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Articles by Samantha Murray
EPA's Final Clean Water Act 401 Rule, Reinstating 1971 Approach, Already Under Fire
On September 27, 2023, the U.S. Environmental Protection Agency (EPA) published its final rule to implement Clean Water Act (CWA) section 401 water quality certifications (2023 Rule). The 2023 Rule became effective on November 27, 2023, but was the subject of litigation within a week.
EPA’s Final Clean Water Act 401 Rule, Reinstating 1971 Approach, Already Under Fire | JD Supra
On September 27, 2023, the U.S. Environmental Protection Agency (EPA) published its final rule to implement Clean Water Act (CWA) section 401 water quality certifications (2023 Rule). The 2023 Rule became effective on November 27, 2023, but was the subject of litigation within a week.
Unified Agenda Forecasts Anticipated Timing of ESA Regulations | JD Supra
As we have previously reported, on December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda). The Unified Agenda, published twice a year, lists the upcoming rulemakings, policies, notices, revisions, and other actions that federal executive agencies plan to complete over the next several months.
Adapting to Climate Change, Inland | JD Supra
Managed retreat—the process of moving people and property away from the shoreline—is an unpopular but increasingly accepted response to rising sea-levels. In the inaugural issue of Nossaman’s California Water Views – 2023 Outlook, we discuss the saga of Morro Bay’s efforts to relocate and reopen its wastewater treatment plant farther inland at the direction of the California Coastal Commission. After many fits and starts, the Morro Bay plant opened in February 2023 and cost $161 million to build.
Service Lists Foothill Yellow-Legged Frog Distinct Population Segments Under the ESA | JD Supra
On August 29, 2023, the U.S. Fish and Wildlife Service (Service) published a final rule listing two distinct population segments (DPS)—the North Feather and Central Coast DPSs—of the foothill yellow-legged frog (Rana boylii) (Frog) as threatened (Threatened DPSs) and two additional DPSs of the Frog—the South Sierra and South Coast DPSs—as endangered (Endangered DPSs) under the Endangered Species Act (ESA).
Service Lists Foothill Yellow-Legged Frog Distinct Population Segments Under The ESA
Photo By/CreditRebecca Fabbri/USFWS On August 29, 2023, the U.S. Fish and Wildlife Service (Service) published a final rule listing two distinct population segments (DPS)—the North Feather and Central Coast DPSs—of the foothill yellow-legged frog (Rana boylii) (Frog) as threatened (Threatened DPSs) and two additional DPSs of the Frog—the South Sierra and South Coast DPSs—as endangered (Endangered DPSs) under the Endangered Species Act (ESA).
UPDATE: Court Holds Reasonable Use Finding Not Required for Wastewater Discharge Permits | JD Supra
UPDATE: On August 23, 2023 the California Supreme Court, sitting en banc, denied Waterkeeper’s petition for review. The Second District Court of Appeal’s ruling therefore remains the governing law. In response to a request for modification by the State and Regional Water Boards, the Second District Court of Appeal has limited certain aspects of its prior ruling.
Biden Administration Finalizes Updated WOTUS Rule
On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) (collectively, the Agencies) released their amendment to the January 2023 rule (January 2023 Rule) defining what constitutes waters of the United States (WOTUS) in order to incorporate the majority's opinion in Sackett v. EPA. We have previously reported extensively on Sackett and the varying iterations of the definition of WOTUS. You can view EPA's webpage on the amendment here.
Biden Administration Finalizes Updated WOTUS Rule | JD Supra
On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) (collectively, the Agencies) released their amendment to January 2023 rule (January 2023 Rule) defining what constitutes waters of the United States (WOTUS) in order to incorporate the majority’s opinion in Sackett v EPA. We have previously reported extensively on Sackett and the varying iterations of the definition of WOTUS. You can view EPA’s webpage on the amendment here.
Service Proposes To List Two Mussel Species And Designate Critical Habitat In Texas
On July 25, 2023, the U.S. Fish and Wildlife Service (Service) published a proposed rule to list two mussel species, the Salina mucket (Potamilus metnecktayi) and Mexican fawnsfoot (Truncilla cognata), as endangered under the Endangered Species Act (ESA). The Service also proposed to designate critical habitat for these species under the ESA.
Service Proposes to List Two Mussel Species and Designate Critical Habitat in Texas | JD Supra
On July 25, 2023, the U.S. Fish and Wildlife Service (Service) published a proposed rule to list two mussel species, the Salina mucket (Potamilus metnecktayi) and Mexican fawnsfoot (Truncilla cognata), as endangered under the Endangered Species Act (ESA). The Service also proposed to designate critical habitat for these species under the ESA.
UPDATE: Agencies Announce Intent to Issue Final WOTUS Rule by September 1st | JD Supra
JULY WOTUS UPDATES: On July 12, 2023, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers sent a letter to top Republican lawmakers, confirming that the Corps: has temporarily paused processing all Approved Jurisdictional Determinations (AJDs) and is currently only issuing AJDs for areas where no water resources are involved (dry land AJDs) or where “water resources meet the terms of exclusions under the 2023 Rule or the pre-2015 regulatory regime.” The agencies...
