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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.)
Continue Reading...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.
Continue Reading...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.
Continue Reading...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:
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
Redding Conference
Sacramento Conference
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.
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:
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
Redding Conference
Sacramento Conference
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.
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.
Continue Reading...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.
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.)
Continue Reading...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.
Continue Reading...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!
Continue Reading...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.
Continue Reading...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.
Continue Reading...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…”
Continue Reading...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.
Continue Reading...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.)
Continue Reading...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.
Continue Reading...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:
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.
Continue Reading...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.
Continue Reading...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.
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”).
Continue Reading...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].
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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.
Continue Reading...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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