The Supreme Court further expanded the scope of permitting requirements for point source pollution under the Clean Water Act (“CWA”) in a case involving discharge liability to the County of Maui, Hawaii. The County operated four water treatment wells at the Lahaina Wastewater Reclamation Facility and used the wells as groundwater injection locations for treated effluent wastewater. The County operates all four wells at a treatment rate of 2 to 5 million gallons of treated effluent wastewater per day. The County admitted that at least two of its injection wells had a known release of treated effluent wastewater. The County further concurred that if the groundwater treatment wells were connected to a Water of the United States (“WOTUS”), a National Pollutant Discharge Elimination System (“NPDES”) permit would be required to discharge it into the ocean, because discharge of pollutants from one-point source into a navigable WOTUS requires a NPDES permit under the CWA. However, the County failed to obtain a NPDES permit for the four wells. In the County’s opinion, because the treated wastewater filtered through an alleged series of indirect channels and pathways before reaching the ocean, there would be no discharge liability under the CWA.

The U.S. District Court held that under the CWA the County: (1) indirectly discharged into the ocean through a groundwater conduit; (2) the groundwater is a point source under the CWA; and (3) the groundwater is a navigable water under the CWA. The Court of Appeal affirmed the District Court’s adoption of the plurality view of the “Waters of the United States” in Rapanos v. United States, 547 U.S. 715 (2006). Justice Scalia in Rapanos stated the CWA does not discern between direct and indirect point sources, and liability for both is clear under the statute. The justices of the Supreme Court unanimously affirmed Scalia’s interpretation of liability for both indirect and direct point sources.

In the case at issue, the Ninth Circuit held that the County may not build an ocean outfall for an indirect point source without obtaining a NPDES permit to avoid CWA liability. “The appeals court wrote that a permit is required when ‘the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.’” Hawai’i Wildlife Fund v. County of Maui, 886 F.3d 737, 749 (2018) (emphasis added).

On February 19, 2019, the U.S. Supreme Court granted limited review of the case. The Court agreed only to hear the first cause of action: whether the County indirectly discharged into the ocean through a groundwater conduit. Oral argument took place on November 6, 2019, and the Court took arguments under submission. The Court considered competing arguments over whether the Ninth Circuit’s “fairly traceable” standard should apply before a point source reaches a navigable water or whether there is a “bright-line test” where one non-point source severs the continual connection to a navigable water. In a 6-3 opinion, the Court reasoned that a middle ground existed between the parties’ arguments. The statutory language allowed for a narrower interpretation than the Ninth Circuit’s ruling which is also significantly broader than “total exclusion of all discharges through groundwater.”

The opinion, written by Justice Breyer, likened the middle ground for regulating a discharge into groundwater that flows into a navigable water as a “functional equivalent of a direct discharge.” Under this reasoning, the Court held that a party who discharges pollutants into a groundwater table that directly flows into a navigable water needs to obtain a NPDES permit as outlined in the CWA. The Court’s expansion of the regulation of groundwater discharge was issued on the heels of the EPA’s finalized WOTUS rule which limited the definition of navigable waters to only surface waters and connected, free flowing streams, rivers, and tributaries that flow to the ocean. EPA clearly articulated its desire to exclude groundwater from the WOTUS rule. The County of Maui further argued this point to the Court to no avail. As the majority of the justices stated, allowing a limited scope for permitting discharge pollutants only connected by surface water would leave considerable backchannels for polluters to avoid liability not directly releasing into surface water. Justice Breyer left flexibility for the states to implement and regulate the issuance of permits under their authority.

As Justice Roberts articulated, the “functional equivalency” test requires further clarification to guide lower courts. As such, the Court remanded the case to the Ninth Circuit to further consider the parameters for a “functional equivalency” test and further executive branch rulemaking may follow. The Court’s decision upends the newly adopted WOTUS rule and definition, and now requires the Ninth Circuit to redefine the “functional equivalency” test to avoid a barrage of fact specific cases in the federal courts.

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

 

Cty. of Maui v. Haw. Wildlife Fund_ 206 L. Ed. 2d 640

Delta Stewardship Council Cases (Cal.Ct.App., April 10, 2020, cases nos. C082944, C086199) 2020 Cal.App.Unpub.LEXIS 2279.

In an unpublished decision, the Court of Appeal for the Third Appellate District affirmed the trial court’s ruling that reduced the amount in attorney’s fees a plaintiff could collect under Code of Civil Procedure section 1021.5 after prevailing on only 1 out of 13 issues presented by the plaintiff to the trial court. The unpublished case is instructive in that it addresses an issue that frequently occurs in writ of mandamus cases: How does a court consider and resolve the attorney’s fees request of a plaintiff that prevails on only a portion of the claims presented and argued?

The case concerned the management and resource availability of the Sacramento-San Joaquin Delta (“Delta”). As part of the case on the merits, the trial court rejected 12 of the 13 causes of action Plaintiff C-WIN alleged against Defendant The Delta Stewardship Council (“Council”) claiming that the Delta Plan was deficient. The only argument not rejected by the Court was that the Delta Plan failed to promote options for new and improved infrastructure relating to the water conveyance in the Delta, storage systems, and for the operation of both. The trial court stated that the Council could satisfy the requirements of Water Code section 85304 by either adopting regulations or recommendations.

After judgment was entered, C-WIN filed a motion under section 1021.5, seeking $1,440,713.00 in fees and costs, which included a request to apply a 2.0 multiplier to the lodestar. Council opposed the motion on the ground that C-WIN did not achieve its litigation objectives, as it was unsuccessful on 12 of its 13 arguments claiming the Delta Plan was deficient and only won a de minimis victory on its water conveyance claim. The Council also argued that a multiplier was not warranted, that C-WIN requested an unreasonable hourly rate of $600 per hour for two attorneys, that C-WIN was not entitled to recover fees for time spent on CEQA issues, and that C-WIN was improperly attempting to “qualify for fees” by claiming credit for work performed by other petitioners on a certain issue (the Council argued that C-WIN incorporated by reference the arguments made by other petitioners and did not contribute anything of substance to that issue). The trial court held that C-WIN was entitled to recovery under 1021.5, but that recovery was reduced to only those claims/arguments that C-WIN was successful on. The trial court agreed with the Council that the requested fee award should be reduced by 12/13ths to reflect that C-WIN was unsuccessful on the majority of its “arguments/claims.” The trial court further found that $600 an hour for two of C-WIN’s attorneys was unreasonable and because the court did not reach the merits of a single CEQA cause of action. Lastly, the trial court held that the multiplier was too excessive and reasoned that a 1.5 multiplier to the lodestar was more appropriate. In total, the trial court awarded C-WIN $94,698.33.

