On September 5, 2018, Division II of the Washington State Court of Appeals published a water law decision that rejected an appeal by a party claiming an ownership interest in the water right because the appeal was late and failed to challenge the proper agency action.  The decision underscores the importance of statutes of limitation for appeals of Department of Ecology (“Ecology”) determinations and the related principle of finality in water law determinations.  The court also interprets a “catch-all” avenue for appeal of administrative decisions under the Administrative Appeals Act, which may have broader relevance to regulatory practitioners outside the water law realm. The case resolves a collateral challenge to Ecology’s prior approval of a... READ MORE
After years of litigation concerning the 2015 “Waters of the United States” Rule (the “WOTUS Rule’), which redefined the geographic scope of federal jurisdiction under the Clean Water Act, the WOTUS Rule is, for now, effective in 26 states, including Washington and Oregon.  A more detailed discussion of the WOTUS Rule litigation can be found in our August 2018 alert.  The WOTUS Rule has far-reaching implications for project development and landowners across the energy, water, agricultural, construction, and transportation sectors.  On February 6, 2018, the Environmental Protection Agency and the United States Army Corps of Engineers (collectively, the “Agencies”) had issued a final Suspension Rule, which delayed implementation of the WOTUS Rule... READ MORE
After years of litigation concerning the 2015 “Waters of the United States” Rule (the “WOTUS Rule”), which redefined the geographic scope of federal jurisdiction under the Clean Water Act, the WOTUS Rule is, for now, effective in 26 states. READ MORE
Dan Press will be a featured speaker at the annual National TERO Convention in Cherokee, North Carolina. READ MORE
Van Ness Feldman, Beveridge & Diamond, and NAWL's Environmental & Energy Practice Area Affinity Group cordially invite you to a breakfast program: Environmental Review and Permitting Reform for Infrastructure Projects.   The program is being coordinated by a group including Andrea Hudson Campbell, partner in our environment practice, and panelists will include  Gwen Keyes Fleming, partner in our environmental practice. READ MORE
On September 4, 2018 oral arguments were heard before the Arizona Supreme Court in the Hopi Tribe's lawsuit against the Arizona Snowbowl ski resort on whether the resort's use of reclaimed wastewater for making artificial snow causes "special injury" to Hopi religious and cultural practices.  Van Ness Feldman partner Michael Goodstein represented the Hopi Tribe, arguing that the treated wastewater causes environmental concerns for Hopi religious ceremonies as well as others visiting the San Francisco Peaks where the resort is located.   Justices are now deliberating, the case and a final ruling is pending. Click here to view the case summary and oral arguments. READ MORE
Van Ness Feldman LLP is pleased to announce the addition of five lateral partners, expanding the firm’s environmental litigation and transactional practices and adding new capabilities in the insurance recovery area.  The five partners joining the firm are Michael Goodstein, Anne Lynch, Andrew Cooper, Brian Zagon, and Allison McAdam, all formerly with Hunsucker Goodstein PC.  Mr. Goodstein, Ms. Lynch, and Mr. Cooper will be based in Van Ness Feldman’s Washington, DC office, with Mr. Zagon and Ms. McAdam leading the firm’s San Francisco Bay Area office (located in Lafayette, California).  Other Hunsucker Goodstein personnel joining Van Ness Feldman include attorneys Dana Stotsky, Kathryn (Kaki) Schmidt, and Justin Panitchpakdi.     The group brings... READ MORE
We are pleased to announce that this year over half of the firm’s partners have been selected for inclusion in the 2018-2019 Best Lawyers in America. In addition,  Brian O'Neill has been recognized as Energy Regulatory Lawyer of the year for 2019.  READ MORE
PHMSA Requests Comments on Alternative Safety Measures in Response to Class Location Changes On July 31, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued an advance notice of proposed rulemaking (ANPRM) seeking comments regarding actions an operator of a gas transmission pipeline is required to take when population growth near a pipeline causes its class location to change.  The ANPRM does not propose any new regulatory initiatives, but continues the discussion about whether expanding integrity management (IM) requirements may provide an alternative to current requirements when a pipeline’s class location changes.  Comments are due by October 1. Background The class location of a transmission pipeline is based on the... READ MORE
USFS Proposes Alaska Version of Roadless Rule On August 2, 2018, the U.S. Forest Service (USFS) announced a memorandum of understanding (MOU) with the state of Alaska to develop an Alaska state-specific roadless rule.  The state-specific rule will amend the 2001 Roadless Area Conservation Rule, commonly known as the “Roadless Rule,” which limits road construction and timber harvesting in national forests, including the Tongass National Forest in southeast Alaska.  There are over 21.9 million acres of National Forest in the state of Alaska, of which approximately 14.7 million are designated roadless areas under the Roadless Rule.  The Alaska Roadless Rule will determine which currently designated roadless areas in the state require a different... READ MORE
D.C. Circuit Vacates FERC Hydropower License On July 6, 2018, in American Rivers v. FERC, the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) vacated the new license issued by the Federal Energy Regulatory Commission (FERC) in 2013 for the Coosa River Project in Alabama and remanded the case to FERC.  The license was challenged by several conservation groups on grounds that the FERC license and U.S. Fish and Wildlife Service (FWS) biological opinion (BiOp) FERC adopted violated the Federal Power Act, National Environmental Policy Act (NEPA), and Endangered Species Act (ESA).  These challenges derived from FWS’s analysis of proposed project operations under the new license, and its exclusion of historic impacts of the project (i.e... READ MORE