Attorneys in Barclay Damon’s Environmental Practice Area continue to monitor federal regulation of Waters of the United States (WOTUS) under the Clean Water Act and the proposed listing of the monarch butterfly under the Endangered Species Act (ESA)—two regulatory changes that could have profound impacts on project development nationwide. Both issues are once again before the public for comment.
Endangered Species Act – Monarch Butterfly
The United States Fish and Wildlife Service (USFWS) has reopened the comment periods for the proposed rules pertaining to listing three insect species, including the monarch butterfly. As discussed in our previous alert, the USFWS published the proposed rule to list the monarch butterfly (Danaus plexippus) as threatened under the ESA. The USFWS’s listing proposal also includes a monarch-specific 4(d) rule, which would except certain actions and activities (e.g., mortality from vehicle strikes, nonlethal collection, and limited sales) from the prohibitions in the ESA under certain outlined circumstances. The USFWS has reopened the comment period and extended the deadline for submitting new comments until May 19, 2025. More information can be found here.
Clean Water Act – Definition of WOTUS
On March 24, 2025, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers announced listening sessions and solicitation of stakeholder feedback related to the definition of WOTUS, and its implementation, in light of the US Supreme Court’s 2023 decision in Sackett v. EPA, which held that the Clean Water Act’s “use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water forming geographic[al] features that are described in ordinary parlance as streams, oceans, rivers and lakes.’”
Following Sackett, the EPA issued a new WOTUS rule (the Sackett Rule) to conform to the decision; however, due to several pending lawsuits challenging the Sackett Rule, nearly half the states are implementing the Sackett Rule, while courts have issued orders staying implementation of the Sackett Rule in the other states. In the states in which the Sackett Rule has been stayed, agencies interpret WOTUS consistent with the pre–2015 regulatory regime.
In an attempt to clarify the WOTUS definition, the Trump administration has opened the listening sessions and solicitation of stakeholder input. The listening sessions are focused on how a possible revision of the WOTUS rule should address the scope of “relatively permanent” waters and define what features the phrase applies to. Written recommendations are due by April 23, 2025. The dates and times of the listening sessions are forthcoming but will be held as virtual and in-person conferences in April and May 2025. More information can be found here.
If you have any questions regarding the content of this alert, please contact Tom Paul, partner, at tpaul@barclaydamon.com; Emma Marshall, associate, at emarshall@barclaydamon.com; or another member of the firm’s Environmental Practice Area.