News & Updates
Conference of Western Attorneys General
September 20, 2023
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WATERS OF THE UNITED STATES |
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What Are Navigable Waters? |
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§ Final rule (September 8, 2023) revising the definition following Sackett v EPA on (May 25, 2023). Meaning of these five words has been subject of ample regulatory and judicial interpretation over the past five decades. In Sackett, the Court held that the Clean Water Act extends federal protection to only those waters that are described “in ordinary parlance” as “streams, oceans, rivers, and lakes,” and to wetlands only if those wetlands have “continuous surface connection” to such waters “making it difficult to determine where the water begins and where the wetland begins.”
§ Following Sackett, the Agencies were tasked to conform the January 2023 WOTUS definition—which included both the “significant nexus standard” and “relatively permanent standard”—to the Supreme Court’s holding.
§ To confirm the current WOTUS definition to the SCOTUS holding, the agency removed the significant nexus standard for tributaries, adjacent wetlands, and “additional waters”:
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o removed “interstate wetlands” from the text of the interstate waters provision.
o removed “wetlands” and “streams” from the “additional waters” provision.
o revised the definition of “adjacent” to mean “having a continuous surface connection; and
o deleted the definition of “significantly affect.”
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ENDANGERED SPECIES ACT (ESA) |
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The funding of the Endangered Species Act
Fifty years after the Endangered Species Act (ESA) was passed, funding issues remain. Since these species are not as well known to the public as some carnivores or predatory birds. According to the report, the agency spent $80 million less in fiscal 2019 than it did the previous year. The service has not updated its threatened and endangered species expenditure report since 2020. More than 100 species received less than $10,000 according to the report. In 1973, the ESA was signed, which was hailed as the “most comprehensive legislation for the preservation of endangered species enacted by any nation.” The act provided a framework for conservation and management strategies for threatened and endangered species. The act has been paramount in keeping thousands of species from going extinct.
The act establishes protections for fish, wildlife, and plants that are listed as threatened or endangered. It allows for the development and implementation of management plans, research, and protection and restoration of habitat. It relies on interagency support including state-level agencies though a vast majority of funding comes from federal resources handed down each year from Congress.
In July the agency earmarked $5.1 million for at-risk species including freshwater mussels, desert fish, butterflies, and plants in Hawaii and the Pacific Islands, which were included in the proposed Extinction Prevention Act. The legislation originally asked for $5 million for each of the four groups annually. The funding, from the Inflation Reduction Act, will be used to fund conservation projects related to restoration, management, conservation, and education. Despite the ESA's overwhelming success, politicians have aimed to cut funding. The law has been criticized for placing restrictions on industries such as logging, mining, and oil and gas development.
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Endangered Species Rule to Face Legal Challenges from All Sides
The recent endangered species rules are vulnerable to court challenges by both environmentalists and industry groups because the proposals keep some old provisions while providing safeguards. The US Fish and Wildlife Service and the National Marine Fisheries Service are expected to finalize three proposed rules published in June that would implement the Endangered Species Act. They include an update to the agencies’ 2019 Endangered Species Act regulations, a rule governing the designation of critical habitat for endangered species, and a rule for interagency cooperation on endangered species.
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Landmark Legal Settlement Locks in EPA Actions to Protect Endangered Species from Pesticides
A historic legal agreement approved in federal district court commits the Environmental Protection Agency to a suite of proposed reforms to better protect endangered species from pesticides. The settlement, which covers more than 300 pesticide-active ingredients, marks the culmination of the largest Endangered Species Act case ever filed against the EPA. Under the agreement’s terms, the EPA will develop strategies to reduce the harm to endangered species from broad groups of pesticides, including herbicides and insecticides, while taking further steps to target meaningful, on-the-ground protections to endangered species most vulnerable to harm from pesticides. These measures to reduce pesticide harm will benefit endangered species and humans alike, as these chemicals are linked to severe health harm in farmworkers and rural communities. The legal agreement requires the EPA to develop a strategy to better protect endangered species from herbicides by 2024 and insecticides by 2025.
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Attorney General Bonta Announces Lawsuit Against Oil and Gas Companies for Misleading Public About Climate Change
California Attorney General Rob Bonta joined by the California Governor, announced the filing of a lawsuit against five of the largest oil and gas companies in the world for allegedly engaging in a decades long campaign of deception and creating statewide climate change related harms in California. Filed in San Francisco County Superior Court, the complaint asserts that although the companies have known since at least the 1960s that the burning of fossil fuels would warm the planet and change our climate, they denied or downplayed climate change in public statements and marketing. As detailed in the complaint, California has spent tens of billions of dollars to adapt to climate change and address the damages climate change has caused so far, and the state will need to spend multiples of that in the years to come. Attorney General Bonta, on behalf of the people of California, is seeking nuisance abatement through the creation of a fund to finance climate mitigation and adaptation efforts; injunctive relief to both protect California’s natural resources from pollution, impairment, and destruction as well as to prevent the companies from making any further false or misleading statements about the contribution of fossil fuel combustion to climate change; damages; and penalties.
