Vol. 52-1 Natural Resources & Land Use

Natural Resources & Land Use

NPS Responses to Overcrowding in National Parks Post-Lockdown

 Introduction          

            As the federal government and states have loosened COVID-19 lockdown restrictions and allowed greater opportunity for recreation, National Parks (Parks) have become increasingly inundated with visitors. The National Parks Service (NPS) has reported severe congestion in many of the nation’s most popular Parks, echoed by major news outlets and Park visitors.[1] This overcrowding has done more than just diminish the experience of visitors—it has harmed the Parks’ natural resources.[2] NPS has implemented a reservation system, capped the number of visitors and cars allowed in each Park, and levied additional fees, but these policies have not been uniformly applied and overcrowding remains an issue.[3] 

            The actions taken by NPS over the last year to minimize overcrowding raise concerns over the potential conflict with NPS’s legal mandate under the National Parks Service Organic Act (Organic Act) and its ability to levy additional fees under the Federal Land Recreation Enhancement Act (FLREA). 

 Overcrowding National Parks – Before, During, and After Lockdown

            Even before the pandemic, Parks were frequently overcrowded to the detriment of both recreation and conservation.[4] In 2019 alone, over 327.5 million people visited the nation’s 400 Parks, marking a 2.9% increase from 2018.[5] That is consistent with the relatively steady increase in visitation over NPS’s lifespan.[6] This continued growth compounds the concerns of scholars, who have described visitation rates as intolerably high as early as 2009.[7]  

            During the COVID lockdown, starting in March 2020, most Parks closed through the end of April, with many staying closed over the summer as well.[8] These closures decreased visitation by more than 100 million compared to 2019, with varied drops depending on each State’s lockdown guidelines. [9] Nevertheless, most of the Parks that saw a precipitous drop in visitation saw their attendance return to 2019 levels or higher by Fall of 2020.[10] Nearly half of all recreational visitors in 2020 were concentrated in the nation’s top twenty-three most popular Parks, forecasting the overcrowding that has become the norm for Parks in 2021.[11]

            While the 2021 visitation statistics for all Parks are unavailable (NPS attributes the delay to the pandemic) there have been widespread reports of overcrowding and a few targeted statistics about visitation increases in select Parks.[12] In early June, an NPS spokesperson warned that NPS was “anticipating one of [their] busiest summers ever in the most popular destination—Nationals Parks[.]”[13] This prediction has proven accurate. As the superintendent of the Grand Teton National Park noted in late August, “[e]very month except one has been record setting in terms of visitation numbers since the August before.”[14] The nation’s most popular Parks like Acadia, Grand Canyon, Joshua Tree, and Yellowstone, are bearing the brunt of this surge and the damage that comes with it.[15] 

            The high concentration of visitors at these Parks have pushed NPS to attempt to diffuse recreational visitors over the other 400 Parks in America.[16] Encouragement, however, has not been enough to solve overcrowding. NPS has also taken direct measures to curtail access to the Parks with the highest congestion. NPS has instituted reservation systems on recreation.gov to cap the amount of daily visitors and balance visitation over the course of the day.[17] Some Park administrators, rather than implement a reservation system, simply set a cap for either the number of people or the number of cars allowed in the Park or particular areas.[18] In some cases, NPS has instituted additional fees to bring motor vehicles onto Park grounds or to roam backcountry areas.[19] 

 Legality of NPS Responses

            According to NPS’s legal mandate under the Organic Act, the Service “shall promote and regulate” use of the Parks “to conserve the scenery, natural and historic objects, and wildlife . . .  and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”[20] This language has commonly been read to create dichotomous goals for NPS: to promote the public’s recreational enjoyment of the Parks and to leave the Parks unimpaired for future generations.[21] These goals have occasionally conflicted, most notably regarding the use of motorized vehicles on Park grounds.[22] Where enjoyment of the Parks has clashed with NPS’s requirement to preserve the Parks’ relatively unimpaired condition for future generations, NPS has repeatedly attempted to balance the two concerns, resulting in legal challenges to NPS decisions.[23]

            NPS and the courts have clarified that while both promoting recreation and preserving natural resources must be accounted for in NPS decisions, the latter takes supremacy.[24] As long as NPS considers promoting enjoyment of the Parks, courts grant broad deference to enact policies that limit the impairment of natural resources.[25] Given this broad deference, it is unlikely that the reservation systems or visitor caps would be deemed arbitrary and capricious since these decisions are meant to limit overcrowding. Furthermore, as balancing the visitor rates across all Parks will decrease congestion, improve views, and decrease noise pollution, doing so should also promote the enjoyment of the Parks for all recreation visitors.[26]

            The fee increases, on the other hand, will be subject to the FLREA’s requirements. As long as the Park in question follows the procedure for increasing a fee outlined by the FLREA, the increase will likely not be found arbitrary and capricious.[27] Under the FLREA, Parks interested in levying additional fees must “provide the public with opportunities to participate in the development of or changing of a recreation fee.”[28] Although an “opportunit[y] to participate” is not defined in the statute, NPS has an internal (albeit non-binding) fee-collection manual that details the steps a Park needs to follow.[29] In the case of a fee increase at the Great Smokey Mountains National Park, undergoing a notice and comment period, coupled with direct notice to chambers of commerce and public officials, satisfied the FLREA.[30] As such, as long as any Park interested in a fee increase satisfactorily “provide[s] the public with opportunities to participate[,]” in the same vein as the Great Smoky Mountains National Park, then the fee increase will likely not be ruled arbitrary and capricious.

