On June 28, the U.S. Supreme Court overturned a 40-year-old precedent, significantly
altering the regulatory authority of federal agencies in implementing federal law. The decision in Loper Bright reversed a 1984 precedent that granted federal agencies primary authority in interpreting laws when writing regulations and policies. Moving forward, the Supreme Court declared that courts will have the primary responsibility for interpreting laws, thereby becoming the decisive authority on future challenges to agency actions. For more details on the decision, see SCOTUSblog.
I foresee three major areas where this ruling will have immediate and far-reaching consequences for environmental permitting decisions, particularly those involving Clean Water Act (CWA) policies from the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA):
Determination of Jurisdiction
The current ambiguity in defining waters of the United States (WOTUS) following the Supreme Court’s 2023 Sackett decision will likely persist. The loss of deference to federal agencies will make jurisdictional determinations more susceptible to legal challenges from both applicants and opponents.
Amendments to the early CWA (the Federal Water Pollution Control Act) defined “navigable waters” to include “the waters of the United States, including the territorial seas.” Since 1972, USACE and EPA have interpreted WOTUS broadly. The reversal of Chevron will allow challengers to dispute the agency’s interpretation of WOTUS, prompting courts to decide on ANY aspect of the current definition based on the Sackett decision. This could result in significant delays and increased controversy.
Permit Management
Basic permit management and processing are unlikely to change in the near term. Processing times for most Letters of Permission, Nationwide Permits, Regional and General Permits, and many smaller, less contentious Individual Permits will likely remain unaffected. However, complex Individual Permits and those requiring a federal Environmental Impact Statement are expected to face delays. Federal agencies will need additional time to identify and assess issues that could be at risk for litigation without the deference provided by the previous Chevron decision.
Permit Regulations
The reauthorization of Nationwide Permits could be significantly impacted by the loss of Chevron deference. The CWA states: “...the Secretary may, after notice of opportunity for public hearing, issue general permits on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.” Previously, the USACE determined which activities were “similar in nature” and what constituted “minimal cumulative adverse effects.” Now, these interpretations can be challenged in court, and USACE will receive little deference.
Extensive challenges to USACE interpretation could be detrimental, as the Nationwide Permit program must be reissued by January 2026 to remain valid. Given that approximately 70% of all USACE permits are authorized under the nationwide program, delays in revisions could lead to substantial permitting delays in 2026. Future permit applicants should factor those considerations into their long-range planning.
Mark Sudol
Senior Advisor
Prior to joining Dawson & Associates, Mark was Chief of the U.S. Army Corps of Engineers Regulatory Program and oversaw the Corps’ regulatory responses to U.S. Supreme Court’s Rapanos and Northern Cook County decisions.