Changes Are On The Horizon For Federal Natural Resource Agency Regulations

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Changes Are On The Horizon For Federal Natural
Resource Agency Regulations

Recent Biden Administration efforts to roll back Trump-era environmental rules are aimed at transforming federal natural resource agency regulations and the overall environmental regulatory landscape.  Recent court rulings have helped prompt some of these regulatory transformations that await us on the horizon.  Below is a brief update on key regulatory changes related to implementation of the Clean Water Act (CWA), Migratory Bird Treaty Act (MBTA), Endangered Species Act (ESA), and National Environmental Policy Act (NEPA). These changes reflect a pivot away from the Trump administration’s relaxation of regulatory red tape.

Defining Waters of the United States under the CWA

In 2019 and 2020, the Trump administration repealed the Obama-era Clean Water Rule and finalized its rulemaking for the Navigable Waters Protection Rule (NWPR). The NWPR significantly revised and narrowed the definition of “Waters of the United States” used by the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps of Engineers) to implement the CWA.

On August 30, 2021, in Pascua Yaqui Tribe v. U.S. Environmental Protection Agency, the United States District Court for the District of Arizona vacated and remanded the NWPR, but did not vacate the Trump Administration’s repeal of the Clean Water Rule. As a result of the District Court’s ruling, EPA and the Corps of Engineers are no longer applying the NWPR or the Obama-era Clean Water Rule and are, instead, identifying Waters of the United States based on the pre-2015 CWA regulatory regime.  This means that they are, in effect, applying the Corps of Engineers’ and EPA’s 1986 regulations and prior guidance regarding Rapanos v. United States, Carabell v. United States and Solid Waste Agency of Northern Cook County v. United States. According to a recent announcement from EPA, Approved Jurisdictional Determinations, sometimes referred to as “AJDs,” completed prior to the court’s vacatur of the NWPR remain valid.

Even before the District Court issued its decision in Pascua Yaqui Tribe, the Corps of Engineers and EPA announced their intent to revise or replace the NWPR. The agencies will be holding a series of regional roundtables in the next few months to obtain stakeholder input on development of a lasting definition of Waters of the United States.  

CWA Section 401 Water Quality Certifications

CWA section 401 prevents the federal government from issuing a permit or license for a project that may discharge pollutants into Waters of the United States without first receiving from the applicant a certification that the discharge will not violate applicable water quality standards. Section 401 water quality certifications (WQC) are issued by the State or Indian Tribe where the discharge in question would originate. (States and Tribes may also waive their authority to issue such certifications.)

In June 2020, the Trump administration finalized a rule limiting the authority that may be exercised by States and Indian Tribes when considering WQC requests under section 401.  The Trump 401 Rule placed strict time limits on the issuance of WQC decisions by States and Tribes, required WQC decisions to be based only on the specific discharges to Waters of the United States at issue in the WQC request, and limited the authority of Tribes and States to condition WQC decisions. In late October, the District Court for the Northern District of California vacated the Trump 401 Rule in the case In re: Clean Water Act Rulemaking. The court’s order requires a return to EPA’s 1971 WQC rule.

Vacatur of the Trump 401 rule has increased uncertainty regarding the state of section 404 permitting. For example, a recent statement from the Corps of Engineers’ Sacramento District indicated the Corps has temporarily suspended the issuance of Section 404 permits that rely on water quality certifications or waivers under the Trump 401 Rule. According to the statement, the Corps is in the process of developing guidance that will allow permitting decisions to be finalized.

Even before the Northern District of California’s decision, EPA had indicated its intent to revise the Trump 401 Rule and sought public input regarding the Rule over the summer. 

MBTA Incidental Take Regulations

For many decades, the federal government interpreted the MBTA as prohibiting not only intentional take of migratory birds, but also incidental or accidental take of such species. In the final days of the Trump Administration, however, the United States Fish and Wildlife Service (USFWS) published a final rule specifying that the MBTA does not prohibit take of migratory birds that is incidental to otherwise lawful activities. By interpreting the MBTA as only prohibiting intentional take of migratory birds, the rule eliminated potential liability under the MBTA for incidental take resulting from lawful commercial activities such as the operation of wind energy, solar energy, and oil and gas facilities.

In early October 2021, however, USFWS issued a final rule revoking the Trump Administration’s MBTA take rule. At the same time, it published an advanced notice of a proposed rulemaking that would establish the Biden Administration’s interpretation of the MBTA’s take provisions and create a regulatory regime for authorization of incidental migratory bird take. The Biden Administration is considering three potential pathways to regulate incidental take, including authorizing incidental take through permit exceptions, general permits, and specific permits. It anticipates focusing on authorizing incidental take of migratory birds for a wide range of commercial and governmental facilities and activities, including communication towers, electric transmission and distribution infrastructure, wind energy and solar energy facilities, and some types of oil and gas infrastructure.

ESA Critical Habitat Regulations

In December 2020, the Trump Administration issued two final rules amending the federal government’s regulations regarding the designation of critical habitat (Trump Critical Habitat Rules). The Trump Critical Habitat Rules added a restrictive regulatory definition of the term “habitat,” limiting USFWS’s and the National Marine Fisheries Service’s (NMFS) consideration of habitat to areas “currently or periodically” providing conditions necessary to support listed species. Among other things, the Trump Critical Habitat Rules also require USFWS to (1) consider excluding areas from a proposed critical habitat designation whenever presented with “credible information” regarding potential economic or other relevant impacts of the designation, and (2) exclude areas from a proposed critical habitat designation whenever the benefits of exclusion outweigh the benefits of inclusion. In late October 2021, USFWS and NMFS issued proposed rules that would rescind the Trump Critical Habitat Rules. If finalized, the proposed rules would remove the Trump Critical Habitat Rules’ regulatory definition of “habitat” and the regulations governing USFWS’s process for considering exclusions from critical habitat designations.

NEPA Regulations

In July 2020, the Trump Administration completed its expedited effort to rewrite the Council on Environmental Quality’s NEPA implementing regulations (CEQ Regulations). Among other things, the rulemaking substantially narrowed the definition of “effects” required to be analyzed under NEPA, encouraged more frequent use of NEPA categorical exclusions to avoid full-throated environmental review, required federal agencies to define the purpose of need for a project based largely on the applicant’s goals, and required agencies to complete NEPA review on an expedited timeline.

Less than 15 months later, the Biden administration launched its effort to generally restore the CEQ regulations as they existed prior to the Trump Administration’s 2020 rulemaking. This effort will include a two-phase rulemaking process. On October 7, 2021 CEQ issued the Phase I notice of proposed rulemaking. The proposed Phase I rule includes a narrow and targeted set of revisions that would (1) remove the Trump rule’s emphasis on defining the purpose and need for a project based upon the applicant’s goals and objectives, (2) restore federal agency discretion to develop NEPA procedures that are consistent with, and potentially more rigorous than, the CEQ Regulations, and (3) largely restore the CEQ Regulations’ pre‑2020 definition of “effects” to include direct, indirect, and cumulative effects. CEQ has not indicated when Phase 2 of the rulemaking will begin, or what its focus will be.

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Stay tuned as each of these regulatory stories unfold.  We also anticipate increasing regulatory uncertainty as other Trump-era regulatory changes may be teed up for reversal or a significant roll back.  For example, we expect USFWS and NMFS to act on plans announced in June 2021 to revise or rescind other ESA regulatory changes made by the Trump Administration, including those related to the consideration of the economic impacts of listing decisions, withdrawal of the “blanket 4(d) rule,” and ESA section 7 consultation requirements.  

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