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promulgated a WOTUS rule that had been the subject of significant litigation, which the Trump administration had repealed (the “Repeal Rule”).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.
Changes to Migratory Bird Treaty Act Program Announced
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.
Notice of Proposed Rulemaking for NEPA Revisions Announced
On October 7, the Council on Environmental Quality (CEQ) issued a Notice of Proposed Rulemaking (NOPR) to revise its regulations implementing the National Environmental Policy Act (NEPA), which requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects, but does not mandate any particular outcome. The NOPR is focused on revisions the July 2020 rulemaking completed by the Trump administration, which was the first significant overhaul of the NEPA regulations since their initial promulgation in 1978. The Trump rulemaking included provisions to streamline the NEPA review process, as well as substantive changes to the scope of the review. CEQ’s NOPR follows an announcement early in 2021 by the incoming Biden administration that it planned to review the July 2020 rulemaking. In the NOPR, the Biden administration outlines the aspects of the rule it plans to change: the purpose and need of a proposed agency action, agency procedures for implementing CEQ’s regulations, and the definition of “effects” of a proposed action.
Hydroelectric Impact of PennEast Supreme Court Gas Pipeline Condemnation Ruling
Section 7(h) of the Natural Gas Act (NGA) and Section 21 Federal Power Act (FPA) respectively vest Federal Energy Regulatory Commission (FERC or Commission) natural gas pipeline certificate holders or hydroelectric licensees with the ability to exercise the federal power of eminent domain to condemn property when the project proponent is unable to acquire necessary rights by contract or negotiation with the property owner. On June 29, the U.S. Supreme Court, in PennEast Pipeline Co. LLC v. New Jersey, No. 19-1039, held that the 11th Amendment of the Constitution does not bar a certificate holder under the NGA from exercising eminent domain to condemn state-owned property. Significantly for hydropower projects, the Supreme Court’s holding also potentially provides clarity that the 11th Amendment is not a bar to the analogous Section 21 provision of the FPA if a hydroelectric licensee must exercise eminent domain over project-necessary state-owned lands.
Department of Energy Announces Funding Opportunity for Wave Energy Converter Technology
On July 6, the U.S. Department of Energy (DOE) announced a funding opportunity for the research and development of wave energy converter (WEC) technologies for advancement toward wave energy commercial viability. As much as $27 million in federal funding is available for WEC technologies still in the early stages of development for testing at PacWave, an open ocean wave energy testing facility consisting of two sites, each located just a few miles from the deep-water port of Newport, OR.
The Fourth Circuit Weighs In on the Interpretation of CWA Section 401
There has been a longstanding debate about how to apply the one-year time limit on Clean Water Act Section 401 certification decisions. The D.C. Circuit court in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) established a bright-line standard that a 401 certification must be issued or denied within one year of receipt of application, or the certification opportunity is waived. States cannot engage in actions to extend this deadline by requiring an applicant to withdraw and refile their application or by finding an application incomplete. This bright-line test was reinforced by the Second Circuit’s more recent decision in New York State Department of Environmental Conservation v. FERC, 991 F.3d 439 (2d Cir. 2021). This interpretation was also codified in EPA’s 2020 Clean Water Act Section 401 Certification Rule. See 85 Fed. Reg. 42210 (July 13, 2020). However, on July 2, the Fourth Circuit offered a different interpretation of Section 401 in its decision in N.C. Department of Environmental Quality v. FERC, No. 20-1655 (McMahan Hydro).
Clean Energy Groups Ask FERC for Transparency Into “Anti-Climate” Groups
On March 17, 2021, a coalition of environmental organizations and clean energy groups led by the Center for Biological Diversity (CBD) petitioned the Federal Energy Regulatory Commission (FERC) for a rulemaking that would amend the Uniform Systems of Accounts (USofA) requirements to disallow utilities from recovering the cost of membership from ratepayers in associations engaged in lobbying or other influence-related activities. CBD argues that these associations lack transparency, and many engage in “anti-climate” advocacy, including lobbying and campaigning activities, that do not align with the priorities of ratepayers.
Judge Does Not Require Dam to Alter Water Flows for ESA Species Protection
On April 15, Judge André Birotte Jr. for the U.S. District Court for the Central District of California determined that the U.S. Bureau of Reclamation’s (Bureau) operation of the Twitchell Dam with certain water flows did not result in an unlawful take of Southern California Steelhead trout, a species listed as endangered under the federal Endangered Species Act. Plaintiffs San Luis Obispo Coastkeeper and Los Padres Forestwatch claimed that the Bureau’s Standard Operating Procedures (SOP) for the Twitchell Dam limit the timing and volume of releases from the dam in a manner that has diminished trout habitat and resulted in harm to the trout population by impairing behavioral patterns including breeding, spawning, rearing, and migrating.
District Court Lacked Jurisdiction Over Clean Water Act Section 404 Permit Challenge Involving FERC License Amendment
On March 31, U.S. District Judge Christine Arguello found that the Federal Power Act (FPA) is the exclusive authority with regards to controversies related to Federal Energy Regulatory Commission (FERC) -issued hydroelectric licenses, including challenges that stem from the permitting decisions of other federal agencies acting under their independent statutory authority. In Save the Colorado v. Semonite, Civil Action No. 18-cv-03258 (D. Colo. Mar. 31, 2021), the court ruled that it lacked jurisdiction over an appeal of a U.S. Army Corps of Engineers (USACE) Clean Water Act (CWA) Section 404 permit and the associated U.S. Fish and Wildlife Service (USFWS) Endangered Species Act (ESA) biological opinion since these are actions “inhere[d] in the controversy” related to the FERC license.
EPA Announces Reconsideration and Potential Revision of the Clean Water Act Section 401 Final Rule
On May 27, the Environmental Protection Agency (EPA) announced its intent to reconsider the Clean Water Act (CWA) Section 401 final rule issued by the Trump administration in June 2020 (Final Rule).