Natural Resources and Endangered Species

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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

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