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.

2013 4th QUARTER ENVIRONMENTAL LAW UPDATE

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

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EPA Submits Draft Rule and Supporting "Connectivity" In Efforts To Develop Regulatory Definition of "Waters of the United States."

By Glen Hansen

In September 2013, the United States Environmental Protection Agency and the U.S. Army Corps of Engineers sent a draft rule to clarify the jurisdiction of the Clean Water Act to the Office of Management and Budget for interagency review. The proposed rule is designed to provide greater consistency, certainty, and predictability nationwide in determining what are “Waters of the United States” under the Clean Water Act. The proposed rule includes exclusions from Clean Water Act jurisdiction for:

•         Non-tidal drainage, including tiles, and irrigation ditches excavated on dry land.

•         Artificially irrigated areas that would be dry if irrigation stops.

•         Artificial lakes or ponds used for purposes such as stock watering or irrigation.

•         Areas artificially flooded for rice growing.

•         Artificial ornamental waters created for primarily aesthetic reasons.

•         Water-filled depressions created as a result of construction activity.

•         Pits excavated in uplands for fill, sand, or gravel that fill with water.

The draft rule takes into consideration the draft science report titled “Connectivity of Streams and Wetlands to Downstream Waters,” which presents a review and synthesis of peer reviewed scientific literature. EPA's independent Science Advisory Board is soliciting public comment and will hold a public peer review meeting later this year. That report will eventually provide a scientific basis needed to clarify Clean Water Act jurisdiction, including a description of the factors that influence connectivity and the mechanisms by which connected waters affect downstream waters.

For more information:

http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm;

http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345

Glen Hansen is senior counsel 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, or 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. 

Groundwater regulations imposed on areas of Central Valley farmland.

The Central Valley Regional Water Quality Control Board (“CVRWQCB”) adopted new waste discharge requirements within the Tulare Lake Basin area on September 19, 2013, in order to protect ground and surface water from irrigated agricultural discharges.  The area impacted by the new requirements includes farmland in Fresno, Tulare, Kings and Kern counties.  The requirements apply to farmers in the region who join an approved third-party group or coalition.  (Those growers who do not join a coalition will be directly regulated by the CVRWQCB, and will be subject to higher costs.)  Under the new rules, farmers will be required to report their water quality protection practices to their respective coalition.  Growers who have not already implemented practices that protect water quality will be required to improve their practices.  All growers will be required to prepare nitrogen management plans. Farmers whose land lies above the most vulnerable groundwater aquifers must submit information to the coalition on their nitrogen use efficiency. The coalition will prepare technical reports, conduct required studies and monitoring, and submit reports to the Central Valley Water Board on behalf of the growers.

For more information:

http://www.swrcb.ca.gov/rwqcb5/press_room/announcements/press_releases/r5_2013sep24_ilrptlbwdr_press.pdf

http://www.fresnobee.com/2013/09/19/3507274/state-oks-new-water-rules-for.html

http://www.bakersfieldcalifornian.com/local/x558589998/State-mandates-additional-groundwater-monitoring-in-valley

Citizen Suit Under The Clean Water Act Is Not Barred Where State Of California Had Not Brought Either A Court Action To Enforce Compliance With The Act, Or Commenced An Administrative Penalty Action Comparable To One Under The Act.

By Katherine J. Hart

In reversing the U.S. District Court, the U.S. Court of Appeal for the Ninth Circuit held in California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., ___ F.3d ___, 2013 U.S. App. LEXIS 14777 (9th Cir., No. 11-16959, July 22, 2013), that where the state of California had not brought either a court action to require compliance with the Clean Water Act (“CWA”), or commenced an administrative penalty action comparable to one under the CWA, neither 33 U.S.C. section 1365(b)(1)(B) nor section 1319(g)(6)(A)(ii) barred a citizen suit to enforce California’s storm water general NPDES permit.

