The VAWP Regulatory Committee is tracking legislative activity at both the Federal and State levels. Since January 2025, VAWP has also been monitoring Executive Orders and guidance issued by the current administration that may be pertinent to environmental regulations. A current synopsis of legislative activity is outlined below:
Federal Courts and Legislative Activity
Memorandum to the Field Between the U.S. Department of the Army, U.S. Army Corps of Engineers (USACE), and the U.S. Environmental Protection Agency (EPA) Concerning Proper Implementation of “Continuous Surface Connection: Under the Definition of “Waters of the United States” (WOTUS) Under the Clean Water Act: https://www.epa.gov/system/files/documents/2025-03/2025cscguidance.pdf
Hot off the press! On March 12, 2025, the USACE and the EPA published a memorandum addressing the proper implementation of “continuous surface connection” under the definition of WOTUS under both currently operative regulatory regimes in the U.S. and the Clean Water Act. The memorandum responds to requests for clarification on what constitutes “adjacent wetlands” under the Clean Water Act, particularly in light of the Sackett v. EPA decision. The guidance in the memorandum confirms that the USACE and EPA now interpret WOTUS to include “only those adjacent wetlands that have a continuous surface connection” with jurisdictional waters.
Additionally, the memorandum references an upcoming Federal Register notice titled “WOTUS Notice: The Final Response to SCOTUS,” which will outline a process for collecting recommendations on the interpretation of key terms in the Sackett decision to guide future administrative actions.
Administrator Zeldin Announces EPA Will Revise WOTUS Rule: https://www.epa.gov/newsreleases/administrator-zeldin-announces-epa-will-revise-waters-united-states-rule
On March 12, 2025, the EPA announced their intention to work with the USACE to revise the WOTUS rule as pledged by the new administration. The revised rule aims to streamline processes, reduce permitting costs, and lower business expenses while protecting the nation’s navigable waters from pollution.
The EPA will initiate a rulemaking process to revise the 2023 definition of WOTUS with an overall goal of increased clarity, simplicity, and long-term durability. The EPA will also offer guidance to states using the pre-2015 definition WOTUS to ensure alignment with current legal standards.
National Environmental Policy Act (NEPA)
Marin Audubon Society vs. FAA: A three judge panel of the DC Circuit Court had held in favor of the FAA environmental review decision allowing flights over Golden Gate National Park, but also held that the Council on Environmental Quality (CEQ) had no authority to promulgate NEPA regulations. The plaintiffs petitioned for an en banc rehearing by a panel of all the Court’s judges and this petition was denied on January 31, 2025 by the Court. The court reasoned that the CEQ regulation that was used did not require an agency to do anything but, instead, gives an agency the option to rely on a categorical NEPA exclusion, any conclusion that the CEQ lacks authority to issue binding regulations would not affect the agencies’ challenged choice to make use of a categorical exclusion. Therefore, there was no cause to grant en banc rehearing.
State of Iowa v. Council on Environmental Quality: On February 3rd, 2025, a federal District Court judge in Marin County, Iowa, found that the CEQ exceeded its authority when it adopted a rule governing the U.S. environmental review process for infrastructure projects, stating that the CEQ lacks authority to issue regulations and held that the 2024 NEPA rule that was promulgated was invalid and that Congress never authorized CEQ to adopt regulations, only to make recommendations to the president on national policy.
Two Courts have now held that CEQ has no regulatory authority to promulgate the regulations that agencies have been using for approximately 40 years. If past is prologue, it is likely that a different federal court may hold differently, setting up a split in the Circuit Courts meaning that the Supreme Court may eventually take up the issue.
On February 25, 2025, the CEQ rescinded their NEPA regulations through the publication of an Interim Final Rule in the Federal Register. Proposed actions with a federal nexus will now rely upon the NEPA regulations of the individual lead federal agency as opposed to CEQ’s federal guidance. Individual federal agencies may voluntarily rely upon recently rescinded CEQ regulations in completing ongoing NEPA reviews or defending reviews completed while these regulations were in effect. In addition, individual agencies have been directed to revise NEPA procedures within the year. An open comment period for this Interim Final Rule as published in the Federal Register is set to close on March 27, 2025.
Executive Order 14192 “Unleashing Prosperity Through Deregulation” January 31, 2025 Federal Register :: Unleashing Prosperity Through Deregulation
The Executive Order (EO) requires that when an executive department or agency proposes for public notice or comment a new regulation, at least ten existing regulations should be identified for repeal.
Guidance included in this EO directs that the heads of all federal agencies ensure no additional cost for all new regulations to be finalized in fiscal year 2025.
Executive Order “Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects” January 20, 2025
This Executive Order (EO) temporarily prevents the consideration of new or renewed wind energy leasing for the purposes of generation of electricity or other use derived from wind generation within the Outer Continental Shelf (OCS).
In addition, a directive is included for an assessment of the environmental impact and cost to surrounding communities of defunct and idle windmills. The Secretary of the Interior, Secretary of Energy, and the Administrator of the EPA are directed to present their findings to the President requiring the removal of such sites.
National Wetland Plant List Update: Public Comment Period Open January 30, 2025 https://www.nao.usace.army.mil/Media/Public-Notices/Article/4047804/federal-public-notice/ & https://www.federalregister.gov/documents/2025/01/28/2025-01798/national-wetland-plant-list
The National Wetland Plant List (NWPL) provides plant species indicator status ratings, which are used in determining whether the hydrophytic vegetation factor is met when conducting wetland delineations under the Clean Water Act and Section 10 of the Rivers and Harbors Act and wetland determinations under the Wetland Conservation Provisions of the Food Security Act. Other applications of the NWPL include wetland restoration, establishment, and enhancement projects. To update the NWPL, USACE, as part of an interagency effort with the EPA, the U.S. Fish and Wildlife Service (FWS) and the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS), is announcing the availability of the draft changes to the 2024 NWPL to solicit public comments.
Comments must be submitted on or before March 31, 2025. Comments on these proposed changes should be emailed to nwpl@usace.army.mil.
Commonwealth of Virginia Legislative Activity
HB2034 – ‘Tidal and Nontidal Wetlands; Wetland Restoration and Creation Policy Task Force, report’: https://lis.virginia.gov/bill-details/20251/HB2034
The proposed bill directs the Secretary of Natural and Historic Resources to establish a policy task force to develop strategies for the protection of existing tidal and nontidal wetlands. Mechanisms for the incorporation of proposed strategies into appropriate plans are to be developed. The proposed bill has passed in the House and is currently under review in the Senate.
Technical Advisory Committee (TAC)
VAWP has a presence on the Technical Advisory Committee (TAC) for the Reissuance of the Virginia Water Protection (VWP) General Permit Reissuance. The Regulatory Committee will be providing updates on legislative activity and pertinent cases during the semi-annual meetings as well as newsletter updates.
VAWP 2025 Winter Newsletter, Volume 1, Issue 1. Authors: John Lain, Lauren Conner, and Alexi Weber-Smith. Date: March 13, 2025
Photo: John Lain providing regulatory update at VAWP’s Fall 2024 Meeting
