Category Archives: Natural Resources and Endangered Species

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Army Corps Proposes Templates to Expedite Development and Approval of Mitigation Bank Proposals

By Sheppard Mullin on Posted in Natural Resources and Endangered Species, New Rules and Legislation
By Robert J. Uram and Chase Ensign On May 15, 2008, the Army Corps of Engineers issued a public notice describing and seeking public comment on five templates that seek to standardize the process of obtaining approvals of proposals for mitigation banks.  The templates, which are available for use now, should expedite the review and … Continue Reading

Corps Eliminates Elevations for Jurisdictional Delineations Affected by Rapanos Decision in Revised Coordination Procedures

By Sheppard Mullin on Posted in Natural Resources and Endangered Species, New Rules and Legislation
By S. Keith Garner On January 28, 2008, the U.S. Army Corps of Engineers modified the procedures for coordinating review of jurisdictional delineations involving significant nexus determinations with the EPA.  Significant nexus determinations are required under the Corps and EPA’s joint Rapanos Guidance to determine whether the following aquatic features are jurisdictional under Section 404 of … Continue Reading

Man-Made Pond That Is Within a Larger Wetland Area Adjacent to Traditionally Navigable Water Is Within Corps Jurisdiction Under Clean Water Act

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
By Robert J. Uram and Aaron Foxworthy In Northern California River Watch v. City of Healdsburg, the Ninth Circuit held that a man-made pond that (a) contains and is largely surrounded by wetlands, (b) is separated from a traditionally navigable water only be a levee, and (c) shares a significant nexus with the adjacent navigable water can … Continue Reading

Construction Activities During Dry Season in Creek Experiencing Seasonal Flow Only Two Months of the Year Violates Clean Water Act

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
U.S. v. Moses, No. 06-30379 (9th Cir. 2007) By Stephanie J. Helfrich In upholding an 18-month prison sentence, plus monetary fines, under the Clean Water Act (CWA) of an eastern Idaho developer who bulldozed a creek bed, the Ninth Circuit held that a seasonally intermittent stream which ultimately empties into a river that is a … Continue Reading

Army Corps of Engineers, US EPA Publish Long-Awaited Guidance on Determining Clean Water Act Regulatory Jurisdiction Subject to the Supreme Court’s Rapanos and Carabell Decisions

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
By Robert Uram, Ella Foley-Gannon and Aaron Foxworthy On June 5, 2007, the Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (US EPA) published long-awaited guidance on the United States Supreme Court’s decisions in Rapanos v. United States and Carabell v. United States Army Corps of Engineers.  Posted on the agencies’ respective … Continue Reading

Ninth Circuit Holds Recovery Standard Applies To Jeopardy Analysis

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
National Wildlife Federation v. National Marine Fisheries Service, No. 06-35011 (9th Cir. 2007) By Bob Uram and Keith Garner On April 9, 2007, the Ninth Circuit held that the jeopardy analysis under the Endangered Species Act regulations must consider the effects of an action on a listed species’ chance of recovery in a Section 7 … Continue Reading

Bureau of Reclamation Decision to Withhold Water, As Required By Federal Law, Did Not Breach 1983 State Water Contracts Nor Did It Constitute A Taking of A Vested Property Right.

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
Stockton East Water District, et al. v. United States (February 20, 2007) By Philip Atkins-Pattenson and Katharine Allen In this action against the United States, the United States Court of Federal Claims held that the Bureau of Reclamation did not breach several 1983 state water contracts with two California water districts when it withheld water … Continue Reading

Clean Water Act Update: Adjacent Wetlands Rule for Establishing Clean Water Act Regulatory Authority Does Not Apply to a Non-Wetland Diked Pond

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
By Robert Uram and Aaron Foxworthy In San Francisco Baykeeper v. Cargill Salt Division, the Ninth Circuit Court of Appeals provided further guidance on the limits of Clean Water Act (“CWA”) regulatory authority.  ___ F.3d ___; Case No. 05-15051, slip op. at 2666 (9th Cir., filed March 8, 2007).  Cargill argued that a non?navigable, non?wetland pond … Continue Reading

Army Corps Issues New and Modified Nationwide Permits

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
By Ella Foley-Gannon and Julie Austin On March 12, 2007, the U.S. Army Corps of Engineers released new and modified Nationwide Permits (NWP), which authorize dredge and fill activities that will cause minimal individual and cumulative adverse effects.  The revised NWPs include modified versions of several of the existing 43 NWPs, along with 6 new … Continue Reading

Clean Water Act Update: District Courts on the East, West Coasts Explain and Apply the Rapanos Decision to Adjacent Wetlands and Intermittent and Ephemeral Streams

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
By Robert J. Uram and Aaron Foxworthy District courts for the Northern District of California and the District of Connecticut recently applied the Supreme Court’s 2006 Rapanos decision to decide whether certain intermittent and ephemeral streams and adjacent wetlands were subject to Clean Water Act regulatory jurisdiction.  (Please click for further discussion of Rapanos).  In … Continue Reading

U.S. District Court Throws Out “Tulloch II” Rule Defining Incidental Fallback

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
National Association of Homebuilders v. U.S. Army Corps of Engineers, 01-274 JR (D. D.C. Jan. 30, 2007) By Robert J. Uram and Stephanie J. Helfrich On January 30, 2007, U.S. District Judge James Robertson ruled in favor of several major trade associations when he held that a rule jointly issued by the Army Corps of … Continue Reading

Corps Announces Implementation of Arid West Interim Supplement to the 1987 Wetlands Delineation Manual

