve authority of states and Native American tribes exercising “Treatment as a State” (TAS) authorization to ensure that discharges from federally licensed and permitted activities meet state and tribal water quality requirements.
Continue Reading Long-Awaited EPA Rule Overhauls Section 401 of Clean Water Act

The question of how to regulate temperature in water bodies is one that states in the Northwest have struggled with for years. The U.S. Environmental Protection Agency (EPA) addressed that question on May 18, 2020, when it released a draft Total Maximum Daily Load (TMDL) to achieve water quality standards for temperature in certain reaches of the Columbia and Lower Snake Rivers in Oregon and Washington. This new TMDL comes a few months after a decision from the U.S. Court of Appeals for the Ninth Circuit, Columbia Riverkeeper v. Wheeler, requiring the agency to take the lead after Oregon and Washington failed to submit their own TMDL. Comments on the draft TMDL are due by the end of July 21, 2020.

Continue Reading EPA Issues Draft Temperature TMDL for Columbia and Snake Rivers

As we previously reported, the Federal District Court for Montana vacated the U.S. Army Corps of Engineers (Corps) Nationwide Permit (NWP) 12 on April 15, 2020, finding that the Corps had failed to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service prior to issuing NWP 12. Despite the case centering on the Keystone XL Pipeline, the court’s decision vacated NWP 12 nationwide and prevents the Corps from authorizing a broad range of utility projects that are unrelated to the Keystone XL Pipeline.

Continue Reading Update: Corps Seeks Stay of Montana District Court’s NWP 12 Ruling

Today the U.S. Supreme Court issued its long-awaited opinion in County of Maui v. Hawaii Wildlife Fund, addressing whether the Clean Water Act (CWA) requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. The issue has historically been controversial and

On April 21, 2020 the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) published the final rule narrowing the meaning of the Clean Water Act (“CWA”) term “waters of the United States,” which represents the culmination of one of President Trump’s key environmental agenda items. The Trump Administration’s