Conclusion

            Overcrowding remains a serious concern at National Parks which, given the increasing rate of visitors over the last thirty years, will remain a concern unless NPS fundamentally changes the way it regulates visitation. The implementation of reservation systems, hard caps on visitors, and additional fees are all important steps, but more are necessary. 

            To further encourage Americans to visit some of the lesser-known and visited Parks, Congress recently allocated approximately $1.7 billion to NPS over the next five years to repair and modernize the transit systems in and around Parks.[31] Furthermore, in 2021, the Department of the Interior will invest $1.6 billion to “address critical deferred maintenance projects and improve transportation and recreation infrastructure in national parks . . . ” alongside other public land projects.[32] In theory, these repairs will provide visitors better access to the parks and other public lands, reducing emissions and congestion in some of the most visited parks.[33] Whether this will be enough to functionally alleviate some of the issues associated with NPS’s estimated $12 billion repair backlog remains to be seen.[34]

Adam Greiner is a third-year law student at the University of Texas School of Law. Before coming to Texas, Adam went to undergrad in his home state of Virginia at the College of William and Mary, where he studied History and Global Business. Adam has been a staff editor for the Texas Environmental Law Journal since the beginning of his second year, and is interested in working in mass tort and complex commercial litigation after he graduates.

Francesca Eick is an Associate with Baker Botts in Austin. Ms. Eick’s practice focuses on regulatory compliance, permitting, litigation, and transactions involving environmental, land use, natural resource, and energy issues. Ms. Eick has advised public and private clients on matters relating to a range of environmental statutes including the Clean Water Act (CWA), the Endangered Species Act (ESA), the Clean Air Act (CAA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

 [1] See, e.g., Brody Ford, National Parks Are So Crowded That Congress Is Getting Involved, Bloomberg, July 29, 2021, https://www.bloomberg.com/news/articles/2021-07-29/national-parks-are-so-crowded-that-congress-is-getting-involved; Allison Pohle, National Parks Are Overcrowded and Closing Their Gates, Wall St. J., June, 13, 2021,   https://www.wsj.com/articles/national-parks-are-overcrowded-and-closing-their-gates-11623582002; Khristopher J. Brooks, After a Year of Pining, Visitors are Overcrowding National Parks like Yellowstone and Yosemite, CBS News, June 18, 2021, https://www.cbsnews.com/news/national-parks-overcrowding-yellowstone-yosemite/. 

[2] See Kyle Paoletta, Give the People What They Clearly Need: More National Parks, N.Y. Times, August 28, 2021, https://www.nytimes.com/2021/08/28/opinion/national-park-nature.html (quoting Cameron Stoley, superintendent of Yellowstone National Park, on the effect of the spike in visitation post-lockdown: “You put a million more people a year in Yellowstone — what does that mean when you’re emptying 2,000 garbage cans five times a day instead of three?” he said. “What does a million more people flushing toilets five times a day do to wastewater?”). 

[3] Benjamin Beddoes, Shenandoah National Park Looks to Address Overcrowding, WHSV, (Oct. 15, 2021, 5:18 PM), https://www.whsv.com/2021/10/15/shenandoah-national-park-looks-address-overcrowding/ (quoting Shenandoah National Park’s superintendent on overcrowding at Old Rag mountain hiking trails: “[w]hat we would like to do is set a cap of 800 people a day, see how that works out[]”).

[4] Andrew R. Chow, National Parks Are Getting Trashed During COVID-19, Endangering Surrounding Communities, TIMES, (July 22, 2020 3:19 PM), https://time.com/5869788/national-parks-covid-19/.; National Parks Service, Visitation Numbers, Feb. 25, 20221, https://www.nps.gov/aboutus/visitation-numbers.htm.

[5] Visitation Numbers, supra note 4.

[6] Id

[7]  See Id.; (327,516,619 – 285,579,941) and (41,936,678 ¸ 327,516,619 * 100); Richard J. Ansson, Jr. & Dalton L. Hooks, Jr., Protecting and Preserving Our National Parks in the Twenty First Century, 62 Mont. L. Rev. 213, 214 (2001) (arguing the need for large scale reform to cope with the increasing overcrowding problem at National Parks); Richard J. Ansson, Funding Our National Parks in the 21st Century: Will We Be Able to Preserve and Protect Our Embattled National Parks?11 Fordham Envtl. L. J. 1, 2 (1999) (Noting the increasing problem of overcrowding at National Parks, suggesting increased funding to NPS).

[8] Abraham J. Miller-Rushing et al., COVID-19 Pandemic Impacts on Conservation Research, Management, and Public Engagement in US National Parks, 257 Biological Conservation 1, 3 May 2021.

