U.S. Army Corps of Engineers

Oct 142015

In the latest development in the WOTUS wars. a panel of federal judges has declined to move all the outstanding cases to the District of Columbia District Court, as requested by the Environmental Protection Agency.

That leaves nine cases active in seven districts. (See the order below for a list of those cases.)

"On the basis of the papers filed and hearing session held, we conclude that Section 1407 centralization will not serve the convenience of the parties and witnesses or further the just and efficient conduct of this litigation," the judges assigned to the case said.

Those judges are Marjorie O. Rendell, Charles R. Breyer, Lewis A. Kaplan, Ellen Segal Huvelle, R. David Proctor and Catherine D. Perry.

Said the court:

"The resolution of these actions will involve only very limited pretrial proceedings. Discovery, if any, will be minimal, as these cases will be decided on the administrative record. Motion practice will consist of motions regarding that record, motions for preliminary injunctive relief, and summary judgment motions. In short, these actions will turn on questions of law with respect to whether the EPA and the Corps exceeded their statutory and constitutional authority when they promulgated the Clean Water Rule. Accordingly, centralization under Section 1407 is inappropriate."

. . .

"[C]centralization of these actions would be problematic due to their procedural posture. Several motions for preliminary injunctive relief already have been ruled upon, resulting in different jurisdictional rulings by the involved courts. Two courts have held that only the United States Courts of Appeals have jurisdiction over these regulatory challenges, whereas another reached the opposite conclusion, that jurisdiction over these actions properly resides in the United States District Courts. 3 Centralization thus would require the transferee judge to navigate potentially uncharted waters with respect to law of the case. This procedural complication also weighs against centralization in this instance."

Sep 082015

A federal judge agreed with environmental groups that the Army Corps of Engineers and Bureau of Reclamation did not adequately study the impacts to endangered pallid sturgeon before deciding to move forward with building a concrete dam and bypass channel along the Yellowstone River (Defenders of Wildlife v. U.S. Army Corps of Engineers, 15-14-GF-BMM, D. Mont.).

Said U.S. District Judge Brian Morris in his order, issued Sept. 4:

"Federal Defendants’ argument presumes that pallid sturgeon will successfully navigate the bypass channel and successfully spawn upriver. As noted above, however, Federal Defendants have failed to conduct any analysis on the efficacy of the bypass channel at accomplishing this goal. Under these circumstances, the prudent approach requires a careful consideration of the environmental impacts before proceeding with the Project. The balance of the hardships and the public interest tip in favor of an injunction. This injunction will ensure that Federal Defendants consider all potential impacts of the Project before construction begins. This analysis will ensure that the Federal Defendants understand the impacts on pallid sturgeon and can address these impacts appropriately."

The groups suing are Defenders of Wildlife and the Natural Resources Defense Council.


From the "background" portion of the order:  "The United States Fish and Wildlife Service (FWS) listed pallid sturgeon as endangered in 1990. 55 Fed. Reg. 36, 641. The Missouri River between the Fort Peck Dam and Lake Sakakawea contains the largest wild pallid sturgeon population. Fewer than 125 wild pallid sturgeons remain and the population appears in decline. (BOR 560; BOR 2216). The presence of the Fork Peck Dam on the Missouri River and the Intake Dam on the Yellowstone River account, in large part, for this decline. (BOR 567-572). The Intake Dam sits approximately 70 miles upriver from the confluence of the Yellowstone River and the Missouri River. These two barriers prevent the pallid sturgeon from swimming far enough upriver to spawn successfully."

"The United States Bureau of Reclamation (Bureau) intends to spend $59 million to replace the existing wood and rock weir at Intake Dam with a concrete weir in order to ensure continued irrigation water to the 56,800 acres currently serviced by Intake Dam."

"Defenders’ challenge arises largely from their claim that Federal Defendants have failed to comply with NEPA. Defenders argue that the new weir will continue to harm pallid sturgeon and that Federal Defendants have not conducted sufficient
analysis to determine whether the bypass channel will mitigate this harm. Defenders contend that the EA failed to include sufficient analysis and, alternatively, that federal law required that they prepare an Environmental Impact Statement (“EIS”) due to the fact that the Project will continue to cause significant impacts to the pallid sturgeon."

More coverage

Judge expects to make ruling by Sept. 8 regarding irrigation project (by Mike Francingues, Sidney Herald, 8/30/15)

NY Times op-ed (by Chris Hunter, former chief of fisheries for the Montana Department of Fish, Wildlife and Parks, 9/3/15)

Judge blocks lower Yellowstone dam over fish worries  by Matthew Brown, Associated Press (9/8/15)

Sep 022015

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Sep 012015

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May 272015

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May 222015

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Mar 262015

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Mar 242015

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Mar 242015

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Mar 042015

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