Environmental Law and Policy Monitor

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In May 2015, the US Fish and Wildlife Service, National Marine Fisheries Service and National Oceanic and Atmospheric Administration proposed changes to the regulations for listing petitions.   Many industry groups supported the changes, because they clarified the standards for listing petitions, the documentation required in those petitions, and coordination with state wildlife agencies.  The Services took public comment on the proposed regulations and, on April 21, 2016, have issued proposed revisions to their original proposal.  Many of these revisions roll back the original proposed changes.

On March 31, 2016, federal Judge Sharon Gleason sentenced the former Chief Operating Officer for mining company XS Platinum to one year in jail for his role in discharging pollutants in violation of the Platinum Creek Mine (Alaska) NPDES permit. The COO – James Slade – was convicted of one misdemeanor and one felony CWA violation for his role in allowing excess pollutants from mining discharges to enter the Platinum Creek and Salmon River.  The court noted that state agencies had issued two previous warnings to stop the pollution.

Today the White House is hosting a summit on sustainable water from 9 a.m. until 12:30 p.m. The event coincides with “World Water Day.” The summit is intended to raise awareness of water’s national importance, and to highlight commitments and announcements made to ensure future water sustainability. Nearly 200 experts…

In a victory for common sense, the North Carolina Court of Appeals rejected a landowner’s attempt to recover $1.4 million in damages for environmental cleanup costs for a property that would only have had a value of $108,500 in the absence of the contamination – given that the landowner had no legal obligation to clean up the contamination. BSK Enterprises, Inc. v. Beroth Oil Co., No. COA15-189 (N.C. Ct. App. March 2, 2016). The Court of Appeals concluded “where the cost of remediation greatly exceeds or is disproportionate to the diminution in value of the property, the measure of damages should be the diminution in value cause by the contamination.” The link to the opinion can be found here.

The U.S. Fish and Wildlife Service (FWS) proposed revisions to its Mitigation Policy on March 8, 2016. This policy was last updated in 1981.  The Policy guides FWS on appropriate mitigation for adverse impacts of proposed actions on fish, wildlife, plants, and their habitats.   FWS initiated the revisions to the Policy to reflect changes in conservation challenges and practices since 1981, including accelerating loss of habitats, effects of climate change, and advances in conservation science.   The proposed revisions aim to apply a landscape-scale approach to achieve a net gain in conservation outcomes, or at a minimum, no net loss of resources and their values, services, and functions resulting from proposed actions.  The net gain goal is consistent with a November 2015 Presidential Memorandum on Mitigating Impacts on Natural Resources from Development and Encouraging Private Investment, which requires that all federal mitigation policies clearly set forth a net benefit goal or, at a minimum, a no net loss goal for natural resources, wherever doing so is allowed by existing statutory authority and is consistent with agency mission and established natural resource objectives.

Sean Sullivan, an Environmental and Natural Resources Partner in Raleigh, NC, was part of the presenting faculty for the 2016 North Carolina Chamber’s 2016 Environmental Compliance Conference in Durham, NC on January 28th, 2016. Sean discussed Environmental Health and Safety Programs, including covering the EPA’s and the Department of Justice’s expectations for effective compliance programs, how an effective compliance program can help avoid criminal enforcement, and the renewed focus on holding individual wrongdoers accountable.