On appeal, C-WIN argued that the trial court erred in the fee award as several of its arguments were so “intertwined and intimately related” that it achieved “full success” on its objective to invalidate the Delta Plan. In counter to C-WIN’s argument, the Council argued that C-WIN achieved only a “technical win” since the ultimate objective for C-WIN was to require the Council to adopt a new plan and this objective was not met. The Council cross-appealed on the ground that the trial court erred in applying a 1.5 multiplier to the lodestar in calculating the fee award. The Court of Appeal found no error in the trial court’s ruling on the attorneys’ fees.

Under §1021.5, a party may be awarded attorney’s fees on claims of “public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” The lodestar and multiplier are reflective of the reasonable value of the representation and results obtained. The party seeking fees has the burden of proving what is a reasonable value.

On appeal, C-WIN argued that the trial court’s reduction of the award by 12/13ths was inconsistent with the substantive law of section 1021.5, and an abuse of discretion. The Court of Appeal disagreed. The appellate court recognized that the degree or extent of the prevailing party’s success in obtaining the results sought by that party “must be taken into consideration” in determining the extent of attorney’s fees which it would be reasonable for that party to recover.  The Court of Appeal applied a two-part analysis to assess whether a partial victory was reasonably consistent with the trial court’s recovery award. The first step includes evaluating what claims relate to party’s success and if there is “a common core of facts or are based on related legal theories.” If successful and unsuccessful claims are related, the court proceeds to the second step, which requires the trial court to evaluate the degree of significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation. A court may identify specific hours that should be eliminated or simply reduce the award to account for the limited success of a claimant.

In applying this two-part process, the Court of Appeal determined that C-WIN failed to prove that the trial court erred in reducing the requested fee award based on limited success. The appellate court rejected C-WIN’s contention that its unsuccessful arguments for setting aside the Delta Plan were related to its successful argument. “The unsuccessful arguments were not merely different legal theories attempting to achieve the same result as the successful argument. Rather, the unsuccessful arguments intended to remedy alleged deficiencies in the Delta Plan entirely distinct and separate from the deficiency on which its successful argument was premised.” The Court also noted how C-WIN shifted in what it considered to be the “central objective” of its lawsuit. Also, the Court pointed out that “C-WIN devoted 34 pages of its merits brief to arguing that the Delta Plan was deficient,” and “[f]our of those pages discuss the issue of water conveyance, and nothing in the brief suggests that this issue was more important than any of the other 12 arguments claiming the Delta Plan was deficient. The Court was not persuaded by C-WIN’s contention that the trial court abused its discretion by failing to consider the litigation objectives disclosed in C-WIN’s petition.

The Council requested the Court of Appeal reject the multiplier to the lodestar since the trial court failed to “state a rational basis” for it. The Court rejected this argument since the Council did not raise the issue when the trial court released its tentative opinion. The court stated that the record established that the parties were aware of the factors the trial court used to justify the 1.5 multiplier and failed to object to the tentative opinion.

William Abbott is Of Counsel and Glen Hansen is Senior Counsel at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

Welcome to Abbott & Kindermann, Inc.’s Inaugural Real Estate Law Action News. This summary provides a follow-up to the Abbott & Kindermann Land Use Conference and Outline provided in January 2020 with new case summaries from 2020.

  1. PREVIOUS MONTH’S UPDATE

Abbott & Kindermann, Inc., will begin providing a monthly review for real estate law starting in May 2020. Check back next month for a summary of this month’s Real Estate Law Action News.

  1. CASES PENDING AT THE CALIFORNIA SUPREME COURT

There is one case pending at the California Supreme Court. The case and the Court’s summary are as follows:

Weiss v. People ex rel. Dept. of Transportation, S248141.  (G052735; 20 Cal.App.5th 1156; Orange County Superior Court; 30-2012-00605637.)  Petition for review after the Court of Appeal reversed the judgment in a civil action.  This case presents the following issue:  Can the procedure permitted by Code of Civil Procedure section 1260.040 be used in an inverse condemnation action to determine in advance of a bench trial whether a taking or damaging of private property has occurred?

  1. UPDATE

A. TAKINGS

  1. Ruiz v. County of San Diego (2020) 47 Cal.App.5th 504.

The Court of Appeal reversed the trial court’s determination that a homeowner could claim redress by inverse condemnation against a county if their private drainage system allowed for flow of public water. The Court of Appeal considered whether privately owned drainage on private property allows for homeowner remedies by inverse condemnation if the water in the private pipeline is for public use. Plaintiff/Appellee Ruiz (“Ruiz”), claimed that because the developer offered the County of San Diego (“County”) a dedicated easement to allow for public drainage in 1959 and the County turned down the easement, Ruiz could recover for water damage as a result in the pipeline leaking on Ruiz’s property. Ruiz claimed that the County’s use of the drainage system as part of the Valley drainage system constituted an acceptance of the drainage easement offered in 1959. The Court of Appeal, citing Locklin v. City of Lafayette,       7 Cal.4th 327 (1994), held that the County’s use of the Ruiz pipe did not meet the requirements for inverse condemnation since the County needed to exert minimal control and maintenance over the watercourse near the Ruiz property in order for the County to be held liable for damage caused by streamflow. The Court of Appeal found Ruiz’s arguments unpersuasive since there was no evidence that the County controlled or even owned any portion of the private pipeline. The Court, thus, held that Ruiz lacked substantial evidence to prove that the County had taken their private property for a public use. The Court reversed the award of attorney’s fees to Ruiz and held that each party should bear their own attorneys fees on appeal.

