Sadly, I think that, in a post-SWANCC and post-Rapanos world, the 9th Circuit was correct on all points. The sad reality is that neither EPA's nor the Corps' regulations assert jurisdiction over ponds based merely on their adjacency to other "navigable waters." The regulations do this with regard to wetlands, but not ponds. Also, nothing in the Clean Water Act mandates that these adjacent ponds be covered absent a regulatory assertion of jurisdiction. Kennedy's opinion in Rapanos stands for the proposition that EPA and the Corps may lawfully assert jurisdiction over any waters with a "significant nexus" to other covered ...{Continue reading}
Posted by
Craig Johnston | March 16, 2007 1:09 PM
Comments on the review of Exxon Mobil Corp. v. United States Environmental Protection Agency, 217 F.3d 1246 (9th Cir. 2000)
Thank you for this detailed case summary. I represented Petitioners NEDC, NSIA and PEER. BPA has requested an extension of time to consider whether it will ask for rehearing and/or rehearing en banc. One issue that a potential request for rehearing would focus on is relief. BPA argued in the context of standing that the court did not have the authority to order it to contract with the FPC. In this case, the relief granted is constrained to an order to continue the contract under the same terms and conditions "unless and until" BPA can provide a legitimate basis for ...{Continue reading}
Posted by
Stephanie Parent | March 10, 2007 12:48 PM
Comments on the review of Oregon Natural Resources Council v. Harrell, 52 F.3d 1499 (9th Cir. 1995)
What is the current status of Elk Creek Dam? Was there ever a fish passage plan in the FEIS? If the dam is completed, will fish passage above the dam be permanently blocked? If the dam is currently not functioning but blocking fish passage (threatened coho under ESA), is it not considered 'take' ? Thanks in advance{Continue reading}
Posted by
Anthony | April 24, 2007 8:17 PM
Comments on the review of Defenders of Wildlife v. E.P.A., 450 F.3d 394 (9th Cir 2006)
The Supreme Court has of course granted cert in this case. This could be a very significant opinion under the ESA, though the Court itself specifically posed an additional procedural question -- whether the Court should remand the case to EPA given that the agency took inconsistent positions regarding its duty to consult on the NPDES program transfer to the State of Arizona. If the Court does order a remand, questions about the precise scope of section 7 will remain. If the Court considers the case on the merits, the resulting decision could have a significant impact on the scope ...{Continue reading}
Posted by
Dan Rohlf | March 10, 2007 6:47 PM
Comments on the review of Skranak v. Castaneda, 425 F.3d 1213 (9th Cir. 2005)
Hello, I have a case pending in AZ District court to try to establish access for local residents along existing historic roads recently closed by USDA FS Actions. The Prescott National Forest Supervisor already admitted he was mistaken, that the Record of Decision (ROD) documents purporting to show an access change "can't be fouund", and that the community of Walker was one of the first communities that established roads, prior to the reservation of lands createing the Prescott National Forest. This case is now conducted 'pro se', is similar to Adams v United States (I and II), Fitzgerald v United ...{Continue reading}
Posted by
Marc Delany | June 30, 2007 4:55 PM
About Clear the Air
This section of the site gathers the comments posted for both articles and case reviews into one location. Use the links for each comment listed here to jump to the original article or case review and, while you're there, post a comment of your own.
Posted by Craig Johnston | March 16, 2007 1:09 PM