[9] Id.

[10] Id. at 4. 

[11]Visitation Numbers, supra note 4.; Mai Tran, ‘It’s Not Sustainable’: Overcrowding is Changing the Soul of US National Parks, The Guardian, Sept. 10, 2021, https://www.theguardian.com/environment/2021/sep/10/

overcrowding-changing-us-national-parks. 

[12] Pohle, supra note 1.; Brooks, supra note 1.; Paoletta, supra note 2.

[13] Brooks, supra note 1.

[14] Paoletta, supra note 2.

[15] Id.

[16] Alicia Johnson, US National Parks are Overcrowded – Here’s What Experts Say to do Instead, Lonely Planet, (June 25, 2021), https://www.lonelyplanet.com/articles/overcrowding-at-us-national-parks.

[17] Greg Iacurci, National Parks are Booming. That May Ruin Your Next Trip, CNBC, (Aug. 22, 2021 8:00 AM), https://www.cnbc.com/2021/08/22/national-parks-are-booming-that-may-ruin-your-next-trip.html.

[18] Michael Charboneau, All the Major Closures and Restrictions at National Parks Due to COVID-19, Men’s J., https://www.mensjournal.com/adventure/national-parks-closures-covid-19/.

[19] National Parks Service, Entrance Fees by Park, Sept. 28, 2021, 

https://www.nps.gov/aboutus/entrance-fee-prices.htm.; National Parks Service, 2021 User Fees Increase Proposal, Sept. 27, 2021, https://www.nps.gov/shen/planyourvisit/2021-user-fees-increase-proposal.htm (detailing fee increase proposal for sake of public comment period for Shenandoah National Park). 

[20] 54 U.S.C.A. § 100101.

[21] See S. Forest Watch, Inc. v. Jewell, 817 F.3d 965, 972 (6th Cir. 2016)

[22] See, e.g., Bluewater Network v. Salazar, 721 F. Supp. 2d 7, 21 (D.D.C. 2010) (granting in part plaintiff’s challenge to the reintroduction of jetskis to two national parks); S. Utah Wilderness All. v. Dabney, 222 F.3d 819, 821 (10th Cir. 2000) (holding that NPS’s final rule barring the use of motorized vehicles in a portion of the Canyonlands National Park was based on a permissible construction of the Organic Act).  

[23] See, e.g., Wilkins v. Sec’y of Interior, 995 F.2d 850, 853 (8th Cir. 1993) (finding NPS’s decision to remove wild horses from Ozark River National Parks to not be arbitrary and capricious as they relied on evidence that the horses’ continued presence would potentially impair the perpetuation of the Park’s natural resources.). 

[24] See S. Utah Wilderness All. v. Nat’l Park Serv., 387 F. Supp. 2d 1178, 1183, 1199 (D. Utah 2005).

[25] Id. at 1194.

[26] See Tran, supra note 11. 

[27] See S. Forest Watch, 817 F.3d at 970-74.

[29] S. Forest Watch, 817 F.3d at 972.

[30] Id.

[31] Infrastructure Investment and Jobs Act of 2021, H.R. 3684, 117th Cong. § 11101(3)(B)(ii) (2021).   

[32] Department of the Interior, Interior Invests $1.6 Billion to Improve Infrastructure on Public Lands and Tribal Schools, Apr. 4, 2021, https://www.doi.gov/news/interior-invests-16-billion-improve-infrastructure-public-lands-and-tribal-schools (funding made possible by the National Parks and Public Land Legacy Restoration Fund established in 2020 by the Great American Outdoors Act).

[33] Id.; National Parks Conservation Association, Congress Passes Bipartisan Infrastructure Bill to Help Build Back and Strengthen National Parks and Communities, Nov. 5, 2021, https://www.npca.org/articles/3002-congress-passes-bipartisan-infrastructure-bill-to-help-build-back-and. 

[34] Marcia Argust, Cost of Unaddressed National Parks Repairs Grows to Nearly $12 Billion, Pew Trusts, (Apr. 9, 2019, 7:11 AM),   https://www.pewtrusts.org/en/research-and-analysis/articles/2019/04/09/cost-of-unaddressed-national-park-repairs-grows

Vol. 51-2 Natural Resources

Natural Resources

Updates on ESA & NEPA Litigation

Case Updates 

In 2017, the United States Army Corps of Engineers (Corps) reissued Nationwide Permit 12 (NWP 12), which was then challenged in Sierra Club v. Federal Energy Regulatory Commission.[1] The D.C. Circuit remanded the case to FERC for preparation of an environmental impact statement (EIS) on August 22, 2017.[2] According to the D.C. Circuit, FERC needed to provide more information on the pipeline’s downstream greenhouse gas emissions.[3] Subsequently, FERC filed a panel rehearing petition on October 6, 2017.[4] On January 31, 2018, the D.C. Circuit denied the decision’s rehearing.[5] As a result, the pipeline project developers filed a motion on February 6, 2018, for a 90-day stay of the mandate’s issue.[6] Along with a request to expedite FERC’s reissuance of the project authorization certificates, the developers argued several points: FERC has already resolved the environmental review deficiencies that were originally brought up by the court, vacatur will cause significant irreparable economic and environmental harms, staying the mandate helps avoid irreparable harm during preparation of and disposition of a writ of certiorari petition, and this mandate’s stay is justified, even under the traditional test for a stay pending appeal.[7]