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State Water Resources Control Board Anticipates the Release of a Revised Draft Industrial General Permit in July 2013

State Water Resources Control Board anticipates the release of the revised draft of the Industrial General Permit and supporting documents around July 20, 2013, written comment period of 45 days, and a public hearing tentatively scheduled for August 20, 2013.

For more information visit: http://www.waterboards.ca.gov/water_issues/programs/stormwater/

US Army Corps Denies A §404 Permit: Can A Takings Claim Be Based On Consideration Of The Economic Affect On the Wetlands Parcel Only?

By Glen C. Hansen

Lost Tree Village Corp. v. United States, ___ F.3d ___, 2013 U.S. App. LEXIS 690 (Fed.Cir. 2013). Between 1968 and 1974, Lost Tree Village Corporation (“Lost Tree”) purchased approximately 2,750 acres of property on Florida's mid-Atlantic coast, which included a barrier island on the Atlantic Ocean. That property included 4.99 acres now known as Plat 57, which is part of the entire peninsula known as the Island of John's Island. From 1969 through the mid-1990s, Lost Tree developed approximately 1,300 acres it purchased into the upscale gated residential community of John's Island. The development was made in a piecemeal manner, and not as a master-planned community.

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State Water Resources Control Board poised to release a final draft of the Industrial General Permit by April 2013

The State Water Resources Control Board is poised to release a final draft of the Industrial General Permit by April 2013. Public comments will be received for 45 days, and a formal workshop will be held on May 8, 2013.

For more details visit: http://www.waterboards.ca.gov/water_issues/programs/stormwater/

As Lawsuits Begin In California Over Oil And Gas "Fracking," The State Issues "Discussion Draft" Regulations For The Process

By Glen C. Hansen

For decades, oil and gas producers in California have been engaged in the process of hydraulic fracturing, commonly called “fracking.” That process involves injecting a high pressure stream of water and chemicals deep underground to split rocks and release oil and natural gas. The technique is designed to free oil and natural gas trapped in shale rock. There is a significant amount of such rock in California. For example, the Monterey Shale, which lies under Central California and the southern San Joaquin Valley, could hold up to 15 billion barrels of oil, making it possibly the nation’s largest oil shale formation and almost half of the nation’s total shale oil resources.

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EPA Tells Supreme Court Its Actions Were "Suboptimal" -- But The Oral Argument On The Challenge To EPA's Silvicultural Rule Raises More Questions Than It Answers.

By Glen C. Hansen

An environmental group sued various timber companies along with the Oregon State Forester and the individual members of the Oregon Board of Forestry for violations of Clean Water Act (“CWA”) on the grounds they did not obtain permits from the U. S. Environmental Protection Agency (“EPA”) for stormwater runoff that flows from logging roads into systems of ditches, culverts, and channels, which is eventually discharged into forest streams and rivers. The Ninth Circuit Court of Appeals concluded that such runoff from logging roads is a point source discharge and thus, an NPDES permit is required. That ruling reversed a 30-year practice of exempting stormwater from forest roads from NPDES permitting (i.e., the “Silvicultural Rule”).

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SACRAMENTO TRIAL COURT STRIKES DOWN KEY PROVISIONS OF STATE WATER BOARD'S GENERAL NPDES CONSTRUCTION PERMIT

By Kate J. Hart

The California Building Industry Association (BIA) challenged several provisions of the State Water Board’s newly adopted general NPDES construction permit. While a majority of their claims were denied and most of the permit provisions were upheld, the court struck down the newly imposed numeric effluent limits set for pH and turbidity.

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California Supreme Court Rules Interlocutory Remand a Valid Remedy in Writ Petitions

By Katherine J. Hart

The recent case of Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499, involves the issuance of an NPDES permit by the Central Coast Regional Water Quality Control Board (“Regional Board”) authorizing the Moss Landing Power Plant (then owned by Duke Energy, now owned by Dynegy) to draw cooling water from Moss Landing Harbor and Elkhorn Slough. Plaintiff Voices of the Wetlands challenged the permit raising a number of legal issues, but only the following three issues were addressed by the California Supreme Court:

(1)   Did the superior court have jurisdiction to consider the administrative mandamus petition at issue?

