Natural Resources and Endangered Species

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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

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

Ecological Rights Foundation v. Pacific Gas & Electric Co. (9th Cir., Filed April 3, 2013)

By Robert Uram, Keith Garner, and Alex Merritt

Last week the Ninth Circuit held that utility poles are not “point sources” of stormwater discharge nor “associated with industrial activity,” and therefore do not require an NPDES permit to comply with the Clean Water Act.

Plaintiff environmental group brought a suit alleging that the defendant utility companies treated their utility poles with a wood preservative containing a biocide and other chemicals. Plaintiff further alleged that the utility poles discharge the wood preservative into the environment in violation of the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA). The Ninth Circuit rejected both claims in an unanimous decision.Continue Reading Utility Pole Not A Point Source Under The Clean Water Act

Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, __ U.S. __ (2013)

By James Rusk

The flow of polluted water from a concrete-lined portion of a river into a downstream portion of the same river does not involve a “discharge” for purposes of the Clean Water Act (“CWA”) and thus involves no CWA violation, the Supreme Court held in an opinion filed January 8. The Court’s opinion reverses a Ninth Circuit judgment that held the Los Angeles County Flood Control District (“District”) liable for CWA violations based on sampling data that showed polluted water leaving portions of the Los Angeles and San Gabriel Rivers controlled by the District and entering downstream portions of the same rivers. The opinion addresses only a very narrow issue that is controlled by the Court’s prior decision in South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004), and does not reach larger questions about the scope of liability for operators of municipal separate storm sewer systems (“MS4”).Continue Reading Conveyance of Polluted Water Within River Involves No ‘Discharge’ Under Clean Water Act

Friends of Blackwater, et al. v. Kenneth Lee Salazar, No. 11-5128 (D.C Cir. Aug. 17, 2012)

By Phillip Tate

On August 17, 2012, the DC Circuit Court overturned a district court ruling that the Fish and Wildlife Service violated the Endangered Species Act (16 U.S.C. §1531 et seq.) by delisting the West Virginia Northern Flying Squirrel when several criteria in the squirrel’s recovery plan remained unfulfilled. The court instead held that a recovery plan adopted pursuant to the ESA is not binding on the Secretary of the Interior when making delisting decisions.Continue Reading Recovery Plan Not Binding on Delisting Decisions

By Keith Garner and Maggie Brennan

The Supreme Court has agreed to review two Ninth Circuit Court of Appeals Clean Water Act (“CWA”) cases. Both cases involve the extent to which certain releases are properly categorized as point source discharges and must accordingly be regulated by NPDES (National Pollutant Discharge Elimination System) permits under the CWA.Continue Reading Supreme Court to Hear Two Significant Clean Water Cases

Sackett v. Environmental Protection Agency, 566 U.S. ___ (2012) (decided March 21, 2012)

By James Rusk

Private property owners are entitled to immediate judicial review of Environmental Protection Agency compliance orders that seek to regulate their property under the federal Clean Water Act ("CWA"), the Supreme Court unanimously held last week. The Court’s much anticipated decision in Sackett v. Envtl. Protection Agency says that property owners need not wait for the EPA to bring a judicial enforcement action in order to contest the agency’s assertion that their property contains "waters of the United States" subject to CWA jurisdiction. But at least one member of the Court believes that Justice Scalia’s narrowly crafted opinion will have limited benefits for most property owners and that Congressional action is still needed to clarify the extent of CWA jurisdiction.Continue Reading Supreme Court Holds EPA Compliance Order Asserting Clean Water Act Jurisdiction Is Subject to Judicial Review