The petitioners responded, opposing the stay for the following reasons: no good cause exists to allow FERC and the developers to avoid vacatur using the stay, the court should not pre-determine whether FERC’s additional environmental review complies with the court’s remand order, and there is no irreparable harm to consumers or the environment; and the developers’ economic harm does not justify delaying the mandate.[8]

On March 7, 2018, the court granted FERC’s motion to stay the mandate’s issuance.[9] The mandate was withheld through March 26, 2018.[10] On March 14, 2018, FERC reauthorized the pipeline project after concluding that the downstream-greenhouse gas emissions quantification does not change the project’s environmental acceptability and notified the D.C. Circuit of its issued order on March 23, 2018.[11]

In May 2018, FERC denied a rehearing regarding its certificate of public convenience and necessity issuance for two New York natural gas facility projects.[12] Shortly thereafter, the Delaware Riverkeeper Network requested FERC to rescind its order due to FERC violating NEPA by failing to adequately consider climate change impacts created by the pipeline infrastructure decision-making.[13] By July of 2018, the New York Attorney General had sent a letter to FERC warning the agency that by denying the rehearing request in May, the agency was uncharacteristically departing from its tradition of evaluating downstream greenhouse gas emissions from natural gas infrastructure projects’ environmental impacts.[14] As a result, the New York Attorney General concluded that FERC’s rehearing denial was procedurally and substantively wrong.[15]

Nationwide Permit 12

In Northern Plains Resource Council v. U.S. Army Corps of Engineers, the Northern Plains Resource Council argued that the Corps acted arbitrarily and capriciously in issuing the Keystone XL Pipeline’s NWP 12, and that the Corps should have consulted with the U.S. Fish and Wildlife Service on whether NWP 12 jeopardizes endangered species under the Endangered Species Act (ESA).[16] This case’s outcome could significantly change the extent to which the Corps and other parties can obtain and rely upon such permits in the future.

So far, several district court rulings have applied a stricter adherence standard to NEPA regulations. If this pattern continues, the Corps may potentially be more limited in its ability to issue NWPs, which will be particularly detrimental to the oil and gas industry. Furthermore, upcoming court decisions may also limit the Corps’ regulatory authority. The Corps has argued that while the ESA requires the Corps to conduct programmatic consultation with relevant wildlife agencies before issuing a NWP, the Corps was justified in failing to do so, because general permit conditions that require site-specific consultation remove the need for programmatic consultation; yet, a Montana district court rejected this argument.[17] In an April 2020, ruling by the same district court, the Corps’ regulatory approach described above was deemed “an unlawful ‘delegation’” of the agency’s regulatory authority.[18]

A Montana federal court issued an order on the parties’ motions for summary judgment on April 15, 2020. Subsequently, a motion for a partial stay pending appeal was filed.[19] In May 2020, the Court held that NWP 12 is vacated regarding new oil and gas pipelines pending environmental statutes and regulations consultation and compliance, but it remains in place regarding non-pipeline construction activities and routine maintenance; and the Corps cannot authorize any new oil and gas pipeline dredge or fill activities pending completion of required NWP 12 actions, but the Corps can still authorize dredge and fill activities for non-pipeline construction activities or routine maintenance.[20]

On June 15, 2020, the Corps requested the Supreme Court to stay regarding a pending district court appeal. The pending appeal would enjoin new oil and gas pipelines’ authorization under NWP 12 due to failure to comply with the ESA.[21] The Corps contends that the district court had no justification to set aside NWP 12, that national equitable relief was improper, that the order was issued without fair notice, and that the order lacked sound basis in the ESA.[22] On June 23, 2020, eighteen states, including Texas and West Virginia, filed a motion for leave to file an amicus brief.[23]

On July 6, 2020, the Supreme Court granted the application to stay in part.[24] More specifically, the Court denied the Keystone XL pipeline’s approval to proceed under NWP 12, but issued a partial stay as it applies to other pipelines.[25] Along with the Supreme Court’s decision, other difficulties exist in completing the Keystone XL, such as various legal challenges, an unpredictable oil market, and the current revocation of its permit by the Biden Administration, which is currently being litigated.[26] Furthermore, various business groups filed an amicus brief on September 23, 2020, asking the Ninth Circuit to reverse the district court’s evaluation of the Corps’ decision to issue NWP 12.[27]

While the Supreme Court’s stay on a nationwide injunction on new oil and gas pipelines narrows the law’s application, the Court’s decision to maintain the Keystone XL pipeline’s injunction sharpens the ESA’s “teeth” for long-term, endangered species protection.