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
By Keith Garner On December 18, 2006, the U.S. Army Corps of Engineers, San Francisco District, announced the publication of the Arid West Interim Regional Supplement ("Interim Supplement") to the 1987 Wetland Delineation Manual ("1987 Manual").  A similar public notice was released by the Los Angeles District on December 22, 2006.  The Interim Supplement provides technical guidance … Continue Reading

Court Orders the CTS be Considered for Listing under the California Endangered Species Act

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
By Bob Uram and Keith Garner Judge Lloyd Connelly of the Sacramento Superior Court ordered the California Fish and Game Commission to accept the petition to list the California tiger salamander under the California Endangered Species Act. Center for Biological Diversity v. California Fish and Game Commission, No. 05CS00233 (Cal. Super. Ct. Sacramento filed Dec. … Continue Reading

Corps Proposes New, Reissued, and Modified Nationwide Permits

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
By Robert Uram and Keith Garner On September 26, 2006, the U.S. Army Corps of Engineers published a notice of its proposal to reissue and modify the existing Nationwide Permits, general conditions, and definitions, and to issue six new Nationwide Permits and one new general condition. The Corps proposes to retain the current acreage limits, but thirty-two … Continue Reading

Nationwide Permits Scheduled To Expire On March 19, 2007

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
By Robert Uram and Keith Garner Pursuant to its authority under the Clean Water Act, the U.S. Army Corps of Engineers has issued general permits, called Nationwide Permits, for activities that have minimal effect on the environment. Discharges of dredged or fill material in wetlands and other waters of the U.S. are permitted in connection with … Continue Reading

Major Victory for Habitat Conservation Planning: California Appeals Court Denies CEQA and CESA Challenge to Natomas Basin Habitat Conservation Plan

By Sheppard Mullin on Posted in California Environmental Quality Act (CEQA), Natural Resources and Endangered Species
By Stephanie Helfrich In what can be characterized as a win for habitat conservation planning generally, and for development in the Natomas Basin specifically, California’s Third Appellate District has just published its August 9, 2006 decision, Environmental Council of Sacramento v. City of Sacramento et al., affirming the trial court’s conclusion that the city of … Continue Reading

Supreme Court Curtails Army Corps Of Engineers’ Jurisdiction

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
By Robert J. Uram On June 19, 2006, the U.S. Supreme Court decision in Rapanos v. United States, 547 U.S. ___ (2006), which consolidated two Clean Water Act (CWA) challenges to U.S. Army Corps jurisdiction, vacated and remanded both the Rapanos (04–1034) and Carabell (04–1384) decisions to the lower courts for further consideration.  The 5-4 … Continue Reading

Court Concludes Fish And Wildlife Service Improperly Ignored Recovery Goal Of Critical Habitat Designation

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
By Robert J. Uram and Ella Foley-Gannon On March 14, 2006, in Center For Biological Diversity v. Bureau of Land Management, et al., 2006 WL 662735 (N.D. Cal.), the United States District Court for the Northern District of California concluded that the U.S. Fish and Wildlife Service (the “Service”) improperly ignored the recovery goal of critical habitat … Continue Reading

D.C. Circuit Holds Unanimously That “Tulloch Rule” Is Ripe For Judicial Review

By Sheppard Mullin on Posted in Land Use and Entitlements, Natural Resources and Endangered Species
By Robert J. Uram, Ella Foley-Gannon and S. Keith Garner On February 6, 2006, in National Ass’n of Homebuilders v. U.S. Army Corps of Engineers, Nos. 04-5221 et al., 36 ELR 20032 (D.C. Cir. Feb. 6, 2006), the United States Court of Appeals for the D.C. Circuit issued a unanimous ruling in favor of several … Continue Reading

Building Permit Fees: Considerations Raised by the Recent Cal. Supreme Court Decision in Barratt-American v. City of Rancho Cucamonga

By Sheppard Mullin on Posted in Fees & Exactions, Land Use and Entitlements, Natural Resources and Endangered Species
By David P. Lanferman The recent decision of the California Supreme Court in Barratt-American v. City of Rancho Cucamonga(37 Cal.Rptr.3d 149) [covered in an earlier update on this site] raises serious questions as to the way many jurisdictions calculate, collect, and apply fees from developers for building permits and building inspections. Back in 1993, the … Continue Reading

Activity on Reform of The Endangered Species Act

By Sheppard Mullin on Posted in Natural Resources and Endangered Species
By Robert Uram On September 22, 2005, the House Resources Committee passed by a 26-12 margin H.R. 3824, the Threatened Endangered Species Recovery Act of 2005 (“TESRA”). TESRA represents the most significant effort to modify the Endangered Species Act (“ESA”) in over a decade. TESRA is currently scheduled for debate and possible amendment before the … Continue Reading

Court of Appeal Strikes Down Orange County Development Project

By Sheppard Mullin on Posted in California Environmental Quality Act (CEQA), Land Use and Entitlements, Natural Resources and Endangered Species
By Michael B. Wilmar In Endangered Habitats League v. County of Orange, 131 Cal. App. 4th 777 (2005), the California Court of Appeal rejected a development plan in Orange County. The court did so on the grounds that the specific plan approved by the County conflicted with its general plan, and that the County compiled … Continue Reading

California Supreme Court Voids Jury Trial Waivers

By Sheppard Mullin on Posted in Land Use and Entitlements, Natural Resources and Endangered Species, Real Property Transactions
By Doug Van Gessel On August 4 the California Supreme Court ruled, in Grafton Partners v. Superior Court (Pricewaterhouse Coopers LLP), 2005 DJDAR 9387 that California contractual provisions in which the parties thereto pre-agree to waive the right to a trial by jury are unenforceable. The unanimous opinion stated that a right to a jury … Continue Reading
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