On January 5, 2021, the U.S. Army Corps of Engineers (the Corps) released the final version of a rule revamping certain nationwide permits (NWPs) under the Clean Water Act (CWA). The CWA authorizes the Corps to issue general permits authorizing categories of activities that have minimal individual and cumulative adverse environmental effects. These permits remain in effect for no more than five years, at which point the Corps must renew the permits.

This rule reissues and modifies 12 nationwide permits (NWPs) and issues four new NWPs. Of these 16 NWPs, the most impactful changes are to NWP 12.

Continue Reading U.S. Army Corps of Engineers revamps Clean Water Act Nationwide Permit 12

On July 13, 2020, the Environmental Protection Agency (EPA) published the Clean Water Act Section 401 Certification Rule. The rule is set to become effective on September 11, 2020, and will introduce comprehensive changes to the regulations governing how states and authorized tribes certify water quality under Section 401 of the Clean Water Act (CWA).

Continue Reading EPA finalizes updates to CWA water quality certification requirements

1. Pipeline May Cross Underneath the Appalachian Trail with Forest Service Approval

On June 15, 2020, the U.S. Supreme Court (SCOTUS) held in a 7-2 decision that the U.S. Forest Service had the authority to grant developers of a gas pipeline right-of-way underneath the Appalachian National Scenic Trail.

At issue in this case was whether the Forest Service or the National Park Service (NPS) had jurisdiction over the trail. Under the U.S. Mineral Leasing Act (MLA), the Forest Service does not have jurisdiction over “lands in the National Park System.” However, in order to establish the National Scenic Trail, the Forest Service gave the Department of the Interior (DOI) an easement on that land to create and maintain the Appalachian Trail. As a result, the question became: did the granting of an easement to create the Appalachian Trail make that land a part of the National Park System?

Continue Reading ICYMI: June sees major U.S. Supreme Court environmental activity

This month’s notable U.S. Supreme Court (SCOTUS) actions involve what the Court declined to review rather than any actual decisions.

  • Declined to review: Fuel blenders exemption under the EPA’s RFS program

On May 18, 2020, SCOTUS declined to review the U.S. Environmental Protection Agency’s (EPA) policy that fuel blenders are not responsible for mixing biofuels into gasoline. This policy is part of the EPA’s renewable fuel standard (RFS) program, which requires an increasing amount of renewable fuels be blended into U.S. transportation fuels. This means the D.C. Circuit opinion (below) on the issue remains unchanged.

Continue Reading ICYMI: Major May U.S. Supreme Court environmental decisions

1) Superfund deals don’t block state-law claims

On April 20, 2020, the Supreme Court of the United States (SCOTUS) issued an opinion allowing Montana residents to maintain state-law claims against a company for a Superfund site that is already covered by a settlement agreement with the U.S. Environmental Protection Agency (EPA).

Continue Reading ICYMI: Major April U.S. Supreme Court Environmental Decisions

On April 15, 2020, a federal district court in Montana issued an order vacating the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit (NWP) 12 under the federal Clean Water Act (CWA) due to the Corps’ failure to meet its obligations under the federal Endangered Species Act (ESA). The court remanded NWP 12 to the Corps for compliance with the ESA. In the meantime, however, the court prohibited the Corps from permitting “any dredge or fill activities under NWP 12 pending completion of the consultation process and compliance with all environmental statutes and regulations.”

Continue Reading Montana federal court vacates Nationwide Permit 12 for pipelines and other linear projects

On September 12, 2019, the U.S. Environmental Protection Agency (EPA) and the Department of the Army issued a pre-publication draft of the final rule to repeal the 2015 Clean Water Rule definition of “Waters of the United States” (WOTUS Rule), which amended existing Clean Water Act (CWA) regulations. According to the EPA, the agencies’ goal is to “implement the pre-2015 Rule regulations nationwide as informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice.”

The WOTUS Rule built on the existing regulatory scheme and defined the geographic scope of the CWA by placing waters into three categories: (1) waters that are categorically “jurisdictional by rule” in all instances; (2) waters that are subject to case-specific analysis to determine whether they are jurisdictional; and (3) waters that are categorically excluded from jurisdiction.

Continue Reading EPA repeals 2015 WOTUS rule amid broader environmental regulatory rollbacks