Presenting a live 90 ‐ minute webinar with interactive Q&A Wetlands Development: p Legal Trends and Challenges Navigating Strict New Federal Guidance, Permitting Requirements and Emerging Case Law TUES DAY, NOVEMBER 29, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Philip G. Mancusi-Ungaro, Attorney-Advisor, United States Environmental Protection Agency Office of Water Legal Support , Atlanta Beverlee E. S ilva, Partner, Alston & Bird , Atlanta The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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WETLANDS UPDATE “ Wetlands Development: Legal Trends and Challenges Navigating Strict New Federal Guidance, Permitting Requirements and Emerging Case Law” Philip G. Mancusi ‐ Ungaro USEPA ‐ Attorney ‐ Advisor 404 ‐ 562 ‐ 9519 Mancusi ‐ Ungaro.Philip@epamail.epa.gov The views expressed in this presentation are those of the author and do not represent the position of the US h d d h i i f h US Environmental Protection Agency
Summary • Rapanos Appellate Update ‐ What is new in the Courts? • Surface Mining Enhanced Coordination Process, National Mining Association litigation challenging mining guidance. • CWA 404(c) Determinations – background and recent litigation. • Sackett Litigation – Are EPA’s Section 309(a) Sackett Litigation Are EPAs Section 309(a) injunctive orders subject to pre ‐ enforcement judicial review? judicial review? 6
Rapanos Update Rapanos Update • Rapanos v United States and Carabell v United Rapanos v. United States and Carabell v. United States 126 S. Ct. 2208 (2006). “Justsurdity” • There is a split in the appellate courts on which There is a split in the appellate courts on which test to use; Kennedy or Scalia or just Kennedy. • No courts have said Scalia only. y • For Practitioners, need to know which Rapanos Test to use to determine jurisdiction. • Still use the 1987 Manual and the three part test to delineate wetlands. 7
Post- Rapanos Legal Challenges Courts of appeal have not taken a consistent position on which test applies : 1 st Ci 1 st Circuit: United States v. Charles Johnson, 467 F.3d 56 (1st Cir. Oct. 31, 2006), petition it U it d St t Ch l J h 467 F 3d 56 (1 t Ci O t 31 2006) titi • for rehearing and rehearing en banc denied Feb. 21, 2007, petition for certiorari denied Oct. 9, 2007 ; Jurisdiction exists if either standard satisfied 3 rd Circuit: United States v David H Donovan appeal from U S Dist Court for the • • 3 Circuit: United States v. David H. Donovan, appeal from U.S. Dist. Court for the District of Delaware (D.C. Civil No. 1 ‐ 96 ‐ cv ‐ 00484, 1996). On October 31, 2011, affirming the District Court's grant of summary judgment in favor of the United States, the 3rd Circuit joined the 1st Circuit and the 8th circuits in holding that a wetland is subject to the CWA if it meets either Justice Scalia’s or Justice Kennedy's test. 4 th Circuit: no current appellate interpretation ‐ Precon Development Corporation, • Incorporated v. United States Army Corps of Engineers, 633 F.3d 278 (4 th Cir. Jan. 25, 2011); The parties had agreed that Kennedy's test was controlling in this case, so the court does not address the plurality standard or indicate what test or tests it might court does not address the plurality standard or indicate what test or tests it might apply in subsequent cases. Case remanded back to COE for further significant nexus analysis. 8
Post ‐ Rapanos Legal Challenges Cont’d Post Rapanos Legal Challenges Cont d 5 th Circuit: United States v. Robert J. Lucas, Jr., 516 F.3d 316 (5 th Cir. Feb. 1, 2008), • petition for certiorari denied Oct 15 2008 Upheld defendants’ CWA convictions petition for certiorari denied Oct. 15, 2008 ; Upheld defendants’ CWA convictions concluding government presented evidence at trial that satisfied all three Rapanos standards (plurality, concurring, and dissent). 6 th Circuit: United States v. George Rudy Cundiff, 555 F.3d 200 (6 th Cir. Feb. 4, 2009), h h • petition for certiorari denied October 5, 2009 ; Upheld district court’s finding of liability finding government satisfied both Kennedy standard and plurality standard. 7 th Circuit: United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. Sept. 22, 2006), • petition for rehearing and rehearing en banc denied Dec. 1, 2006, petition for certiorari denied Oct. 1, 2007 ; Kennedy standard applies in most cases. 8 th Circuit: United States v. Gary Bailey, 571 F.3d 791 (8 th Cir. July 9, 2009); The appellate • court found that the United States is entitled to demonstrate CWA jurisdiction under either of the Rapanos standards and found that in this case, Justice Kennedy’ s standard was satisfied. 9
Post ‐ Rapanos Legal Challenges Cont’d Post Rapanos Legal Challenges Cont d 9 th Circuit: Northern California River Watch v. Carl Wilcox, 633 F.3d • 766 (9th Ci A 766 (9th Cir. Aug. 25, 2010, amended Jan. 26, 2011); In this 25 2010 d d J 26 2011) I thi Endangered Species Act case, the Ninth Circuit had initially found that Justice Kennedy’s concurrence was the controlling rule of law. The United States then filed an amicus brief requesting that the q g court revise its decision to indicate that although the Kennedy test provided the rule of law in this case, it did not preclude the use of the plurality in other cases. On January 26, 2011 the court issued an amended decision consistent with this position an amended decision consistent with this position. 11 th Circuit: United States v. McWane, 505 F.3d 1208 (11th Cir. Oct. • 24, 2007)petition for rehearing en banc denied, 521 F.3d 1319 (Mar. , )p g , ( 27, 2008), petition for certiorari denied Dec. 1, 2008 – Kennedy’s significant nexus standard is the controlling rule of law. Remanded to District Court – Judge called it: “Justsurdity” 10
Litigation over Guidance d National Mining Association (NMA), et al. v. Jackson, et al. (D.C. Cir. Civil Action No. 10 ‐ Jackson, et al. (D.C. Cir. Civil Action No. 10 1220, 2010) 11
National Mining Association (NMA), et al. v. Jackson, et al. l k l • EPA jointly issued the Enhanced Coordination Procedure and Interim Detailed Guidance with the Army COE. It set out a process for coordinating review of a Guidance with the Army COE It set out a process for coordinating review of a series of mining permits under existing CWA regulations. • On July 20, 2010, the NMA sued EPA and other federal agencies challenging the ECP and Interim Detailed Guidance as improper rulemaking without notice and ECP and Interim Detailed Guidance as improper rulemaking without notice and comment. Four additional cases were transferred from other courts in West Virginia and Kentucky to the DC Cir. and consolidated with the NMA case. • On 11/6/2011, in the consolidated cases, the District Court granted NMA s Motion On 11/6/2011 in the consolidated cases the District Court granted NMA’s Motion for Summary Judgment while denying the U.S. Motion for summary judgment. • In the decision, the court ordered: "The MCIR Assessment and the E[nhanced] C[oordination] Process, as unlawful agency actions, are hereby set aside." [ ] , g y , y • The original complaint also challenged the Interim Detailed Guidance which implemented the ECP. That part of the case is still pending. There has been no decision on whether to appeal. • 12
Litigation Update Litigation Update Clean Water Act Section 404(c) Determinations 13
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