Waters-of-the-United States

The US Supreme Court issued a long-awaited ruling (May 25) that concerns Federal jurisdiction in the protection of waters under the Clean Water Act (CWA). In general, the ruling scales back the EPA's expansive view about the types of waters that are subject to the CWA. The case considered by the Court concerned actions on lands and waters on private property that the EPA said needed Federal oversight because of proximity to other, more substantial waters.

The majority opinion of the court viewed the EPA's expansive view as going too far; essentially, that the EPA seeks to regulate waters that are too far from––i.e., not "adjacent" enough––to waters that more effectively meet the statutory definition of "waters of the United States (WOTUS)" (generally, navigable rivers, streams, lakes, etc.) The Court majority did acknowledge that some wetlands on private lands should be regulated, but that these needed to be clearly linked to more navigable waterways.

This means that the EPA must now go back to the drawing board on a final EPA rule, issued in December (2022), that the agency was hoping would provide a “durable definition” of WOTUS. The rule would have had the effect of attaching EPA’s regulatory oversight to many ephemeral and intermittent streams, and wetlands, on private property. The rule's WOTUS definition was orginally put in place during the Obama Administration, but was changed to a narrowr definition by the Trump Administration. 

In March (2023), Congress passed a resolution to nullify the EPA’s final rule, but President Biden vetoed the resolution. The House failed to overcome the veto (April 18).

(posted: 5-25-23)

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Conservation Leasing Rule

The Department of the Interior issued a proposed rule (March 30) that the agency says is important to help balance “management of America’s public lands for the benefit of current and future generations.”

The centerpiece of the proposal is the establishment of conservation leases, where entities can lease lands to conduct restoration or mitigation activities, while also ensuring a revenue stream for the Federal Government similar to commercial leases. The leases would be issued for a maximum of 10 years.

Such leases would “not override valid existing rights or preclude other, subsequent authorizations” as long as the authorizations are compatible with conservation use. The proposed rule establishes the process to apply for, and grant, conservation leases, terminating or suspending leases, determining noncompliance, and setting bonding obligations.

Other rule measures include the clarification and expansion of existing regulations to help enable BLM to prioritize the designation and protection of “intact native landscapes.” The rule also directs BLM programs to use “high-quality information” to prepare land health assessments and evaluations, information drawn “largely from assessing, inventorying, and monitoring renewable resources, as well as Indigenous Knowledge.”

The proposed rule is subject to a review and comment period. Any final rule is not likely until later this year, at the earliest.

(updated: 4-18-23)

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Two New National Monuments Established

President Biden designated (March 22) two areas as new US national monuments:

• Castner Range in El Paso, Texas. The Range is located on Fort Bliss, a training and testing site for the U.S. Army during World War II, the Korean War, and the Vietnam War. The US military is still mitigating public access risks on the land before opening it to the public. The Administration believes that protecting Castner Range, in its connection to the Franklin Mountains State Park, creates a continuous habitat for wildlife and improved public access for outdoor recreation. The Range also hosts cultural sites documenting the history of Tribal Nations, including the Apache and Pueblo peoples and the Comanche Nation, Hopi Tribe, and Kiowa Indian Tribe of Oklahoma.

• Avi Kwa Ame (Spirit Mountain), Nevada. The mountain and the surrounding arid valleys and mountain ranges (500K acres) are considered to be sacred places for the Mojave, Chemehuevi, and some Southern Paiute people, and are also significant to other Tribal Nations and Indigenous peoples, including the Cocopah, Halchidhoma, Havasupai, Hopi, Hualapai, Kumeyaay, Maricopa, Pai Pai, Quechan, Yavapai, and Zuni.

This action follows the Administration's last monument designation in Colorado at Camp Hale-Continental Divide in October 2022.

(posted: 3-22-23)

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Alaska Wilderness Land Exchange Withdrawn

The Interior Department withdrew (March 14) from a 2019 agreement with the King Cove Corporation to exchange land traversing through the Izembek National Wildlife Refuge and the Izembek Wilderness.

Under the exchange, the Federal Government would have transferred 200 acres within the refuge to the State of Alaska for a single-lane gravel road between the communities of King Cove and Cold Bay, Alaska to be used “primarily for health and safety purposes and only for noncommercial purposes.” In exchange, the US Fish and Wildlife Service would have received approximately 43,000 acres of land owned by the State of Alaska (to be designated wilderness), as well as approximately 13,300 acres of land owned by King Cove Corporation. In addition, the Corporation would have relinquish more than 5,400 acres of selected lands within the Refuge and Wilderness boundary.