(2)   Did the trial court improperly order an interlocutory remand after finding insufficient evidence to support the Regional Board’s best technology available (BTA) finding?

(3)   Does section 316(b) of the Clean Water Act (CWA) permit a cost-benefit analysis in determining best technology available?

The court left unresolved the issue of whether compensatory mitigation and habitat restoration measures can be a component of BTA.

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Senate Committee Scolds SWRCB in Recent Hearing on Draft Statewide Permits

By Cori M. Badgley

In early 2011, the State Water Resources Control Board (“SWRCB”) released three draft statewide NPDES permits for public review and comment. To say that these permits were not well-received by the regulated community (i.e., small municipalities, CalTrans and industrial business owners) is an understatement. In a rare intervention by members of the state legislature into the realm of state agencies, the Senate Select Committee on California Job Creation and Retention held an informational hearing on the draft permits on October 6, 2011. The message from the hearing came across loud and clear: time for a do-over.

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2011 CEQA MID-YEAR UPDATE

By Leslie Z. Walker, William W. Abbott, Cori M. Badgley and Katherine J. Hart

In the first six months of 2011, the appellate courts have issued eight opinions and the results are a mixed bag. On the one hand, the Sixth Appellate District gave cities and project proponents a strategy to deal with Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150); the First Appellate District gave more clarity on deferred mitigation in Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884; and the Fourth District held that petitioners failed to exhaust their administrative remedies when they did not fairly present evidence to the City (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 184 Cal.App.4th 1032). On the other hand however, the Fifth Appellate District held that project components not properly documented for CEQA purposes cannot be severed from the balance of the approval and a project found to partially violate CEQA, must be set aside in its entirety (Landvalue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675.)

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Two Instructive District Court Opinions on RCRA (90-Day) and CWA (60-Day) Pre-Lawsuit Notices: One "Boilerplate" Notice Was Insufficient; the Other Was Specific Enough

By Glen C. Hansen

Two Federal District Court opinions in California examined the sufficiency of pre-lawsuit notices that must be given to responsible parties and relevant agencies before citizen suits are filed either under the Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq. (“60-Day Notice”), and/or under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901, et seq. (“90-Day Notice”). In one case, the District Court held that the notices of CWA and RCRA claims were sufficient and did not have to be as specific as defendants suggested; in the other case, the pre-lawsuit notices of the RCRA claims were merely “boilerplate and conclusory” and therefore insufficient.

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No Discharge, No Cumulative Impact

By Leslie Z. Walker

In Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, Santa Monica Baykeeper (“Baykeeper”) challenged the City of Malibu’s adoption of an Environmental Impact Report (“EIR”) and approval of the Legacy Park project. Legacy Park is a clean water project located in Malibu, near Surfrider Beach. Baykeeper challenged the project alleging the EIR failed to analyze 1) construction related project impacts; 2) the impact of using treated effluent from the adjoining Malibu Lumber Yard; and 3) the cumulative groundwater impacts. The trial court denied the writ. On appeal, the City argued the case was moot because the project construction was completed during the pendency of the appeal. The Court of Appeal found the case was moot as to the first issue, construction related impacts, but not as to the second and third issues. The appellate court upheld the trial court’s denial of the writ as to the second and third issues, finding Baykeeper failed to demonstrate the City had abused its discretion.

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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.

Governor Schwarzenegger Signs Bill to Relieve POTWs of Some MMPs

By Katherine J. Hart

On September 30, 2010, the Governor signed Senate Bill 1284 (Ducheny) into law (Chapter 645). Ever since their adoption, Mandatory Minimum Penalties or MMPs have created serious economic hardship for local wastewater agencies. While concerns remain about MMPs, the California Legislature and Governor granted some much needed relief to these local agencies.

