Recent Cases - Natural Resources and Endangered Species

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

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

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

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