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).