Category Archives: Natural Resources and Endangered Species

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Corps and EPA Solicit Public Comment on Restoring Pre-Clean Water Rule Regulations

On July 27, 2017, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published their proposed rule to rescind the Clean Water Rule. This is the same rule that was released in pre-publication form in June, which we described in a previous entry.… Continue Reading

California Proposes New Permitting Procedures for Impacts to Wetlands and Waters of the State

On July 21, 2017, the California State Water Resources Control Board (State Board) published its latest proposal for new permitting procedures that would apply to waters of the State, including wetlands. The proposal – which would define wetlands, create delineation procedures, and impose requirements for an alternatives analysis and mitigation – will be vetted through … Continue Reading

EPA, Corps Propose Rescinding Clean Water Rule

The Environmental Protection Agency and Army Corps of Engineers on Tuesday announced a proposed rulemaking that would rescind the “Clean Water Rule” — which the agencies finalized in 2015 to revise the definition of “waters of the United States” subject to federal jurisdiction under the Clean Water Act — and recodify the prior regulatory definition … Continue Reading

California Proposes Adopting New Permitting Program for Wetlands and Waters of the State

On June 17, 2017, the State Water Resources Control Board (State Board) published proposed amendments to the Ocean Plan and the water quality control plan for Inland Surface Waters and Enclosed Bays and Estuaries and Ocean Waters of California to adopt procedures for discharges of dredged or fill material to waters of the state that … Continue Reading

USFWS Proposes (Again) To Issue 30-Year Eagle Act Permits

On May 6, 2016, the U.S. Fish and Wildlife Service (“Service”) published a proposed rule  that would amend various aspects of its permitting program under the Bald and Golden Eagle Protection Act (“Eagle Act”).  As widely anticipated, the proposed rule seeks to extend the maximum permit term from five to thirty years, but it also … Continue Reading

Corps Proposes Renewal of Nationwide Permits

The U.S. Army Corps of Engineers (“Corps”) has proposed new and revised Nationwide Permits (“NWPs”) for certain activities that require authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act.  Nationwide Permits provide streamlined authorization for dredge and fill activities that the Corps has determined will have … Continue Reading

Jurisdictional Determinations Are Reviewable By The Courts

United States Army Corps of Engineers v. Hawkes Co., Inc. (5/31/16, No. 15-290) In a widely anticipated decision in the wake of the Sackette v. EPA (132 S.Ct. 1367 (2012) decision, the U.S. Supreme Court decided that federal courts can review Army Corps of Engineers’ (“Corps”) determinations that a waterbody is subject to Clean Water … Continue Reading

BREAKING: EPA Water Rule Blocked Nationwide By Sixth Circ.

The Sixth Circuit today stayed the effect of the Environmental Protection Agency’s new “Clean Water Rule” nationwide, while the Court of Appeals considers whether it has original jurisdiction to hear challenges to the regulation or whether those challenges should proceed first in the federal district courts. Among other reasons, the court said staying the Rule … Continue Reading

District Court Enjoins Federal Regulations Revising Scope of Clean Water Act Jurisdiction

North Dakota v. U.S. Environmental Protection Agency, No. 3:15-cv-00059 (D.N.D. Aug. 27, 2015) A federal judge, Ralph R. Erickson, in North Dakota yesterday granted several states’ request for a preliminary injunction to halt implementation of the Environmental Protection Agency and U.S. Army Corps of Engineers’ new rulemaking redefining the scope of their jurisdiction under the … Continue Reading

EPA and the Army Corps Seeking to Consolidate Challenges to Recently Issued “Waters of the United States” Rule

Since the EPA and the Army Corps published the final Clean Water Act rule defining “waters of the United States” on June 29, 2015, 72 plaintiffs have filed ten separate complaints in eight federal district courts challenging the final rule. Additional district court actions raising facial challenges to the rule are expected to be filed … Continue Reading

EPA and Corps Issue Rule Defining “Waters of the U.S.”

