Donald Baur

Donald Baur

Perkins Coie

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D.C. Circuit Overturns FWS Approval of Wind Farm Due to Bat Concerns

The U.S. Court of Appeals for District of Columbia Circuit recently held that the U.S. Fish and Wildlife Service violated the National Environmental Policy Act by approving an Ohio wind energy project without looking at all...more

8/31/2016 - Appeals Clean Energy Endangered Species Endangered Species Act (ESA) Energy Sector Incidental Take Permits NEPA Popular Renewable Energy US Fish and Wildlife Service Wind Power

Ninth Circuit Finds Navy’s Low Frequency Active Sonar Program Violates Marine Mammal Protection Act

In NRDC v. Pritzker, the U.S. Court of Appeals for the Ninth Circuit confirmed that the Marine Mammal Protection Act’s (MMPA) incidental take authorizations will be construed narrowly and conservatively, giving the benefit of...more

8/12/2016 - Adverse Action Environmental Violations Harassment Impact Assessments Incidental Take Permits Marine Mammal Protection Act (MMPA) National Marine Fisheries Service NRDC Sonar U.S. Navy

Controversy Over Interior’s Trust Authority in Alaska Remains Unresolved

A majority panel of the U.S. Court of Appeals for the District of Columbia Circuit recently dismissed the State of Alaska’s challenge to the U.S. Secretary of the Interior’s authority to acquire land in trust for Alaska...more

7/8/2016 - Administrative Procedure Act Alaska Alaska Native Claims Settlement Act (ANCSA) Anti-Discrimination Policies Department of the Interior Due Process Environmental Policies Equal Protection Fourteenth Amendment Native American Issues Tribal Lands

DOJ’s Increased Focus on Environmental Criminal Cases

Recently, John C. Cruden, DOJ’s Assistant Attorney General in charge of the Environmental and Natural Resources Division (ENRD), which oversees DOJ’s environmental litigation, voiced a heightened commitment to enforcing...more

6/13/2016 - Criminal Prosecution DOJ Enforcement Actions Environmental Crimes Environmental Policies Environmental Violations Natural Resources

Supreme Court Rules that Clean Water Act Jurisdictional Determinations Are Reviewable in Court

The U.S. Supreme Court ruled on May 31, 2016 that an approved jurisdictional determination issued by the U.S. Army Corps of Engineers under the Clean Water Act is a final agency action subject to judicial review. Hawkes Co.,...more

6/2/2016 - Administrative Appeals Administrative Procedure Act Clean Water Act EPA Hawkes Co v United States Army Corps of Engineers Judicial Review Jurisdictional Determination (JD) Land Developers Permits Property Owners SCOTUS US Army Corps of Engineers Waters of the United States Wetlands

If At First You Do Not Succeed: Fish and Wildlife Service Tries Again With 30-Year Eagle Act Permit

On May 6, 2016, the Fish and Wildlife Service (FWS or Service) published a proposed rule (Proposed Rule) that would substantially change how the Service administers its conservation and management program under the Bald and...more

6/1/2016 - Bald and Golden Eagle Protection Act Endangered Species Endangered Species Act (ESA) Energy Sector Incidental Take Permits NEPA Renewable Energy US Fish and Wildlife Service Wind Power

Supreme Court Holds the Ninth Circuit Misinterpreted the Alaska National Interest Lands Conservation Act

In 2007, National Park Service rangers stopped John Sturgeon from travelling by hovercraft on the Nation River within the boundaries of Yukon-Charley Rivers National Preserve. Park Service regulations ban the use of...more

4/1/2016 - Alaska ANILCA Conservation Land Preservation National Park Service National Parks Native American Issues Navigable Waters Public Land SCOTUS Tribal Lands

U.S. Fish and Wildlife Service Updates Native American Tribe Policy

The U.S. Fish and Wildlife Service announced an updated Native American policy on January 27, 2016, which provides a framework for government-to-government relationships to further the federal government’s trust...more

3/24/2016 - Conservation Endangered Species Endangered Species Act (ESA) Native American Issues Tribal Lands US Fish and Wildlife Service

Ninth Circuit Reinstates Polar Bear Habitat Designation, ESA Implications for the West

In a decision that could result in significant new restrictions on development activities in the Arctic as well as set important Endangered Species Act (ESA) precedent in the Western United States, the U.S. Court of Appeals...more

3/18/2016 - Critical Habitat Endangered Species Endangered Species Act (ESA) ESA Listings Habitat Conservation Plan US Fish and Wildlife Service

FWS Proposes Revisions to Development Mitigation Policy

The U.S. Fish and Wildlife Service (FWS) published draft revisions on March 8, 2016 to its 1981 Mitigation Policy for mitigating the impacts of development projects to natural resources. See Proposed Revisions to the U.S....more

3/17/2016 - Conservation Construction Industry Endangered Species Act (ESA) Mitigation Natural Resources Real Estate Development Urban Planning & Development US Fish and Wildlife Service

New Critical Habitat Regulations Published Under the Endangered Species Act

On February 11, 2016, the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service jointly published final regulations and a final policy addressing critical...more

2/17/2016 - Critical Habitat Endangered Species Act (ESA) Habitat Conservation Plan National Marine Fisheries Service US Fish and Wildlife Service

Congress Enacts Federal Permitting Improvements to Speed Infrastructure Projects

Congress enacted the Surface Transportation Reauthorization and Reform Act of 2015, also known as the Fixing America’s Surface Transportation Act (the FAST Act) on December 4, 2015. A part of the FAST Act, Title XLI—Federal...more

1/12/2016 - Construction Industry Critical Infrastructure Sectors Environmental Review Fixing America’s Surface Transportation Act (FAST Act) NEPA New Legislation Surface Transportation