B. GENERAL REAL ESTATE

  1. Jeppson v. Ley (2020) 44 Cal.App.5th 845.

Among one of the more colorful neighbor disputes in 2020, the Court of Appeal affirmed the trial court’s decision to deny redress to Appellant, Jeppson, since there was no issue of “public interest” involved in a neighborhood feud where appellant’s cat was killed by appellee’s dog. The Court evaluated whether Jeppson’s claims arose from protected activity and then measured the likelihood of success on each claim as part of Jeppson’s summary judgment motion. A protective activity would grant relief to plaintiff in connection with an issue within the public interest. (Code of Civ. Proc., § 425.16, subd. (e)(3).) The Court evaluated six criteria outlined in Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913; Weinberg v. Feisel (2003) 110 Cal.App.4th 1122; Workman v. Colichman (2019) 33 Cal.App.5th 1039; Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291; and FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, to determine if the Jeppson’s claims were in fact within the “public interest.” The criteria were as follows:

  • Statements or conduct concerning a person or entity in the public eye,
  • Conduct that could directly affect a large number of people,
  • A topic of widespread public interest,
  • Whether the issues affect only those directly involved,
  • Gathering ammunition for a private controversy, and
  • Where issues are too remotely connected to the public conversation to assert the issue within the public interest.

The Court reasoned that the claims at issue between Jeppson and Ley did not meet the criteria outlined in any of the above categories because, among other reasons, the use of a website to seek more ammunition to continue the clash did not otherwise inflate this private squabble amongst two neighbors into a matter of widespread public interest. The Court stated, “Feuds can metastasize into the Hatfields and McCoys or the Montagues and Capulets. This tiff, though bitter, remained strictly local: a private affair and not a matter of “public interest.” The Court affirmed the trial court’s ruling in favor of Lay and awarded costs on appeal to Jeppson.

  1. Kelly v. House (2020) 47 Cal.App.5th 384 (modified for partial publication, April 1, 2020).

The Court of Appeal awarded statutory attorneys fees to Appellant for the trespass and conversion on to Appellant’s agricultural property because the damaged land resulted in loss of organic certification status and prevention of prospective buyers’ right of first refusal. Plaintiffs, the Houses, appealed the decision of the trial court denying their claims for attorney’s fees against the Fosses for trespass and conversion of their property. The Court of Appeal considered: (1) whether the Fosses entering the Houses’ leased property and spraying pesticide jeopardized the fragile organic farming certification held by the Houses, and (2) whether such claims gave rise to an award of attorney’s fees. Code of Civil Procedure section 1021.9 provides: “In any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be entitled to reasonable attorney’s fees in addition to other costs, and in addition to any liability for damages imposed by law.” Defendant argued that the Houses could not recover under Section 1021.9 for attorneys fees because the majority of their fees related back to other claims and did not represent the actual fees incurred for the trespass claims. The Court held that the Houses could recover attorneys fees under the statute because the statute was intended to protect farmers from illegal trespasses to their land and the other related claims may be sufficiently “intertwined, that it would be impracticable, if not impossible, to separate [the fees for each claim].” The Court remanded the case to the trial court to determine the amount of reasonableness of the Houses’ attorney’s fees under section 1021.9 as it relates to the trespass claim and determine whether apportionment is appropriate under the circumstances.

C. COMMON INTEREST DEVELOPMENTS

  1. Aldea Dos Vientos v. CalAtlantic Group, Inc. (2020) 44 Cal.App.5th 1073.

In a construction defect case before the Second District Court of Appeal, the Court reversed the trial court’s confirmation of the arbitrator’s award for the project developer in a lawsuit with the condominium association (“association”). The Court of Appeal concluded that the requirement in the association’s governing documents that a majority vote of members must vote in favor of binding arbitration prior to beginning, and that the arbitrator’s rejection of a ratifying vote of the association constituted an “unreasonable servitude” under Code of Civil Procedure section 1286.2, subdivision (a)(4). As the Court reasoned, the arbitrator’s award violated the public policy embodied in the statute because it gives a developer standing to assert a clause intended to protect the association’s members as a bar to rights of the association. The Court reversed the trial court’s decision and awarded costs to the appellant.

D. REAL ESTATE CONTRACTS & TRANSACTIONS

  1. Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337.

On appeal, the Second District Court of Appeal reversed the lower court’s denial of Appellants’, Jaman Properties 8 LLC (“Jaman”), motion to compel arbitration under the Federal Arbitration Act (“FAA”). Victrola 89, LLC (“Victrola”) brought suit against Jaman in superior court alleging undisclosed and unrepaired defects in a real property transaction. Under the real estate purchase agreement between the parties, Jaman moved for arbitration under the Federal Arbitration Act, which the trial court denied finding that the California Arbitration Act (“CAA”) controls arbitration between the parties. The appellate court held that the FAA preempts procedural provisions otherwise controlled by the CAA if the purchase agreement between the parties incorporates the FAA on its face. The real estate purchase agreement between the parties expressly stated that the FAA would control. The Court held that Victrola’s piecemeal arguments of which sections of the CAA should control and which of the FAA should control in arbitration were unpersuasive. It reasoned that the lack of specificity in the contract for which claims should be arbitrated under the CAA and under the FAA was immaterial since the agreement’s incorporation of the FAA meant that the FAA preempts the CAA and controls. Thus, the Court held that Victrola must arbitrate its claims under the FAA unless the trial court is able to find that Jaman is estopped from doing so as a result of Jaman’s reliance on provisions of the CAA earlier in the litigation and remanded the case back to the trial court to make that determination.

E. EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES

  1. Gamerberg v. 3000 E. 11th St., LLC (2020) 44 Cal.App.5th 424.

The Second District Court of Appeal reversed a trial court ruling holding that irrevocable licenses tied to a 1950 parking affidavit do not survive transfers of the property to different owners without notice. The dispute between parties arose when it became unclear who had a right to eight parking spaces on a lot between two commercial business owners. Plaintiff, Gamerberg, filed a complaint in the trial court alleging that he held an irrevocable license over eight spaces in the lot based on a 1950 parking affidavit grandfathering his use of the spaces. The Court examined whether the 1950 affidavit created an irrevocable license binding on subsequent purchasers who had no notice of the affidavit. The Court held that because the 1950 affidavit was not recorded meant that the document did not bind subsequent purchasers who had no actual notice of the provisions in the affidavit. The Court reversed the trial court’s ruling and awarded costs to 3000 E. 11st St., LLC.

