Registration is now open for Dunn Carney’s 2016 Ag Summit. More information will be posted at dunncarney.com as it becomes available.
The U.S. Fish and Wildlife Service announced earlier today that the greater sage-grouse will not be listed as an endangered species. The Service found, after its review of the best available scientific and commercial information, that (1) the Columbia Basin population does not qualify as a distinct population segment and (2) listing the greater sage-grouse is not warranted at this time. It noted that the primary threats to greater sage-grouse “have been ameliorated by conservation efforts implemented by Federal, State, and private landowners.”
The Service will work with its Federal and State partners to conduct a sage-grouse status review in five years. Before then, all parties involved expect there to be significant litigation regarding this decision. If the administrative record supports the Service’s non-listing decision and the current land management plans, this author does not expect to see significant change as a result of litigation.
If you have any questions, please contact Kate Moore at firstname.lastname@example.org.
There has been much news lately regarding a federal district court decision out of the District of North Dakota granting a preliminary injunction to prevent the EPA and Army Corps’ final “Waters of the United States” rule from taking effect. The preliminary injunction was sought by 13 states (the “States”) to delay implementation of the final rule. The States’ motion argues that the rule “provides sweeping changes to the jurisdictional reach of Clean Water Act… drastically altering the administration of water quality programs implemented by the States, EPA, and the Corps.” The States claim that if the rule were allowed to go into effect, it would irreparably harm their sovereign interests and their state budgets during the pendency of their litigation challenging the rule. The EPA has confirmed that this decision means the states that obtained the preliminary injunction will not be subject to the new rule. On Friday, the federal judge in North Dakota decided the injunction would not be extended nationwide.
In their underlying complaint, the States argued that because the rule defines certain intrastate waters as jurisdictional waters (i.e., subject to regulation under the Clean Water Act), it infringes upon the States as owners and regulators of the waters. The States also alleged, among other things, that the EPA and Corps failed to consult with the States, failed to adequately consider their comments, and exceeded their authority, resulting in an arbitrary and capricious final rule.
One of the considerations when a court grants a preliminary injunction is whether the plaintiff is likely to succeed on the merits of the underlying claim. Thus, in the federal court’s order granting the preliminary injunction, the court concluded that the States are likely to succeed because (1) it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule, by extending jurisdiction to waters that do not have a significant nexus to downstream navigable waters and (2) it appears likely the EPA failed to comply with Administrative Procedures Act requirements when promulgating the Rule, due to its failure to support its decision that certain intermittent waters are jurisdictional with evidence of a significant nexus to navigable waters.
A less-discussed, but also noteworthy, recent Ninth Circuit decision in ONRC Action v. United States Bureau of Reclamation, held that the U.S. Bureau of Reclamation did not need a federal discharge permit when it released water from an irrigation drain into the Klamath River. The water at issue was water flowing into the Klamath River from the Klamath Straits Drain, which is part of the Klamath Irrigation Project operated by the Bureau of Reclamation. The Klamath Straits Drain carries water from Lower Klamath Lake back to the Klamath River, picking up runoff along the way. The Klamath Basin Water Users Association, Oregon Water Resources Congress, and Klamath Drainage District were intervenor-defendants in the case.
ONRC Action filed a citizen suit under the Clean Water Act contending that the Bureau violated the Clean Water Act by discharging pollutants from the Klamath Straits Drain to the Klamath River without a permit. The Act limits the “discharge of pollutants” from any point source to navigable waters. The Court looked to a fairly recent Supreme Court decision, Los Angeles County Flood Control Dist. V. Natural Resources Defense Council, in making its decision. There it was held that pollutants are not added to a water body when water is merely transferred between different portions of that water body, unless the two bodies of water are “meaningfully distinct water bodies.” The Ninth Circuit found that the Klamath Straits Drain is not meaningfully distinct from the Klamath River. The Klamath Straits Drain roughly follows what was historically a natural waterway, and much of the water that flows through the Klamath Straits Drain originated from the Klamath River itself. As such, a permit is not required.
The Clean Water Act jurisdictional questions will continue to appear in the news until the multiple state lawsuits challenging the Waters of the United States final rule are decided, or the rule is revised. While a total of 28 states have filed challenges to the final rule, Oregon and Washington have joined five other states and the District of Columbia in support of the rule. Even once the various states’ litigation is over, it is unlikely whatever rule is settled upon will eliminate all jurisdictional questions from reaching the courts given the fact-specific nature of cases such as the Klamath decision discussed here.
