2014 MID-YEAR ENVIRONMENTAL LAW UPDATE

By Diane Kindermann, William W. Abbott, Glen Hansen and Katherine J. Hart

Welcome to Abbott & Kindermann’s 2014 Mid-Year Environmental update. This update discusses selected litigation, regulations/administrative guidance and pending legislation, on both the federal and state levels, in the following general areas of environmental law: (A) Water Supply, (B) Water Quality, (C) Wetlands, (D) Air Quality, (E) Endangered Species, (F) NEPA, (G) Mining / Oil & Gas, (H) Cultural Resources, (I) Environmental Enforcement, and (J) Renewable Energy.

Click here to read the complete update.

If you have any questions about this article, contact Diane Kindermann, William Abbott, Glen Hansen or Katherine Hart. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Appellate Court Shuts Out Trial Court in CEQA/ESA Double Header under Deferential Standard of Review

By Diane G. Kindermann

In a lengthy and unanimous reversal of the trial court on ESA and CEQA issues in Center for Biological Diversity v. California Department of Fish and Game, et al. (March 20, 2014, BS131347) ___ Cal.App.4th ___, the second appellate district, Division Five, roundly upheld the Department of Fish and Wildlife’s (“department”) certification of an environmental impact report (“EIR”) assessing the effects of a resource management plan, conservation plan, streambed alteration agreement and two incidental take permits, in tandem with approval of each plan and issuance of the associated incidental take permits. The EIR related to general planning and conservation steps resulting from Los Angeles County’s prior approval of a 12,000 acre specific plan and neighboring 1500 acre conservation area in Ventura County. In its textured opinion, the appellate court relied heavily on facts in the trial court record to perforate all arguments raised by the Plaintiffs and Respondents Center for Biological Diversity, Friends of the Santa Clara River, Santa Clarita Organization for Planning and the Environment, California Native Plant Society, and Wishtoyo Foundation/Ventura Coastkeeper.

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2013 4th QUARTER ENVIRONMENTAL LAW UPDATE

By Diane Kindermann, William W. Abbott, Glen Hansen and Katherine J. Hart

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Endangered Species Act Turns 40

The landmark Federal Endangered Species Act, approved in 1973 by huge margins in both the House and the Senate, turned 40 on December 31, 2013. If the ESA could speak it might say however, “I’m not 40, I am 18 with 22 years’ experience”.

The litmus tests of its success include: numbers of species brought back from extinction; improved outcomes for threatened species; and increased public awareness of species protection. Supporters and opponents of the ESA reach divergent conclusions on the accomplishments of the ESA, armed with contrasting numbers. Nevertheless, all viewpoints recognize that the government and landowners jointly continue to protect species and habitat areas on both public and private lands while allowing development to proceed. Perhaps the ESA really is only 18 with 22 years of experience, in need of a few more years to learn from it successes and failures.

The following articles provide two different perspectives of the ESA on its 40th birthday.

http://ens-newswire.com/2013/12/31/celebrating-40-years-of-endangered-species-act-success/

http://takingnote.blogs.nytimes.com/2013/12/31/the-law-that-saved-the-bald-eagle/?_r=2

Diane G. Kindermann Henderson is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Did The Ninth Circuit Disregard Its Precedent And Impose A Higher Degree Of Analysis On Programmatic Environmental Impact Statements?

By Glen C. Hansen

In a 2-1 decision in Pacific Rivers Council v. United States Forest Service, ___ F.3d ___, 2012 U.S. App. LEXIS 12553 (9th Cir. 2012), rehearing and en banc rehearing denied, the Court of Appeals for the Ninth Circuit held that the final supplemental environmental impact statement issued by the United States Forest Service in 2004 for the eleven Forest Plans for the Sierra Nevada Mountains (“Forest Plans”) complied with the National Environmental Protection Act (“NEPA”) as to the analysis of environmental consequences on amphibians, but did not comply with NEPA as to environmental impacts on fish. The majority and minority on the panel sharply disagree as to the amount of analysis that is required for programmatic environmental impact statements under NEPA in the Ninth Circuit where an agency has not made a critical commitment of resources regarding any site-specific projects.