  1. Madani v. Rabinowitz (2020) 45 Cal.App.5th 602.

In a suit based on claims of trespass and negligence when defendant, Rabinowitz, erected a fence and continually parked inoperable cars on plaintiff Madani’s property, the Second District Court of Appeal affirmed that the fence and parked cars were continuing encroachments. It held that since the fence and parked cars were a continuing encroachment, the statute of limitations did not apply and the Court could review the case subject to independent review of the facts. The appellate court also agreed with the trial court that costs to move the fence were insufficient to warrant leaving the fence as a permanent structure. It noted that Rabinowitz replaced the fence in 2015 and could move the fence for a modest cost. The Court further held that Madani could not recover costs because they did not present sufficient evidence to justify a damages award. It reasoned that since the trial court granted injunctive relief, that was sufficient to deny an award of monetary damages and ruled both parties shall split costs.

William Abbott, Diane Kindermann, Glen Hansen, and Dan Cucchi are attorneys at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

Daniel Cucchi was a panelist on the April 30, 2020, virtual brown bag webinar titled, “Planning through the COVID-19 crisis: How are we adapting in these uncertain times?”. The seminar was hosted by APACA – Sacramento Valley Section and can now be viewed by clicking here.

Webinar Description:

Join us for a free webinar hosted by Sacramento Valley Section and the APA California Chapter to hear how public, private, legal, and technology practitioners are adapting to the disruption associated with COVID-19 crisis. Learn about the tools, practices, and strategies that our panelists have deployed in working through the “temporary normal.” We will also discuss how the Governor’s executive orders and directives affect the legal requirements for planning timelines and public engagement. Curious about which technology platforms can help us perform our jobs and stay connected to our communities? We will learn about that too!

Thursday, April 30th

1:00 – 2:00 p.m.

Panelists

Yassi Sarvian, Director, APA Sacramento Valley Section (Moderator)

Tom Pace, Interim Director, City of Sacramento, Community Development Department

Daniel Cucchi, JD, Senior Associate, Abbott & Kindermann, Inc.

Wendy Nowak, AICP, Principal, PlaceWorks

Daniel Friedman, PhD, Partner, Remotor Consulting Group

WATCH: https://www.youtube.com/watch?v=uuSWXdI-4VI&feature=youtu.be

Daniel Cucchi is a senior associate at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

Daniel Cucchi will be a panelist on the April 30, 2020, virtual brown bag webinar titled, “Planning through the COVID-19 crisis: How are we adapting in these uncertain times?”. The seminar is hosted by APACA – Sacramento Valley Section and will take place from 1:00- 2:00pm.

Webinar Description:

Join us for a free webinar hosted by Sacramento Valley Section and the APA California Chapter to hear how public, private, legal, and technology practitioners are adapting to the disruption associated with COVID-19 crisis. Learn about the tools, practices, and strategies that our panelists have deployed in working through the “temporary normal.” We will also discuss how the Governor’s executive orders and directives affect the legal requirements for planning timelines and public engagement. Curious about which technology platforms can help us perform our jobs and stay connected to our communities? We will learn about that too!

Thursday, April 30th

1:00 – 2:00 p.m.

Panelists

Yassi Sarvian, Director, APA Sacramento Valley Section (Moderator)

Tom Pace, Interim Director, City of Sacramento, Community Development Department

Daniel Cucchi, JD, Senior Associate, Abbott & Kindermann, Inc.

Wendy Nowak, AICP, Principal, PlaceWorks

Daniel Friedman, PhD, Partner, Remotor Consulting Group

APA Members have priority registration, and space is limited to the first 500 that register.

Non-APA Members may register on a space-available basis beginning at 9:00am Today.

REGISTER: https://register.gotowebinar.com/register/6135000411355909643

For questions, please contact Jeni Tickler at jeni@proeventsjt.com

For further information on the Sacramento Valley Section of APACA see link here: http://www.svsapa.org/. Do not hesitate to reach out to me with any questions as well.

I look forward to meeting you there!

Daniel Cucchi is a senior associate at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

Daniel Cucchi will be a panelist on the April 30, 2020, virtual brown bag webinar titled, “Planning through the COVID-19 crisis: How are we adapting in these uncertain times?”. The seminar is hosted by APACA – Sacramento Valley Section and will take place from 1:00- 2:00pm.

Webinar Description:

Join us for a free webinar hosted by Sacramento Valley Section and the APA California Chapter to hear how public, private, legal, and technology practitioners are adapting to the disruption associated with COVID-19 crisis. Learn about the tools, practices, and strategies that our panelists have deployed in working through the “temporary normal.” We will also discuss how the Governor’s executive orders and directives affect the legal requirements for planning timelines and public engagement. Curious about which technology platforms can help us perform our jobs and stay connected to our communities? We will learn about that too!

Thursday, April 30th

1:00 – 2:00 p.m.

Panelists

Yassi Sarvian, Director, APA Sacramento Valley Section (Moderator)

Tom Pace, Interim Director, City of Sacramento, Community Development Department

Daniel Cucchi, JD, Senior Associate, Abbott & Kindermann, Inc.

Wendy Nowak, AICP, Principal, PlaceWorks

Daniel Friedman, PhD, Partner, Remotor Consulting Group

APA Members have priority registration, and space is limited to the first 500 that register.

Non-APA Members may register on a space-available basis beginning at 9:00am on Thursday, April 30th.

REGISTER: https://register.gotowebinar.com/register/6135000411355909643

For questions, please contact Jeni Tickler at jeni@proeventsjt.com

For further information on the Sacramento Valley Section of APACA see link here: http://www.svsapa.org/. Do not hesitate to reach out to me with any questions as well.

I look forward to meeting you there!

Daniel Cucchi is a senior associate at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

Communities for a Better Environment v. South Coast Air Quality Management District, 2020 Cal.App. LEXIS 285

Tesoro, a major operator in the fuel industry now known as Andeavor, sought approval for its Los Angeles Refinery Integration and Compliance Project. The Project was designed to: (1) improve integration between its Carson and Wilmington refinery facilities to allow for more flexibility to alter output fuel ratios (such as gasoline and jet fuel) in response to market price trends; and (2) reducing pollutant emissions from its crude oil heating unit in order to improve compliance with more stringent air quality regulations. The controversy over the Project centered on the means of reducing the pollutant emissions of the heater unit at the Wilmington facility. Tesoro sought to update the operating permit for the existing unit to establish a new thermal operating limit for the heater at the facility. Tesoro also proposed to shut down its Wilmington Fluid Catalytic Cracking Unit, a major source of air pollution at the facility.

