On September 8, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published a final rule in the Federal Register to amend the Agencies’ January 2023 “waters of the United States” (WOTUS) definition. 88 Fed. Reg. 61,964 (Sep. 8, 2023). According to the Agencies, these amendments conform that definition to the Supreme Court’s Sackett decision.
Continue Reading Agencies Issue Final Rule to Amend the 2023 “Waters of the United States” Definition
On August 14, EPA published its proposed modifications to regulations establishing the requirements for a state or tribe to assume the Clean Water Act (CWA) section 404 permit program, including necessary state program elements, EPA responsibilities (e.g., approval and oversight of assumed programs), and requirements for review, modification, and withdrawal of state programs. 88 Fed. Reg. 55,276 (Aug. 14, 2023). The proposal provides helpful clarifications but does not resolve a number of key issues faced by states considering assumption and by permittees in those States.
Yesterday, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps) (together, the Agencies) published a final rule revising the definition of “waters of the United States” (WOTUS) subject to federal regulation and permitting requirements under the Clean Water Act (CWA). This rule is the latest attempt by the Agencies to craft a durable rule defining WOTUS. The new rule, which largely mirrors the 2021 proposal, asserts a broader geographic scope of federal jurisdiction than the 2020 Navigable Waters Protection Rule (NWPR). In particular, the Agencies adopt the broadest possible interpretation of the Supreme Court’s decision in Rapanos (through incorporation of both the plurality’s “relatively permanent” test and Justice Kennedy’s “significant nexus” test). The final rule would, for the first time, codify aspects of the Agencies’ 2008 Rapanos Guidance and would rely on the significant nexus test’s case-by-case approach for evaluating jurisdiction for tributaries, wetlands, and other waters. The Agencies released the final rule while the Supreme Court considers the scope of CWA authority over a major category of WOTUS, “adjacent wetlands,” in Sackett v. EPA, and the Supreme Court could hand down a decision in the coming months that could require changes to the rule.
This week the US District Court for the Northern District of California overturned three Endangered Species Act (ESA) rules issued in 2019 that address: (1) listing species and designating critical habitat, (2) extending take prohibitions to threatened species, and (3) § 7 interagency consultation. Center for Biological Diversity v. Bernhardt, 19-05206 (N.D. Cal. July 5, 2022). The three rules were issued by the US Fish and Wildlife Service and National Marine Fisheries Service (together, the Services) in August 2019 and together represented the first comprehensive revisions to the ESA regulations in 33 years. The order has a number of important regulatory and caselaw implications.
In line with the Biden administration’s focus on expanding offshore wind energy, the Bureau of Ocean Energy Management (BOEM) is seeking public review and comments on the draft Morro Bay Wind Energy Area (WEA) environmental assessment (EA) by Friday, May 6, 2022. The EA for the Morro Bay WEA “considers potential environmental and socioeconomic effects from issuing offshore wind energy leases and related site characterization and assessment activities.” Written comments may be filed or shared virtually at the April 14 or April 19 meeting.
Continue Reading BOEM Prepares for California Offshore Wind Energy Area with Request for Public Comments on Draft Environmental Assessment
On January 11, the Bureau of Ocean Energy Management (BOEM) announced the beginning of a scoping period to prepare a draft environmental assessment (Draft EA) for the Gulf of Mexico (GOM) Call Area to assess potential impacts associated with offshore wind leasing. The area includes approximately 30 million acres of federal lands on the outer continental shelf (OCS) in the GOM, and covers areas in what is commonly known as the Western and Central Planning Areas of the GOM. This is the same area described in the Call for Information and Nominations published in the Federal Register on November 1, 2021. Comments will be received through February 9, 2022. BOEM anticipates completing the Draft EA this summer.
Continue Reading Interior Announces Environmental Review of Offshore Wind Leasing for the Gulf of Mexico
On December 27, 2021, the US Army Corps of Engineers (Corps) issued a final nationwide permit (NWP) rule renewing a critical permitting tool for both the government and the regulated community. To comply with the Clean Water Act (CWA or the Act), projects with minimal adverse environmental effects can obtain authorization for the discharge of dredged or fill material into “waters of the United States” (WOTUS) through the Corps’ streamlined NWP process. With this rule, the Corps reissued 40 existing NWPs and one new NWP. These 41 NWPs will combine with 16 NWPs issued on January 13, 2021 to authorize use of the full suite of NWPs through March 14, 2026.
Continue Reading Army Corps Finalizes Nationwide Permit Renewal for Expedited Clean Water Act Permitting
The American Bar Association published an article, Navigating Environmental Justice Issues in Federal Permitting, which discusses Environmental Justice in federal permitting by Hunton Andrews Kurth attorneys Kerry McGrath, Andrew Turner, John Bobka, and Mayer Brown attorney Lauren Bachtel.
Continue Reading Navigating Environmental Justice Issues in Federal Permitting
As we noted in our July 7 post, consistent with President Biden’s Executive Order 13990, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the “Services”) plan an ambitious redo of their Endangered Species Act (ESA) implementing regulations. Kicking off that process, on October 27, 2021, the Services published two proposals in the Federal Register to rescind critical habitat regulations promulgated by the Trump Administration. Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat, 86 Fed. Reg. 59,346 and 86 Fed. Reg. 59,353 (Oct. 27, 2021). Each of the proposed rules will be subject to a thirty-day public comment period – through November 26, 2021. The Services may issue final rules by early 2022.
Continue Reading Services Kick Off Revisions to the Endangered Species Act Regulations
As a top priority for the Biden Administration and a key component of energy transition plans, offshore wind energy development is front and center and receiving a lot of attention. The Biden Administration has announced a commitment to create 30 gigawatts of electricity via US offshore wind by 2030. Congress provided a boost to offshore wind development late last year via a 30% investment tax credit to projects that start construction before 2026. And just last week, Interior Secretary Deb Haaland announced plans to spur that development by offering a slate of offshore wind lease sales by 2025 in federal waters off the East, Gulf, and West Coasts.
Continue Reading Five Things You Should Know About Offshore Wind Development Right Now