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Jim Rusk is a partner with the Land Use and Natural Resources practice group in the firm’s San Francisco office.

The U.S. District Court for the District of Arizona on August 30 vacated the 2020 Navigable Waters Protection Rule (NWPR) that redefined “waters of the United States” for purposes of Clean Water Act jurisdiction, effectively reinstating the definition in effect prior to 2015.  Under that prior definition, many ephemeral streams and isolated wetlands that were not subject to federal jurisdiction under the NWPR will again be subject to case-by-case determinations of their status.  The case, Pasqua Yaqui Tribe v. EPA, CV-20-00266-TUC-RM (D. Ariz.), is one of several challenging the NWPR, and the outcome leaves unanswered questions about the scope of the court’s ruling and the potential for inconsistent regulations across the nation.

Continue Reading Uncertainty Over ‘Waters of the U.S.’ Definition Continues, as Federal Court in Arizona Vacates 2020 Rule

The decades-long battle over organic certification of hydroponically grown foods is poised for resolution, with the Ninth Circuit Court of Appeals set to decide an appeal by the Center for Food Safety (CFS) in a case that seeks to block certification of foods not grown in soil.  On May 19, 2021, CFS filed an appeal asking the Ninth Circuit to reverse a district court decision upholding the U.S. Department of Agriculture’s determination that hydroponically grown foods are eligible for certification under the National Organic Program (NOP).  The outcome of the appeal could have significant implications both for hydroponically grown fruits and vegetables and for other soil-less crops, including mushrooms and sprouts.
Continue Reading Organics Advocates Dig In With Ninth Circuit Appeal Challenging Certification for Hydroponics

The Clean Water Act sometimes requires a permit for the indirect discharge of pollutants from a point source to navigable waters, but only when the discharge is the “functional equivalent” of a direct discharge, the Supreme Court held on April 23.  The Court’s 6-3 opinion in County of Maui v. Hawaii Wildlife Fund (No. 18-260) addresses a circuit split regarding whether indirect discharges to navigable water via groundwater are subject to the Act’s National Pollutant Discharge Elimination System (“NPDES”) permitting program, but it has implications for other types of indirect discharges as well.  Although the Court identified some factors that may help determine when a discharge is the functional equivalent of a direct discharge—especially the time and distance between the discharge of a pollutant from a point source and the pollutant’s arrival in navigable waters—its opinion is likely to create substantial uncertainty for the regulated community as the Environmental Protection Agency (“EPA”), litigants, and the courts attempt to apply the Court’s multi-factor test to a variety of factual scenarios.
Continue Reading Clean Water Act Permit Required for “Functional Equivalent” of Direct Discharge, Supreme Court Says

On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) published final rules amending three important parts of the federal regulations that implement the Endangered Species Act (16 U.S.C. §§ 1531 et seq.). The amended rules, which will take effect on September 26:

  • Eliminate the automatic extension of protections to threatened (as opposed to endangered) species;
  • Revise the provisions for designating critical habitat and listing and de-listing species under ESA Section 4; and
  • Revise the procedures for interagency consultation under ESA Section 7.


Continue Reading Endangered Species Act Rulemakings Face Immediate Challenge

In a recent opinion, the D.C. Circuit suggested the Federal Energy Regulatory Commission (FERC) must attempt to obtain information necessary to evaluate the environmental effects of a proposed interstate pipeline project due to the project’s effect on natural gas production and consumption. In Birckhead v. FERC, USCA Case No. 18-1218 (D.C. Cir. 2019), the court criticized FERC for failing to obtain and consider information about upstream production and downstream consumption in its National Environmental Policy Act (NEPA) review of a proposed project to add compression to an existing pipeline, even though the applicant was unlikely to have information regarding the origin and destination of the gas to be transported. The court indicated that FERC has an obligation to at least request information about upstream and downstream activities from pipeline applicants, and suggested that, under the decision in Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017), FERC may be required to consider the environmental effects of those activities as indirect effects of FERC’s pipeline approval.
Continue Reading D.C. Circuit Says NEPA Requires FERC To Inquire Into Up and Downstream Effects of Pipeline Project

An area designated as critical habitat under the Endangered Species Act must first qualify as “habitat” for listed species, the Supreme Court held this week in the closely watched Weyerhaeuser case. The Court’s November 27, 2018 ruling, which reversed a decision by the Fifth Circuit, has the potential to narrow federal agencies’ discretion to designate as critical habitat areas that are currently unoccupied by endangered or threatened species, but the opinion leaves important questions to be answered by the lower courts – including the meaning of “habitat.” The Court also held that agency decisions not to exclude specific areas from a critical habitat designation on economic grounds are subject to judicial review, reversing the Fifth Circuit and overturning the current law in the Ninth Circuit.
Continue Reading Critical Habitat Must Be Habitat for Listed Species, Supreme Court Says

A recent Ninth Circuit ruling that pollutants reaching waters of the United States through groundwater may trigger Clean Water Act liability has prompted the U.S. EPA to consider clarifying its position on the subject. The Ninth Circuit held last month, in Hawai‘i Wildlife Fund v. County of Maui, that the Act applies to “indirect discharges” from point sources, such as wells, that eventually make their way to surface waters. Though the Ninth Circuit is not the first federal court to hold that indirect discharges require a permit under the Act, the EPA responded by seeking public comment on whether it should clarify previous statements addressing this topic. The County of Maui subsequently filed a petition on March 1 for en banc rehearing of the Ninth Circuit panel’s opinion.
Continue Reading After 9th Circuit Ruling in Hawai‘i Wildlife Fund v. County of Maui, EPA Considers ‘Clarifying’ Clean Water Act Coverage for Discharges Via Groundwater

The U.S. Army Corps of Engineers and the Environmental Protection Agency published a rule postponing the effective date of the Clean Water Rule for two years, until February 6, 2020.

The Clean Water Rule defined the extent of jurisdiction under the Clean Water Act. It was supposed to have become effective on August 28, 2015, but was immediately challenged in multiple lawsuits and was eventually stayed nationwide by the Sixth Circuit. Disputes on the merits were put on hold while the courts decided whether the cases should proceed in the district courts or in the appellate courts.
Continue Reading Corps and EPA Push Out Effective Date of Disputed Clean Water Rule

The U.S. Supreme Court ruled Monday that the federal district courts can hear challenges to the U.S. Environmental Protection Agency’s and U.S. Army Corps of Engineers’ 2015 Clean Water Rule, rejecting the federal government’s arguments that federal courts of appeal have exclusive jurisdiction over such claims. The Court’s ruling means that the Sixth Circuit will have to dissolve its nationwide injunction against the Clean Water Rule, which revised the definition of “waters of the United States” that are subject to the Clean Water Act. Meanwhile, suits in district courts can proceed, including a suit in the District of North Dakota, where the court granted an injunction against implementation of the Clean Water Rule in 13 states.
Continue Reading District Courts Have Jurisdiction Over Challenges to Clean Water Rule, Supreme Court Says

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

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 workshops and a public hearing, with the public comment period ending September 7, 2017. The State Board could adopt the proposal as early as the fall of 2017.
Continue Reading California Proposes New Permitting Procedures for Impacts to Wetlands and Waters of the State