Natural Resources and Endangered Species

The U.S. Fish and Wildlife Service (the “Service”) published a proposed rule listing the tricolored bat as an endangered species under the Endangered Species Act (“ESA”). The tricolored bat occurs in portions of 39 states, including Texas, Iowa, and Oklahoma, which contain a significant concentration of utility-scale wind projects. In combination with the Service’s proposed “endangered” designation for the northern long-eared bat, the new proposed rule could complicate wind energy project permitting across the country.

Continue Reading U.S. Fish and Wildlife Service Proposes Listing Tricolored Bat as Endangered Under Endangered Species Act

In Save the Hill Group v. City of Livermore et al., the First District Court of Appeal (Div. 5) reversed and remanded the superior court’s decision to uphold the reissued final environmental impact report (RFEIR) for a development project with 44 single-family homes located in a residentially-zoned grassland area, called Garavanta Hills, near the Garaventa Wetlands Preserve.  In doing so, the Court held that the analysis for the “no project” alternative was inadequate because it failed to disclose and evaluate the possibility of using existing mitigation funding to make the no-project alternative feasible.  While the superior court agreed that the analysis of the no-project alternative was insufficient, the superior court found that petitioner Save the Hill Group (Petitioner) had failed to exhaust its administrative remedies on this issue, upholding the RFEIR on this jurisdictional prerequisite.  While the Court of Appeal reversed this particular decision, it did rejected the Petitioner’s remaining claims.
Continue Reading Court of Appeal Holds No-Project Alternative Analysis May Mean More When Conservation is an Option and Reinforces Low Barrier to Entry Under the Exhaustion Doctrine

On January 23, 2020, the United States Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers issued the Navigable Waters Protection Rule (the “2020 Rule”), which includes a revised definition of the “waters of the United States” subject to federal regulation under the Clean Water Act.[1] The revisions in the 2020 Rule come after a line of U.S. Supreme Court (“Supreme Court”) cases ending with Rapanos v. United States,[2] as well as an Obama-era administrative rule addressing the waterbodies under federal jurisdiction (the “2015 Rule”).[3] Rapanos was the last time the Supreme Court interpreted the term “waters of the United States,” with the intent of curtailing the substantial litigation concerning the meaning of the phrase and defining what “waters of the United States” should be included under federal jurisdiction. The 2015 Rule intended to clarify the definition further and codify the Supreme Court decisions. When effective, the newly issued Navigable Waters Protection Rule will limit the 2015 Rule, attempting again to define what are and what are not “waters of the United States.”
Continue Reading Navigable Waters Protection Rule: How are the “Waters of the United States” Being Defined?

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) published a rule on October 23, 2019, repealing the Clean Water Rule promulgated by the Obama administration in 2015. The rule, which goes into effect on December 23, 2019, puts the pre-2015 regulations governing areas subject to federal jurisdiction under the Clean Water Act back into place nationwide. Environmental groups and state attorneys general have vowed to challenge the repeal in court.
Continue Reading EPA and Army Repeal Clean Water Rule and Move Forward with Plan to Redefine Waters Subject to Federal Regulation under Clean Water Act

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

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

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

In re Big Thorne Project and 2008 Tongass Forest Plan, __ F.3d __, 2017 WL 2233755 (9th Cir. May 23, 2017). Plaintiffs, environmental conservation and activist organizations, brought suit against the U.S. Forest Service and Department of Agriculture (collectively, “Forest Service”) on behalf of individuals who fish, hunt, and “enjoy” Alaska’s Tongass National Forest. Id. at *3. Plaintiffs alleged that the Forest Service violated the National Forest Management Act (the “Act”) by approving either the 2008 Tongass Forest Plan or the Big Thorne logging project. Id. at *2. The Ninth Circuit affirmed the district court’s summary judgment in favor of the Forest Service, holding that the Forest Service’s approval was neither arbitrary nor capricious because the Act expressly grants the Forest Service discretion to balance competing interests, and the Forest Service reached its determination after a thorough analysis rationally supported by the evidence. Id. at *5.
Continue Reading Ninth Circuit Affirms Forest Service’s Authority to “Choose Jobs Over Wolves”

Sierra Club v. Chesapeake Operating LLC et al., __ F. Supp. 3d ___, 2017 WL 1287546 (W.D. Okla. 2017). The Sierra Club filed a citizen suit under the Resource Conservation and Recovery Act (“RCRA”) against Chesapeake Operating LLC, Devon Energy Production Co. LP, Sandridge Exploration and Production LLC, and New Dominion LLC (collectively, “defendants”), alleging that the defendants’ fracking activities increased the number and severity of earthquakes in Oklahoma. Id. at *1. The Sierra Club sought declaratory and injunctive relief from the court requiring the defendants to reduce their wastewater disposal volume, reinforce structures vulnerable to earthquakes, and establish an earthquake monitoring center. Id. The defendants moved to dismiss the complaint, contending that the court should decline to exercise jurisdiction under the Burford abstention and primary jurisdiction doctrines because the  (“OCC”) has implemented new regulations and water disposal directives in response to increased seismic activity. Id. at *2. The district court granted the defendants’ motion to dismiss, deferring to the OCC expertise on both grounds. Id. at *10.
Continue Reading Oklahoma Court Dismisses Fracking Earthquake Case Due to Court’s Lack of Scientific Expertise

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