Dakota Access Pipeline

On March 25, 2020, a federal district court judge struck down permits for the Dakota Access Pipeline, as requested by the Standing Rock Sioux Tribe.[28] The district court cited the recent case, National Parks Conservation Association v. Semonite, in its reasoning that the Corps left too many questions unanswered about the permit’s environmental impacts under NEPA.[29] According to the court, approving the permits would be “‘highly controversial’” under NEPA, given that the Corps provided unrebutted expert critiques on leak-detection systems, operator safety records, adverse conditions, and worst-case discharge.[30] After assessing government violations, a District of Columbia federal district court judge determined, on July 6, 2020, that the pipeline should be shut down.[31] Rather than shut down the pipeline, however, the D.C. Circuit Court of Appeals issued an order in August 2020 that allows oil to continue flowing for the time being.[32]

Additionally, the D.C. Circuit Court of Appeals resolved another administrative stay in August 2020 by vacating the Lake Oahe pipeline permit.[33] The Corps decided to challenge many of the district courts’ actions, including overturning the Corps’ NEPA findings, ordering an EIS, and vacating the permits and shutting down the pipeline.[34] The pipeline’s EIS process started in early September[35] and comments were due by October 26, 2020.[36] Tribes, congress members, state governments, the Corps, and the Dakota Access pipeline (DAPL) all filed federal briefs and had oral argument on November 4, 2020, during which parties discussed, before the D.C. Circuit Court of Appeals, whether the lower court erred in concluding that the federal regulators’ DAPL oil project approval did not meet NEPA standards.[37]

On October 16, 2020, the Standing Rock Sioux Tribe renewed its request for an injunction to shut down the pipeline, for which a motion was briefed and ready by December 2020.[38] Additionally, fourteen states filed briefs claiming that shutting down the DAPL will significantly damage the Midwest’s agricultural economies because it will be more expensive to ship grain.[39]

Potential Impacts of Updated NEPA Regulations

Five key NEPA-regulations alterations that went into effect on September 14, 2020, include: EIS reports are restricted to two years for completion and EA reports to one year; the “major federal actions” definition creates a limit that excludes smaller projects from review; categorical exclusions pooling allows different agencies to use other agencies’ historically used categorical exclusions; cumulative impacts are not considered in environmental studies, but rather only the reasonable alternatives and impacts in close proximity to the relevant project; and comments are only considered if they are “exhaustive.”[40]

While current regulations are likely to change under the Biden Administration, the Trump Administration’s regulatory alterations currently include narrower NEPA criteria for infrastructure projects. One of the regulations narrows what constitutes a “major federal action.”[41] This rule alteration will not only exclude many nonfederal or minimally federal-funded projects from NEPA review, but will also exclude projects whose effects are attributed to a long causal chain.[42] For instance, Sierra Club v. FERC may not have been heard by a court under the updated NEPA rules, because the court might consider the Sierra Club’s contentions regarding climate change and downstream greenhouse gas emissions too indirect and geographically remote to necessitate NEPA review.

The updated rules also eliminate cumulative impact consideration.[43] In Sierra Club v. FERC, the case outcome largely depended on the project’s cumulative impacts analysis.[44] Narrowing NEPA criteria gradually eliminates the breadth of NEPA review. Furthermore, lack of consideration for indirect factors like climate change can limit the extent to which courts are able to identify trending fact patterns in their environmental impact analyses. When the plaintiffs moved for summary judgement in November 2019 in Northern Plains Resource Council v. U.S. Army Corps of Engineers, they contended that the Corps failed to evaluate greenhouse gas emissions’ indirect and cumulative effects allowed by Nationwide Permit 12.[45] Under the new rules, a court facing similar facts to those in Northern Plains might not consider said factors under NEPA, making an injunction issuance less likely. Under the altered rules, it is also possible that there will be less consideration of the structural soundness of future infrastructure projects. For instance, it is no longer necessary under NEPA to analyze whether a rise in sea level will submerge particular infrastructure project’s structures.[46]

However, the Trump Administration’s NEPA regulations’ rollback is not immune to the Congressional Review Act (CRA), which Congress can use to overturn rules issued by federal agencies, which may happen now that the Democratic party controls both congressional houses.[47] President Biden will likely continue to bolster environmental protection by creating new standards, editing current standards, and ramping up enforcement.[48]

Bipartisanship might become a cornerstone for the current administration to achieve its environmental goals. More than that, a growth in bipartisan solutions may also lead to better representation of the American populace. Lastly, support for, and the growth of, the renewable energy industry will likely continue to increase under the Biden Administration.[49]

Patrick Leahy is an Associate at Baker Botts (Austin) and he works on a variety of environmental litigation matters at the administrative, state, and federal levels, permitting, regulatory compliance, and transactional support matters.

Bahar B. Sahami is a third-year student at The University of Texas School of Law and Senior Editor of the Texas Environmental Law Journal.

 

[1] Sierra Club v. Fed. Energy Regulatory Comm’n, 867 F.3d 1357, 1363 (D.C. Cir. 2017).

[2] Id.

[3] Sierra Club, 867 F.3d at 1374.

