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Wetlands in
the News and Courts
Los Angeles River Declared
Navigable
On July 7, 2010, the EPA
ruled that Los Angeles River is a traditional navigable
water, thus affording it greater protection under the Clean
Water Act (see
New York Times
article). For an interesting story on a Corps
biologist who helped pursue this decision only to lose her
job read "A
gamble on the river pays off" (Los Angeles
Times).
Judicial Review of
Compliance Orders
The 9th Circuit
recently ruled that the
Clean Water Act precludes judicial review of an
administrative compliance order issued by the EPA before the
EPA has begun enforcement proceedings in a federal court.
Rapanos Jurisdiction
A federal district court in
Maryland
ruled in September that the
Corps of Engineers can use either the significant nexus test
or the “relatively continuous flow” test from the Rapanos
decision when seeking Clean Water Act enforcement over fills
in jurisdictional wetlands.
Regulatory Developments
Virginia Aquatic Resource
Trust Fund
Corps
announces extension of time
to pay past VARTF determinations until January 10, 2011.
This extension modifies the Corps’ prior announcement that
The Nature Conservancy would now be the party responsible
for determining the amount of any in-lieu fee contributions
to the Trust Fund. See the
McGuireWoods LLP legal alert
for a discussion of this new policy.
Mountaintop Mining
On June 18th, the Corp
announced in the Federal
Register that it was suspending NWP 21 in the Appalachian
region, meaning that all permits for the controversial
“valley fill” practice will be handled as individual permits
and subject to greater permitting analysis, including NEPA
analysis. As part of the anticipated NEPA analysis that will
begin taking place, the Corps has also issued a
public notice of its intent
to amend its NEPA implementation procedures to expand the
scope of review for permits for valley fills.
Corps creates New
Enforcement and Compliance Section
On September 30, the Norfolk
District
announced the creation of a
new enforcement and compliance section which creates a
distinct enforcement section to perform enforcement and
compliance tasks that had previously been performed as part
of the permit writing section.
VWP Program Overview
The Virginia Department of
Environmental Quality released its
VWP Permit Program Overview
in August 2010. The report summarizes the DEQ’s permitting,
compliance and mitigation activities between July 1, 2009 to
December 31, 2009.
Eastern Mountain Regional
Supplement Released
On September 1, 2010, the
Corps released its
Eastern Mountains & Piedmont Regional
Supplement to the 1987 Wetlands Delineation
Manual for a one-year trial implementation period.
Flora
and Fauna
Doug DeBerry has prepared an
interesting
summary and update on the Flora of Virginia
project that is currently underway.
Upcoming
Meetings – Events
Southeast Regional Supplement Training,
October 20, 2010, Raleigh, NC.
Virginia Stormwater Symposium:
Navigating Changes in Stormwater Technology and Policy,
October 21, 2010.
Photo of
the Month
Cypress Tree – Cypress Bridge
Natural Area (August 2010)
Photo by Robin Bedenbaugh |
