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By Kerry Shapiro and Daniel Quinley

On May 25, 2023, the United States Supreme Court issued its ruling in Sackett v. Environmental Protection Agency, narrowing the scope of the Environmental Protection Agency’s (EPA) regulatory authority under the Clean Water Act (CWA). The court held that the EPA’s authority under the CWA extends only to wetlands and permanent bodies of water with a “continuous surface connection” to “traditional interstate navigable waters.”

Sackett addressed the scope of EPA’s authority to regulate wetlands under the CWA, which generally prohibits discharging pollutants into “the waters of the United States.” 33 U.S.C. §1362(7). The Sacketts petitioned the Supreme Court for review of the Ninth Circuit’s decision upholding the scope of EPA’s authority. The Sacketts had purchased a lot upon which they planned to build a home and began backfilling this lot with dirt in preparation. However, the EPA sought to exercise jurisdiction, based on the assertion that the lot contained wetlands and backfilling it violated the CWA. At issue for the Court was whether these wetlands were, in fact, “waters of the United States” subject to regulation under the CWA.

The Supreme Court’s decision resolves ambiguity in the CWA over the meaning of “waters of the United States” within the context of the statute. Justice Alito, in his opinion, described the current confusion stemming from the ambiguity of the CWA’s language: “[W]hat does that phrase mean? Does the term encompass any backyard that is soggy enough for some minimum period of time? Does it reach ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [or] playa lakes?’ How about ditches, swimming pools, and puddles?”

This jurisdictional ambiguity has existed, in part, since the plurality split in the Court’s decision in Rapanos v. United States (2006) 547 U.S. 715, which articulated two tests for lower courts to use in determining whether the CWA applies: Justice Scalia’s bright-line rule, covering only wetlands next to “relatively permanent, standing or continuously flowing bodies of water”; and Justice Kennedy’s broader interpretation, protecting wetlands that were part of a “significant nexus” with a navigable body of water. Continue reading

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By Kerry Shapiro and Daniel Quinley

On March 9, 2023, the US District Court for the Eastern District of California issued its ruling in Friends of the Inyo, et al., v. U.S. Forest Service, et al., in favor of the Forest Service and JMBM client KORE Mining Limited, in a challenge under the National Environmental Policy Act (“NEPA”) against the Forest Service’s approval of KORE’s small-scale, mineral exploration plan, brought by multiple environmental groups, including Friends of the Inyo and Center for Biological Diversity.

The case concerned a challenge to the Forest Service’s approval of KORE’s limited exploration project on mining claims located in the Inyo National Forest. KORE originally filed a plan of operations in the summer of 2020, proposing a small-scale mineral exploration project, comprising less than 1 acre of disturbance across twelve drill pads, and construction of a third of a mile of temporary access roads. The exploration project would be completed in under a year.

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By Kerry Shapiro and Daniel Quinley

The last month has seen a flurry of activity related to the California and Federal Endangered Species Acts, including:

  1. The California Supreme Court’s denial of review in the Almond Alliance of California v. California Fish and Game Commission litigation
  2. Governor Gavin Newsom’s appointment of a fifth member of the California Fish and Game Commission
  3. That Commission’s October 9, 2022 hearing, where consideration of the petition to list the western Joshua tree (WJT) as a threatened species was continued for a second time
  4. The United States Fish and Wildlife Service’s proposed listing of the Bay-Delta longfin smelt on October 7

First, on September 21, 2022, the California Supreme Court denied a petition to review a ruling by the 3rd District Court of Appeal in Almond Alliance of California v. Fish & Game Com., (2022) 79 Cal.App.5th 337. This denial lets stand the decision by the Court of Appeal, allowing the listing of four bumble bee species under the California Endangered Species Act (CESA). In that decision, issued in May of this year, the Court of Appeal reversed the decision of the trial court, reasoning that the Fish and Game Commission could list insects because the California legislature – despite evidence accepted by the trial court that the legislative committees that wrote CESA’s language explicitly believe insects were ineligible for listing – found that “the term of art employed by the Legislature in the definition of fish is not … limited” to aquatic species. Continue reading