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TIMBER! The Silviculture Exemption for Logging Roads in the CWA is Felled

By Katherine J. Hart

In Northwest Environmental Defense Center, et al. v. Marvin Brown, et al., an environmental group sued various timber companies along with the Oregon State Forester and the individual members of the Oregon Board of Forestry for violations of the Clean Water Act on the grounds they did not obtain permits from the Environmental Protection Agency (EPA) for stormwater runoff that flows from logging roads into systems of ditches, culverts, and channels, which is eventually discharged into forest streams and rivers. The Ninth Circuit Court of Appeals concluded that such runoff from logging roads is a point source discharge and thus, an NPDES permit is required. The Court all but directed the EPA to prepare a general NPDES permit for stormwater runoff from logging roads which is discharged to navigable waters via ditches, culvert, and channels, and further indicated its confidence that the EPA would be able to do so in an expeditious manner. In California, the State Water Resources Control Board will be tasked with preparing and adopting such a general permit.

On May 17, 2011 the Ninth Circuit denied reconstruction of it forest roads decision in NEDC v. Brown.

Katherine J. Hart is a senior associate 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.

Basin Plan Amendments Addressing Impairments for Salt, Boron and Dissolved Oxygen are Valid

By Katherine J. Hart

In San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Board, et al., (2010) ____ Cal. App.4th ____, a group of public agencies, water contractors, and farmers filed a petition for writ of mandate against the State Water Resources Control Board (“State Board”) under the Clean Water Act (33 U.S.C. § 1251 et seq.) and the California Environmental Quality Act (“CEQA”) (Pub. Resources Code, § 21000 et seq.)

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Evaluation of Individual Water Transfer Not Considered Improper Piecemealing Under CEQA

By Leslie Z. Walker

In Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, the Castaic Water Agency (“Castaic”) succeeded in extracting its agreement with Kern County Water Agency (“Kern”), if only for a moment, from the tangles of the Department of Water Resources’ (“DWR”) Monterey Agreement.

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2009's Top 10: Legislation, Regulations, & Cases

From the quick fix solutions for the Delta to CEQA analysis on mitigation deferral, impact fees and the feasibility of alternatives, to the scope of the Corps permitting authority, the following legislation, regulations, and cases from 2009 (listed first by type of document, then in chronological order) will have the most impact on water supply, water quality, and land use and entitlement practice (e.g., development) in California in the coming years. And remember, you read it here first!

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Alaska's Gold Rush Continues: USACE 404 Permit Upheld by the Supreme Court

By Cori M. Badgley

As mining companies continue attempting to lay claim to gold in the state known as “the last frontier,” environmental groups continue in their efforts stop them. At issue in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (2009) 129 S. Ct. 2458 was the proposed disposal of “slurry” from the Kensington Gold Mine into Lower Slate Lake. The United States Army Corps of Engineers (“USACE”) issued a 404 permit for the “fill” of the lake, which was challenged by the Southeast Alaska Conservation Council (“SEACC”), among others, on the grounds that the new source performance standards found in Section 306 of the Clean Water Act (33 U.S.C. § 1251 et seq.) (“CWA”) prohibited the discharge of the slurry.

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Geographic Scope of Environmental Study Depends on Feasibility of Project without Federal Action

By Leslie Z. Walker

In White Tanks v. Strock (9th Cir. 2009) 563 F.3d 1033, the Ninth Circuit held the Army Corps of Engineers (“USACE”) had improperly confined the geographic scope of its environmental analysis under the National Environmental Policy Act (42 U.S.C. § 4321 et seq.) (“NEPA”) in issuing a permit under Section 404 of the Clean Water Act (33 U.S.C. § 1251 et seq.) (“CWA”).  The Court held that because the feasibility of the whole project depends upon the Corps granting a Section 404 permit, the entire project is within the purview of the Corps and thus subject to environmental review under NEPA.

