Natural Resources and Endangered Species

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 are not protected by the federal Clean Water Act (CWA).  In addition to the proposed amendments, the State Board also published a detailed staff report and a separate comparison of the new “State Supplemental Dredged or Fill Guidelines” to the CWA’s Section 404(b)(1) Guidelines, which requires sequencing of impacts to avoid, minimize, and mitigate impacts to waters.  Two workshops and a public hearing are scheduled in June and July, with the public comment period ending on August 4, 2016.  The proposal is tentatively scheduled to be considered by the State Board in the fall of 2016.
Continue Reading California Proposes Adopting New Permitting Program for Wetlands and Waters of the State

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 creates more stringent conservation standards and more flexible mitigation requirements for permits.  The comment period for the proposed rule ends on July 5, 2016.

Along with the proposed rule, the Service also released a status report, which showed increases in bald eagle populations but possible declines in golden eagle populations; and a Draft Programmatic Environmental Impact Statement (DPEIS), which analyzed potential impacts of the proposed rule under NEPA and which the Service intends to use as the basis for tiered, subsequent project-level review.

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

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

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 in the near future. Plaintiffs in some of these cases have already filed motions for preliminary injunctions seeking to bar application of the rule.
Continue Reading EPA and the Army Corps Seeking to Consolidate Challenges to Recently Issued “Waters of the United States” Rule

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

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 went beyond the scope of the Commerce Clause because it was a non-economic regulation and the take of prairie dog does not have a substantial effect on interstate commerce.

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