The Department now says (under the leadership of a different Administration) that the exchange “contained several procedural flaws and was not consistent with Departmental policy” and that it “was entered into without public participation and did not analyze potential effects on subsistence uses and habitat.”

With this action, Interior reopens a years-long debate over a road through this area of Alaska. The Department will start a new review process of proposals for an exchange with an apparent eye on an older proposal from 2013 that it believes could strike a better balance between the needs for a road, environmental protection, and tribal community needs. This action also addresses a pending litigation against the agreement in Federal courts, which until now the Biden Administration had defended.

(posted: 3-16-23)

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Coal Plant Wastewater Discharge Standards

The EPA announced proposed regulations (March 8) intended to strengthen standards on wastewater discharges from coal-fired power plants, wastewater which can contain high levels of toxic metals.

Such wastewater often drains large volumes of pollutants into lakes, ponds, streams and rivers. Pollutants can include selenium, mercury, arsenic, nickel, bromide, chloride, and iodide, and nutrient pollution. Such pollutants can harm people and ecosystems.

The proposed rule would establish more stringent wastewater discharge standards, addresses wastewater stored in surface impoundments (such as coal ash ponds), proposes changes to compliance paths for subcategories of power plants, and incentivizes compliance pathways for power plants committing to stop burning coal within certain timeframes.

The rule will undergo a public comment period. A finalized rule is not likely until at least after this summer.

(posted: 3-9-23)

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UN Treaty Biodiversity in the High Seas

Country participants in the United Nations (UN) Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction agreed (March 4) to a treaty on biodiversity protection on the high seas.

A treaty to protect marine life, discussed and negotiate for more than the last 20 years, is needed because there currently is no international collaborative framework for the protection of animal and plant life in oceans beyond the jurisdictional waters of each country. Without a protection framework, the world has less impetus collaborate to address difficult challenges such as plastics and other pollution, illegal fishing, damage to coral reefs, and endangered species protection.

In December, a separate UN biodiversity conference agreed to a goal to protect 30% of the world’s lands and waters by 2030. This treaty provides a mechanism to help accomplish that target for oceans.

Among other things, the new biodiversity treaty creates its own stretch goal to move 30% of the world's international waters into Marine Protected Areas (MPAs) by 2030. The treaty also improves the methods and consistency of oceanic environmental impact assessments (EIAs), and requires EIAs for potentially impactful activities such as deep sea mining.

If, or when, formally approved by the UN, each UN country must then ratify the treaty. While not every country will formally ratify the treaty, it will come into effective force once enough countries have ratified, particularly those with the most resources and influence. 

In addition, as with other recent environmental treaties, success may depend largely on countries putting money towards ensuring the success of the effort. The European Union (EU) immediately committed an initial €40 million from its Global Oceans Program. The US has so far not announced any specific financial commitment.

(posted: 3-5-23)

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Mining & Bristol Bay Alaska

The EPA Region issued a Final Determination (January 31) to prohibit mining discharge at Alaska's Pebble Deposit.

Specifically, waters in Alaska's South Fork Koktuli River and North Fork Koktuli River watersheds cannot be used as disposal sites for the discharge of dredged or fill material for the construction and routine operation of a 2020 Pebble Limited Partnership mining plan, or for similar future plans. The Final Determination follows the EPA's Alaska region recommendation (December 1). 

EPA says that scientific analysis supports a decision that mining the Pebble Deposit could result in unacceptable adverse effects on salmon fishery areas. The total economic value, including subsistence uses, of the Bristol Bay watershed’s salmon resources has been estimated to be more than $2.2 billion, an industry primarily benefiting Alaska Natives.

The company pushing for a permit – Pebble Limited Partnership – says that mining could create 850 jobs and $150 million in annual State and local tax revenue. Mining in the location would have produced gold, molybdenum, and copper which is critical to the renewable energy industry.

While lawsuits against the EPA's Final Detemination are likely, any mining will nevertheless be put on hold until any cases are adjucated, which could take years.

(updated: 1-31-23)

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Boundary Waters Watershed

The Interior Department announced (January 26) that the agency is imposing a mining moratorium on the Boundary Waters Canoe Area Wilderness and surrounding watershed.

