The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers on Wednesday published a final rule defining “Waters of the United States,” or WOTUS, which determines the extent of federal regulatory authority under the Clean Water Act. 88 Fed. Reg. 3004-3144 (Jan. 18, 2023). The new rule largely reinstates the longstanding definition of WOTUS first adopted in 1986, as modified by the Supreme Court’s opinion in Rapanos v. United States,547 U.S. 715 (2006). But the final rule comes as the Supreme Court again considers the proper scope of WOTUS in Sackett v. Environmental Protection Agency, which will likely determine the viability of the new definition.
Keith Garner is a partner and Practice Group Leader of the Real Estate, Energy, Land Use & Environmental Practice Group in the firm's San Francisco office.
The U.S. Fish and Wildlife Service recently published a proposed rule revising regulations that authorize permit issuance for eagle incidental take and eagle nest take under the Bald and Golden Eagle Protection Act (the “Act”). In addition to retaining the individual permits already available under the Act, the new rule proposes creation of a “general” permit for qualifying wind energy and power line infrastructure projects.…
The U.S. Fish and Wildlife Service (the “Service”) published a proposed rule listing the tricolored bat as an endangered species under the Endangered Species Act (“ESA”). The tricolored bat occurs in portions of 39 states, including Texas, Iowa, and Oklahoma, which contain a significant concentration of utility-scale wind projects. In combination with the Service’s proposed “endangered” designation for the northern long-eared bat, the new proposed rule could complicate wind energy project permitting across the country.…
Offshore wind development off the California coast took another step closer to reality on August 10, 2022 with the California Energy Commission’s release of a report setting maximum feasible capacity and megawatt goals for 2030 and 2045. The report constitutes a milestone in the planning process prescribed by AB 525, which requires that the Commission “evaluate and quantify the maximum feasible capacity of offshore wind to achieve reliability, ratepayer, employment, and decarbonization benefits” for 2030 and 2045.…
The U.S. District Court for the District of Arizona on August 30 vacated the 2020 Navigable Waters Protection Rule (NWPR) that redefined “waters of the United States” for purposes of Clean Water Act jurisdiction, effectively reinstating the definition in effect prior to 2015. Under that prior definition, many ephemeral streams and isolated wetlands that were not subject to federal jurisdiction under the NWPR will again be subject to case-by-case determinations of their status. The case, Pasqua Yaqui Tribe v. EPA, CV-20-00266-TUC-RM (D. Ariz.), is one of several challenging the NWPR, and the outcome leaves unanswered questions about the scope of the court’s ruling and the potential for inconsistent regulations across the nation.
Continue Reading Uncertainty Over ‘Waters of the U.S.’ Definition Continues, as Federal Court in Arizona Vacates 2020 Rule
On September 15, 2020, the Army Corps of Engineers published proposed revisions to a wide range of Nationwide Permits (NWP) issued under the Clean Water Act. The revisions respond to Executive Order 13783, directing heads of federal agencies to review existing regulations that potentially burden development or use of domestically produced energy resources. Accordingly, the proposed revisions affect NWPs commonly utilized by utility-scale wind and solar energy projects throughout the country. The Corps will accept comments on the proposed revisions until November 16, 2020. Here are highlights from the proposed revisions.
Continue Reading Army Corps of Engineers Proposes Revising Broad Range of Clean Water Act Nationwide Permits
The Clean Water Act sometimes requires a permit for the indirect discharge of pollutants from a point source to navigable waters, but only when the discharge is the “functional equivalent” of a direct discharge, the Supreme Court held on April 23. The Court’s 6-3 opinion in County of Maui v. Hawaii Wildlife Fund (No. 18-260) addresses a circuit split regarding whether indirect discharges to navigable water via groundwater are subject to the Act’s National Pollutant Discharge Elimination System (“NPDES”) permitting program, but it has implications for other types of indirect discharges as well. Although the Court identified some factors that may help determine when a discharge is the functional equivalent of a direct discharge—especially the time and distance between the discharge of a pollutant from a point source and the pollutant’s arrival in navigable waters—its opinion is likely to create substantial uncertainty for the regulated community as the Environmental Protection Agency (“EPA”), litigants, and the courts attempt to apply the Court’s multi-factor test to a variety of factual scenarios.