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State Water Board Issues New Recycled Water Policy

By Glen Hansen

On February 3, 2009, the State Water Resources Control Board adopted its long-awaited Recycled Water Policy. The new policy is intended to support the Water Board’s strategic plan to increase sustainable local water supplies. The purpose of the new policy is to increase the beneficial use of recycled water from municipal wastewater sources in a manner that fully implements state and federal water quality laws. Pursuant to Water Code sections 13550 et seq., the Water Board declared: “[I]t is a waste and unreasonable use of water for water agencies not to use recycled water when recycled water of adequate quality is available and is not being put to beneficial use…”

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EPA May Not Delist Pollution Sources

By Leslie Z. Walker

According to a Ninth Circuit decision in Natural Resources Defense Council v. U.S. EPA  (9th Cir. 2008) 542 F.3d 1235, once the EPA has published a determination that a particular activity is a pollution source, The EPA has a mandatory duty to publish Effluent Limitation Guidelines (“ELGs”) within three years of that determination under section 304 of the CWA.

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No Conflict Between Prosecutorial and Advisory Positions

By Katherine J. Hart and Leslie Z. Walker

On February 9, 2009, the California Supreme Court held the State Water Resources Control Board (“Board”) did not violate the due process rights of the recipients of a proposed license revocation by refusing to disqualify the enforcement team because one or more members had advised the Board on other, unrelated issues. (Morongo Band of Mission Indians v. State Water Resources Control Board 2009 Cal. LEXIS 1009.)

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Ninth Circuit Holds Assertion of Jurisdiction By USACE Not a Reviewable Agency Decision

By Nathan Jones and Cori Badgley

In Fairbanks North Star Borough v. U.S. Army Corps of Engineers (2008) 543 F.3d 586, the United States Court of Appeals, Ninth Circuit held that the U.S. Army Corps of Engineers; (“USACE”) determination that a Clean Water Act section 404 wetlands permit would be required is not a final agency decision. Consequently, the USACE’s jurisdictional determination (“JD”) cannot be reviewed by the courts under the Administrative Procedures Act (“APA”) (5 U.S.C. § 704), if the JD concludes waters are present.

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California Army Corps Districts Release Mitigation Bank Templates

By Janell M. Bogue

On May 9, 2008, the Sacramento, San Francisco, and Los Angeles Districts of the Army Corps of Engineers (“Corps”) released standard templates for mitigation banks. Included are templates for:

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Army Corps of Engineers and EPA Issue Final Rule on Compensatory Mitigation

By Janell M. Bogue

On March 31, 2008, the EPA and the Corps issued a new final rule on compensatory mitigation for impacts to waters of the United States under Section 404 of the Clean Water Act. This final rule was published in the Federal Register on April 10, 2008 at 73 Fed.Reg. 19,593

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Petitioners Only Run to State Water Resources Control Board Before Exhaustion Kicks In

By Cori M. Badgley

Exhaustion of local remedies is a well-known doctrine among those who have attempted to appeal an administrative decision. The doctrine requires that a petitioner appealing a governmental agency’s determination or order must exhaust all of the remedies available through that agency before appealing to the courts. The Court of Appeal, Fourth Appellate District has now made it easier for petitioners appealing a determination of a regional water quality control board (“regional board”) to exhaust their local remedies. In Schutte & Koerting v. Regional Water Quality Control Board, San Diego Region (2007) Cal.App.LEXIS 2146, the appellate court held that anyone appealing the determination or order of a regional board must only request a hearing before the State Water Resources Control Board (“State Board”) in order to exhaust his or her local remedies.

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Current Issues in Storm Water and Wetland Regulations

January 29, 2008

This seminar addresses integrated issues in storm water, wetlands, and associated water quality regulations. Compliance guidance for both the storm water and wetlands programs will be provided while underscoring the relationship between the two programs.

