On May 23, 2019, the Center for Biological Diversity and San Francisco Baykeeper (collectively “Center”) filed a lawsuit against the Fish and Wildlife Service (“Service”) in the United States District Court for the Northern District of California alleging the Service failed to protect eight species under the Endangered Species Act (“ESA”).  The eight species at issue are the longfin smelt (San Francisco Bay-Delta population), Hermes copper butterfly, Marron bacora (a plant), Sierra Nevada red fox, red tree vole (North Coast population), gopher tortoise (eastern population), Berry Cave Salamander, and Puerto Rico harlequin butterfly.  Each of the eight species is currently a “candidate” for listing.  The Service previously found that each species warranted protection under the ESA, but that listing was warranted but precluded (“WBP”) due to the need to focus on other higher priority species.    
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On May 1, 2019, the Fish and Wildlife Service (“FWS” or “Service”) issued a proposed rule “downlisting” Endangered Species Act (“ESA”) protections for the American burying beetle from endangered to threatened. The burying beetle was listed as endangered in 1989 and its listing has been particularly impactful to oil and gas development in Texas and Oklahoma.  Once with a range across thirty-five states, the beetle’s range when listed had been depleted to just two areas—Oklahoma and Rhode Island.  The Service states that, due to the success of mitigation programs, that the beetle now inhabits nine states (Arkansas, Kansas, Massachusetts, Missouri, Nebraska, Oklahoma, Rhode Island, South Dakota, and Texas) warranting the downlisting.  The Service states that the downlisting was the result of collaborative work with industry, but opponents argue that that the rollback of protections will negatively affect the species by opening up parts of Oklahoma to drilling and removing obstacles from drillers in Texas.

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On January 25, 2019, the U.S. Court of Appeals for the D.C. Circuit, in a unanimous decision, granted a petition for review in Hoopa Valley Tribe v. FERC, No. 14-1271 (D.C. Cir., Jan. 25, 2019). The key holding in the case, which concerns the ongoing Federal Energy Regulatory Commission’s relicensing of the Klamath Hydroelectric Project, is that the States of California and Oregon waived their authorities under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341, by failing to rule on the applicant’s submitted application for water quality certification within one year from when it was initially filed in 2006. The applicant for many years had followed, at the request of the States, the common industry practice of “withdraw-and-resubmit” of its water quality certification application in an attempt to annually reset the one-year time period for the States to act, as established under CWA section 401. The D.C. Circuit in Hoopa Valley Tribe invalidated this practice as a means of resetting the statutory clock, instead holding that the clear text of CWA establishes that “a full year is the absolute maximum” time for a state to decide on a water quality certification application.
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Troutman Sanders partner Chuck Sensiba and Associate Morgan Gerard authored the main feature article in the January 2019 issue of The Water Report, a monthly publication focused on federal and state water issues. In the article, Sensiba and Gerard discuss how a rule proposed by the Trump Administration would significantly narrow the number of

On December 11, 2018, the Environmental Protection Agency (“EPA”) and the Department of the Army (“DOA”) (“Agencies”) released their much-anticipated Notice of Proposed Rulemaking (“Proposed Rule”), which if adopted would scale back the jurisdictional reach of the Clean Water Act (“CWA”) by narrowing the definition of “Waters of the United States” (“WOTUS”) to include only those waters that are oceans, rivers, streams, lakes, ponds, and wetlands, and their “naturally occurring surface water channels.”  The practical implications for project proponents of the Proposed Rule are that ephemeral streams and many ponds and ditches used in agricultural, industrial and construction activities would no longer be within the jurisdictional reach of the CWA, alleviating the requirement for and uncertainty surrounding permitting requirements and related mitigation measures.  The next step in the Proposed Rule’s process is publication in the Federal Register, after which the Agencies will accept public comments on the proposal until 60 days after Federal Register publication.

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The Trump administration is expected to announce a new proposed definition of “waters of the United States” (WOTUS) which would reverse the expansions adopted under the Obama administration’s controversial WOTUS rule, significantly narrowing the number of waterways and wetlands that fall within the jurisdictional scope of the Clean Water Act (CWA).

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