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On June 1, the Environmental Protection Agency (EPA) released a pre-publication version of its proposal to re-write the Clean Water Act Section 401 rule (Certification Proposal), which, if finalized, is expected to have far-reaching impacts on hydroelectric licensing and relicensing. The Certification Proposal is intended by EPA to replace the version of the rule finalized under the Trump administration in 2020 (2020 Rule). While the Certification Proposal maintains some aspects of the 2020 Rule, it differs in some significant areas and in many ways reverts back to the 1971 regulations.

Continue Reading EPA’s Clean Water Act Certification Proposal to Significantly Impact Hydropower Licensing

The listing status of the northern long-eared bat (NLEB) under the Endangered Species Act (ESA) has been the subject of litigation since the U.S. Fish and Wildlife Service (Service) originally listed it as threatened in 2015. At that time, the Service also issued an ESA Section 4(d) rule that allowed incidental take resulting from development activities to occur within its range and habitat where white nose syndrome (WNS) was not present, so long as certain best management practices, such as time of year restrictions on tree removal, were followed. In 2021, the U.S. Court of Appeals for the D.C. Circuit found that the Service’s 2015 listing decision did not adequately explain why the bat was not listed as endangered, and failed to address how impacts, such as habitat modification allowed under the 4(d) rule, affected the NLEB. The court remanded the 2015 rule to the Service for further consideration, but allowed the threatened listing and 4(d) rule to stay in place while the Service reconsidered the listing status for the species.

Continue Reading FWS Proposes to Uplist Northern Long-Eared Bat

Section 7 of the Endangered Species Act (ESA) requires the Army Corps of Engineers (Corps) to consult with the National Oceanic and Atmospheric Administration Fisheries (NOAA) (together “Agencies) before undertaking work or issuing permits to maintain structures that may affect listed species or protected habitat. On January 5, 2022, the Agencies signed a joint resolution memorandum (Memorandum) that provides guidance on whether to include existing structures (such as a dam or a pier) involved in a proposed action as an “effect of the action” or within the “environmental baseline” for the purposes of ESA Section 7 consultation. Depending upon the scope of the “effects of the action,” NOAA may determine that the action will have no effect on ESA-listed species or their critical habitat, that the activity requires a permit for the incidental take, and/or that certain reasonable and prudent measures should be implemented to offset harmful effects.

Continue Reading New Guidance on the Endangered Species Act for Existing Structures

As the U.S. Environmental Protection Agency (EPA) prepares its Clean Water Act (CWA) Section 401 rule proposal, litigation regarding the 2020 Trump-era rule (Certification Rule) continues. Currently, the issue of whether to re-instate the Certification Rule is proceeding before U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit). The U.S. District Court for the Northern District of California had vacated and remanded the Certification Rule, and intervenors and several states appealed the vacatur. Appellants, including several industry groups, have filed motions to stay the District Court’s vacatur pending the outcome of the appeal and are now awaiting the Ninth Circuit’s ruling that could, at least temporarily, re-instate the Certification Rule.

Continue Reading Clean Water Act Section 401 Certification Rule Litigation Continues

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the “Corps”) (together the “Agencies”) have continued working on a proposed rule to revise the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA or Act), which will soon move to the next stage of agency consideration.[1] The outcome of these rulemaking efforts will impact countless regulated parties, from solar developers to manufacturers, and heavily regulated industry.

Continue Reading Biden Administration Presses Forward With Revised WOTUS Rule

On October 26, the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (the Services) proposed to rescind two Trump-era final rules: the Habitat Definition Rule and the Designating Critical Habitat Rule. Both rules deal with the designation of critical habitat — a Service-designated area determined to be essential to an endangered species’ conservation and recovery, which may be occupied by a species when designated or unoccupied. Both rules are also a direct result of the U.S. Supreme Court’s 2018 decision in Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361, which remanded a critical habitat decision to the U.S. Court of Appeals for the Fifth Circuit, noting, among other things, that a determination of habitat is needed before FWS can determine what is considered critical habitat.
Continue Reading Biden Administration Rescinds Two Trump-Era Endangered Species Act Rules

On October 21, the U.S. District Court for the Northern District of California vacated and remanded the U.S. Environmental Protection Agency’s (EPA) 2020 Clean Water Act Section 401 final rule (Certification Rule).

In response to the court’s ruling, EPA is implementing the previous water quality certification rule nationwide, which had been in effect since 1971, while it develops a new rule.

Pursuant to Section 401 of the Clean Water Act (CWA), no federal license or permit that may result in a discharge to U.S. waters may be issued unless the state or authorized Tribe, where the discharge will originate, issues a water quality certification or waives the certification requirement.
Continue Reading Court Decision to Vacate, Remand State Water Quality 401 Certification Rule

On November 5, the U.S. House of Representatives passed the more than $1.2 trillion Infrastructure Investment and Jobs Act, also known as the bipartisan infrastructure framework (BIF). The Senate had already approved the bill back in August, and it now heads to the president’s desk for signature. The BIF represents a core piece of President Biden’s agenda and provides significant funding for infrastructure improvements in energy and water, including over $900 million in waterpower incentives for new and existing hydropower, pumped storage, and marine energy. Additional spending is provided for dam safety and removal.

Continue Reading Infrastructure Bill Provides Opportunities for Hydroelectric Industry

A recent decision by the U.S. District Court for the District of Arizona vacated and remanded the 2020 Navigable Waters Protection Rule (NWPR) issued by the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) (together, “Agencies”) that clarified the scope of federal jurisdictional “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). Before the promulgation of the NWPR, there had been several rulemakings and much litigation on this complicated issue, causing nationwide confusion on the application of a uniform standard. In 2015, the Obama administration promulgated a WOTUS rule that had been the subject of significant litigation, which the Trump administration had repealed (the “Repeal Rule”). The NWPR sought to provide certainty as to which waterbodies meet the features of WOTUS by creating clear categories of jurisdictional waterbodies.

Continue Reading District Court Vacates Navigable Waters Protection Rule

On October 4, the U.S. Fish and Wildlife Service (FWS) published a revision of its interpretation of the Migratory Bird Treaty Act (MBTA). With the final rule, FWS has effectively reinstated its position that “incidental take” — the harming or killing that results from, but is not the purpose of, carrying out an otherwise lawful activity — is prohibited by the MBTA, and persons that cause incidental take can be prosecuted criminally. FWS’s final rule represents a reversal of a Trump-era interpretation of the MBTA, which narrowly interpreted liability under the statute to apply only to those actions specifically “directed at” migratory birds that “reduce animals to human control.” See previous post covering the prior rule.

Continue Reading Changes to Migratory Bird Treaty Act Program Announced