Author Archives: Laura Patterson Hoffman

Clean Water Act – Jurisdictional Decisions Are Now in Murky Water

In the wake of the revised definition of “waters of the United States” under the Clean Water Act, the question of jurisdiction has transformed from a boring exercise of intellectual curiosity into an all-out brawl between the United States Circuits.  Before the expected battle over the revised definition itself has even begun in earnest, one… Read More »

Permit Shield Extended to General Permits by Sixth Circuit

In January 2015, the Sixth Circuit held that a defendant’s compliance with the terms of its National Pollutant Discharge Elimination System (“NPDES”) general permit would effectively “shield” that defendant from claims filed under the citizen suit enforcement provisions of the Clean Water Act.  Sierra Club v. ICG Hazard. 

Utah District Court Strikes Down Regulation of Species Under the Endangered Species Act

U.S. District Judge Dee Benson issued a significant ruling in the District of Utah finding that prohibiting the take of Utah prairie dogs on private lands is unconstitutional under the Commerce Clause.  The case is People for the Ethical Treatment of Property Owners v. USFWS, 13-278-DBD, D. Utah and the decision can be found here… Read More »

Public Comment Period on Proposed Listing of Northern Long-Eared Bat Reopened

The U.S. Fish & Wildlife Service has reopened the comment period on its October 2, 2013 proposed rule to list the northern long-eared bat (Myotis septentrionalis) as endangered under the Endangered Species Act.  The original comment period, scheduled to end on December 2, 2013 was previously extended to January 2, 2014.  The reopened comment period… Read More »

Sound Science and the Endangered Species Act: A District Court and the House of Representatives Want Better Science

Decisions to list a species as “threatened” or “endangered” under the Endangered Species Act are to be made “solely on the basis of the best scientific and commercial data available.”  16 U.S.C. 1533(b)(1)(A).  Decisions to list species are governed by the Administrative Procedures Act, in addition to the “best available science” standard of the ESA. … Read More »

Two Texas Juries Award Damages to Homeowners in Fracking Cases

On May 23, 2014, a Texas jury awarded a Tarrant County couple $20,000 in damages after finding that natural gas drilling activities near their property constituted a temporary private nuisance.  The case, Crowder et al. v. Chesapeake Operating, Inc., was initially filed in November 2011 and claimed that the fumes, noise, dust, and truck traffic… Read More »

Changes Proposed to Endangered Species Act

The Obama Administration and the House Natural Resources Committee have each proposed changes to the Endangered Species Act (ESA).  The changes proposed by the House Natural Resources Committee focus on giving additional transparency to the process of listing decisions by making the data used by the agencies publicly available.  Additionally the House Natural Resources Committee’s… Read More »

Oklahoma Sues Fish & Wildlife Service, Kansas Joins

On March 17, 2014, Oklahoma’s Attorney General, Scott Pruitt, filed suit in Tulsa against the U.S. Interior Department and U.S. Fish & Wildlife Service (FWS).  The lawsuit is an important escalation in the fight of states and industry members against federal consent decrees and settlements of Endangered Species Act cases with non-governmental environmental organizations.  The… Read More »

EPA to Finalize Phase II Cooling Water Intake Structure Rule for Existing Facilities by April 17, 2014

The EPA will finalize the cooling water intake rule for existing facilities pursuant to Section 316(b) of the Clean Water Act by April 17, 2014.  The proposed rule will cover approximately 1,260 existing facilities, primarily impacting older facilities that use once-through cooling systems.  Newer facilities employing closed-cycle cooling will not be affected by this rule.

21 States Challenge EPA’s Authority to Set TMDLs for Chesapeake Bay Watershed Under CWA

Attorneys general in twenty-one states, including Texas, Kentucky and West Virginia, filed an amicus brief in the Third Circuit in support of the American Farm Bureau Federations’ challenge to the EPA’s cleanup plan affecting the Chesapeake Bay Watershed.  The states and other groups opposing the plan allege that this plan “marks the beginning of the… Read More »