Winston’s Environmental Law Update

The Biden Administration has started 2023 with a jammed pipeline of major regulatory actions relating to climate and other major environmental matters. For those interested in participating in the public comment processes, the clock is ticking. Here is a rundown of impending deadlines for public comment for some of the most significant rulemakings from the EPA and other federal agencies.

The United States Environmental Protection Agency and Army Corps of Engineers (the Agencies) closed out 2022 by announcing a final rule that establishes a new definition of “waters of the United States” (WOTUS) for implementation of the Clean Water Act.[1]  The Agencies, which previously indicated there would be a two-step regulatory process to defining WOTUS, appear to be proclaiming this to be its “durable” revision for the long term.  But will this definition of WOTUS get washed away like its predecessors?  

Since 2015, the Clean Water Act’s definition of “waters of the United States” has often depended on what state you live in. After a district court decision in Arizona on September 3, 2021, the EPA and U.S. Army Corps of Engineers announced they are halting implementation of their 2020 Navigable Waters Protection Rule nationwide.

The U.S. Environmental Protection Agency and the U.S. Department of the Army Corps of Engineers (the Agencies) recently announced they will take another run at defining “waters of the United States” (WOTUS).

On June 1, 2020, the U.S. Environmental Protection Agency (EPA) finalized the “Clean Water Act Section 401 Certification Rule.” Issued in response to President Trump’s Executive Order 13868 “Promoting Energy Infrastructure and Economic Growth,” which directed the EPA to review the Clean Water Act (CWA) Section 401 certification process, the final rule seeks to clarify the role of states and authorized tribes in ensuring that activities subject to federal CWA permitting requirements comply with established water-quality standards. While streamlining the water-quality certification process in the name of promoting energy infrastructure, this rule also restricts the scope of state and tribal review under Section 401.

Last Thursday, President Trump issued an Executive Order (Order) entitled Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities, which expands on a series of initiatives by the Trump Administration to address the economic impacts of COVID-19. The Order is intended to expedite infrastructure projects by requiring agencies to take “all reasonable measures to speed infrastructure investments.” Such “reasonable measures” include exercising emergency statutory provisions in the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), the Clean Water Act (CWA), and other laws to bypass environmental procedural requirements. In addition to infrastructure, transportation, and civil works projects, the Order applies to energy, environmental, and natural resources projects on federal lands.

The Northern Plains Resource Council et al. v. U.S. Army Corps of Engineers (NPRC v. Corps) case continues in the Ninth Circuit.

On May 11, 2020, the Montana federal district court issued an amended order in the Northern Plains Resource Council et al. v. U.S. Army Corps of Engineers (NPRC v. Corps), narrowing the scope of its initial nationwide vacatur of Clean Water Act Section 404 Nationwide Permit 12 (NWP 12).

The energy industry across the country continues to watch the Montana district court case Northern Plains Resource Council v. U.S. Army Corps of Engineers (NPRC v. Corps), given the “nationwide” impact of the Montana court’s April 15^th order vacating Clean Water Act Nationwide Permit 12 (NWP 12).