Endangered Species Act

On April 17, 2025, the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) published a proposed rule to rescind the regulatory definition of “harm” under the Endangered Species Act (ESA) and the comment period ended on May 19^th and a final rulemaking decision is expected to be posted this fall.  Harm was defined as “an act that kills or injures wildlife” and that may “include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns”.  “Harm” is part of the ESA statutory definition of “take” and the rulemaking states that defining harm is extraneous because it is already included in the statutory definition of take and that the regulatory definition (after Loper overturned Chevron) was not the best interpretation of the statute.

The new rule will lead to less consultation under Section 7 of the ESA if habitat modifications are no longer considered a taking.  It is possible that the regulatory definition of harass might come into play—but it too would be subject to the same type of rulemaking as “harm” because harass is also included in the statutory definition of “take”.   One unintended consequence is that a developer could be liable for an accidental take if it directly harms a species, whereas if it had gone through consultation, it might have obtained an incidental take permit that would have covered it for both incidental and accidental takes.

Migratory Bird Treaty Act

On April 11, 2025, the Department of the Interior withdrew a Biden administration Solicitor Opinion that had withdrawn a 2017 Solicitor Opinion issued by the Trump administration. The 2017 Opinion (M-37050) stated that Migratory Bird Treaty Act (MBTA) prohibitions on taking migratory birds did not apply to “accidental or incidental” takings, turning what had been essentially a strict liability statute into a statute requiring an intentional act to take a migratory bird before liability would apply. 

The 2017 Opinion had been ruled invalid by the District Court for the Southern District of New York in 2020 ( Natural Resources Defense Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020)).  This ruling was appealed by the Department of Justice, but in 2021, the appeal was dropped. The Biden administration had provided a notice of rulemaking that would have provided a permitting process for MBTA takes, including for incidental takes. On April 21^st, 2025, the USFWS withdrew the notice of proposed rulemaking for incidental take permitting program.  This action, coupled with the reinstatement of the 2017 Solicitor’s Opinion, makes clear that only direct, intentional takings of migratory birds will be violations of the MBTA.  However, it is likely that further litigation will be brought challenging the reinstated 2017 Opinion and it may be the case that different courts will reach different conclusions leaving open the possibility that the Supreme Court will eventually be asked to decide the issue. 

Supreme Court Decisions

Seven County Infrastructure Coalition v. Eagle County, Colorado Case. No. 23-975, decided May 29, 2025.

The Seven County case involved an appeal of an appellate court’s holding that the U.S. Surface Transportation Board’s National Environmental Policy Act (NEPA) analysis of proposed rail construction of a rail line to move oil from Utah to refineries in the Gulf area was inadequate because the Environmental Impact Statement (EIS) did not fully analyze all potential environmental impacts from the project, particularly from increased upstream oil drilling around the project or air pollution from downstream oil refining. The Supreme Court disagreed, and in an 8-0 decision determined that NEPA is “purely procedural” and does not impose any substantive constraints. Therefore, the Court held that the Board had done sufficient analysis because it acted consistently with its own procedures and is owed substantial deference because of its scientific and regulatory expertise on questions like the amount of detail required in the EIS, the relevant facts, and the environmental impacts and feasible alternatives the Board identified. The implication from this decision is that a NEPA review should focus on effects that are close to projects under review and fall directly under the purview of the approving agencies that are performing the NEPA analysis.

Trump v. CASA, Inc. Case No. 24A884, decided June 25, 2025.

This case is not an environmental case itself, but it involves nationwide injunctions that are very often issued in cases involving federal regulatory actions, such as the promulgation of rules such as the Waters of the U.S. (WOTUS) rule.  This case arose from challenges to Executive Order No. 14160, which sought to limit birthright citizenship, and it addressed whether courts could issue nationwide  “universal injunctions.” Trump v. CASA hinges on a close reading of the Judiciary Act of 1789, which endows courts with the authority to hear suits in equity. District courts in Maryland, Washington, and Massachusetts had each entered universal injunctions barring enforcement of the order nationwide, prompting the government to seek partial stays from the Supreme Court. The majority opinion traced the origins of equity in English law and found no historical precedent for universal injunctions. The Court distinguished between the “bill of peace” — a form of group litigation in equity that evolved into the modern class action — and the universal injunction, concluding that universal injunctions lack a historic predicate. The Court reaffirmed that the equitable powers of federal courts are limited to those remedies “traditionally accorded by courts of equity” at the nation’s founding, as codified in the Judiciary Act of 1789, and that universal injunctions aren’t included within those remedies.

Both sides of the political spectrum have sought nationwide injunctions against various rulemakings and actions over the years with a significant increase in the issuance of such injunctions beginning in 2009 during the Obama administration and continuing against administrations of each party thereafter. 

Corps NEPA Regulatory Rulemaking

On July 3^rd, the U.S. Army Corps of Engineers (Corps) published an interim final rule to rescind its NEPA regulations for permit applications under the Clean Water Act and Rivers and Harbors Act (including those in 33 C.F.R. Part 325, Appendix B) and to replace them with a new part in its regulations — Part 333. The Corps will also conduct its reviews under Section 14 of the Rivers and Harbors Act (known as “Section 408”) under the new NEPA regulations governing the Corps’ regulatory program.  The Corps is doing so in response to the many NEPA changes that have taken place recently, including the Seven Sisters case, the invalidation of the CEQ NEPA regulations by the courts and the subsequent withdrawal of those regulations and promulgation of new NEPA statutory requirements, such as timing and page limits.  The Corps is accepting comments until August 4^th, after which a final rule will be published.  Corps projects currently undergoing a NEPA review will not be affected by the new regulations as the Corps stated that existing applications would be assessed under the regulations existing at the time of the application filing.

Virginia Water Protection General Permit 2026 Reissuance

The State Water Control Board is seeking public comment on the proposed regulations for reissuance of four Virginia Water Protection (VWP) General Permits, all of which currently expire on August 1, 2026. These general permits provide a streamlined approach for activities with minor impacts to state surface waters and are proposed for reissuance for another 10-year term. The proposed general permits include:

• 9VAC25-660: Impacts Less Than One-Half Acre
• 9VAC25-670: Facilities and Activities of Utility and Public Service Companies Regulated by FERC or the State Corporation Commission, and Other Utility Line Activities
• 9VAC25-680: Linear Transportation Projects
• 9VAC25-690: Impacts from Development and Certain Mining Activities

A public comment and hearing period has been announced regarding the proposed regulatory revisions to the VWP General Permits.  Proposed revisions and comment period details are on the Virginia Regulatory Town Hall.

• Comment Period: August 25 – October 24, 2025
• Public Hearing: October 15, 2025, 11:00 a.m., DEQ Piedmont Regional Office Training Room, 4949-A Cox Road, Glen Allen, VA 23060

VAWP Member Advisory:

Members should plan VWP General Permit reapplications well in advance to avoid potential project delays. There is no grandfather provision, so all active VWP General Permits—including those issued between now and August 1, 2026—will expire on that date. Any authorized impacts not completed by the expiration date will require reapplication under a new VWP permit authorization. Re-coordination with sister resource management agencies (USACE, DWR, DHR, etc.) may also be required. Members are encouraged to review all active permits, assess pending impacts, and begin reapplication planning as soon as possible. Proactive planning will help ensure ongoing or pending projects can transition smoothly to the new general permit framework.