By Phillip Tate
On August 17, 2012, the DC Circuit Court overturned a district court ruling that the Fish and Wildlife Service violated the Endangered Species Act (16 U.S.C. §1531 et seq.) by delisting the West Virginia Northern Flying Squirrel when several criteria in the squirrel's recovery plan remained unfulfilled. The court instead held that a recovery plan adopted pursuant to the ESA is not binding on the Secretary of the Interior when making delisting decisions.Continue Reading Questions & comments
By Keith Garner and Maggie Brennan
The Supreme Court has agreed to review two Ninth Circuit Court of Appeals Clean Water Act (“CWA”) cases. Both cases involve the extent to which certain releases are properly categorized as point source discharges and must accordingly be regulated by NPDES (National Pollutant Discharge Elimination System) permits under the CWA.Continue Reading Questions & comments
Supreme Court Holds EPA Compliance Order Asserting Clean Water Act Jurisdiction Is Subject to Judicial Review
Sackett v. Environmental Protection Agency, 566 U.S. ___ (2012) (decided March 21, 2012)
By James Rusk
Private property owners are entitled to immediate judicial review of Environmental Protection Agency compliance orders that seek to regulate their property under the federal Clean Water Act ("CWA"), the Supreme Court unanimously held last week. The Court's much anticipated decision in Sackett v. Envtl. Protection Agency says that property owners need not wait for the EPA to bring a judicial enforcement action in order to contest the agency's assertion that their property contains "waters of the United States" subject to CWA jurisdiction. But at least one member of the Court believes that Justice Scalia's narrowly crafted opinion will have limited benefits for most property owners and that Congressional action is still needed to clarify the extent of CWA jurisdiction.Continue Reading Questions & comments
By Keith Garner and Alex Merritt
This month the 9th Circuit upheld the Fish and Wildlife Service's biological opinions finding that a proposed silver and copper mine in northwestern Montana would not result in "adverse modification" to critical habitat of the bull trout or "jeopardy" to the grizzly bear, both of which are federally listed as threatened species.
Rock Creek Alliance, an environmental plaintiff, had challenged the two biological opinions, alleging that the FWS had violated the Endangered Species Act and acted arbitrarily and capriciously in making the “no jeopardy” and “no adverse modification” findings. The district court upheld the FWS’s determinations, and Rock Creek Alliance appealed raising four alleged defects. In a brief opinion that gave “deference due to the agency,” the court rejected each of the four claims. Continue Reading Questions & comments
U.S. Supreme Court to Review Two Cases With Potentially Significant Consequences for Wetlands and Waterways
By Keith Garner
The U.S. Supreme Court recently decided to hear two environmental cases in its 2011-2012 term, which begins in October. The two cases will have consequences for waterbodies that may be subject to the public trust and for property owners and facilities operators who are given administrative compliance orders under federal environmental laws.
Precon Development Corporation, Inc. v. U.S. Army Corps of Engineers, 2011 WL 213052 (C.A.4 (Va.))
By Greg Woodard
The Fourth Circuit Court of Appeal case, Precon Development Corporation, Inc. v. U.S. Army Corps of Engineers, 2011 WL 213052 (C.A.4 (Va.)), arises out of a determination by the Army Corps of Engineers ("Corps") that it has jurisdiction, under the Clean Water Act ("CWA"), over 4.8 acres of wetlands located on the appellant owner's property, approximately 7 miles from the nearest navigable water. The Corps denied the owner's application for a CWA permit to develop the property, and the owner appealed to federal district court. The district court granted summary judgment to the Corps, upholding both its jurisdictional determination, and its permit denial. The owner appealed the district court's jurisdictional determination, and the Fourth Circuit Court of Appeal reversed, holding that the Corps' administrative record was inadequate to support its conclusion that it had jurisdiction over the wetlands. However, the court's ruling will not likely have a large impact on future CWA permit applications given its limited holding.