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UPDATE: New Year, New Rules — Trump Administration Seeks to Use the Regulatory Process to Redefine the Scope of Federal Authority to Regulate Natural Resources

The Trump Administration started off the new year by issuing three proposals that could profoundly change how some of the nation’s stalwart environmental laws are implemented.  The year started off with the Council on Environmental Quality (CEQ) publishing proposed updates to the National Environmental Quality Act (NEPA).  If adopted, this would be the first comprehensive update to the NEPA regulations in decades and may provide federal agencies with an opportunity to exclude more of their actions from NEPA review, or reduce the burden to thoroughly examine alternatives to the agency’s proposed action.  In a sharp contrast from the prior administration’s position, the preamble to the proposed NEPA regulations stress that NEPA is strictly a procedural statute, while the Obama Administration tried to use NEPA to support the inclusion of compensatory mitigation in federal permitting actions.

Shortly after publishing the proposed NEPA regulations, the White House announced that the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) have finalized a new federal rule defining what constitutes “Waters of the United States” (WOTUS) under the Clean Water Act (CWA).  The newly proposed definition represents the second step in the Administration’s “two-step” process to repeal the Obama Administration’s 2015 WOTUS rule and adopt a new definition.  The upcoming rule seems to diverge from the opinions issued by both former Justice Kennedy and former Justice Scalia and forge a new regulatory definition that may ultimately determine whether thousands of miles of streams, wetlands and other waters the Corps and EPA formerly sought to regulate are subject to the CWA.  Like the 2015 WOTUS rule, the 2020 rule will no doubt see its fair share of litigation and it may take many more years, and another Supreme Court decision, before the matter is settled. 

Last but not least, on January 30, the Fish and Wildlife Service (USFWS) announced that it is proposing to codify the Trump Administration’s position that the Migratory Bird Treaty Act (MBTA) does not prohibit the unintentional, “incidental,” take of migratory birds, and will be preparing an environmental document under NEPA to assess the environmental consequences of the new MBTA regulations.  The proposal caps another tug-of-war between the current and former administrations.  In January 2017, the Department of the Interior (DOI) Solicitor issued an opinion expressing the view that unintentional take of migratory birds was prohibited.  The Trump Administration promptly suspended that opinion and then issued a new opinion that only purposeful take of migratory birds is prohibited under the MBTA.  This opinion is currently subject to litigation, and the new rule, if adopted, likely will be as well.

All of these new regulations will take time to work their way through the administrative process, but the Administration is undoubtedly eager to adopt final rules and regulations before the year ends.  Whether or for how long they will remain in place depends in part on the outcome of the next Presidential election, and the courts.

This posting is intended to summarize recent developments in the law for informational purposes only.  It is not intended, and does not constitute, legal advice.  We make no warranties of its completeness or accuracy.  Because questions regarding the application and interpretation of these and other laws require qualified legal analysis, we ask that you direct any such questions to us following an appropriate, formal retention.  For more information about the new regulations or to discuss how they may affect your project, please contact Shawn Zovod in Lubin Olson’s Natural Resources, Land Use and Real Estate Practice Group.

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