Natural Resources and Endangered Species

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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

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.Continue Reading New And Revised Nationwide Permits For Dredge And Fill Activities

Rock Creek Alliance v. U.S. Fish and Wildlife Service, No. 10-35596 (9th Circuit Court of Appeal; November 16, 2011)

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.
Continue Reading 9th Circuit Upholds Biological Opinions For Proposed Mine

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.Continue Reading Fish and Wildlife Service Settles Lawsuits on Listing Deadlines

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.Continue Reading U.S. Supreme Court to Review Two Cases With Potentially Significant Consequences for Wetlands and Waterways

By Keith Garner & Michael Leake

In Stewart & Jasper Orchards v. Salazar, the Court of Appeals affirmed the district court judgment that the application of Sections 7 and 9 of the Endangered Species Act (“ESA”) to the California delta smelt does not violate the Commerce Clause in the United States Constitution.Continue Reading Application of Sections 7 and 9 of the Endangered Species Act to California Delta Smelt Does Not Violate Commerce Clause

By Keith Garner

On February 16, 2011, the U.S. Army Corps of Engineers published a notice of its proposal to reissue and modify 48 of the 49 existing Nationwide Permits (“NWPs”) and to issue two new NWPs and two new general conditions. The Corps proposes to let one NWP (47 – Pipeline Safety Program Designated Time Sensitive Inspections and Repairs) expire. Most of the current impact limits are retained, although waiver requirements for linear impacts have been clarified in seven NWPs and added to three existing NWPs. Additionally, the Corps proposes significant modifications to two NWPs:Continue Reading Corps Proposes New, Reissued, And Modified Nationwide Permits

Precon Development Corporation, Inc. v. U.S. Army Corps of Engineers, 2011 WL 213052 (C.A.4 (Va.))

By Greg Woodard

The Fourth Circuit Court of Appeal case, Precon Development Corporation, Inc. v. U.S. Army Corps of Engineers, 2011 WL 213052 (C.A.4 (Va.)), arises out of a determination by the Army Corps of Engineers ("Corps") that it has jurisdiction, under the Clean Water Act ("CWA"), over 4.8 acres of wetlands located on the appellant owner’s property, approximately 7 miles from the nearest navigable water. The Corps denied the owner’s application for a CWA permit to develop the property, and the owner appealed to federal district court. The district court granted summary judgment to the Corps, upholding both its jurisdictional determination, and its permit denial. The owner appealed the district court’s jurisdictional determination, and the Fourth Circuit Court of Appeal reversed, holding that the Corps’ administrative record was inadequate to support its conclusion that it had jurisdiction over the wetlands. However, the court’s ruling will not likely have a large impact on future CWA permit applications given its limited holding.Continue Reading Fourth Circuit Offers Pyrrhic Victory On Corps Jurisdiction Over Developer’s Clean Water Act Permit

Kern County Water Agency v. Watershed Enforcers, No. A117715 (1st Dist. June 17, 2010)

By Keith Garner and Alex Merritt

Last month the California Court of Appeal for the First District held that the California Endangered Species Act ("CESA") prohibits a state agency from taking threatened or endangered species without proper permit authority. In reaching this conclusion, the court resolved an interesting question of statutory construction, finding that a state agency is a "person" for purposes of CESA. The decision also indicates that courts will construe CESA liberally to promote the Legislature’s goal of conserving threatened and endangered species.Continue Reading California Endangered Species Act Prohibits State Agencies From Taking Threatened and Endangered Species Without Permit Authority