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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 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 of such waters. The action essentially would maintain the status quo, since the Sixth Circuit had already enjoined implementation of the Clean Water Rule nationwide pending the outcome of a legal challenge. But the agencies also said they intend to conduct a separate rulemaking to promulgate a new definition of waters of the United States that will consider the principles outlined in Justice Scalia’s plurality opinion for the Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006). Both the repeal and the new definition would be consistent with direction given in an executive order signed by President Trump on February 28, 2017.
Continue Reading EPA, Corps Propose Rescinding Clean Water Rule

The Ninth Circuit this week upheld a National Marine Fisheries Service decision to list the Pacific bearded seal as threatened under the Endangered Species Act based primarily on threats from climate change, reversing a district court decision that invalidated the NMFS rulemaking.  The court’s opinion in Alaska Oil & Gas Ass’n v. Pritzker, No. 14-35806, was consistent with a 2013 D.C. Circuit opinion that upheld listing the polar bear as threatened based on climate change projections, and with a Ninth Circuit opinion earlier this year that upheld the U.S. Fish and Wildlife Service’s reliance on climate change models as the “best available science” for designating polar bear critical habitat.  But this week’s opinion was noteworthy because the NMFS listing of the bearded seal relied on very long-term (through 2100) climate change predictions to determine that the species is likely to become endangered, while the polar bear listing only evaluated a 45-year “foreseeable future” period.
Continue Reading Use of long-term climate projections for bearded seal listing not necessarily a bellwether for Endangered Species Act decisions

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 minimal adverse effects on the aquatic environment, individually and cumulatively.  The Corps is soliciting comments until August 1, 2016.
Continue Reading Corps Proposes Renewal of Nationwide Permits

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 Act regulation, resolving a split between the circuits in a victory for land owners.


Continue Reading Jurisdictional Determinations Are Reviewable By The Courts

On January 19, 2016, President Obama vetoed legislation that, if approved, would have nullified the Clean Water Rule. The controversial rule, which redefines which water bodies qualify as “waters of the United States” under the Clean Water Act, was issued by the EPA and U.S. Army Corps of Engineers in June of 2015 and was immediately challenged by several states and private parties. A joint resolution approved by the Senate last November and by the House earlier this month largely along party-line votes, would have disapproved the rule under the Congressional Review Act and prevented the promulgation of a similar rule. But the President vetoed the resolution, meaning the fate of the rule now rests with the courts.
Continue Reading Bill to Nullify Clean Water Rule Vetoed

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 would remove uncertainty and confusion by restoring a uniform definition of “waters of the United States” nationwide. Before today, the prior regulatory definition of waters of the United States was in effect in 13 states where the federal district court for North Dakota had enjoined the new Clean Water Rule; the new Rule’s definition applied in the rest of the country.
Continue Reading BREAKING: EPA Water Rule Blocked Nationwide By Sixth Circ.

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 Clean Water Act.  District Judge Ralph Erickson found “it appears likely” that, in promulgating the rule, the EPA both exceeded the authority Congress delegated to it, and violated the Administrative Procedure Act.  The court’s ruling comes one day before the new rule, which redefines “waters of the United States,” was set to take effect.


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

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 in determining when and to what extent the Corps and EPA will be involved in land use decisions.  It will affect many industries, including agriculture, energy development and transmission, transportation, and housing.
Continue Reading EPA and Corps Issue Rule Defining “Waters of the U.S.”

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 suit had been filed to challenge the approvals, Shell sued the Center for Biological Diversity and other groups that had publicly opposed the approvals and had threatened legal action.  Shell sought a declaratory judgment that the approvals were valid and did not violate the federal Administrative Procedure Act.  Shell argued that it needed an advance determination of the approvals’ validity in order to remove the threat of litigation (and delay) during the brief Arctic drilling season and protect its investment in mobilizing for the drilling season.


Continue Reading Ninth Circuit Rejects Use of Preemptive Litigation to Validate Federal Approvals

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 Clean Water Act is final and immediately reviewable under the Administrative Procedure Act.  But, so far, the Courts of Appeals have declined to extend Sackett to allow immediate review of a jurisdictional determination, which represents the Corps’ findings about whether a property contains wetlands or other waters of the United States subject to the Corps’ regulatory jurisdiction under Clean Water Act section 404.
Continue Reading Supreme Court Asked to Allow Immediate Judicial Review of Clean Water Act Jurisdictional Determinations