On the heels of the November 2021 Tribal Nations Summit, a flurry of memoranda was signed by the White House and many government agencies. These memoranda seek to further the Biden administration’s promises of consulting with indigenous people and acknowledging their communities’ cultures, customs, sacred sites, and historical knowledge in the contexts of environmental planning, sustainability, and justice, and in ongoing and forthcoming federal decision making and regulatory rulemaking. Center stage in the ongoing discussion is Indigenous Traditional Ecological Knowledge (ITEK), and the need for including and consulting with Tribal communities on the front end of planning as part of the environmental review process under the National Environmental Policy Act (NEPA). Stakeholders from developers and investors to Tribes and regulators, among other parties, should expect increased focus and guidance from the Biden administration in 2022 on these issues.
Continue Reading 2022 Promises Greater Focus on Tribal Consultation and Incorporation of Indigenous Traditional Ecological Knowledge in the Permitting Process

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 first comprehensive revision of the NEPA implementing regulations in over forty years goes into effect today. Litigants sought a preliminary injunction to block implementation of the rule nationwide, but their motion was denied by a district court late last week. While litigation is ongoing in three district courts, the new rule will apply to all new NEPA reviews started on or after September 14, 2020, and agencies will have discretion to apply the new rule to ongoing NEPA reviews initiated before September 14.
Continue Reading After Surviving Preliminary Injunction Motion, New NEPA Rule Becomes Effective Today

Federal agencies must often balance competing policy concerns and legal requirements. This process may be difficult and fraught with intense public feedback, and frequently results in litigation. The U.S. Army Corps of Engineers has found itself in the hot seat over how it manages the nation’s rivers, pitting its obligations under the Endangered Species Act against private property rights. Litigation in the federal courts may soon determine whether, and if so how, responsible the federal government is for unintentional or incidental flooding when the government manages rivers for the benefit of listed species. These cases also bring to the fore a burning question: When can government agencies be held responsible for natural events? With the increase in climate change-related litigation nationwide, this issue will likely only rise in prominence.
Continue Reading Caught Between a Rock and a Hard Place

On Monday, the Trump Administration released an ambitious legislative proposal that aims to stimulate $1.5 trillion in new infrastructure investment over the next 10 years, expedite the federal permitting process, address rural infrastructure needs, and prepare the American workforce for the future. To accomplish those goals, the proposal includes aggressive recommendations to streamline key federal environmental review and permitting processes for infrastructure projects. In addition to traditional forms of infrastructure, such as roads, bridges, and airports, the Legislative Outline for Rebuilding Infrastructure in America addresses drinking and wastewater systems, energy infrastructure, veterans’ hospitals, and Brownfields and Superfund sites.

Continue Reading Ambitious White House Infrastructure Legislation Proposal Would Make Major Changes to Environmental Permitting and Reviews

Infrastructure takes a long time to permit in this country. Every president over the past 30-plus years has tried to streamline the federal permitting process for infrastructure.  In his first State of the Union, President Trump called for streamlining the federal permitting process so it would take “no more than two years, and perhaps, even one.”

Continue Reading Building Trump’s America

In 2016, the US Fish and Wildlife Service (FWS or the Service) issued two policies on how to mitigate the impact of projects affecting fish and wildlife and natural resources: one overarching policy and one policy specific to Endangered Species Act implementation. Raising eyebrows, these mitigation policies were not limited to offsetting project impacts, but instead set a goal of improving the condition of affected resources.
Continue Reading Should Mitigation Meet a “Net Gain” Standard? USFWS is Reconsidering its Stance

The Keeper.

For some, the name may conjure images of a character from Game of Thrones, protecting the realm from the evil to the north. But, the Keeper is actually a fairly important National Park Service (NPS) official and has a significant role under the National Historic Preservation Act (NPHA)—the Keeper of the National Register of Historic Places.
Continue Reading One Person Who Could Significantly Delay Your Infrastructure Project

Highway Interchange

Several presidential administrations have sought to shorten the lengthy process for obtaining federal authorizations and permits, with particular attention on infrastructure projects that usually require multiple federal permits with accompanying environmental reviews. Despite consistent interest in improving this process, delays persist, in part because of how courts have interpreted the level of analysis required during these environmental reviews. This past Tuesday, President Trump issued a new Executive Order (EO) 13807: “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” As this EO is implemented, the big question is: How much relief can this or any other executive action provide?

Continue Reading Will Executive Direction Accelerate Federal Environmental Review and Permitting?

In a closely watched case, the United States Court of Appeals for the D.C. Circuit last week dismissed an interstate natural gas pipeline company’s challenge to the State of New York’s delay in issuing a water quality certification under section 401 of the federal Clean Water Act (CWA) for the Millennium pipeline project. While the company requested a ruling that the state had waived its right to make a decision on water quality certification for the project, the court decided to dismiss the action – holding that even if the state agency’s lengthy delays did constitute a waiver under CWA section 401, there was no cognizable injury to the company that would give it standing to challenge the delays in court. Rather, according to the court, the remedy is for the company to present evidence of waiver directly to the Federal Energy Regulatory Commission (FERC) to seek authorization to begin construction of the project. The case is one of several pending across the country that involve a state’s authority to issue, deny, or waive a CWA water quality certification for interstate natural gas pipeline projects.
Continue Reading Water Quality Certification Waiver for Natural Gas Pipeline Projects an Issue for FERC, and Not the Court, to Decide