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In Operation Of Water Projects, Federal Agencies Enjoined From Implementing Delta Smelt Biological Opinion

By Glen C. Hansen

In re Consoidated Delta Smelt Cases, 2011 U.S. Dist. LEXIS 98300 (E.D. Cal. Aug. 31, 2011)

In 2008, the United States Fish and Wildlife Service (“FWS”) issued a biological opinion (“BiOp”) under section 7 of the Endangered Species Act that addressed the impacts of the coordinated operations of the federal Central Valley Project (“CVP”) and State Water Project (“SWP”) on a threatened fish known as the California delta smelt in the Sacramento San Joaquin Delta. The BiOp concluded that “the coordinated operations of the CVP and SWP, as proposed, are likely to jeopardize the continued existence of the delta smelt” and “adversely modify delta smelt critical habitat.”

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Ninth Circuit Issues Mixed Ruling Re NEPA and NFMA Challenges to 2004 Sierra Nevada Forest Plan Amendment

By Glen C. Hansen

In Sierra Forest Legacy v. Sherman (9th Cir. 2011) 646 F.3d 1161, the United States Forest Service established management guidelines under the 2004 Sierra Nevada Forest Plan Amendment (“2004 Framework”) that govern 11.5 million acres of federal land in the Sierra Nevada region. Environmental groups and the State of California filed separate actions challenging the 2004 Framework under the National Environmental Policy Act (“NEPA”), and the environmental groups also challenged the 2004 Framework under the National Forest Management Act (“NFMA”). The parties cross-moved for summary judgment. The U.S. District Court (a) issued a summary judgment that was largely unfavorable to the plaintiffs; (b) issued a limited remedial order in favor of plaintiffs that required the Forest Service to prepare a supplemental environmental impact statement to remedy a NEPA error; and (c) denied plaintiffs’ request to enjoin implementation of the 2004 Framework in the interim.

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REMINDER! Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Grazing Cattle and the BLM's Violation of NEPA and ESA

By Emilio Camacho and Cori Badgley

In Western Watershed Project v. Kraayenbrink, (9th Cir. Sep. 1, 2010, No. 08-35360__F3d.__.), the Ninth Circuit Court of Appeals ruled that the Bureau of Land Management (“BLM”) violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”) in adopting the 2006 amendments to the BLM’s grazing regulations.

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U.S. Fish and Wildlife Service not Required to Predict the Point of Return for Critical Habitat under the Endangered Species Act

By Leslie Z. Walker

The U.S. Court of Appeals for the Ninth Circuit upheld the U.S. Fish and Wildlife Service’s (“USFWS”) designation of 850,000 acres as critical habitat for fifteen endangered or threatened vernal pool species, against procedural attacks by the Homebuilders Association of Northern California (“Homebuilders”). In Homebuilders et al. v. U.S. Fish and Wildlife Service, (9th Cir. Aug. 9, 2010, No. 07-16732) ____ F.3d____ 2010 U.S. App. LEXIS 16439, Homebuilders claimed USFWS violated the Endangered Species Act (“ESA”) (16 U.S.C. § 1531 et seq.) in issuing its final rule designating the critical habitat by: 1) improperly identifying primary constituent elements on the property; 2) failing to identify the habitat as either occupied or unoccupied habitat; 3) failure to predict when the species will be conserved; 4) improper textual exclusion of development areas from critical habitat designation; and 5) failure to conduct a cumulative economic impacts analysis. Giving deference to USFWS’s determination, the appellate court, like the trial court, upheld the habitat designations, rejecting the Homebuilders arguments for the reasons described below.

