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promulgated a WOTUS rule that had been the subject of significant litigation, which the Trump administration had repealed (the “Repeal Rule”).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.

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.

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.

The Environmental Protection Agency (EPA) has initiated two rulemaking actions, both expected to be proposed in early 2022, that could change the way the Clean Water Act (CWA) is administered across the country. Together, these actions would elevate tribal rights in water quality regulatory decision-making and could provide EPA with significantly greater authority to regulate discharges on and upstream of tribal lands.

In their article “Are We There Yet? The Challenges of Litigating Clean Air Act Rules,” Mack McGuffey and Melissa Horne discuss the difficulties of getting final answers from the courts in the increasingly polarized political environment of Clean Air Act rulemaking.

This blog post was republished by Law360 on September 14, 2021.

On August 19, EPA and the Army Corps of Engineers (Corps) issued a joint guidance document concerning implementation of EPA’s 2020 Water Quality Certification Rule. The agencies explain that the guidance applies specifically to 41 Clean Water Act Section 404 Nationwide Permits (NWPs) proposed in September 2020 that have already received certification (or for which certification was denied or waived) but have not yet been finalized, and a more detailed enclosure is intended to be applied generally to the Corps’ permit programs. The guidance also cryptically suggests that the agencies may revisit the 16 NWPs that were previously certified and finalized by the Corps in January 2021. In a press release the following day, EPA and the Corps frame the guidance as addressing “implementation challenges” raised by state and tribal certifying authorities.

On August 13, EPA finalized Clean Water Act (Act) Section 304(a) recommended criteria for phosphorus and nitrogen in lakes and reservoirs. The new recommendations incorporate scientific models that states and tribes with treatment as state status can use to establish numeric water quality criteria for phosphorus and nitrogen, and they mark an important milestone in EPA’s long-running war on excess nutrients in the nation’s surface waters. In the new recommended lakes criteria, EPA is embracing a stressor-response approach to managing nutrients, instead of the least-disturbed reference method. This is a significant move for the agency and has the potential to set a positive precedent going forward for EPA and state and tribal regulators to re-evaluate the utility of the reference method approach in other contexts.

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.

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.