Agencies Announce Intent To Issue Final WOTUS Rule By September 1st
On June 26, 2023, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) announced their intent to amend the Biden administration's January 2023 waters of the United States (WOTUS) rule and issue a new final rule by September 1, 2023 – without first publishing a proposed rule and seeking public comment. The new rule will update the January 2023 WOTUS rule to be consistent with the United States Supreme Court's holding in Sackett v.
Agencies Announce Intent to Issue Final WOTUS Rule by September 1st | JD Supra
On June 26, 2023, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) announced their intent to amend the Biden administration’s January 2023 waters of the United States (WOTUS) rule and issue a new final rule by September 1, 2023 – without first publishing a proposed rule and seeking public comment. The new rule will update the January 2023 WOTUS rule to be consistent with the United States Supreme Court’s holding in Sackett v.
UPDATE: Court Holds Reasonable Use Finding Not Required for Wastewater Discharge Permits | JD Supra
UPDATE: In response to a request for modification by the State and Regional Water Boards, the Second District Court of Appeal has limited certain aspects of its prior ruling.
UPDATE: Federal District Court Enjoins Biden Administration’s WOTUS Rule in Texas and Idaho | JD Supra
UPDATE: On May 25, 2023, the U.S. Supreme Court overturned the Ninth Circuit, and ruled in Sackett v. EPA that the Environmental Protection Agency and Army Corps of Engineers incorrectly designated a portion of the Sacketts’ property as waters of the United States and that the Sacketts should have been permitted to backfill the property without facing penalties under the Clean Water Act.
U.S. Supreme Court Limits Federal Jurisdiction Over Wetlands | JD Supra
In a 5-4 decision issued on May 25, 2023, the U.S. Supreme Court narrowed the applicability of federal Clean Water Act regulatory authority over wetlands that have a relatively permanent connection to other federal waters. The crux of the Court’s holding in Sackett v. EPA is that, in order to be considered waters of the United States (WOTUS), wetlands and other water features must be “indistinguishable” from traditional navigable waters due to a continuous surface connection.
U.S. Supreme Court Limits Federal Jurisdiction Over Wetlands
In a 5-4 decision issued on May 25, 2023, the U.S. Supreme Court narrowed the applicability of federal Clean Water Act regulatory authority over wetlands that have a relatively permanent connection to other federal waters. The crux of the Court's holding in Sackett v. EPA is that, in order to be considered waters of the United States (WOTUS), wetlands and other water features must be "indistinguishable" from traditional navigable waters due to a continuous surface connection.
Ninth Circuit Rules Service Improperly Designated Occupied, Unoccupied Critical Habitat For Jaguar
On May 17, 2023, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) issued its decision in Center for Biological Diversity v. U.S. Fish and Wildlife Service (Case No. 20-15654), a case in which a mining company challenged the U.S. Fish and Wildlife Service's (Service) designation of certain areas in southern Arizona as critical habitat for the jaguar (Panthera onca) under the Endangered Species Act (ESA).
Federal Court Enjoins Biden Administration’s WOTUS Rule in 24 States (UPDATED) | JD Supra
UPDATE: On May 25, 2023, the U.S. Supreme Court overturned the Ninth Circuit, and ruled in Sackett v. EPA that the Environmental Protection Agency and Army Corps of Engineers incorrectly designated a portion of the Sacketts’ property as waters of the United States and that the Sacketts should have been permitted to backfill the property without facing penalties under the Clean Water Act.
Ninth Circuit Rules Service Improperly Designated Occupied, Unoccupied Critical Habitat for Jaguar | JD Supra
On May 17, 2023, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) issued its decision in Center for Biological Diversity v. U.S. Fish and Wildlife Service (Case No. 20-15654), a case in which a mining company challenged the U.S. Fish and Wildlife Service’s (Service) designation of certain areas in southern Arizona as critical habitat for the jaguar (Panthera onca) under the Endangered Species Act (ESA).
UPDATE: Federal District Court Enjoins Biden Administration’s WOTUS Rule in Texas and Idaho | JD Supra
UPDATE: On May 17, 2023, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers appealed the district court ruling in Texas v. EPA to the U.S. Court of Appeals for the Fifth Circuit. This appeal would only affect the Biden Administration’s WOTUS rule as it applies to Texas and Idaho (not the additional 24 states where the rule has been enjoined). As a reminder, a U.S. Supreme Court decision in Sackett v. EPA is expected in the coming weeks.
Federal Court Enjoins Biden Administration’s WOTUS Rule in 24 States | JD Supra
On April 12, 2023, the U.S. District Court for the District of North Dakota issued a preliminary injunction blocking the Biden administration’s Waters of the United States (WOTUS) rule in twenty-four states (the case is West Virginia v. EPA, Case No. 3:23-cv-00032-DLH-ARS).
Federal District Court Enjoins Biden Administration’s WOTUS Rule in Texas and Idaho (UPDATED) | JD Supra
UPDATE: On April 6, 2023, in an expected move, President Biden vetoed the Congressional Review Act joint-resolution that attempted to undo his administration’s WOTUS rule.