Supreme Court to Resolve Split on Court Review of Clean Water Act Jurisdictional Determinations

The U.S. Supreme Court decided last week to review a ruling from the U.S. Court of Appeals for the Eighth Circuit that jurisdictional determinations under the Clean Water Act are final agency actions subject to judicial...more

12/16/2015 - Clean Water Act Jurisdiction Land Developers SCOTUS US Army Corps of Engineers Waters of the United States

Federal Appeals Court Blocks Clean Water Rule Nationwide

In an attempt to “temporarily silence[] the whirlwind of confusion that springs from uncertainty,” the U.S. Court of Appeals for the Sixth Circuit has blocked the new rule defining “waters of the United States” under the...more

10/13/2015 - Appeals Clean Water Act EPA Jurisdiction Stays US Army Corps of Engineers Waters of the United States

Sonoran Desert Tortoise Not Endangered or Threatened Says FWS

The United States Fish and Wildlife Service determined on October 5, 2015 that the Sonoran Desert Tortoise, found primarily in Arizona, does not qualify as either an endangered or threatened species under the Endangered...more

10/7/2015 - Bureau of Reclamation Critical Habitat Customs and Border Protection Endangered Species Endangered Species Act (ESA) Forest Service Land Developers National Park Service Natural Resources US Fish and Wildlife Service

Birds of a Feather: The 5th Circuit Joins the 8th and 9th Circuits’ Narrow View of the MBTA’s Take Prohibition

On September 4, 2015, the U.S. Court of Appeals for the Fifth Circuit held in United States v. CITGO Petroleum Co. that the Migratory Bird Treaty Act’s take prohibition does not include the unintentional take of migratory...more

9/11/2015 - Bird Fatalities DOJ Endangered Species Act (ESA) Energy Sector Migratory Bird Treaty Act Oil & Gas Refineries Settlement Agreements US Fish and Wildlife Service

Federal Court Stops Clean Water Act Rule from Going into Effect in 13 States

On August 27, 2015, Chief Judge Ralph Erickson of the U.S. District Court for the District of North Dakota granted a preliminary injunction that stops EPA’s and the Army Corps of Engineers’ new rule defining federal...more

8/31/2015 - Administrative Procedure Act Appeals Clean Water Act EPA Preliminary Injunctions US Army Corps of Engineers Waters of the United States

The Ninth Circuit Holds Transfer of Water in Klamath River Basin Does Not Require Clean Water Act NPDES Permit

On August 21, 2015, the Ninth Circuit Court of Appeals affirmed an Oregon district court’s ruling that a Clean Water Act National Pollutant Discharge Elimination System permit is not required for the discharge of water from...more

8/26/2015 - Bureau of Reclamation Clean Water Act EPA Los Angeles County Flood Control District NPDES NRDC Permits SCOTUS

Federal District Court Strikes Down Eagle Act Rule

On August 11, 2015, the U.S. District Court for the Northern District of California struck down the U.S. Fish and Wildlife Service’s so-called “30-Year Rule,” which had extended from 5 years to 30 years the duration of...more

8/18/2015 - Bald and Golden Eagle Protection Act Conservation Department of the Interior Endangered Species Endangered Species Act (ESA) Energy Sector Environmental Assessments Environmental Impact Report (EIR) Migratory Bird Treaty Act NEPA Renewable Energy State Department of Fish and Wildlife Wind Power

New Fracking Regulations on Disclosure and Disposal Could Cost Industry $32M Per Year

New regulations setting standards for hydraulic fracturing, commonly known as fracking, in oil and gas wells drilled on federal lands were issued recently by the Obama administration through the U.S. Department of the...more

3/25/2015 - Bureau of Land Management Chemicals Disclosure Requirements Drilling Waste Disposal Fracking Government Land Oil & Gas Regulatory Standards Well Drilling

BLM Issues Proposed Rule to Establish Competitive Leasing for Renewable Energy Projects on Public Lands

On September 30, 2014, the Bureau of Land Management issued a proposed rule that would establish competitive processes, terms, and conditions, including rental and bonding requirements, for solar and wind energy development...more

10/13/2014 - Bureau of Land Management Energy Projects Ground Leases NEPA Proposed Regulation Public Land Solar Energy Wind Power

Final Endangered Species Act Policy Revises Definition of “Significant Portion of Its Range”

On July 1, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service jointly published a final policy providing their interpretation of the phrase ‘‘significant portion of its range,’’ which is part...more

7/3/2014 - Endangered Species Act (ESA) Final Rules National Marine Fisheries Service Statutory Interpretation US Fish and Wildlife Service

Proposed Endangered Species Act Regulations Would Change Critical Habitat Rules

On May 12, 2014, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service jointly published two proposed regulations and a draft policy concerning critical habitat designations under the Endangered Species...more

5/14/2014 - Critical Habitat Endangered Species Endangered Species Act (ESA) ESA Listings US Fish and Wildlife Service

Bureau Of Indian Affairs Proposes Regulation To Allow Taking Of Land Into Trust For Tribes In Alaska

After decades of interpreting the Alaska Native Claims Settlement Act of 1971 (ANCSA) to preclude the federal government’s acquisition of land in trust for tribes in Alaska, on May 1, 2014, the Bureau of Indian Affairs...more

5/5/2014 - Bureau of Indian Affairs Native American Issues Tribal Lands Trusts

EPA And Corps Of Engineers Release Proposed Rule On Scope Of Waters Covered Under Clean Water Act That Would Significantly Expand...

On April 21, 2014, the Environmental Protection Agency and the Army Corps of Engineers jointly published a proposed rule to define those waters that fall under the jurisdiction of the Clean Water Act as “waters of the United...more

4/22/2014 - Clean Water Act EPA Jurisdiction US Army Corps of Engineers Waters of the United States

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