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By Kerry Shapiro and Dan Quinley

After more than a year of scientific study on the status of the western Joshua tree (“WJT”), the California Department of Fish and Wildlife (“CDFW”) has just completed its status review (“Status Review”) of the WJT and determined that the best available science on the species does not warrant listing it as threatened under the California Endangered Species Act (“CESA”). CDFW’s conclusion mirrors the conclusion independently made in a Population Study prepared on behalf of JMBM client California Construction and Industrial Materials Association (“CalCIMA”) and also submitted to CDFW and the California Fish and Game Commission (“Commission”) for consideration in the Commission’s final determination on whether or not to list the species. CalCIMA’s Population Study was submitted pursuant to Title 14, section 670.1(h) of the California Code of Regulations on April 5, 2022, and therefore must be considered by the Commission in making a final listing determination.

In making its recommendation to not list the WJT, CDFW found, based on “the best scientific information available to the Department” that the species “is not in serious danger of becoming extinct throughout all, or a significant portion, of its range,” and that “special protection and management efforts required by CESA” were not required for the species. Continue reading

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By Kerry Shapiro

On August 30, 2021, the U.S. District Court for the District of Arizona issued an order in Pasqua Yaqui Tribe, et al. v. U.S. EPA, et al., vacating the Navigable Waters Protection Rule (“NWPR”) and remanding the rule back to the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) for further review. The NWPR was enacted during the Trump administration and represents the EPA’s latest attempt to define the term “waters of the United States” (“WOTUS”). The NWPR represented a categorical approach to Clean Water Act (“CWA”) jurisdiction (i.e. certain water features were categorically excluded from jurisdiction under the CWA, including ephemeral streams), and it significantly narrowed the scope of such jurisdiction. Following the court’s ruling, EPA announced the Agencies would halt implementation of the NWPR and instead interpret WOTUS consistent with the broader jurisdictional scope of the pre-2015 regulatory regime until further notice. The National Stone, Sand, and Gravel Association (“NSSGA”), among several business interests, intervened into the case, arguing that a return to the pre-2015 regulatory regime would increase regulatory uncertainty, including, as discussed below, a likely increase in 404 permitting.

In this case, the plaintiffs alleged that the NWPR exceeds the EPA’s statutory authority and is contrary to the CWA’s text and objectives, which require broad protection of all of the U.S.’s waters, because the NWPR excludes certain waters from the protections required by the CWA. The NWPR can be viewed here. The plaintiffs, several federally recognized Native American tribes, also alleged that the EPA failed: (1) to explain its decision to reverse prior regulations; and (2) to consider important aspects of that prior decision, including the effects on water quality and aquatic ecosystems, the ecological importance of protecting the excluded waters, and the effects of the reversal of prior regulations on the CWA. Plaintiffs moved for summary judgment in the case, and in response the Agencies filed a motion asking for voluntary remand of the NWPR without vacating it. This would have allowed the Agencies under the Biden administration to continue to implement the NWPR as the Agencies simultaneously worked to draft a replacement. Plaintiffs agreed that the NWPR should be remanded, but also argued for vacatur and implementation of the pre-2015 regulatory regime, asserting that intermittent and ephemeral streams in Arizona would otherwise be left unprotected. Continue reading

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By Kerry Shapiro and Dan Quinley

On September 9, 2021, the House Environmental and Natural Resources (“ENR”) Committee finished its mark-up of the $3.5 trillion reconciliation budget measure. Inserted at the very end of the 117-page mark-up is Section 70807: Hardrock Mining, which is a quiet attempt to reform the Mining Law of 1872.

