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Showing 10 posts in Wetlands.

In a decision issued today in Pa. Independent Oil & Gas Assoc. v. Commonwealth, No. 321 M.D. 2015, a seven-member panel of the Pennsylvania Commonwealth Court held that Section 3215(c) of Act 13, the Pennsylvania Oil and Gas Act, remains enforceable despite the Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013).  Section 3215(c) provides that when making a determination on a proposed oil and gas well, DEP “shall consider” the impact of the proposed well on public resources, including parks, rivers, landmarks, historic sites, flora and fauna habitat, and public drinking water sources.  Read More »

Last week, the United States Court of Appeals for the Third Circuit struck down challenges by environmental organizations to the Federal Energy Regulatory Commission’s (FERC) approval of an expansion of the Transcontinental pipeline, a 10,000-mile pipeline that extends from South Texas to New York City and is operated by Transcontinental Gas Pipe Line Company, LLC (“Transco”).  In doing so, however, the Court held that the environmental organizations had properly invoked a provision of the federal Natural Gas Act to challenge water quality-related permits issued by the states of Pennsylvania and New Jersey.  Thus, the decision, Delaware Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl. Prot, No. 15-2122 (3d Cir. August 8, 2016), provides that the Court of Appeals has exclusive jurisdiction over challenges to permits issued to an interstate natural gas facility to certify compliance with State water quality standards promulgated under federal supervision, as well as with federally-established Clean Water Act requirements.   Read More »

Last week, the United States Supreme Court held that federal courts can review the Army Corps of Engineers’ determinations that a landowner’s property contains “waters of the United States” and is therefore subject to the Clean Water Act’s regulations and permitting process.  Remarkably, the decision was unanimous in affirming the Eighth Circuit’s decision that such determinations are considered final agency actions under the Administrative Procedures Act and are therefore reviewable by the courts.  The majority opinion in the case, United States Army Corps of Eng'rs v. Hawkes Co., No. 15-290 (U.S. May 31, 2016), was authored by Chief Justice Roberts while Justices Kennedy, Kagan, and Ginsberg each authored separate concurring opinions.   Read More »

Relying on the United States Constitution’s Fourth Amendment protection against unreasonable search and seizure, yesterday the New Jersey Supreme Court , inNJDEP v. Huber, ___ N.J. ____ (Apr. 4, 2013), held that the New Jersey Department of Environmental Protection (“NJDEP”) does not have an unfettered right to inspect residential property in order to ensure compliance or determine violations of the Freshwater Wetlands Protection Act, even when the property in question is subject to an FWPA permit. Read More »

The U.S. District Court for the Middle District of Louisiana recently ruled that an U.S. Army Corps of Engineers’ approved jurisdictional determination finding wetlands subject to the Clean Water Act (CWA) is not a final agency action within the meaning of the Administrative Procedure Act (APA). The court further held that its holding was not impacted by the U.S. Supreme Court’s recent decision in Sackett v. EPA. Read More »

In a unanimous opinion that probably surprises no one, today the United States Supreme Court ruled in Sackett v. EPA, No. 10-1062 (Mar. 31, 2012), that Administrative Compliance Orders are final agency orders which are subject to the Administrative Procedures Act and thus can be appealed even in the absence of an enforcement action by the EPA. Read More »

We don’t just write, we speak too!  I’m going to be leading a breakfast roundtable discussion on March 6 as part of ICSC’s University of Shopping Centers.  More details are here and please stop by! Read More »

In a pair of December cases, the National Association of Home Builders (“NAHB”) has found itself without standing to challenge determinations made by the EPA and the Army Corps of Engineers with respect to whether certain “waters” fall within the agencies’ regulatory powers under the Clean Water Act (“CWA”).   Read More »

Since the Supreme Court issued its splintered 4-1-4 decision in Rapanos v. United States, 547 U.S. 715 (2006), district and circuit courts have grappled with how to define “wetlands” for purposes of application of the Clean Water Act.  Whether adding to the confusion or bringing clarity to the subject, the Third Circuit for the first time has weighed in on the issue in United States v. Donovan, U.S. Court of Appeals for the Third Circuit, No. 10-4295 (3rd Cir., October 31, 2011) (J. Rendell).  Donovan a land owner, defended an enforcement action on the basis that  the Clean Water Act did not apply to his actions in filling part of his property and that the Army Corps lacked jurisdiction because the wetlands at issue were not adjacent to navigable-in-fact waters.  The Third Circuit disagreed.  While Donovan may be disappointed by this decision (after litigating the issues for 15 years), the case has much more far-reaching ramifications. Read More »

On September 23, the Petitioners filed their opening brief  in the case of Sackett v. Environmental Protection Agency (10-1062), one of two environmental cases on the United States Supreme Court’s docket for the upcoming term.  Read More »