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.
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Natural Resources and Endangered Species
Utility Pole Not A Point Source Under The Clean Water Act
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.…
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Conveyance of Polluted Water Within River Involves No ‘Discharge’ Under 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”).…
Recovery Plan Not Binding on Delisting Decisions
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.…
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Supreme Court to Hear Two Significant Clean Water Cases
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.…
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Supreme Court Holds EPA Compliance Order Asserting Clean Water Act Jurisdiction Is Subject to Judicial Review
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.…
New And Revised Nationwide Permits For Dredge And Fill Activities
By Robert Uram, Keith Garner, James Rusk, and Alex Merritt
The Army Corps of Engineers last week released new and revised Nationwide Permits 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 Nationwide Permits will be published in the Federal Register later this month and will take effect on March 19, 2012.…
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9th Circuit Upholds Biological Opinions For Proposed Mine
By Keith Garner and Alex Merritt
This month the 9th Circuit upheld the Fish and Wildlife Service’s biological opinions finding that a proposed silver and copper mine in northwestern Montana would not result in "adverse modification" to critical habitat of the bull trout or "jeopardy" to the grizzly bear, both of which are federally listed as threatened species.
Rock Creek Alliance, an environmental plaintiff, had challenged the two biological opinions, alleging that the FWS had violated the Endangered Species Act and acted arbitrarily and capriciously in making the “no jeopardy” and “no adverse modification” findings. The district court upheld the FWS’s determinations, and Rock Creek Alliance appealed raising four alleged defects. In a brief opinion that gave “deference due to the agency,” the court rejected each of the four claims.
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Fish and Wildlife Service Settles Lawsuits on Listing Deadlines
By Sheppard Mullin on
Posted in Natural Resources and Endangered Species
By Keith Garner & Charlotte Cunningham
On July 12, 2011, the U.S. Fish and Wildlife Service (“FWS”) and the Center for Biological Diversity (“CBD”) settled litigation concerning the FWS’s obligations to render decisions on whether species warrant protection under the Endangered Species Act (“ESA”). The settlement does not guarantee that the subject species will be listed as threatened or endangered. Rather, under the terms of the settlement, the FWS agreed to make petition findings and final listing decisions for more than 700 species by 2018. The FWS also agreed to attempt concurrent critical habitat designations.…
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U.S. Supreme Court to Review Two Cases With Potentially Significant Consequences for Wetlands and Waterways
By Keith Garner
The U.S. Supreme Court recently decided to hear two environmental cases in its 2011-2012 term, which begins in October. The two cases will have consequences for waterbodies that may be subject to the public trust and for property owners and facilities operators who are given administrative compliance orders under federal environmental laws.…