Natural Resources and Endangered Species

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Recent amendments to the National Environmental Policy Act (NEPA), which Congress included in the Fiscal Responsibility Act of 2023 (FRA), aim to streamline federal environmental review by imposing time limits, clarifying the scope of review and agencies’ roles, and narrowing some key definitions. Most of the amendments simply codify regulatory definitions or agency practices already in effect, so the practical impact of the changes is likely to be limited. Nonetheless, the amendment of NEPA is noteworthy in its own right and could signal a new willingness in Congress to address a process often seen as cumbersome and prone to delay.…

Continue Reading NEPA Amendments Aim To Streamline Environmental Review But Largely Codify the Status Quo

In a long-anticipated decision on the reach of the Clean Water Act (“CWA”), the Supreme Court significantly narrowed the scope of the wetlands and other waters subject to the CWA’s protections. The Court’s opinion in Sackett v. Environmental Protection Agency, released May 25, 2023, limits waters of the United States (“WOTUS”) to “relatively permanent” water bodies such as streams, oceans, rivers and lakes, and to wetlands with a “continuous surface connection” to those water bodies. The Court’s holding removes a wide swath of previously-protected wetlands from the CWA’s permitting requirements, likely eliminates jurisdiction for many ephemeral and intermittent streams, and spells all but certain doom for the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency’s recent rulemaking adopting a new definition of WOTUS for CWA purposes.…

Continue Reading Supreme Court Narrows Scope of Waters Protected by the Clean Water Act in Sackett v. EPA

The U.S. Fish and Wildlife Service recently published a proposed rule revising regulations that authorize permit issuance for eagle incidental take and eagle nest take under the Bald and Golden Eagle Protection Act (the “Act”). In addition to retaining the individual permits already available under the Act, the new rule proposes creation of a “general” permit for qualifying wind energy and power line infrastructure projects.…

Continue Reading U.S. Fish & Wildlife Service Proposes New Regulations Creating General Eagle “Take” Permits for Certain Wind Energy and Power Line Infrastructure Projects

In Save the Hill Group v. City of Livermore et al., the First District Court of Appeal (Div. 5) reversed and remanded the superior court’s decision to uphold the reissued final environmental impact report (RFEIR) for a development project with 44 single-family homes located in a residentially-zoned grassland area, called Garavanta Hills, near the Garaventa Wetlands Preserve.  In doing so, the Court held that the analysis for the “no project” alternative was inadequate because it failed to disclose and evaluate the possibility of using existing mitigation funding to make the no-project alternative feasible.  While the superior court agreed that the analysis of the no-project alternative was insufficient, the superior court found that petitioner Save the Hill Group (Petitioner) had failed to exhaust its administrative remedies on this issue, upholding the RFEIR on this jurisdictional prerequisite.  While the Court of Appeal reversed this particular decision, it did rejected the Petitioner’s remaining claims.
Continue Reading Court of Appeal Holds No-Project Alternative Analysis May Mean More When Conservation is an Option and Reinforces Low Barrier to Entry Under the Exhaustion Doctrine