Continue Reading Clean Water Act Permit Required for “Functional Equivalent” of Direct Discharge, Supreme Court Says
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) published a rule on October 23, 2019, repealing the Clean Water Rule promulgated by the Obama administration in 2015. The rule, which goes into effect on December 23, 2019, puts the pre-2015 regulations governing areas subject to federal jurisdiction under the Clean Water Act back into place nationwide. Environmental groups and state attorneys general have vowed to challenge the repeal in court.
Continue Reading EPA and Army Repeal Clean Water Rule and Move Forward with Plan to Redefine Waters Subject to Federal Regulation under Clean Water Act
A federal district court has ruled that the Bureau of Land Management (“BLM”) failed to adequately consider climate change when approving a set of oil and gas leases on public lands in Wyoming. The ruling should be of broader interest to developers and energy companies because it offers guidance on how to properly analyze a project’s effects on climate change under the National Environmental Policy Act (“NEPA”). The law in this area remains unsettled –especially since President Trump rescinded the Obama Administration’s formal guidance on NEPA and climate change in 2017. Future developments are likely, and project sponsors should monitor them closely.
At issue in the case are oil and gas leases covering 300,000 acres of public lands in Wyoming. For each lease sale, BLM prepared an environmental assessment to comply with NEPA. The environmental assessments discussed climate change on a “conceptual level,” without quantifying and analyzing the greenhouse gas emissions that would result from the lease sales. The court found the analysis inadequate under NEPA, and it halted drilling under the leases and sent the matter back to BLM for additional environmental review. In its lengthy ruling, the court offered concrete guidance to BLM on how to fix its analysis of greenhouse gas (“GHG”) emissions and climate change on remand, including that:
- BLM should quantify GHG emissions that would result from drilling oil and gas wells on the leased parcels.
- BLM should provide more detail about “downstream” GHG emissions that would result from the consumption of oil and gas produced under the leases.
- BLM should better evaluate the “cumulative” effect of the leases together with other projects, including by comparing GHG emissions from the leases against available emissions forecasts and other BLM programs.
This guidance may also serve as a useful roadmap to NEPA compliance for other projects, particularly other energy projects. And development opponents are likely to use the court’s reasoning to challenge future NEPA documents. Below we break down the court’s direction on three categories of GHG emissions, each requiring a different level of detail.
Continue Reading District Court Provides Guidance On Climate Change Analysis Under NEPA
An area designated as critical habitat under the Endangered Species Act must first qualify as “habitat” for listed species, the Supreme Court held this week in the closely watched Weyerhaeuser case. The Court’s November 27, 2018 ruling, which reversed a decision by the Fifth Circuit, has the potential to narrow federal agencies’ discretion to designate as critical habitat areas that are currently unoccupied by endangered or threatened species, but the opinion leaves important questions to be answered by the lower courts – including the meaning of “habitat.” The Court also held that agency decisions not to exclude specific areas from a critical habitat designation on economic grounds are subject to judicial review, reversing the Fifth Circuit and overturning the current law in the Ninth Circuit. …
Continue Reading Critical Habitat Must Be Habitat for Listed Species, Supreme Court Says
A recent Ninth Circuit ruling that pollutants reaching waters of the United States through groundwater may trigger Clean Water Act liability has prompted the U.S. EPA to consider clarifying its position on the subject. The Ninth Circuit held last month, in Hawai‘i Wildlife Fund v. County of Maui, that the Act applies to “indirect discharges” from point sources, such as wells, that eventually make their way to surface waters. Though the Ninth Circuit is not the first federal court to hold that indirect discharges require a permit under the Act, the EPA responded by seeking public comment on whether it should clarify previous statements addressing this topic. The County of Maui subsequently filed a petition on March 1 for en banc rehearing of the Ninth Circuit panel’s opinion.
Continue Reading After 9th Circuit Ruling in Hawai‘i Wildlife Fund v. County of Maui, EPA Considers ‘Clarifying’ Clean Water Act Coverage for Discharges Via Groundwater