Service Lists Bracted Twistflower as Threatened Species and Designates Critical Habitat | JD Supra
On April 11, 2023, the U.S. Fish and Wildlife Service (Service) issued a final rule listing the bracted twistflower (Streptanthus bracteatus), a wildflower native to Texas, as threatened with a rule issued under section 4(d) of the Endangered Species Act (ESA). The Service also finalized a critical habitat designation for the species spanning approximately 1,596 acres in the Texas counties of Uvalde, Medina, Bexar, and Travis.
Federal District Court Enjoins Biden Administration’s WOTUS Rule in Texas and Idaho | JD Supra
On March 19, 2023, the U.S. District Court for the Southern District of Texas issued a preliminary injunction to temporarily halt the enactment of the Biden administration’s new waters of the United States (WOTUS) rule within the borders of Texas and Idaho. (The case is Texas v. EPA, Case No. 3:23-cv-00017). In addition to the two state plaintiffs, eighteen national trade organizations asked the court to enjoin the rule across the nation.
Court Holds Reasonable Use Finding Not Required for Wastewater Discharge Permits | JD Supra
In Los Angeles Waterkeeper v. State Water Resources Control Board, the Second District of the California Court of Appeal considered whether the State and Regional Water Boards have an obligation under California Constitution, the California Water Code and/or the California Environmental Quality Act (CEQA) to review wastewater discharge permits prior to granting approval of the permits.
Service Proposes Listing Two Populations of California Spotted Owl Under ESA | JD Supra
On February 23, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to list two distinct population segments (DPSs) of the California spotted owl (Strix occidentalis) as endangered and threatened species under the Endangered Species Act (ESA). The two DPSs are the Coastal-Southern California DPS, which the Service proposes to list as endangered, and the Sierra Nevada DPS, which the Service proposes to list as threatened with a rule issued under section 4(d) of the ESA (4(d) rule).
U.S. Fish and Wildlife Service Proposes Revised Critical Habitat for the Sickle Darter | JD Supra
On January 24, 2023, the U.S. Fish and Wildlife Service (Service) proposed to designate approximately 104 river miles as critical habitat for the sickle darter (Percina williamsi) under the Endangered Species Act (ESA).
U.S. EPA, Army Corps of Engineers Update WOTUS Rule, Reinstate Pre-2015 Definition (UPDATED) | JD Supra
UPDATE: On January 18, the Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) published their final rule on “Waters of the United States” (WOTUS) in the Federal Register. The rule will become effective on March 20, 2023. The statutory authority for the final rule comes from the Clean Water Act (CWA) – the CWA gives the federal government jurisdiction over some of the nation’s surface water features.
U.S. EPA, Army Corps of Engineers Update WOTUS Rule, Reinstate Pre-2015 Definition | JD Supra
On December 30, 2022, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (the Agencies) released the pre-publication version of their final rule defining “waters of the United States” (WOTUS). The new rule, which will become effective 60 days after publication in the Federal Register, attempts to clarify which bodies of water, wetlands and waterways are protected under the federal Clean Water Act (CWA).
UPDATE: House and Senate Pass Nearly $38 Billion in Funding for Water Projects as Part of National Defense Authorization Act | JD Supra
On December 6, 2022, the U.S. House of Representatives passed the National Defense Authorization Act (NDAA) by a bipartisan vote of 350-80. The NDAA includes the Water Resources Development Act (WRDA) of 2022, which includes nearly $38 billion in funding for the Army Corps of Engineers (Corps). (The text of the WRDA begins on page 3160 of the NDAA.) The WRDA is biennial legislation that provides the Corps with funding to address navigation, flood control, and ecosystem restoration.
House Passes Nearly $38 Billion in Funding for Water Projects as Part of National Defense Authorization Act | JD Supra
On December 6, 2022, the U.S. House of Representatives passed the National Defense Authorization Act (NDAA) by a bipartisan vote of 350-80. The NDAA includes the Water Resources Development Act (WRDA) of 2022, which includes nearly $38 billion in funding for the Army Corps of Engineers (Corps). (The text of the WRDA begins on page 3160 of the NDAA.) The WRDA is biennial legislation that provides the Corps with funding to address navigation, flood control, and ecosystem restoration.
U.S. Fish and Wildlife Service Proposes Revised Critical Habitat for Fisher DPS | JD Supra
On November 7, 2022, the U.S. Fish and Wildlife Service (Service) proposed to designate approximately 595,495 acres of critical habitat for the Southern Sierra Nevada distinct population segment (DPS) of fisher (Pekania pennanti) under the Endangered Species Act (ESA). The critical habitat designation would span six units in California’s Tuolumne, Mariposa, Madera, Fresno, and Tulare Counties.
Bureau of Reclamation and Local Water Agency Have Discretion to Release Water from Dam to Avoid Take of Endangered Steelhead Trout | JD Supra
Reversing the district court, a divided panel of the Ninth Circuit held that that the Bureau of Reclamation and a local water agency have discretion to release water from Twitchell Dam on the Santa Maria River on the Central Coast of California to comply with the federal Endangered Species Act. San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation Dist. (Ninth Cir. No. 21-55479, Sept. 23, 2022).
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