The key differences between the existing operations and the newly proposed operations, particularly for the environmental review analysis, focused on the distinctions between the manufacturer’s guaranteed heat rate of 252 (measured in millions of BTU per hour) and the heater’s maximum heat rate of 302.4. The existing permit was set using the guaranteed heat rate, though Tesoro had historically operated the heater above that amount and the court noted that there was nothing in the record suggesting this was in violation of the existing permit. Tesoro sought to revise the permit to: (1) impose a new air pollution limitation that assumed the heater would never be operated above the 252 heat rate, and (2) raise the thermal operating limit to coincide with the heater’s existing heating capability. This change would allow Tesoro to either process a heavier blend of crude or increase its throughput by 6,000 barrels per day, but not both.

After the South Coast Air Quality Management District (the “District”) certified the EIR and approved the permit, Communities for a Better Environment (“CBE”) filed suit, arguing the EIR was inadequate in four respects: (1) the EIR used the wrong baseline to evaluate the impacts of the Project; (2) the District failed to obtain sufficient information about the pre- and post-project crude oil composition to explain the implications on pollutant emissions; (3) the EIR included no explanation of how the “6,000 barrel” figure was calculated; and (4) the EIR failed to disclose the existing volume of crude oil processed at the facility, nor its unused capacity. The trial court rejected the claims and CBE appealed.

The Second District Court of Appeal rejected each of the four claims raised by CBE and affirmed the trial court decision:

  • The court held that the peak baseline selected by the District was proper, rejecting the assertion that the District should have used an “average-value” baseline. It reasoned that the District’s selection, which focused on the impact of peak emissions on the most vulnerable populations, was a rational choice that was supported by substantial evidence. The court pointed to the District’s consistency with the practice of the federal Environmental Protection Agency, and it noted that: (i) the federal and state regulatory purposes were in sync—to protect public health and welfare; (ii) the federal use of the peak baseline was based on data of the existing conditions on the 15 worst days in the 730-day review period; (iii) while not necessarily required, the District always has the option to rely on similar federal efforts that achieve the same goals and purposes; and (iv) CBE’s claim that use of an average is “normal” for baseline ignores the fact that there is no such thing as “normal” when it comes to averages.
  • The court held that there was no need for the District to obtain detailed information on pre-project v. post-project crude oil composition, reasoning that such information was irrelevant due to the District’s reliance on the refinery’s “crude oil operating envelope” (defined as the facility’s range of acceptable blends that are within an identified range of weight and sulfur content). This was because operating with any crude that does not fit within the existing operating envelope would require substantial physical changes to other parts of the refinery equipment which were not proposed for the Project. Thus, any increased air emissions that could result from using heavier crude could only be due to the need to burn more fuel to operate the refinery’s burners, which was precisely what the EIR had analyzed.
  • The court held that CBE had forfeited its claim regarding the “6,000 barrels” calculation. It reasoned that the claim was not raised during the administrative process and, thus, CBE failed to exhaust its administrative remedies. The court noted that throughout the 1,716 pages of comments provided by CBE and another law firm, the only comment identified by CBE in the record that discussed an increase of 6,000 barrels per day did not raise questions about how the 6,000 figure was calculated; rather, it broadly focused on purported inconsistencies between post-Project capacity and information submitted to the Securities and Exchange Commission on the refinery’s capacity. This, the court held, was insufficient to allow CBE to rely on a broadly applicable comment to support a much more specific claim, even though it could arguably be encompassed in that broader comment.
  • Applying the abuse of discretion standard, the court held that the District did not have an obligation to disclose either the existing volume of crude oil processing or the refinery’s unused capacity. CBE had argued that the existing volume information was necessary to verify that the “actual post-project increase in capacity would not exceed the 6,000 barrels per day” assumption. But the court rejected this argument, reasoning that the “6,000 barrels” figure was adequately supported by the EIR’s analysis of the “crude oil operating envelope” which noted that any increase in overall refinery output would require other physical changes to be made to the refinery. As for the unused capacity data, the court rejected the claim as nothing more that “a variant of [CBE’s] preceding [existing volume of crude oil processing] argument.” Furthermore, the court concluded that the data was not needed, because the EIR’s analysis was already otherwise supported by substantial evidence.

Comment:   In many respects this is a typical case of deference to agency decision making when making decisions and analyzing impacts in an EIR—support your choices with substantial evidence and you are likely to receive a favorable outcome. One thing that is particularly interesting about this decision, however, is the discussion on exhaustion. Here, the court found that a comment that arguably inferred that there was an issue with the assumed increase in crude oil throughput (6,000 barrels/day), was insufficient to exhaust remedies because it was not specific enough for the District to be able to address the concern. Exhaustion can be a powerful tool to defend environmental review documents, and this case reinforces the commenter’s obligation to provide real specificity if they want to be able to pursue that claim in any subsequent CEQA litigation.

Daniel Cucchi is Senior Associate at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

Welcome to Abbott & Kindermann, Inc.’s Inaugural Environmental Action News. This summary provides a follow-up to the Abbott & Kindermann Land Use Conference and Outline provided in January 2020.

  1. PREVIOUS MONTH’S UPDATE

Abbott & Kindermann, Inc., will begin providing a monthly review for environmental law starting in April 2020. Check back next month for a summary of this month’s Environmental Action News.

  1. CASES PENDING AT THE CALIFORNIA SUPREME COURT

There is one case pending at the California Supreme Court. The case and the Court’s summary are as follows:

County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate.  This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project?  (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?

  1. UPDATE

A. CALIFORNIA WATER RIGHTS AND SUPPLY

  1. California WaterFix Extends Public Comment Period To Respond To Pandemic.

After permits and environmental review were pulled from the WaterFix project in May 2019, the California Department of Water Resources had to start from scratch on their project to keep in line with Governor Newsom’s single tunnel plan. On January 15, 2020, the Department of Water Resources released the Notice of Preparation to begin environmental review for the single tunnel project. This smaller design would send 6,000 cubic feet of water per second from the Sacramento River, through a tunnel 150 feet below the Delta, to the Tracy intake pumps. The public comment period was to be closed on March 20, 2020, but considering the COVID-19 pandemic, the comment period has been extended to April 17, 2020 (to submit comments, e-mail them to DeltaConveyanceScoping@water.ca.gov). This new tunnel project is consistent with the Governor’s recent executive order directing state agencies to develop a portfolio of statewide water actions and investments (Executive Order N-10-19). Newsom aims to have environmental review completed by early 2022.