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Ninth Circuit Upholds Application of Percentage Methodology to Determine Whether There Has Been an Adverse Modification to Critical Habitat

By Diane Kindermann Henderson and Cori M. Badgley

The Ninth Circuit Court of Appeals upheld a biological opinion (“BO”) by the U.S. Fish & Wildlife Service (“FWS”) authorizing the destruction of critical habitat for three species, where the BO applied a percentage formula to ascertain whether there would be adverse modification or destruction of critical habitat. The Ninth Circuit concluded, “The FWS’ determination that critical habitat would be destroyed was not inconsistent with its finding of ‘no adverse modification.’ After all, the project would affect only a very small percentage of the total critical habitat or vernal pool fairy shrimp, vernal pool tadpole shrimp, and slender Orcutt grass.” (Butte Environmental Council v. U.S. Army Corps of Engineers (9th Cir. 2010) 607 F.3d 570.)

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Department of Water Resources is a "Person" for Purposes of the California Endangered Species Act

By Leslie Z. Walker

In a case with a curious procedural posture, the Court of Appeal, First Appellate District, ruled that the Department of Water Resources is a “Person” for the purposes of Fish and Game Code section 2080 and thus is prohibited from taking an endangered or threatened species under the California Endangered Species Act (Fish & Game Code, § 2050 et seq.) Kern County Water Agency v. Watershed Enforcers (2010) 185 Cal.App.4th 969.

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Reminder! Save the Date

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2010!

In January and February 2010 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2010 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting
  • Water Supply Legislation
  • CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extension
  • Interpreting Development Agreements
  • Endangered Species Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations: Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 21, 2010
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Thursday, January 28, 2010
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 12, 2010
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available.

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

 

Conservation Pays: New Statutory Protection for Landowners to "Take" Protected Species

By Katherine Hart

Senate Bill 448 sponsored by Fran Pavley was signed into law by Governor Schwarzenegger on October 11, 2009. The bill establishes the California State Safe Harbor Agreement Program Act (the “Act”) and adds provisions to the California Fish and Game Code. It will become effective on January 1, 2010.

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Too Much Information to Erase Doubt: Appellate Court Rules California Tiger Salamander Must Be Considered A Candidate Species under California Endangered Species Act

By Leslie Walker and Nathan Jones

A recent case published by the Court of Appeal, Third Appellate District has struck down a decision by the California Fish and Game Commission (“Commission”) to deny listing the California tiger salamander (“salamander”) as a candidate species for listing under the California Endangered Species Act (“CESA”). In Center for Biological Diversity v. California Fish and Game Commission (2008) 166 Cal.App.4th 597, the court ruled that the Commission must accept a listing petition of a candidate species if the information would “lead a reasonable person to conclude there is a substantial possibility” that the species could be listed. Placing a species on the candidate list triggers a review by the Department of Fish and Game (“DFG”) to determine whether permanent listing under the CESA is required.

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Wildlife Protected by the Public Trust Doctrine, but Doctrine Can Only be Enforced Against Public Agencies

By William W. Abbott and Nathan Jones

While green energy is on the rise, there are casualties of even the most well-intentioned projects. In Center for Biological Diversity v. FPL Group, Inc. (2008) 166 Cal.App.4th 1349, the Court of Appeal, First Appellate District upheld the dismissal of a public trust enforcement action against the owners and operators of wind turbines in the Altamont Pass area (the “Operators”). According to the Center for Biological Diversity (“CBD”), the turbines injure and kill raptors and other birds. Ultimately, CBD was successful in clarifying that the birds are a public trust resource of all the people of the state. However, the appellate court held that the proper party to bring an action against is the public agency with permitting authority, rather than the Operators.

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Analyzing and Mitigating Biological Resources and Endangered Species Impacts Under CEQA: An Update

By William W. Abbott and Janell M. Bogue

As development continues to occur in areas outside of urbanized areas, developers are encountering more threatened or endangered species issues in their environmental review process under the California Environmental Quality Act (“CEQA”). A fundamental question which must be addressed is whether there are threatened or endangered species present in the project area and whether the project will affect those species. This is not always a simple question to answer, as it is not clear what studies are necessary in order to adequately analyze biological resources under CEQA. What standards are appropriate to measure the significance of the effects on endangered species? Furthermore, once threatened or endangered species are determined to be affected by the project and potentially significant impacts to biological resources are identified, how does one provide for adequate mitigation in order to mitigate those impacts to a less than significant level? This article discusses several CEQA cases dealing with these questions and provides insight on how to address endangered species concerns in order to comply with CEQA.