[4] Petition for Panel Rehearing, Sierra Club, 867 F.3d 1357 (D.C. Cir. 2017) (Nos. 16-1329, 16-1387).

[5] Order, Sierra Club, 867 F.3d 1357 (D. C. Cir. 2017) (No. 16-1329) (denying the petition for rehearing).

[6] Motion of Intervenor-Respondents for 90-Day Stay of Issuance of Mandate, Sierra Club, 867 F.3d 1357 (D.C. Cir. 2017) (No. 16-1329).

[7] Id.

[8] Response of Petitioners Sierra Club et al., Sierra Club, 867 F.3d 1357 (D. C. Cir. 2017) (Nos. 16-1329, 16-1387).

[9] Order, Sierra Club, 867 F.3d 1357 (D. C. Cir. 2017) (No. 16-1329) (granting FERC’s motion to stay the mandate’s issuance).

[10] Id.

[11] Fla. Se. Connection, LLC, 163 ¶ 61,233 (2018).

[12] Dominion Transmission, Inc. 163 ¶ 61,128 (2018).

[13] Letter from Maya K. van Rossum, Del. Riverkeeper, Del. Riverkeeper Network, to Kimberly D. Bose, Sec’y, Fed. Energy Regulatory Comm’n (May 26, 2018) (on file with FERC).

[14] Letter from Barbara D. Underwood, Attorney Gen. of N.Y., N. Y. State Office of the Attorney Gen., to Kimberly D. Bose, Sec’y, Fed. Energy Regulatory Comm’n (July 10, 2018) (on file with New York Attorney General’s Office).

[15] Jeffrey M. Karp, FERC Continues to Forge Its Own Path in Considering Climate Impacts in Pipeline Applications, Lexology (Jan. 14, 2019), https://www.lexology.com/library/detail.aspx?g=b7aab6c4-9fa1-422f-bb57-8d6b95e1d46f.

[16] N. Plains Res. Council v. U.S. Army Corps of Engineers, 454 F.Supp 3d 985, 996 (D. Mont. 2020).

[17] Supreme Court Revives Clean Water Act General Permit for Pipeline and Utility Line Projects, Perkins Coie (July 15, 2020), https://www.jdsupra.com/legalnews/supreme-court-revives-clean-water-act-12507/.

[18] Id.

[19] Motion for Partial Stay Pending Appeal by Transcanada Keystone Pipeline, LP and TC Energy Corporation, N. Plains Res. Council, 454 F.Supp.3d 985 (D. Mont. 2020).

[20] Order Amending Summary Judgment Order and Order Regarding Defendants’ Motions for Stay Pending Appeal, N. Plains Res. Council, 454 F.Supp.3d 985 (D. Mont. 2020).

[21] Application for a Stay Pending Appeal to the Unites States Court of Appeals for the Ninth Circuit and Pending Further Proceedings in this Court, N. Plains Res. Council, 454 F.Supp.3d 985 (D. Mont. 2020) (No. 19A-1053).

[22] Id.

[23] Motion for Leave to File Brief, N. Plains Res. Council, 454 F.Supp.3d 985 (D. Mont. 2020) (No. 19A-1053).

[24] Order, N. Plains Res. Council, 454 F.Supp.3d 985 (D. Mont. 2020) (No. 19A-1053) (granting the application for stay in part).

[25] Id.

[26] Press Release: In Yet Another Blow to Keystone XL, Supreme Court Rejects Bid to Revive Key Water Crossing Permit, Northern Plains Resource Council (July 6, 2020), https://northernplains.org/press-release-scotus-rejects-nw12-construction/; States sue Biden in bid to revive Keystone XL pipeline, Associated Press (Mar. 17, 2021), https://apnews.com/article/joe-biden-donald-trump-ken-paxton-lawsuits-montana-0cf1a378a99ade52cd8b24bb61313ba9.

[27] Northern Plains Resource Council v. U.S. Army Corps of Engineers, U.S. Chamber Litig. Ctr. (Sept. 23, 2020), https://www.chamberlitigation.com/cases/northern-plains-resource-council-v-us-army-corps-engineers.

[28] Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 440 F.Supp.3d 1 (D.D.C. 2020).

[29] Id. at 8.

[30] Id.

[31] Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 471 F.Supp.3d 71, 88 (D.D.C. 2020).

[32] Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 2020 U.S. App. LEXIS 25580 (D.C. Cir. 2020).

[33] Id.

[34] Brief for Appellant at 20, 32, 33, 34, Standing Rock Sioux Tribe, 2020 U.S. App. LEXIS 25580 (D.C. Cir. 2020) (No. 20-5201).

[35] United States Army Corps of Engineers’ Status Report, Standing Rock Sioux Tribe, 2020 U.S. App. LEXIS 25580 (D.C. Cir. 2020).

[36] Notice of Intent To Prepare an Environmental Impact Statement for an Easement to Cross Under Lake Oahe, 85 Fed. Reg. 55,843 (Sept. 10, 2020).

[37] The Standing Rock Sioux Tribe’s Litigation on the Dakota Access Pipeline, EarthJustice, https://earthjustice.org/features/faq-standing-rock-litigation (last visited May 2, 2021).