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The Clean Water Act and pre-Sackett WOTUS rule
The EPA and the Corps of Engineers are going to apply their tenth, post-Sackett, attempt to define the Waters of the United States only in the states and territories that aren't subject to injunctions in the cases that challenged the EPA's ninth attempt. In the 27 states where the ninth attempt wasn't enjoined, the EPA and the Corps are going to apply the "pre-2015 regulatory regime." The Clean Water Act had a much broader reach under that "pre-2015 regulatory regime" than it does under EPA's post-Sackett definition of Waters of the United States. The EPA and the Corps are going to implement that "pre-2015 regulatory regime" "consistent with Sackett. What is certain is more litigation and more confusion for the foreseeable future as the longest-running controversy in environmental law continues.
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Interior Department Takes Steps To Protect Sacred, Sensitive Lands in New Mexico
The Department of the Interior announced a proposal by the Bureau of Land Management to protect more than 4,000 acres within the Placitas area in Sandoval County, New Mexico, to safeguard sacred Tribal lands, boost important local recreation opportunities, and support wildlife habitat connectivity. The proposed mineral withdrawal would prevent new mining claims and oil and gas development in the area for a 50-year period, subject to valid and existing rights. The Pueblos of San Felipe and Santa Ana have long sought protections for the Placitas area, which they consider ancestral and sacred lands. The site, located near the Albuquerque metro area, also provides close-to-home outdoor recreation opportunities and is popular for hiking, camping, sightseeing, and hunting. The proposal would help protect, preserve, and promote the scenic integrity, cultural importance, recreational values, and wildlife habitat connectivity within the Placitas area.
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California was entitled to a preliminary injunction enjoining an officer of tribal cigarette manufacturing corporation from completing or causing to be completed any delivery of packages containing cigarettes on behalf of the tribal corporation to anyone in California in violation of section 376a(e)(2)(A) of the Prevent All Cigarette Trafficking (PACT) Act, which prohibits the delivery of cigarettes to persons on the PACT Act’s noncompliant list.
Three Indian Tribes successfully sought a ruling that the Lummi Nation’s treaty right to fish at “usual and accustomed fishing places,” as defined in a 1974 decree, did not extend to waters east of Whidbey Island in the Puget Sound.
Colorado statute requiring Department of Human Services to exercise “due diligence” in determining whether a child is an “Indian child” under the Indian Child Welfare Act (ICWA) did not impose a duty in every instance to notify tribes or inquire of all extended family members.
Whether initially taken into custody by social worker or peace officer, with or without a warrant, once a child is receivedand maintained in
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temporary custody by a social worker, California statutes require the county welfare department to inquire of extended family members whether the child is an “Indian child.”
Congress had authority to criminalize the conduct of Indians within Indian country.
In order to protect senior tribal reserved water rights and endangered species needs, U.S, Bureau of Reclamation was entitled to injunction enjoining irrigation district, which held 1943 contract with Bureau for delivery of water from Bureau projects, from diverting water under the district’s independently-acquired state water right with 1977 priority date.
When a waiver of sovereign immunity in a gaming compact precluded suit until expiration of a one-year period to resolve the matter between the Tribe, the patron, and the insurance carrier, and the first complaint naming the Tribe was filed within the one year period, the filing of a second amended complaint after the one-year period did not necessarily bring the lawsuit within the terms of the waiver.
While trial court erred in making
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findings under state law that it was in the “best interests” of an Indian child to terminate parental rights, in addition to the required funding under the Indian Child Welfare Act that “continued custody of the child by the parent of Indian custodian is likely to result in serious emotional or physical damage to the child,” such error was not reversible because it did not prevent the father from properly presenting his case to the court.
Claim against tribal police chief for injuries caused during high-speed pursuit outside the reservation pursuant to law enforcement assistance agreement with the county sheriff was cognizable under the Federal Tort Claims Act, but summary judgment was granted to the U.S. because the injured party was contributorily negligent to the degree that he was barred from recovery.
The United States granted dismissal of claim made under Federal Torts Claims Act alleging that the tribal officer working pursuant to a contract entered under section 638 of the Indian Self-Determination and Education Assistance Act of 1975 caused deaths of three of plaintiffs’ family members because claims were not properly presented to the Tort Practice Branch due to plaintiffs’ failure to provide evidence that they had authority to present claims on behalf of the deceased family members as agent, executor, administrator, parent, guardian, or other representative.
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All summaries are posted in CWAG's Google Docs account, accessible through the link below. Should you have any issues with the links, contact Patricia Salazar at [email protected] with questions.
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Conference of Western Attorneys General
5050 Laguna Blvd | Suite 112-323 | Elk Grove, California 95758
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