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Written by Marten Law
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Tuesday, 10 January 2012 10:29 |
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The Third Circuit is the latest federal appeals court to attempt to decipher the U.S. Supreme Court’s Rapanos v. United States[1] decision. Rapanos is the 4:1:4 decision from 2006 – famous in Clean Water Act (“CWA”) circles – in which the Supreme Court announced differing standards for delineating the reach of federal jurisdiction over wetlands and other “isolated waters.” In United States v. Donovan,[2] the Third Circuit, joining two other circuits, holds that a wetland falls within CWA jurisdiction if it satisfies either test announced in the fractured Rapanos decision. Specifically, the court held that a wetland falls within CWA jurisdiction if: (1) Justice Scalia’s plurality test is met – i.e., there is a “continuous surface connection” between a wetland and a water of the United States in its own right, “so that there is no clear demarcation between ‘waters’ and ‘wetlands’”; or (2) Justice Kennedy’s “significant nexus” test is met – i.e., there is “a significant nexus to waters that are or were navigable in fact or that could reasonably be so made” so that, “either alone or in combination with similarly situated lands in the region,” the wetlands “significantly affect the chemical, physical, and biological integrity of the covered waters more readily understood as ‘navigable.’”
Donovan follows on the heels of the U.S. Army Corps of Engineers’ (“Corps”) recently released draft guidance regarding CWA jurisdiction.[3] The draft guidance relies heavily on Justice Kennedy’s concurring opinion in Rapanos, and replaces the Corps’ previous 2008 guidance interpreting CWA jurisdiction under Rapanos. Since recent congressional efforts to clarify the CWA following Rapanos have failed and the Supreme Court appears unwilling to revisit the issue anytime soon, lower court decisions and agency guidance will continue to guide CWA jurisdiction for the foreseeable future.
Statutory Background
The CWA prohibits the unpermitted discharge of pollutants into “navigable waters” from any point source.
Read more at: http://www.martenlaw.com/newsletter/20111206-clean-water-act-jurisdiction |
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Written by BLM Press Release
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Saturday, 07 January 2012 22:30 |
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(Jan 7, 2012) - The Bureau of Land Management (BLM) today published in the Federal Register an Advance Notice of Proposed Rulemaking (ANPR) to give the public background information about the BLM’s interest in establishing an efficient, competitive process for issuing right-of-way (ROW) leases for solar and wind energy development on the public lands. The BLM believes such a process would help ensure fair access to leasing opportunities for renewable energy development and capture fair market value for the use of public lands, as required under the Federal Land Policy and Management Act of 1976. Existing regulations limit the competitive process to procedures for responding to overlapping right-of-way applications. The BLM is seeking input on how best to offer public lands through a nomination and competitive process instead of just by right-of-way application.
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Written by Federal Register
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Saturday, 07 January 2012 22:12 |
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The U.S. Fish and Wildlife Service (Service), announced a 90-day finding on a petition to list Sierra Nevada red fox (Vulpes vulpes necator) as endangered or threatened under the Endangered Species Act of 1973, as amended (Act), and to designate critical habitat. Based on review, they find that the petition presents substantial scientific or commercial information indicating that listing this subspecies may be warranted. The publication of this notice, initiates a review of the status of the subspecies to determine if listing Sierra Nevada red fox is warranted.
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Written by BLM Press Release
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Tuesday, 27 December 2011 20:59 |
The Bureau of Land Management today issued two Instructional Memorandums (IMs) that will help guide both immediate and longer-term conservation actions aimed at conserving the greater sage-grouse and its sagebrush habitat in 10 western states – aimed at benefitting the species while maintaining a robust economy in the West:
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Written by BLM Press Release
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Tuesday, 27 December 2011 20:37 |
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The BLM recently issued guidance on processing land use proposals and permit applications for exploration and site characterization studies for potential subsurface carbon sequestration projects on BLM lands.
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