New York Partner Andrew Otis was quoted by E&E News Greenwire on a recent SCOTUS decision to reinstate a Trump-era Clean Water Act permitting rule that curbs the role of states and tribes in permitting pipelines, dams and other federally approved projects. Otis notes the regulation will limit which projects are subject to review under Section 401 of the law and the ruling reinforces what EPA already knew — that to change the rule finalized in 2020, the agency needs to propose and promulgate a new state water quality certification process under the Clean Water Act. The agency, he said, has stated it intends to propose a new rule by this spring, and this ruling will likely create more incentive for the agency to finalize and release a proposal.
“The EPA will need to take public comment on the proposed rule and ultimately issue a final rule that will very likely be challenged in court,” Otis said. “Depending on the outcome of the appeal of the District Court’s October 2021 decision to the 9th Circuit Court of Appeals and the Supreme Court, the 2020 rule could stay in place until the new rule is finalized.”
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