Interior’s Secretary signed and order that withdraws nearly 226K acres in the Superior National Forest in northeastern Minnesota from disposition under US mineral and geothermal leasing laws for a 20-year period.According to the Department, the area draws in 150K visitors per year to Boundary Waters, which includes more than 1,200 miles of canoe routes, 12 hiking trails, and 2,000 designated campsites.

Twin Metals Minnesota sought to develop a copper and nickel mine in the area, two metals that are important to the future of clean energy. For example, copper and nickel are two of the three most significant minerals used for electric cars.

(posted: 1-27-23)

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Amazon Protection

The recently-elected future President of Brazil– Luiz Inácio Lula da Silva (“Lula”)–has promised to greatly improve protection of the Brazilian Amazon. The new President is expected to be sworn in on January 1, 2023.

During his campaign, Lula pledged to “put an end to illegal mining” and “fight every illegal activity.” He says that his government will also again monitor and surveille the Amazon.

Lula also says he will create an “Indigenous Peoples Ministry” and also reestablish the institutions and norms undermined by the policies of Jair Bolsonaro, the outgoing President.

Lula claims that he will implement public programs to provide farmers with credit at low interest rates to encourage crops that regenerate the soil and capture carbon, and also promote sustainable development of Amazonian communities.

(posted: 11-1-22)

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New National Monument - Camp Hale & Tenmile Range

President Biden announced (October 12) the designation of Camp Hale and Tenmile Range in Colorado as a new US national monument. This location is one of four locations identified in a recent article (September 9) by the Pew Charitable Trusts as warranting a national monument designation.

The Antiquities Act of 1906 provides the President the authority to designate national monuments on federal lands that contain historic landmarks, historic and prehistoric structures, or other objects of historic or scientific interest. In this case, the location is tied to America’s military history, where the Army’s 10th Mountain Division (currently based in Fort Drum, New York) was based and trained during, and immediately after, World War II. The Administration also points out that soldiers returning after the war helped develop the beginnings of the United States ski industry in Colorado.

In summarizing the reasons for this national monument designation, Pew stated that a designation would “preserve the history and legacy of Camp Hale and those who trained there, while also safeguarding important wildlife habitat and preserving land for recreation—such as hiking, climbing, mountain biking, backcountry skiing, and snowmobiling—an important sector of the region’s economy.”

This is the first full national monument designation of President Biden, though he did enlarge the size of national monument designations made by President Trump. President Trump designated four national monuments, while President Obama made 29 monument designations.

The Biden Administration also proposed in June to designate Hudson Canyon as a national marine sanctuary. The Canyon is about 100 miles southeast of New York City, and extends about 350 miles seaward, reaching depths of 2 to 2.5 miles with width of up to 7.5 miles. The proposal is subject to a public consultation process, with a final decision specifics likely in 2023.

(updated: 10-13-22)

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Thompson Divide - Protection Measures

The Department of the Interior announced (October 12) protections for the Thompson Divide in Colorado. Specifically, the Department is initiating consideration of a process for a 20-year withdrawal of the Thompson Divide area from operation of the public lands, mining, mineral and geothermal leasing laws.

Under the process, new mining claims including the issuance of new federal mineral leases on approximately 224,794 acres in the Thompson Divide area will be prohibited for two years. At the same time, the Forest Service and the Bureau of Land Management will seek public comment and conduct a science-based environmental analysis.

The results of the analysis and public comment will help guide a final decision to exclude the area from new drilling and mining leases for the next 20 years. A permanent exclusion of the area can only occur through an act of Congress. 

Current mining and drilling leases in place would not be affected, though the Department claims that there is currently no mining or drilling planned under the approved leases.

(updated: 10-13-22)

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Gulf of Mexico Lease 257 Reinstatement

The Interior Department reinstated the results (September 14) of a November 2021 oil and gas lease sale 257 in the Gulf of Mexico. The recently-enacted Inflation Reduction Act (IRA) specifically required in statute the reinstatement of the results of this sale.

At the time, Interior accepted 307 bids for drilling within the leased area. While a Federal judge had set the lease results aside following a lawsuit from environmental groups, the matter became moot with the inclusion of the IRA provision on this lease.

That being the case, drilling within the lease area is not necessarily immune from future environmentally-driven litigation. The announcement in the lease results reinstatement itself acknowledges that “leases resulting from this sale include stipulations to protect biologically sensitive resources, mitigate potential adverse effects on protected species, and avoid potential ocean user conflicts.” In addition, seismic studies must be completed and drilling permits secured before actual drilling operations can commence. Finally, market-driven considerations may, more than anything, guide decisions by companies to drill.