Dunn Carney expands the reach of our annual Ag Summit by hosting our first ever Water Summit on Friday, February 27, 2015 at Hamley Steakhouse in Pendleton, Oregon from 7:30 a.m. to 12:00 p.m. The conference is free to attend and addresses issues vital to Oregon agriculture.
Washington Federal Judge Holds Cow Palace Dairy Liable Under Resource Conservation and Recovery Act For Improper Handling of Manure and Contamination of Groundwater
Federal Judge Tom Rice of the Eastern District of Washington issued a ruling yesterday (January 14, 2015) against a Washington dairy that will likely have nation-wide implications for dairy industry. In his ruling, the court found that one of the largest Yakima Valley dairies, Cow Palace, polluted groundwater through its application, storage and management of manure, causing an “imminent and substantial endangerment” to the environment and human health. This is the first time a federal court has ruled that improperly handled manure constitutes a solid waste to be managed pursuant to the Resource Conservation and Recovery Act (RCRA). The author assumes this decision will likely be appealed.
Court of Appeals Requires More Evidence that Clackamas River Withdrawals Will Not Threaten the Persistence of Listed Fish
On December 31, 2014, the Oregon Court of Appeals issued a decision addressing the “fish persistence standard” designed to protect listed fish species when extensions of permits to divert water for municipal use are granted. This ruling was the result of WaterWatch of Oregon’s challenge of several orders by the Water Resources Department granting the City of Lake Oswego and other municipalities additional time to build structures and divert water from the Clackamas River for municipal use. The court held that the Department’s permit extension orders were not properly conditioned to maintain the persistence of ESA-listed fish species.
The municipal withdrawals and the obligation to meet the fish persistence standard. The City of Lake Oswego, the South Fork Water Board, and the North Clackamas County Water Commission hold water right permits to divert water from the lower section of the Clackamas River for municipal use. State law provides municipalities 20 years from obtaining a water right permit to complete construction of the project. Like many municipalities, only a portion of the water rights granted have been put to use. As a result, the municipalities sought extensions of time to “perfect” the water rights by building structures to divert and use the water. In granting such extensions, the Department is required to condition the “undeveloped portion” of the municipal permits to maintain the persistence of fish species listed as sensitive, threatened or endangered under state or federal law.
The Court’s interpretation of the fish persistence standard focuses on long-term preservation. The court spent some time interpreting the fish persistence standard, concluding that the legislature “focused on the long-term preservation or endurance of fish population health in the affected waterway.” The standard is not intended to “express a policy that no habitat may be impaired or that no individual fish may be allowed to perish or leave.”
The court finds that the Department’s determination that conditions for the extensions will maintain the persistence of listed fish species in affected waterways lacked “substantial evidence and substantial reason.” Although the court found that the Department correctly interpreted the standard, it remanded the final orders to the Department to revisit its fish-persistence findings and conclusions. The court found that the Department “failed to connect the dots between its findings of what is necessary to maintain fish persistence—long-term meeting of persistence flows—with how the conditions ensure that the diversion of the undeveloped portions of the municipal parties’ permits do not contribute to the long-term failure to meet persistence flows.” Ultimately, it is possible that the court would agree to similar conditions, but not without better evidence and explanation from the Department as to why these conditions do not threaten persistence. Although the ultimate resolution of the extension orders is still uncertain, this decision will be helpful to understanding the fish persistence standard in the future.
Implications of the decision. Any time the Department grants a municipal permit extension, the permit holders should expect the Department’s decision to be challenged for failure to explain and support the decision with evidence. As it grants future extensions, the Department is likely to more carefully explain how conditions will protect the long-term persistence of fish. With the standard clarified, this may facilitate the Department’s ability to demonstrate compliance.
The United States Fish and Wildlife Service decided to list the Gunnison sage-grouse as threatened yesterday, November 12, 2014. This listing under the Endangered Species Act is intended to protect the estimated 5,000 Gunnison sage-grouse that remain in southwestern Colorado and southeastern Utah, with approximately 2,200 square miles of critical habitat anticipate to be designated.
This decision precedes the much-anticipated decision regarding listing of the related greater sage-grouse, which has habitat across 11 Western states. The Fish and Wildlife Service has until September 2015 to decide whether to list the greater sage grouse. In its press release, the Service stated, “[t]he decision on the Gunnison sage-grouse in no way predetermines a decision on the greater sage-grouse, which the Service is independently evaluating.”
Additional information, including the final listing and critical habitat rules can be found on the Services web site, here.