[38] Plaintiff’s Motion for Clarification and a Permanent Injunction, Standing Rock Sioux Tribe, 2020 U.S. App. LEXIS 25580 (D.C. Cir. 2020).

[39] Todd Neeley, States, Ag Battle for Dakota Access Pipeline—DTN, AgFax (Dec. 15, 2020), https://agfax.com/2020/12/15/states-ag-battle-for-dakota-access-pipeline-dtn/.

[40] Cliff Rothenstein et al., A New Normal? Trump Administration Retooling Of Core NEPA Elements, K&L Gates (July 23, 2020), https://www.klgates.com/a-new-normal-trump-administration-retooling-of-core-nepa-element-7-23-2020.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] Cong. Research Serv., The Congressional Review Act (CRA): Frequently Asked Questions 1 (2020).

[48] Jennifer Adams et al., Environmental Law outlook under a Biden Administration, Lexology (Nov. 9, 2020), https://www.lexology.com/library/detail.aspx?g=d709f96f-8d10-41db-b2fa-8ebaae16e632.

[49] Id.

Vol. 50-2 Natural Resources

By Patrick Leahy and Neha Singh

Natural Resources

Rapanos and the New Definition of “Waters of the United States”

Introduction

The Clean Water Act (CWA) defines “navigable waters” as “the waters of the United States, including the territorial seas,” hereafter referred to as WOTUS.[1] Through the CWA, Congress directed the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) to protect “navigable waters.”[2] The Navigable Waters Protection Rule regulates these waters and the tributary systems that flow into them.[3] A clear definition of “waters of the United States” is necessary to determine the scope of federal jurisdiction over bodies of water and wetlands.[4] By redefining WOTUS, the rule restricts federal jurisdiction to only those waters that are sufficiently and visibly connected to traditionally navigable waters or seas.[5] This article discusses the reasoning behind the redefinition of WOTUS.

Background

The United States Supreme Court issued its opinion on WOTUS in Rapanos v. United States.[6] Justice Scalia, writing for a four-justice plurality, interpreted “waters of the United States” to include “only those relatively permanent, standing or continuously flowing bodies of water,” and only those wetlands with a “continuous surface connection” to jurisdictional bodies “so that there is no clear demarcation between ‘waters’ and wetlands.”[7] Essentially, the plurality held that an adjacent wetland is not within WOTUS just because that wetland has “a mere hydrologic connection” with the jurisdictional water.[8]

In his concurring opinion, Justice Kennedy took a different and broader interpretive approach. He stated that there is a “significant nexus” when tributaries or wetlands, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of traditionally covered bodies of water typically understood as navigable.[9] This created the “significant nexus” test, which originates from a combination of the Court’s decisions in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers and United States v. Riverside Bayview Homes, Inc.[10] The Court in SWANCC interpreted the Court’s decision in Riverside Bayview Homes as supporting a significant nexus theory: “it was the significant nexus between the wetlands and ‘navigable waters’ that informed [the Court’s] reading of the CWA in Riverside Bayview Homes.”[11] Rather than the surface-connection approach advanced by the plurality, Justice Kennedy articulated a test that gauges whether the wetlands that the EPA and the Corps’ seek to regulate have a significant enough negative impact on navigable waters.

But Justice Stevens—writing for the four-justice dissent—stated that the EPA and the Corps decided “that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation’s waters” and that EPA and the Corps’ decision “to treat these wetlands as encompassed within the term ‘waters of the United States’ is a quintessential example of the Executive’s reasonable interpretation of a statutory provision.”[12] The dissent declared that “waters” in “waters of the United States” is an ambiguous term, and the EPA and the Corps have “reasonably interpreted” federal jurisdiction to cover “nonisolated wetlands.”[13] Justice Stevens essentially eschewed a need for a separate test altogether, as long as federal jurisdiction over wetlands is reasonable under the CWA.

In 2015, in response to the Court’s interpretation of WOTUS in Rapanos, the EPA and the Corps provided a new basis for federal jurisdiction by applying Justice Kennedy’s “significant nexus” test in the clarifying document “Clean Water Rule: Definition of ‘Waters of the United States.’”[14] In support of Justice Kennedy’s test, the EPA and the Corps used the EPA’s “Connectivity Report,” a synthesis of 1,200 peer-reviewed articles on hydrologic connection.[15] According to the EPA and the Corps’ interpretation of the “significant nexus” test, waters under federal jurisdiction included ephemeral tributaries, their adjacent wetlands, and other waters that EPA and the Corps decided were jurisdictional using a categorical or case-by-case basis.[16] The 2015 Clean Water Rule addressed the major issue in Rapanos: can the connection between jurisdictional waters and adjacent wetlands be underground?  The EPA and the Corps incorporated certain accepted scientific principles of hydrology into the definition of jurisdictional waters and rejected the surface-connection theory as stated by the plurality in Rapanos.[17] 