(updated: 9-14-22)

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Offshore Drilling Safety Rules

The Interior Department announced (September 12) a set of offshore drilling proposed rules intended to help protect workers and prevent disasters like the 2010 Deepwater Horizon oil spill.

Most importantly, the proposed rules will require blowout preventer systems (BOPs) to be able to close and seal, at all times, wells to prevent blowouts and uncontrolled spills. In addition, shear ram standards will increase, as will requirements for the sharing of equipment failure data with the Federal Government and the timing of inspections.

The proposed rules are subject to a notice and comment period and are unlikely to be finalized until 2023, at the earliest.

(updated: 9-13-22)

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Memorandum on Illegal Fishing

President Biden issued a national security memorandum (June 27th) to guide efforts of the Federal Government in combating worldwide illegal fishing and “associated labor abuses,” in particular forced labor. Within the memo, the President expressed concern that illegal fishing and labor abuses “undermine U.S. economic competitiveness, national security, fishery sustainability, and the livelihoods and human rights of fishers around the world and will exacerbate the environmental and socioeconomic effects of climate change.”

The memorandum directs Federal agencies “to use the full range of existing conservation, labor, trade, economic, diplomatic, law enforcement, and national security authorities to address these challenges.” The memo then goes on to specify specific policy and diplomatic actions each relevant agency should take to meet the overarching policy guidance.

There are no specific dates and timelines in the memo for actions and/or specific outcomes.

(updated: 6-28-22)

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Hudson Canyon Marine Sanctuary - Proposal

The Biden Administration is proposing to designate Hudson Canyon as a national marine sanctuary. The Canyon is about 100 miles southeast of New York City, and extends about 350 miles seaward, reaching depths of 2 to 2.5 miles with width of up to 7.5 miles.

A public comment period on the proposal is open through August 8th, and public meetings will be held in June and July. Any final designation will need to also include an environmental impact analysis, which could take a year or more. Ultimately, a final decision with details on the scope of the designation, taking public comments and other analysis into account, will likely extend into at least next year.

As protected areas, worldwide marine sanctuaries including US national marine sanctuaries have requirements on fishing, energy development and other activities, though these are not the same for each area. In addition, each new designation of a protected area has meaning from a government management standpoint in the allocation of resources. With any designation, appropriate Federal agencies (primarily NOAA and the Coast Guard) will likely step up efforts to monitor the area and measure direct and indirect environmental impacts necessitating  potentially more staff, time, and money.

(updated: 6-9-22)

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Brownfields Funding & Infrastructure Law

The EPA awarded (May 13, 2022) nearly $255 million in funding for Brownfields projects within 265 U.S. communities. The Infrastructure Law enacted last year provided $1.5 billion over five years for this purpose in supplemental funding, and nearly $180 million was utilized from the new law, with remaining funding of $75 million coming from regular annual resources.

Of the $255 million in awarded funding, about $113 million will be used for assessments (e.g.,environmental assessments, planning), with remaining funding ($142 million) in grants and loans to carry out cleanup and redevelopment activities. The EPA claims that since 1995, the program has leveraged $35 billion in cleanup and redevelopment of more than 9,500 properties made ready for reuse.

More on Brownfields and Superfund Cleanups Here

(updated: 5-24-22)

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Infrastructure Act - Forests

The Infrastructure Investment and Jobs Act enacted in December 2021 provided:

• $2.1 billion for the Department of the Interior and the Forest Service to restore the ecological health of Federal lands and waters and of private lands, through voluntary and variety of programs, including through State partnerships.

• $250 million for the U.S. Forest Service’s Legacy Road and Trail program which among other things funds activities to restore fish passage in streams at road and trail crossings; decommission unauthorized, user-created roads; and decommission temporary roads. 

(updated: 2-2-22)

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DOI Offshore Drilling Report

The Department of the Interior released a report (November 26, 2021) on Federal oil and gas leasing and permitting practices. The report includes a number of planned reforms including increasing royalty and bonding rates, prioritizing leasing in areas with known potential, and avoiding leasing that conflicts with other priorities such as recreation, wildlife, conservation, and historical preservation. 

Some recommendations can be addressed through regulation and other administrative measures (e.g., bonding rates), while others may require legislative action (e.g., minimum royalty levels on public lands). The Department's announcement does not include any specific timeline or schedule to address any of the report's reforms.

(updated: 2-2-22)

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