The ENR Committee’s change would, for the first time, impose fixed royalties on all locatable minerals mined on Federal land. Under the terms of the proposed legislation, minerals, mineral concentrates, or products derived from locatable minerals, would be subject to royalty fees at the following rates:

  • 8% for all new mining operations
  • 8% for all new federal land added by plan modification to existing mining operations
  • 4% for mining operations with an existing approved plan of operations, or who submitted a plan of operations prior to the effective date of the legislation

All royalty percentages would be calculated based on gross income derived from mining. Continue reading

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By Kerry Shapiro

Last week, the California Supreme Court handed down an important decision on prevailing wage law favorable to industry. On August 16, 2021, the California Supreme Court issued its decision in Mendoza v. Fonseca McElroy Grinding Co., Inc. S253574, answering the question whether prevailing wage must be paid for mobilization work, which involved transporting heavy machinery to and from a public works site under Labor Code section 1772. The Court held that section 1772 does not expand the categories of public work that trigger obligation to pay at least the prevailing wage and that under this theory, prevailing wage did not need to be paid for mobilization work. In so far as there may be some other statutory basis for compensating mobilization and travel time at the prevailing rate, those issues were beyond the scope of the Court’s decision. The Court’s decision is consistent with the positions argued in the case by Fonseca, and by JMBM client California Construction and Industrial Materials Association (“CalCIMA”), which had filed an Amicus Brief in support of Fonseca. Continue reading

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State Water  Board Announces Intent to Enforce 2019 Procedures for Discharges of Dredged or Fill Material as “State Policy”

By Kerry Shapiro, Martin Stratte, and Daniel Quinley

On February 3, 2021, the State Water Resources Control Board (“SWRCB”) issued a “Notice of Opportunity to Comment and Notice of Public Hearing and Consideration of Adoption” (“Notice”) of a resolution “to confirm that the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (Procedures) are in effect as state policy for water quality control.”  The Notice states that SWRCB will consider the resolution at a public video/teleconference meeting on April 6, 2021.

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By Kerry Shapiro and Martin Stratte

On January 20, 2021, President Biden’s first day in office, Acting Secretary of the Interior Scott de la Vega issued Secretarial Order No. 3395 (Order), which temporarily suspends decision-making authority delegated to Department of the Interior (DOI) Bureaus and Offices, such as the Bureau of Land Management. The Order will be in effect for at least 60 days.

According to the DOI website, the Order, while in effect, reserves decision-making authority for “Department leadership” described in the Order as “confirmed or Acting official[s]” who hold certain positions enumerated in the Order. The positions to which decision-making authority is reserved include the Secretary, Deputy Secretary, Solicitor, and six Assistant Secretaries identified in the Order.

Thus, the Order suspends the decision-making authority of DOI Bureaus and Offices, and restricts such authority to a select few high-level DOI officials who have been or will be put in place by the Biden Administration, until after the Administration has had at least 60 days to appoint new, and evaluate existing, officials within DOI Bureaus and Offices. Continue reading

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By Kerry Shapiro, Martin Stratte and Daniel Quinley

On December 18, 2020, the Sacramento County Superior Court prohibited the State Water Resources Control Board (“SWRCB”) from implementing California’s new wetlands and “waters of the state” protection program, and limited SWRCB’s application of the regulatory program to only waters already protected under the federal Clean Water Act. The court’s ruling essentially invalidates SWRCB’s nearly two-decade-long effort to fill the gap left by the shrinking scope of regulation under the federal Clean Water Act following the Supreme Court’s 2001 decision in Solid Waste Agency of Northern Cook Cty. v. U.S. Army Corps of Engineers (“SWANCC”).

In January 2019, SWRCB hastened its adoption of its new regulations – the “Procedures for Discharges of Dredged or Fill Material to Waters of the State” (“Procedures”) – after the Trump Administration introduced the new “Navigable Waters Protection Rule” to regulate pollutant discharges to Waters of the United States (“New WOTUS Rule”).  The New WOTUS Rule limits the reach of the federal Clean Water Act and is presently in effect as of June 22, 2020.

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