Developments since Rapanos

In February 2017, President Trump issued an Executive Order directing the EPA and the Corps to conduct a rulemaking in order to redefine CWA jurisdiction “in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States.”[18] On October 22, 2019, the EPA and the Corps published a final rule to repeal the 2015 rule defining “waters of the United States.”[19] The final rule repealing the 2015 rule was published in the Federal Register on October 22, 2019, and became effective on December 23, 2019.[20]

On January 23, 2020, the EPA and the Corps finalized the new “Navigable Waters Protection Rule,” redefining WOTUS to comply with the president’s order, which became effective on June 22, 2020.[21] The final rule excludes from the definition of WOTUS, “groundwater, including groundwater drained through subsurface drainage systems; ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools” and “waste treatment systems,” among others.[22] More generally, the rule states that federal jurisdiction will be restricted to those waters and wetlands that “maintain a sufficient surface water connection to traditional navigable waters or the territorial seas.”[23] This is the end, for now, of the “significant nexus” test within the CWA. Rather than a hydrological or ecological connection, the only connection that will allow for federal regulation over other waters and wetlands is one that is surface level.

In the final rule, the EPA and the Corps assert that “ensuring that States and Tribes retain authority over their land and water resources […] helps carry out the overall objective of the CWA and ensures that the agencies are giving full effect and consideration to the entire structure and function of the Act.”[24] The EPA and the Corps cite Justice Scalia’s opinion in Rapanos in support: “clean water is not the only purpose of the statute. So is the preservation of primary state responsibility for ordinary land-use decisions.”[25] While clean water may not be the only purpose of the CWA, it is arguably the primary one. However, because the EPA and the Corps “recognize that science cannot dictate where to draw the line between Federal and State waters,” perhaps ensuring clean water through scientific processes has become less important.[26]

While this new rule recently became effective, how it is implemented will most certainly be influenced by the Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund interpreting Rapanos and establishing the “functional equivalent” test for indirect discharges into WOTUS.[27]

Patrick Leahy is an Associate at Baker Botts (Austin) and works on a variety of environmental litigation matters at the administrative, state, and federal levels, permitting, regulatory compliance, and transactional support matters.

Neha Singh is a second-year student at The University of Texas School of Law and a staff member of the Texas Environmental Law Journal.

 

[1]               33 U.S.C. §1362(7).

[2]               Definition of “Waters of the United States” under the Clean Water Act, Envtl. Prot. Agency, https://www.epa.gov/cwa-404/definition-waters-united-states-under-clean-water-act (last visited Feb. 18, 2020).

[3]               Id. 

[4]               See Solid Waste Agency of Northern Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134 (1985).

[5]               The Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (Apr. 21, 2020) (to be codified at 33 C.F.R. pt. 328 and 40 C.F.R. pts. 110, 112, 116, 117, 120, 122, 230, 232, 300, 302, and 401).

[6]               Rapanos v. United States547 U.S. 715 (2006).

[7]               Id. at 739.

[8]               Id. at 740.

[9]               Id. at 780.

[10]             See Solid Waste Agency of Northern Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 134 (1985).

[11]             SWANCC, 531 U.S. at 167 (2001).

[12]             Rapanos, 547 U.S. at 788.

[13]             Id. at 798.

[14]             See Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,054 (June 29, 2015) (to be codified at 33 CFR pt. 328 and 40 CFR pts. 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401).

[15]             Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific EvidenceEnvtl. Prot. Agencyhttps://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=296414, (last visited May 22, 2020).

[16]             Clean Water Rule, 80 Fed. Reg. at 37,056.

[17]             Amy Kelly, Waters and Water Rights § 61.03 (Matthew Bender eds., 3rd ed. 2020).

[18]             Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, White House (Feb. 28, 2017), https://www.whitehouse.gov/ presidential-actions/presidential-executive-order-restoring-rule-law-federalism-economic-growth-reviewing-waters-united-states-rule/.

[19]             Definition of “Waters of the United States” under the Clean Water Act, U.S. Envtl. Prot. Agency, https://www.epa.gov/cwa-404/definition-waters-united-states-under-clean-water-act (last visited Feb. 18, 2020).

[20]             Definition of “Waters of the United States”—Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019) (to be codified at 33 C.F.R. pt. 328 and 40 C.F.R. pts. 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401). 

[21]             Final Rule: The Navigable Waters Protection Rule, Envtl. Prot. Agency, https://www.epa.gov/nwpr/final-rule-navigable-waters-protection-rule (last visited Feb. 18, 2020); see Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, White House (Feb. 28, 2017) https://www.whitehouse.gov/presidential-actions/presidential-executive-order-restoring-rule-law-federalism-economic-growth-reviewing-waters-united-states-rule/.

[22]             The Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (Apr. 21, 2020) (to be codified at 33 C.F.R. pt. 328 and 40 C.F.R. pts. 110, 112, 116, 117, 120, 122, 230, 232, 300, 302, and 401).

[23]             Id. at 22,259.

[24]             Id. at 22,320.

[25]             Id.; Rapanos, 547 U.S. at 755–56.

[26]             Navigable Waters Protection Rule, 85 Fed. Reg. at 22,292.

[27] Cty. of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020).