Mark your calendar – registration for Abbott & Kindermann’s 16th Annual Land Use, Real Estate, and Environmental Law Update will open on October 18, 2016.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Redding Conference 

Date: Wednesday, January 11, 2017

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, January 20, 2017

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

Modesto Conference 

Date: Friday, January 27, 2017

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.

Napa Conference 

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

By Diane G. Kindermann, William W. Abbott, Glen Hansen, Brian Russell and Dan Cucchi

Welcome to Abbott & Kindermann’s 2016 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 Rights and Supply, (B) Water Quality, (C) Wetlands, (D) Air Quality and Climate Change, (E) Endangered Species, (F) Renewable Energy, (G) Hazardous Substance Control and Cleanup, (H) National Environmental Protection Act, and (I) Mining / Oil & Gas.

Click Here to read the complete update.

 

If you have any questions about these court decisions, contact Diane Kindermann, William Abbott or Glen Hansen. 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.

 

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

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

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • 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.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • 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

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • 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.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

By Diane G. Kindermann, William W. Abbott and Glen Hansen

Welcome to Abbott & Kindermann’s 2015 Third Quarter 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 Rights and Supply, (B) Water Quality, (C) Wetlands, (D) Air Quality and Climate Change, (E) Endangered Species, (F) Renewable Energy, (G) Hazardous Substance Control and Cleanup, (H) Mining / Oil & Gas, and (I) Environmental Enforcement.

Click here to read the complete update.

If you have any questions about these court decisions, contact Diane Kindermann or Glen Hansen. 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 Glen C. Hansen 

Siskiyou County Farm Bureau v. California Department of Fish and Wildlife (2015) 237 Cal.App.4th 411.

California Fish and Game Code sections 1600 et seq. were adopted in 1961 to ensure that the California Department of Fish and Game (now the Department of Fish and Wildlife, or “Department”) was notified for projects that substantially altered a watercourse. Section 1602 requires that an entity or person notify Department and obtain a Lake and Streambed Alteration Agreement (“Agreement”) before that entity or person begins any activity that will “substantially divert or obstruct the natural flow of, or substantially change or use any material from the bed, channel, or bank of, any river, stream, or lake, or deposit or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake ….” For over 50 years, ranchers and farmers in Siskiyou County have extracted water from streams and rivers under valid water rights and in accordance with relevant water adjudication decrees, in order to irrigate crops and pastures, to water livestock, and for use in their homes and businesses, without altering the applicable lake or streambed. They did so without notifying the Department and obtaining an Agreement under section 1602.

However, based on a 1973 Attorney General Opinion, the Department interpreted section 1602 to mean that notification to Department and obtaining an Agreement is required under that statute even for the mere act of extracting water from rivers, streams and lakes in accordance with a valid water right where there is no alteration of the watercourse. In 2011, the Siskiyou County Farm Bureau filed a declaratory relief action in Superior Court in Siskiyou in order to clarify the rights and duties of its members under section 1602. The Farm Bureau read section 1602 to exclude from the notification requirement those activities that take water without disturbing the streambed or bank.

The Superior Court considered extrinsic evidence and, in attempting to resolve a perceived ambiguity, held for the Farm Bureau. The trial court found that “Fish and Game Code §1602 does not require notification of the act of extracting water pursuant to a valid water right where there is no alteration to the bed, bank, or stream.” Therefore, the trial court enjoined the Department “from bringing enforcement action against agricultural water diverters for failing to notify the department of the diverter’s intention to exercise his water right absent alteration to the bed, bank, or stream.” The Department appealed.

In June 2015, the Court of Appeal for the Third Appellate District reversed. The appellate court held that, because a natural reading of the statute embraces diversions of water without alteration of or damage to the streambed itself, diversions can occur by pumping water for agricultural purposes, whether or not such pumping alters the streambed. The court rejected the extrinsic evidence provided by the Farm Bureau of a contrary statutory intent, because the extrinsic evidence failed to reveal a statutory ambiguity: “The term ‘divert’ had a long-established meaning in the context of water law before enactment of the statute, and we presume the Legislature was aware of that meaning when it used divert as it did in section 1602.” Because the term “divert” has always applied “to the taking of water from a stream or river, and not merely blocking or altering the course of the stream or river itself,” that term does not exclude ordinary agricultural pumping, according to the court. Also, the fact that the Legislature “did not explicitly address the then well-settled meaning of divert and the ensuing consequences of its actions creates no ambiguity in the word divert itself.” The Farm Bureau’s position, the court concluded, would effectively read the word “divert” out of the statute. Furthermore, the court pointed out that the apparent lack of previous enforcement by the Department did not warrant a different interpretation. “[P]ast nonenforcement does not necessarily reflect a formal administrative interpretation precluding enforcement, but could instead reflect the exercise of prosecutorial discretion or limited resources ….”

However, the recent willingness by the Department to fully enforce the notification requirement is likely due to an effort by the State to account for all available water during the current drought conditions. The court explained:

[T]aking it as true—as the trial court found—that the Department has not previously enforced section 1602 absent streambed alteration, that is an insufficient basis on which to find the statute precludes it from doing so. In the face of extreme drought and piscatorial peril, the Department now wishes to employ the full measure of the law to substantial dewatering of streams absent physical alteration to the streambeds. Its previous lack of enforcement does not rewrite the statute 

The court also held that compliance with section 1602 (and the ramifications that result from notification pursuant to the statute) does not effect a taking under the state and federal constitutions. That is because the statute “helps ensure the continued beneficial use of California’s water” and constitutes “a proper exercise of regulatory police powers.” 

