Thursday, March 29, 2012

Petition Filed to List Gray Wolf under California Endangered Species Act

On March 12, 2012, the California Fish and Game Commission received a petition to list the gray wolf as endangered under the California Endangered Species Act. A copy of the petition may be found here. The petition, filed by the Center for Biological Diversity, Big Wildlife, the Environmental Protection Information Center, and the Klamath Siskiyou Wildlands Center, states:
The gray wolf is not currently listed as an endangered or threatened species under the California Endangered Species Act. The gray wolf is also absent from the California list of game animals. (See CA §250–479). As a result, the gray wolf does not fall under any regulatory scheme within the state, despite being a species that is native to California. Given the possibility that gray wolves are already naturally dispersing to California and have a high potential to do so in the near future, the California Department of Fish & Game must address this anomaly by listing the gray wolf as an endangered species and develop a management scheme for the protection of the gray wolf. Such an action would be consistent with the approach taken by the States of Oregon and Washington, both of which listed the gray wolf at a time when no individuals were presently located within their respective State boundaries.
For more information regarding this matter, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.

Property Owners Entitled to Judicial Review of EPA Compliance Orders

Last week, in a closely-watched Clean Water Act case, the United States Supreme Court unanimously upheld the rights of property owners to obtain judicial review of a compliance order issued by the Environmental Protection Agency (EPA). The Court's opinion may be found here.

The decision arises out of an order issued by the EPA under Section 309 of the Clean Water Act. The order declared that property owned by Mike and Chantell Sackett of Priest Lake, Idaho, contained wetlands adjacent to Priest Lake. The order found that the Sacketts violated the Clean Water Act by discharging fill material into wetlands, a violation of Sections 301 and 502(12) of the Act, and directed the Sacketts to restore their property as directed by the EPA and to allow EPA access to the property and documentation regarding the site. Failure to comply with the order exposed the Sacketts to civil penalties of up to $75,000 per day for as long as the violation continues.

The issue resolved by the Court involves the Sacketts' efforts to obtain judicial review of the compliance order. After the EPA denied their request for a hearing, the Sacketts sued in federal district court in Idaho, which dismissed their complaint for lack of subject matter justice. That dismissal was subsequently upheld by the Ninth Circuit Court of Appeals, which held that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process. The Ninth Circuit's opinion may be found here. Absent judicial review, the Sacketts were faced with the prospect of complying with an order at a cost greater than the value of their property. Alternatively, they could ignore the order and risk a civil action by the EPA, with civil penalties that grew with each passing day of alleged violation.

In reversing the Ninth Circuit, the Court held that EPA's compliance order satisfied the requirements for final agency action for which there is no adequate remedy, other than review under the Administrative Procedure Act, and that nothing in the Clean Water Act precluded judicial review. Concluding the opinion of the Court, Justice Scalia explained:
The APA’s presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all. And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.
But perhaps the most interesting commentary in the decision is found in Justice Alito's concurring opinion, where he commented:
The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.
The practical effect of the Court's ruling is that the Sacketts, and others who may find themselves in the "unthinkable" predicament described by Justice Alito, will have their day in court. They will certainly be permitted to challenge EPA's claim of regulatory authority over their property. It is less clear whether, at the pre-enforcement stage, they will also be able to challenge the terms and conditions of the compliance order, as Justice Ginsburg explains in her concurring opinion.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Friday, March 16, 2012

State Senate Committee Holds Informational Hearing On Delta Plan and Bay-Delta Conservation Plan

The State Senate’s Committee on Natural Resources and Water held an informational hearing regarding the Delta Plan and Bay-Delta Conservation Plan on March 13, 2012. A video of the hearing, along with related written materials, is available here.

The Delta Plan is a mandate of SBX7-1 of California's landmark 2009 water legislation, which requires that the Delta Stewardship Council develop, adopt and carry out a comprehensive long-term management plan for the Delta. The Delta Plan must include measures that promote: (1) viable populations of aquatic and terrestrial species; (2) functional corridors for migratory species; (3) diverse habitats; (4) reduced threats; (5) more reliable water supplies; (6) improved water quality; and (7) the economic vitality of the State. It must also include recommendations promoting statewide water conservation, options for new and improved infrastructure relating to water conveyance in the Delta, and in-Delta disaster and risk reduction considerations. The most recent version of the Delta Plan is the Fifth Staff Draft, which is available here. The Sixth Staff Draft of the Delta Plan is scheduled to be released in mid to late April. The draft Environmental Impact Report for the Delta Plan is available here.

The Bay-Delta Conservation Plan is a conservation plan for the Sacramento-San Joaquin River Delta, and is being developed pursuant to the federal Endangered Species Act and California Natural Communities Conservation Planning Act. The BDCP is intended to help meet California’s co-equal goals for Delta management: water supply reliability and ecosystem restoration.  The public draft BDCP will include a set of actions to redesign and re-operate state and federal water projects in the Delta; restore native fish, wildlife, and plant habitat; and address other ecological stressors in the Delta such as invasive plant species, barriers to fish migration, and predation of native fish. As a conservation plan, the BDCP is subject to environmental review under the California Environmental Quality Act and National Environmental Policy Act. A preliminary draft of the Bay-Delta Conservation Plan, including those portions recently released on February 29, 2012, is available here. A preliminary draft of the Environmental Impact Report/Environmental Impact Statement for the BDCP, including those portions recently released on February 29, 2012, is available here.

For more information regarding this matter, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.