For more information see:

https://water.ca.gov/deltaconveyance

https://cah2oresearch.com/

https://beniciaheraldonline.com/delta-residents-speak-out-against-newsoms-controversial-tunnel-project/

  1. DWR Makes Adjustments To SGMA Compliance Dates Amid COVID-19 Crisis.

SGMA went into effect in January 2015 with tiered implementation dates leading to full implementation in 2020. As part of the 2020 full scale implementation of SGMA, water districts must adopt a groundwater sustainability plan, blessed by DWR, to show how each district is meeting SGMA regulations. The groundwater sustainability plans must demonstrate how different groundwater basins will reach sustainability within 20 years of implementation. Districts must also submit annual compliance reports displaying how its groundwater management complies with the groundwater sustainability plan and SGMA writ large. On March 18, 2020, DWR announced the postponement of three SGMA deadlines in light of ongoing public health concerns related to COVID-19. First, the public comment period for groundwater sustainability plans were extended by 30 days bringing the new comment deadlines to May 15, 2020, and June 3, 2020, depending on the date the GSP was posted to DWR’s SGMA Portal. Second, the comment period for DWR’s Draft Water Budget Handbook has been extended by 30 days, bringing the new comment deadline to May 7, 2020. Lastly, DWR will accept the annual reports for basins with adopted GSPs, approved and pending alternatives to GSPs, and adjudicated areas after the April 1, 2020, deadline. No specific extension has been formally announced.

For more information see:

https://groundwaterexchange.org/news/

https://www.jdsupra.com/legalnews/covid-19-updates-for-water-agencies-and-43565/

B. WATER QUALITY

  1. Point Source Pollution Further Defined By Ninth Circuit – Hawaii Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018); U.S. Supreme Court Granted Review On First Cause Of Action – County of Maui v. Wildlife Fund, 139 S.Ct 1164 (U.S. 2019).

The Ninth Circuit further defined the scope of point source pollution under the Clean Water Act (“CWA”) in a case involving the discharge liability of County of Maui, Hawaii. The County operated four water treatment wells at the Lahaina Wastewater Reclamation Facility and used the wells as groundwater injection locations for treated effluent waste. In operating all four wells at a treatment rate of two (2) to five (5) million gallons of treated water per day, the County admitted that at least two of its injection wells were known to release waste back into the ocean. The County argued that since the waste filters through a series on indirect channels and pathways before reaching the ocean, there is no discharge liability under the CWA. Discharge of pollutants from one-point source into a navigable water of the United States requires a NPDES permit under the CWA. The County failed to obtain a NPDES permit for the four wells.

The U.S. District Court held under the CWA that the County: (1) indirectly discharged into the ocean through a groundwater conduit; (2) the groundwater is a point source under the CWA; and

(3) the groundwater is a navigable water under the CWA. The Court of Appeal affirmed the District Court’s adoption of the plurality view of the “Waters of the United States” in Rapanos v. United States, 547 U.S. 715 (2006). Justice Scalia in Rapanos stated the CWA does not discern between direct and indirect point sources, and liability for both is clear under the statute. The justices of the Supreme Court unanimously affirmed his interpretation of liability for both indirect and direct point sources. The Ninth Circuit held that the County may not build an ocean outfall for an indirect point source without obtaining a NPDES permit to avoid CWA liability.

On February 19, 2019, the U.S. Supreme Court granted limited review of the case. The Court agreed only to hear the first cause of action: whether the County indirectly discharged into the ocean through a groundwater conduit. Oral argument was taken on November 6, 2019, and the Court took arguments under submission. An opinion will be issued sometime in 2020.

  1. California Supreme Court Considering Whether Federal Law Preempts Application of CEQA To State Licensing Of A Hydroelectric Dam Project – County of Butte v. Department of Water Resources (2019) 39 Cal.App.5th 708, granted (case no. S258574, Dec. 11, 2019), 2019 Cal. LEXIS 9084.

Petitioners challenged the adequacy of the Draft Environmental Impact Report submitted by the Department of Water Resources in support of its request to extend its federal license from the Federal Energy Regulatory Commission (“FERC”) to operate the Oroville Dam and its related facilities. The Petitioners also sought to stay the licensing proceedings. The Third District Court of Appeal applied the California Supreme Court precedent in Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, and held that the Federal Power Act preempted state court review of the licensing project.  The appellate court reasoned that federal law provides for an alternative licensing process (“ALP”) that: (i) incorporates all federal and state license procedures into a single process involving all affected state, federal, local and private parties under the authority of FERC, and (ii) established administrative procedures before FERC for all participating entities to resolve disputes over the required environmental studies. Under the ALP, the licensing process was therefore not subject to review, but new actions to implement the project, such as mitigation for habitat loss caused by the project, may be subject to CEQA review in state courts and only upon implementation, which would not occur until after the issuance of the FERC license. The California Supreme Court granted review to consider two questions:  1. To what extent does the Federal Power Act preempt application of the California Environmental Quality Act when the state is acting on its own behalf, and exercising its discretion, in deciding to pursue licensing for a hydroelectric dam project? 2. Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act to comply with the federal water quality certification under section 401 of the federal Clean Water Act?  Briefing before the Court is now underway.

  1. On Remand, District Court To Consider Which Specific Categories Of Land Contributed To Contaminated Discharges From The Central Valley’s Grasslands Bypass Project, In Violation Of The NPDES Permitting Process – Pacific Coast Federation of Fishermen’s Association v. Donald Glaser et al., 937 F.3d 1191 (9th Cir. 2019), on remand, 2020 U.S. Dist. LEXIS 61262 (E.D. CA, April 7, 2020).

In December 2019, the Ninth Circuit Court of Appeal reversed a decision of a U.S. District Court for the Eastern District of California and held that an NPDES discharge permit was required under the Clean Water Act for the Central Valley Grasslands Bypass Project (“Project”). The Project is owned and operated by the United States Bureau of Reclamation (“Bureau”) and discharges significant quantities of selenium and other pollutants into state and federal wildlife refuges leading into the Delta. The Ninth Circuit held that it was the Bureau’s burden to prove that its discharges were “composed entirely of return flows from irrigated agriculture.” An exemption cited by the Bureau was limited to “only those flows that the exemption applied so long as a ‘majority’ of the wastewater originated from agricultural activities.” The Ninth Circuit further held that the District Court erred in holding that the Bureau could rely on the exemption so long as a “majority” of the wastewater originated from agricultural activities. The court clarified that the exemption applied only where the discharges were entirely from flows related to agricultural production. On remand, the District Court will consider which specific categories of land contributed to discharges in violation of the NPDES permitting process and will otherwise consider the merits in cross-motions for summary judgment.