You will hear the latest trends, case studies and policies related to storm water, wetlands and associated water quality regulations to enable you to proactively address and plan in lieu of reacting to regulatory changes and trends as they evolve.

Written materials for the class be accessed here and the presentation can be downloaded in two parts: part one and part two.

The Gold Rush is Back on in Alaska: Ninth Circuit Upholds USACE Permit Allowing Mining Involving Significant Filling of Wetlands

By Cori M. Badgley

On January 3, 2008, the Ninth Circuit Court of Appeals in Bering Strait Citizens for Responsible Resource Development v. United States Army Corps of Engineers, No. 07-35506 addressed alleged violations of the Clean Water Act (“CWA”) and the National Environmental Policy Act (“NEPA”) by the United States Army Corps of Engineers (“USACE”). Specifically, the plaintiffs alleged that USACE unlawfully granted a Section 404 permit to the Alaska Gold Company (“AGC”) allowing AGC to fill or dredge wetlands and that there were legal deficiencies in the accompanying environmental assessment (“EA”).

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Ninth Circuit Upholds Criminal Penalties for Modification of Intermittent Stream

By Leslie Z. Walker and Janell M. Bogue

Admonishing appellant for 20 years of blatant disregard for the Army Corps of Engineers (“Corps”) and the Clean Water Act (“CWA”), the Ninth Circuit upheld the Idaho district court’s verdict finding appellant criminally liable for violations of the Clean Water Act in U.S. v. Moses (Aug. 3, 2007, No. 06-30379) ___U.S. ___ [2007 U.S.App.LEXIS 18483].

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EPA and Corps Issue Rapanos Guidance

By Janell M. Bogue and Diane G. Kindermann Henderson

On June 5, 2007, the EPA and the Army Corps of Engineers (“Corps”) jointly issued guidance consistent with the Supreme Court’s decision in Rapanos. This document is entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v. United States (“Guidance”). The issue in Rapanos was whether a wetland or tributary can be defined as a “water of the U.S.” and thus be subject to jurisdiction under the Clean Water Act (“CWA”). (That case is discussed in depth in a previous Land Use Law Blog article “District Court Struggles with Rapanos in U.S. Pipeline v. Chevron Pipe Line.”) Because the Court issued five separate opinions, it was unclear whether certain types of waters were jurisdictional. The guidance document establishes several categories of waters and discusses whether or not the agencies may assert jurisdiction.

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County of Los Angeles v. Commission on State Mandates and the Regional Water Quality Control Board

By Kate J. Hart

On May 10, 2007, the California Second District Court of Appeal issued a potentially significant decision concerning unfunded state mandates dictated by a Regional Board permit issued in 2001.  The case is County of Los Angeles v. Commission on State Mandates and the Regional Water Quality Control Board (May 10, 2007) 2007 Cal.App.Lexis 711.  This case goes to the heart of state enforced regulatory authority because it calls into question whether the Regional Boards can issue permits (or enforcement orders) that require local governments, special districts, cities and counties to comply with a “new program or [provide] higher level of service of any existing program” without providing reimbursement for additional program costs.

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Mere Adjacency STILL Does Not Constitute Clean Water Act Coverage

By Kate J. Hart

In the recent case of San Francisco Baykeeper v. Cargill Salt Division (March 8, 2007) 2007 U.S.App.Lexis 5442, Baykeeper sued Cargill under the citizen suit provision of the Clean Water Act alleging that Cargill unlawfully discharged waste from its salt production operation into the “waters of the United States” without the proper permits. The body of water at issue was a non-navigable, intrastate pond (“Pond”), which was not a wetland, but that was located adjacent to the Mowry Slough (“Slough”) which is a water of the U.S. Baykeeper never argued that the Pond was a wetland, but instead argued that the Pond’s adjacency to the Slough provided a basis for CWA coverage. There was no evidence that the CWA would otherwise apply. In this case, the Ninth Circuit held that the adjacency of a non-navigable water body to a water of the U.S. does not, by itself, trigger the application of the CWA.