In addition, the notification requirement in section 1602 did not intrude on the powers or duties of the State Water Resources Control Board to adjudicate water rights issues. The Board makes “interagency accommodations” with the Department, and any actual conflict could be resolved on an as-applied basis. As the court explained: “Here, the Department seeks no appropriative rights but merely seeks to exercise the statutory mechanism for determining whether substantial diversions have occurred that may harm fish.” 

Thus, according to the Court of Appeal, section 1602 requires that notification be given to the Department in the following three instances: 

“An entity may not [(1)] substantially divert or obstruct the natural flow of, or [(2)] substantially change or use any material from the bed, channel, or bank of, any river, stream, or lake, or [(3)] deposit or dispose of debris, waste, or other material … where it may pass into any river, stream, or lake [absent, inter alia, notification to the Department].” [Brackets in original.] 

Applying that statute to agricultural users who substantially divert water without altering the streambed “does not impair their vested water rights in any way,” but does require notification to the Department, thereby “triggering arbitration and adjudication procedures in the event of disagreement, inter alia, as to whether a substantial diversion has occurred or will occur.”

Armed with that expansive interpretation of section 1602, the Department will likely pursue those enforcement mechanisms more vigorously as the ongoing drought conditions persist in California. The court essentially invited that greater regulatory oversight:

Quite obviously, a severe drought, which has the effect of further damaging the habitat of an endangered fish species, must be part of the factual matrix considered in determining what is a reasonable use of the water—water which belongs to the people, and only becomes the property of users—riparian or appropriative—after it is lawfully taken from the river or stream. Past practices, no matter how long standing, do not change current reality. [Citation.] [¶] Contrary to the parade of horribles posited by the Farm Bureau and some allied amici curiae, and evidently assumed by the trial court, if a different policy is desired, the Legislature may rewrite the statute.

Thus, the case further bolsters the State government’s heightened supervision of the water supply in California.

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.

By Diane Kindermann, William W. Abbott and Glen Hansen

Welcome to Abbott & Kindermann’s 2015 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 Rights and Supply, (B) Water Quality, (C) Wetlands, (D) Air Quality and Climate Change, (E) Endangered Species, (F) Renewable Energy, (G) Hazardous Substance Control and Cleanup, (H) Mining / Oil & Gas, and (I) Environmental Enforcement.

Click Here to read the complete update.

If you have any questions about these court decisions, contact Diane Kindermann, William Abbott or Glen Hansen. 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.

Continue Reading 2015 MID-YEAR ENVIRONMENTAL LAW UPDATE

By Glen C. Hansen

On May 27, 2014, the State Water Resources Control Board (“Board”) issued curtailment notices to all post-1914 appropriative water right holders in the Sacramento-San Joaquin, Russian, and Eel River watersheds. On October 3, 2014, the Executive Director of the Board issued a letter to appropriate water rights holders that discussed the Board’s plan to temporarily lift such curtailments during future rainfall events. (The letter is found at http://www.swrcb.ca.gov/waterrights/water_issues/programs/drought/docs/curtail_lift.pdf.) Because the conditions in many of the State’s watersheds “continue to demonstrate that there is insufficient water available to meet reported demand,” the Board intends to “temporarily lift curtailments during significant storm events to capture new precipitation.” The Executive Director explained that policy as follows: 

Due to the possibility for prolonged dry conditions, the State Water Board does not want to limit the potential for water right holders in the curtailed watersheds to collect water to storage during near-term substantial precipitation events. If dry conditions persist, then it is in the public interest to maximize the amount of water diverted to storage for later beneficial use, particularly given the low storage levels at the outset of the water year. Until the time when curtailments are permanently lifted based on the water availability/demand analysis, the State Water Board plans to provide notice of periodic opportunities during storm events to divert water. Since such notices will be reactive to precipitation events, the State Water Board’s notices will be distributed on a real-time basis solely via email through the Drought email subscription available at: http://www.waterboards.ca.gov/resources/email_subscriptions/swrcb_subscribe.shtml (select Water Rights and then Drought Updates). Notices will not be mailed out. Should the State Water Board temporarily lift curtailments, you will be authorized to immediately divert water under your post-1914 right, provided your right authorizes diversion at that time and you comply with all other terms and conditions of your right. You are responsible for monitoring your email account and taking immediate action to cease diversion of water under your post-1914 rights should the State Water Board send a follow-up curtailment notice. Failure to cease diversions after that notice will be subject to enforcement.

The State Water Board considers implementation of this real-time early precipitation plan in the public interest because it increases water storage supplies at every opportunity. The State Water Board also considers the potential for injury to most senior water right holders to be minimal. The lifting of curtailment, however, does not release junior water right holders from the standard obligation to allow water to pass for senior diverters when they must do so to satisfy senior water rights. For this reason, water right holders should maintain a record of daily diversions in case a complaint by a senior right holder alleges injury resulting from the diversions. The State Water Board will request such records if complaints are received. Water right holders should monitor the State Water Board’s email notices and/or website to take advantage of these temporary actions. [Bold and italics added.]

Appropriative water rights holders are therefore urged to make sure the Board has their accurate email addresses, and to monitor all correspondence from the Board (or frequently check the Board’s website when there is the possibly of rain in the forecast).

Glen C. 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.

 

 

 

Continue Reading State Water Resources Control Board Issues Notice Of Plan To Temporarily Lift Curtailments During Future Rainfall Events