C. WETLANDS

  1. New WOTUS Rule Under Trump Administration Is Finalized, Likely Leading to New Litigation.

In July 2017, the new Trump Administration announced a two-step plan to rescind the Clean Water Rule implemented under the Obama Administration, and then directed the Army Corps of Engineers (“USACE”) to implement that plan. The Obama era definition of the Waters of the United States (or “WOTUS”) under the Clean Water Rule was rescinded in September 2019.  Lawsuits were filed opposing that repeal, including by the State of California.  (See e.g., New York et al. v. U.S. Envt’l Protection Agency (S.D.N.Y., Dec. 20, 2019), No. 1:19-cv-11673.) Then, on January 23, 2020, the U.S.  Environmental Protection Agency (“EPA”) and USACE finalized the new “Navigable Waters Protection Rule” to define “Waters of the United States,” thereby establishing the status of federal regulatory authority under the Clean Water Act.  Full implementation went into effect 60 days later in March 2020.

Under the new WOTUS rule, federal agencies exempt water features such as: (1) seasonal ephemeral water features, (2) groundwater, (3) ditches, (4) roadside or farm ditches, (5) prior converted cropland, (6) stormwater control features, and (7) waste treatment systems from the previously defined waters of the United States and, therefore, from U.S. regulatory jurisdiction.  The agencies cite state and tribal definitions that adequately cover other waters not listed as a justification for creating so many exemptions.  The Trump Administration’s WOTUS rule directs the federal government, states, and tribes to create a database to list bodies of water under the rule’s jurisdiction. Opponents of the new rule have dubbed it the “Dirty Water Rule” in order to contrast it with the Obama Administration’s rule.  New litigation to oppose the new Navigable Waters Protection Rule is expected soon.

For more information see:

https://www.epa.gov/nwpr

https://www.epa.gov/nwpr/navigable-waters-protection-rule-step-two-revise

https://ag.ny.gov/sites/default/files/12.20.19_clean_water_complaint.pdf

https://thehill.com/policy/energy-environment/490248-nrdc-gears-up-to-sue-over-trump-rollback-of-obama-water-law

D. AIR QUALITY AND CLIMATE CHANGE

  1. Ninth Circuit Panel Orders Parties To Answer Petition For Rehearing In Landmark Decision That Federal Courts Cannot Provide A Remedy In Novel Climate Change Challenge To 50 Years Of U.S. Government Fossil Fuel Policies – Juliana v. United States, 947 F.3d 1159 (9th Cir., Jan. 17, 2020).

A group of 21 individuals aged 8-19, an environmental organization, and a guardian for plaintiff “future generations” filed a lawsuit in the U.S. District Court in Oregon to challenge 50 years of fossil fuel policies of the United States Government. Plaintiffs alleged that the Federal Government’s actions and inactions are a substantial cause in the scope and severity of climate change and will lead to substantial harm to “future generations.” Plaintiffs did not allege that the Federal Government was violating any statute or regulation, denying a procedural right, or owes damages. Rather, plaintiffs sought declaratory and injunctive relief under claims that allege (a) a violation of the Equal Protection Clause of the Fifth Amendment; (b) a substantive constitutional right to a “climate system capable of sustaining human life” under the Due Process Clause of the Fifth Amendment; (c) an implicit right to a stable climate under the Ninth Amendment; and (d) a violation of the federal public trust doctrine.

The U.S. District Court for the District of Oregon granted the Federal Government’s Motion For Summary Judgment as to the Ninth Amendment claim, and as to a part of the equal protection claim and dismissed President Trump as a defendant. As to every other claim, the District Court denied the Motion For Summary Judgment brought by the U.S. An interlocutory appeal was taken to the Ninth Circuit. On January 17, 2020, a 2-1 decision by a Ninth Circuit panel held that the Motion For Summary Judgment should be granted and the case dismissed. The Ninth Circuit held that Article III standing was not met in this case because the plaintiffs’ alleged injuries are not likely redressable by a favorable judicial decision. The court explained:  “The crux of the plaintiffs’ requested remedy is an injunction requiring the government not only to cease permitting, authorizing, and subsidizing fossil fuel use, but also to prepare a plan subject to judicial approval to draw down harmful emissions. The plaintiffs thus seek not only to enjoin the Executive from exercising discretionary authority expressly granted by Congress, but also to enjoin Congress from exercising power expressly granted by the Constitution over public lands.”  The Court reluctantly concluded that “such relief is beyond our constitutional power.” Specifically, the Court held that “it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”

For more analysis on the Ninth Circuit’s decision, see Glen Hansen, “Divided Ninth Circuit Panel Decides That Federal Courts Cannot Provide A Remedy In Novel Climate Change Challenge To 50 Years Of U.S. Government Fossil Fuel Policies,” Abbott & Kindermann Land Use Law Blog, Jan. 21, 2020, found at https://blog.aklandlaw.com/2020/01/articles/air-quality/divided-ninth-circuit-panel-decides-that-federal-courts-cannot-provide-a-remedy-in-novel-climate-change-challenge-to-50-years-of-u-s-government-fossil-fuel-policies/

On March 2, 2020, Plaintiffs/Appellees filed a Petition For Rehearing En Banc, and numerous third parties have filed amicus briefs in regard to that petition. The parties are currently briefing that petition.

2. President Trump’s Decision To Revoke California’s Emissions Waiver Results In Consolidated D.C. Circuit Case To Be Heard In 2020.

The Trump Administration moved to revoke its formal authority to allow California to set its own auto emission standard above the federally required standard. The move by the Trump Administration directly impacts 14 states, and indirectly impacts the nationwide auto industry as a whole.  In response to the California waiver revocation, several federal lawsuits were immediately filed to block the administrative action. In December 2019, the Trump Administration moved to transfer the California case to the Court of Appeals for the District of Columbia Circuit and to consolidate all of the cases into one matter before that court. (State of California, et al. v. Andrew Wheeler, et al., Case No. 19-1239 (November 20, 2019); Union of Concerned Scientists, et al. v. NHTSA, Case No. 19-1230 (October 28, 2019)).