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Second Appellate District Modifies Opinion Regarding CEQA Analysis for NPDES Permits

By Janell M. Bogue

In a victory for the Regional Water Quality Control Boards and State Water Resources Control Board, the Second Appellate District revised its opinion in County of Los Angeles v. California State Water Resources Board (2006) 2006 Cal.App.LEXIS 1744 on November 6, 2006. Though several parties submitted petitions for rehearing, the court modified its previous October 5, 2006 opinion on its own and denied all the rehearing petitions. Click here to read about the court’s previous, unmodified opinion. Continue Reading...

Second Appellate District Holds that NPDES Permits are Subject to Focused CEQA Review

The opinion discussed in this article was modified on November 6, 2006. Please click here to read about the modified opinion.

By Janell M. Bogue

Recently, the Second Appellate District issued an opinion which may change how the nine Regional Water Quality Control Boards ("Boards" or "Regional Boards") issue National Pollution Discharge Elimination System ("NPDES") permits and comply with California Environmental Quality Act ("CEQA"). The case is County of Los Angeles v. California State Water Resources Control Board (2006) 143 Cal.App.4th 985.

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Ninth Circuit Takes a Look at Adjacent Wetlands in its First Post-Rapanos Opinion

By Elias E. Guzman

In the recent case Northern California River Watch v. City of Healdsburg (2006) 457 F.3d 1023, the Ninth Circuit offered its first look at "adjacent wetlands" in the post-Rapanos era. The facts of the case take us to the late 1960's, when the Basalt Rock Company began excavating gravel and sand from land adjacent to the Russian River in northern California. After the mining terminated, the excavated area left a rock quarry pit that measured one half mile in length and one quarter mile in breadth. The pit, which filled with water from the surrounding aquifer, became known as the Basalt Pond ("Pond"), and was located adjacent to the Russian River ("River"). The River was an undisputed navigable water of the United States, and was separated from the Pond by a levee. The distance between the Pond and the River ranged from fifty to several hundred feet.

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District Court Struggles with Rapanos in U.S. v. Chevron Pipe Line

By Diane Kindermann Henderson and Elias E. Guzman

Two weeks after the United States Supreme Court rendered its opinion in Rapanos/Carabell, et al. v. United States (2006) 126 S.Ct. 2208, the United States District Court for the Northern District of Texas delivered an opinion in United States v. Chevron Pipe Line Co. (D. Tex. June 28, 2006) 2006 U.S. Dist. LEXIS 47210. The court in Chevron was the first federal district court to apply the Army Corps of Engineers' jurisdictional authority standards enunciated in Rapanos. In granting summary judgment, the Chevron court opined that the connection of generally dry channels and creek beds does not create a "significant nexus" to a navigable water simply because one fed into the next during the rare times of actual flow.

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Important Update Regarding Irrigated Lands Program

The California Regional Water Quality Control Board, Central Valley Region ("Regional Board"), held a Public Advisory Committee meeting regarding its Irrigated Lands Program on May 9, 2005. The Regional Board hinted that in the next few months it will begin sending Water Code, section 13267 "Investigation of Water Quality" letters to those that discharge from irrigated land in the Yuba, Butte, and Sutter County areas, in addition to the Pitt River sub-watershed area. Section 13267 investigations will often demand that the alleged discharger provide the Regional Board with information, documents, and reports about its alleged discharge from irrigated lands.

As a reminder, all those that irrigate land in the Central Valley and have the potential to discharge into waters of the state in a manner that could affect water quality must: 1) Obtain Waste Discharge Requirements, 2) Obtain Individual Discharger waivers, or 3) Obtain waivers by joining a Coalition Group.

For information on the Irrigated Lands Program and compliance requirements, contact our office, or visit our website at http://www.aklandlaw.com, or see the Regional Board's website at http://www.waterboards.ca.gov/centralvalley/programs/irrigated_lands/index.html.