On June 29, 2015, the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) published a final rule defining “waters of the United States.” The rule becomes effective on August 28, 2015.  Because the Clean Water Act (“CWA”) grants regulatory authority only to areas under federal jurisdiction, the new rule will play a central role … Continue Reading

Ninth Circuit Rejects Use of Preemptive Litigation to Validate Federal Approvals

Shell Gulf of Mexico, Inc., v. Center for Biological Diversity, (11/12/14, No. 13-35835) The Ninth Circuit has rejected a “novel litigation strategy” that Shell Gulf of Mexico, Inc., employed in an effort to preempt a possible litigation challenge to federal approvals that Shell received for Arctic oil exploration.  After receiving the approvals, but before any … Continue Reading

District Court Strikes Down Regulation of Purely Intrastate Species on Private Land

People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service; et. al., (11/05/14, 2:13-cv-00278-DB) In a significant Endangered Species Act case, the Utah District Court has ruled that Congress may not regulate take of the threatened Utah prairie dog, a purely intrastate species, on non-federal land. The court found that the challenged regulation … Continue Reading

Supreme Court Asked to Allow Immediate Judicial Review of Clean Water Act Jurisdictional Determinations

A landfill developer has asked the Supreme Court to review a decision of the Fifth Circuit holding that a jurisdictional determination by the U.S. Army Corps of Engineers is not final agency action subject to judicial review.  The Supreme Court previously held, in its 2012 Sackett opinion, that an EPA compliance order issued under the … Continue Reading

Utility Pole Not A Point Source Under The Clean Water Act

Ecological Rights Foundation v. Pacific Gas & Electric Co. (9th Cir., Filed April 3, 2013) By Robert Uram, Keith Garner, and Alex Merritt Last week the Ninth Circuit held that utility poles are not “point sources” of stormwater discharge nor “associated with industrial activity,” and therefore do not require an NPDES permit to comply with … Continue Reading

Conveyance of Polluted Water Within River Involves No ‘Discharge’ Under Clean Water Act

Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, __ U.S. __ (2013) By James Rusk The flow of polluted water from a concrete-lined portion of a river into a downstream portion of the same river does not involve a “discharge” for purposes of the Clean Water Act (“CWA”) and thus involves no … Continue Reading

Recovery Plan Not Binding on Delisting Decisions

Friends of Blackwater, et al. v. Kenneth Lee Salazar, No. 11-5128 (D.C Cir. Aug. 17, 2012) 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 … Continue Reading

Supreme Court to Hear Two Significant Clean Water Cases

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 … Continue Reading

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 … Continue Reading

New And Revised Nationwide Permits For Dredge And Fill Activities

By Robert Uram, Keith Garner, James Rusk, and Alex Merritt The Army Corps of Engineers last week released new and revised Nationwide Permits for certain activities that require authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act. Nationwide Permits provide streamlined authorization for dredge and fill … Continue Reading

9th Circuit Upholds Biological Opinions For Proposed Mine

Rock Creek Alliance v. U.S. Fish and Wildlife Service, No. 10-35596 (9th Circuit Court of Appeal; November 16, 2011) 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" … Continue Reading

Fish and Wildlife Service Settles Lawsuits on Listing Deadlines

By Keith Garner & Charlotte Cunningham On July 12, 2011, the U.S. Fish and Wildlife Service (“FWS”) and the Center for Biological Diversity (“CBD”) settled litigation concerning the FWS’s obligations to render decisions on whether species warrant protection under the Endangered Species Act (“ESA”). The settlement does not guarantee that the subject species will be listed … Continue Reading

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.… Continue Reading

Application of Sections 7 and 9 of the Endangered Species Act to California Delta Smelt Does Not Violate Commerce Clause

By Keith Garner & Michael Leake In Stewart & Jasper Orchards v. Salazar, the Court of Appeals affirmed the district court judgment that the application of Sections 7 and 9 of the Endangered Species Act (“ESA”) to the California delta smelt does not violate the Commerce Clause in the United States Constitution.… Continue Reading
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