By Janell M. Bogue

On March 31, 2008, the EPA and the Corps issued a new final rule on compensatory mitigation for impacts to waters of the United States under Section 404 of the Clean Water Act. This final rule was published in the Federal Register on April 10, 2008 at 73 Fed.Reg. 19,593.
Continue Reading Army Corps of Engineers and EPA Issue Final Rule on Compensatory Mitigation

By Cori M. Badgley

Exhaustion of local remedies is a well-known doctrine among those who have attempted to appeal an administrative decision. The doctrine requires that a petitioner appealing a governmental agency’s determination or order must exhaust all of the remedies available through that agency before appealing to the courts. The Court of Appeal, Fourth Appellate District has now made it easier for petitioners appealing a determination of a regional water quality control board (“regional board”) to exhaust their local remedies. In Schutte & Koerting v. Regional Water Quality Control Board, San Diego Region (2007) Cal.App.LEXIS 2146, the appellate court held that anyone appealing the determination or order of a regional board must only request a hearing before the State Water Resources Control Board (“State Board”) in order to exhaust his or her local remedies.
Continue Reading Petitioners Only Run to State Water Resources Control Board Before Exhaustion Kicks In

January 29, 2008

This seminar addresses integrated issues in storm water, wetlands, and associated water quality regulations. Compliance guidance for both the storm water and wetlands programs will be provided while underscoring the relationship between the two programs.

You will hear the latest trends, case studies and policies related to storm water, wetlands and associated water…

By Cori M. Badgley

On January 3, 2008, the Ninth Circuit Court of Appeals in Bering Strait Citizens for Responsible Resource Development v. United States Army Corps of Engineers, No. 07-35506 addressed alleged violations of the Clean Water Act and the National Environmental Policy Act by the United States Army Corps of Engineers. Specifically, the plaintiffs alleged that USACE unlawfully granted a Section 404 permit to the Alaska Gold Company allowing AGC to fill or dredge wetlands and that there were legal deficiencies in the accompanying environmental assessment.
Continue Reading The Gold Rush is Back on in Alaska: Ninth Circuit Upholds USACE Permit Allowing Mining Involving Significant Filling of Wetlands

By Leslie Z. Walker and Janell M. Bogue

Admonishing appellant for 20 years of blatant disregard for the Army Corps of Engineers (“Corps”) and the Clean Water Act (“CWA”), the Ninth Circuit upheld the Idaho district court’s verdict finding appellant criminally liable for violations of the Clean Water Act in U.S. v. Moses (Aug. 3, 2007, No. 06-30379) ___U.S. ___ [2007 U.S.App.LEXIS 18483].
Continue Reading Ninth Circuit Upholds Criminal Penalties for Modification of Intermittent Stream

By Janell M. Bogue and Diane G. Kindermann Henderson

On June 5, 2007, the EPA and the Army Corps of Engineers (“Corps”) jointly issued guidance consistent with the Supreme Court’s decision in Rapanos. This document is entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v. United States (“Guidance”). The issue in Rapanos was whether a wetland or tributary can be defined as a “water of the U.S.” and thus be subject to jurisdiction under the Clean Water Act (“CWA”). Because the Court issued five separate opinions, it was unclear whether certain types of waters were jurisdictional. The guidance document establishes several categories of waters and discusses whether or not the agencies may assert jurisdiction.
Continue Reading EPA and Corps Issue Rapanos Guidance

By Kate J. Hart

In the recent case of San Francisco Baykeeper v. Cargill Salt Division (March 8, 2007) 2007 U.S.App.Lexis 5442, Baykeeper sued Cargill under the citizen suit provision of the Clean Water Act alleging that Cargill unlawfully discharged waste from its salt production operation into the “waters of the United States” without the proper permits. The body of water at issue was a non-navigable, intrastate pond (the “Pond”), which was not a wetland, but that was located adjacent to the Mowry Slough (“Slough”) which is a water of the U.S. Baykeeper never argued that the Pond was a wetland, but instead argued that the Pond’s adjacency to the Slough provided a basis for CWA coverage. There was no evidence that the CWA would otherwise apply. In this case, the Ninth Circuit held that the adjacency of a non-navigable water body to a water of the U.S. does not, by itself, trigger the application of the CWA.
Continue Reading Mere Adjacency STILL Does Not Constitute Clean Water Act Coverage