United States Supreme Court Mixes a New Water Quality Cocktail - Beware of Mental Confusion and Bitter Aftertaste

by Robert T. Yamachika

The United States Supreme Court recently decided South Florida Water Management District v. Miccosukee Tribe of Indians 124 S. Ct. 1537 (2004), a case which has the potential to significantly affect the government's authority to regulate discharges into the Nation's waters. The case revolves around several elements of the South Florida Water Management District's ("District") Central and South Florida Flood Control Project ("Project"), consisting of a vast array of levees, canals, pumps and water impoundment areas in the land between south Florida's coastal hills and the Everglades. A canal, referred to as the C-11 canal ("Canal"), collects groundwater and rainwater from a 104 square mile area which includes urban, agricultural and residential development. At the end of the Canal the District operates a pumping facility ("Pump") that transfers water from the Canal into the largest of several "water conservation areas" ("WCA-3") that are remnants of the original Everglades. The Canal and WCA-3 are separated by two levees. During periods of rain, water collects on the western side of the levees in the wetland ecosystem of WCA-3, while rainwater on the eastern side falls on agricultural, urban and residential land where it absorbs contaminants produced by human activities before it enters the Canal. In particular, the water in the Canal contains elevated levels of phosphorous from fertilizers used within the basin. As a result, when the water from the Canal is pumped across the levees, the phosphorous alters the balance of WCA-3's ecosystem and stimulates growth of algae and plants.

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Clean Water Act Update: Three Recent Wetland Cases Support Narrow Reading of SWANCC

by Robert T. Yamachika

The extent of Clean Water Act ("CWA") jurisdiction has been a hotly debated topic over the past few years ever since the United States Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) ("SWANCC"). In SWANCC, a divided Supreme Court (5-4) invalidated the Migratory Bird Rule which the Army Corps of Engineers ("ACOE") used to extend the CWA's jurisdiction to non-navigable, isolated waters used as habitat by migratory birds. Although the Court struck down the Migratory Bird Rule, it failed to make clear what waters and wetlands are subject to the CWA's jurisdiction. This has resulted in considerable confusion and the courts have continued to struggle with determining the extent of the CWA's jurisdiction.

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Selecting the Right BMPs for Your City, County or Project

by Diane G. Kindermann Henderson

Recent state and federal changes to stormwater control requirements have increased the number of development projects subject to permitting requirements and have drawn additional localities into regulation of stormwater runoff.

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Storm Drainage Fees are Property-Related Fees Subject to Proposition 218 Requirements

by Diane G. Kindermann and Robert T. Yamachika

In a recent Proposition 218 case, Howard Jarvis Taxpayers Association v. City of Salinas (2002) 98 Cal.App.4th 1351, the Court of Appeal for the Sixth Appellate District held that a "storm water drainage fee" was illegally imposed by the City of Salinas. The plaintiff, Howard Jarvis Taxpayers Association ("HJTA") contended that the storm drainage fee imposed by the City of Salinas was a "property-related" fee requiring voter approval. HJTA's arguments were based on Proposition 218, the "Right to Vote on Taxes Act," which was passed by the California voters in 1996. Proposition 218 added article XIII D, section 6(c) to the California Constitution, requiring notice for a public hearing and a vote for a proposed property-related fee or charge. If a majority of the affected property owners or two-thirds of the electorate in the affected area do not approve the fee, it may not be imposed.

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New Nationwide Permits Issued by Army Corps of Engineers, Tolling Agreements and Revised Delineation Standards

by Diane G. Kindermann and Robert T. Yamachika

Nationwide Permits
On January 15, 2002, the United States Army Corps of Engineers ("Corps") announced the re-issuance of all existing Nationwide Permits ("NWPs"), General Conditions, and definitions with some modifications, and one new General Condition. All of the NWPs became effective on March 18, 2002 and expire on March 19, 2007.

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