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Ninth Circuit Court of Appeals Confirms That USFWS Has No Ongoing Duty to Remove Endangered Species from List; Appropriate Method is to Petition for Delisting

By Janell M. Bogue

In the case of Coos County Board of County Commissioners v. Kempthorne (June 26, 2008) 2008 U.S.App.Lexis 13475, the United States Court of Appeals for the Ninth Circuit reiterated that the appropriate way for a species to be removed from the protections of the Endangered Species Act (“ESA”) is via a petition for delisting. The court held that there is no mandatory duty imposed upon the U.S. Fish and Wildlife Service (“USFWS”) to delist species through the five year review process. (See 16 U.S.C. § 1533(c)(2).) Continue Reading...

California's Water Supply Potentially Endangered by Invalid Biological Opinion

By Cori Badgley

On April 16, 2008, the United States District Court for the Eastern District of California issued an opinion in Pacific Coast Federation of Fishermen’s Associations v. Gutierrez (Case No. 1:06-cv-00245) that invalidated portions of the 2004 biological opinion (“BiOp”) issued by the National Marine Fisheries Service (“NMFS”) for the Long-Term Central Valley Project and State Water Project Operations Criteria Plan (“2004 OCAP”). The Central Valley Project (“CVP”) supplies water to approximately 30 million people in 200 water districts. The State Water Project “is the largest State-built water project in the country.” Both projects share resources and facilities. The good news is that water suppliers will enjoy the status quo while a new biological opinion is drafted and approved.

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Blood Brothers or Distant Cousins: Fishing for Distinctions

By Cori Badgley

In the recent case of California Forestry Association v. California Fish & Game Commission (2007) 2007 Cal. App. LEXIS 1896, the Court of Appeal for the Third Appellate District wrestled with the treatment of subspecies and species range in the California Endangered Species Act (“CESA”). 

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HCPs and Hawks and Snakes...Oh My!

By Janell M. Bogue

Recently, the Third Appellate District held that the Natomas Basin Habitat Conservation Plan (“HCP”) was properly certified by the City of Sacramento and Sutter County (“City and County”) under CEQA and that the Department of Fish and Game (“DFG”) complied with the California Endangered Species Act (“CESA”) in issuing its incidental take permits. The case is Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018. Continue Reading...

Recent Case Illustrates Great Deference Given to Fish and Wildlife Service's Interpretation of Endangered Species Act

By Cori Badgley

The Endangered Species Act ("ESA") is a complex web of provisions that are not always easily interpreted. A recent case decided by the 9th Circuit Court of Appeals, Center for Biological Diversity v. U.S. Fish and Wildlife Service (2006) 450 F.3d 930, illustrates the intricacies of the ESA and provides a warning to all those wishing to claim violations of its provisions - do your homework.

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Analyzing and Mitigating Biological Resources and Endangered Species Impacts Under CEQA: An Update

by William W. Abbott and Janell M. Bogue

As development continues to occur in areas outside of urbanized metropolitan areas developers are encountering more threatened or endangered species issues in their environmental review process under the California Environmental Quality Act ("CEQA"). A fundamental question which must be addressed is whether there are threatened or endangered species present in the project area and whether the project will affect those species. This is not always a simple question to answer, as it is not clear what studies are necessary in order to adequately analyze biological resources under CEQA. What standards are appropriate to measure the significance of the effects on endangered species? Furthermore, once threatened or endangered species are determined to be affected by the project and potentially significant impacts to biological resources are identified, how does one provide for adequate mitigation in order to mitigate those impacts to a less than significant level? This paper discusses recent CEQA cases dealing with these questions and provide insight on how to address endangered species concerns in order to comply with CEQA.

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