The move to remove the waiver in part removes the heightened standard set during the Obama Administration to move all vehicles toward doubling the fleetwide fuel economy standard with 20% less emissions by 2025. Four automakers signed a compliance deal with California in July 2019, agreeing to manufacture based on California’s more restrictive waiver standard. Three other auto manufacturers supported the Trump Administration’s defense in litigation by providing an amicus brief in support of the lower, federal emission standard. Since EPA has the express authority to remove the California emissions waiver at any time, California and the affected states have the more difficult burden of proving the federal government acted arbitrarily when removing the waiver. As the subsequent cases continue toward briefing and arguments in court, auto manufacturers are left to question which standard to put into vehicle production in the next few years, and whether it will comply with state or federal code.

For more information see:

https://www.courthousenews.com/feds-push-to-dismiss-suit-over-california-emissions-standards/

https://fox6now.com/2019/11/27/trump-california-at-odds-over-new-emission-standards/ https://www.law360.com/articles/1226351/dc-judge-wants-calif-auto-emissions-suits- consolidated

https://www.cnet.com/roadshow/news/trump-administration-fuel-economy-regulations/ https://www.mercurynews.com/2019/12/01/california-asks-for-clarity-in-clean-car-rollbacks/

https://seekingalpha.com/news/3523474-con-edison-challenges-trump-auto-emissions-policy

https://www.msn.com/en-us/news/technology/epas-response-to-clean-car-rollbacks-might-affect-ca-commuters/ar-BBXWmfh

E. ENDANGERED SPECIES

  1. National Marine Fisheries Service Wins Ruling For Water Diversions In Yuba River – Friends of the River v. National Marine Fisheries Service, 293 F.Supp.3d 1151 (E.D. Cal., 2018); reversed, 786 Fed.Appx. 666 (9th Cir. 2019).

The National Marine Fisheries Service (“NMFS”) released the first biological opinion on projects slated for the Yuba River in 2000. In 2002, NMFS released a full biological opinion stating there was minimal to no impact on the spring Chinook and steelhead populations in the Yuba River. Between 2002 and 2014, NMFS, in coordination with the Army Corps of Engineers (“USACE”) to support its Yuba River Projects, issued several more biological opinions. Plaintiff challenged NMFS and USACE’s execution and reliance on these opinions when analyzing whether the Listed Species were unreasonably impaired by Yuba River activities. Plaintiff alleged violations of the federal Endangered Species Act (“ESA”) and the Administrative Procedures Act (“APA”) arising out of water diversion in the Yuba River. The Court rule din favor of defendants on all of plaintiff’s claims and granted summary judgment for both defendants.

Plaintiffs appealed. The Ninth Circuit held that NMFS acted arbitrarily and capriciously when it changed its approach to analyzing dam impacts on threatened fish species. NMFS did not dispute it changed its analysis, but stated it has a reasoned explanation for the change. However, there was no reasoned explanation available in the record for the Court to consider. Thus, the Ninth Circuit reversed the summary judgment motion and remanded to the District Court. The Court of Appeals provided instructions to NMFS to reassess its 2014 Biological Opinion and Letter of Concurrence in light of the Court’s opinion. The Ninth Circuit also held that the District Court should not have reversed the claims against USACE for a Section 9 take analysis. However, the Court of Appeals affirmed summary judgment denying that consultation under Section 7 needed to be reinitiated. The appellate court will rule on the attorney’s fees later in 2020.

  1. Tribes File Suit Against U.S. Bureau of Reclamation Over The Klamath Irrigation

Project – The Klamath Tribes v. United States Bureau of Reclamation et al., Case No. 18-cv-03078 (N.D. Cal. May 23, 2018).

In late May 2018, a collection of tribes in the Klamath River area filed suit against the U.S. Bureau of Reclamation (“Bureau”), seeking to shut down the Bureau’s Klamath Irrigation Project. The project would eliminate a lake above the Klamath River Basin to increase water supply to family farms in northern California and southern Oregon. The tribes cited two fish species under the protection of the California Endangered Species Act (“CESA”) and the federal Endangered Species Act (“ESA”) as the primary reason for stopping the project. The Lost River sucker and shortnose sucker spawn and live in the river basin of the Klamath River. In order for the project to move forward, the Bureau needs to waive the protections of the two listed species with the California Legislature. Assembly Bill 2640, passed by the Legislature and signed by Governor Brown on September 20, 2018, granted the legislative waiver necessary to permit the project. Legislative waivers of this type are generally rare and not a favorable option. The government needed to prove that the actions taken by the Bureau were fair and consistent in order to pass the legislation without a lawsuit. The case is currently before the Southern District of Oregon. The Klamath Tribes motion for a preliminary injunction was denied by the Court as the case proceeds. In late 2019, the Court granted the Hoopa Valley Tribe and Klamath Tribe’s motion to intervene and set a hearing date in April 2020 to consider the cross motions to dismiss filed by parties.

F. NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)

  1. Trump Administration Considers An Update Limiting NEPA Burdens

The White House Council on Environmental Quality (“CEQ”) is considering updating NEPA regulations to limit the enforcement of NEPA. On January 10, 2020, CEQ published a notice of proposed rulemaking in the Federal Register. Changes to NEPA under consideration include the following:

  • For EIS Preparation: Limits page numbers, requiring more joint EISs for projects involving multiple agencies, and time for completion to two years and EA to one year,
  • Includes economic feasibility in EIS considerations requiring “reasonable alternatives,”
  • Requires the use of required environmental documentation prepared by states, tribes and localities to comply with NEPA and refrain from “duplicative” environmental review,
  • Facilitate use of more Categorical Exemptions and EAs, and
  • Allow applicants to assume greater roles in preparation of

CEQ accepted public comments on the proposed rulemaking through March 10, 2020. CEQ also held two public hearings in Denver and Washington, DC in February 2020. CEQ will respond to public comments and plans to finalize the regulations by publication in the Federal Register later in 2020.

For more information see:

https://www.federalregister.gov/documents/2020/01/10/2019-28106/update-to-the-regulations- implementing-the-procedural-provisions-of-the-national-environmental

https://ceq.doe.gov/laws-regulations/regulations.html

William Abbott, Diane Kindermann, Glen Hansen, and Dan Cucchi are attorneys at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

On February 19, 2020, President Trump, Interior Secretary David Bernhardt, and other federal officials met in Bakersfield, California, for the signing of a Presidential Memorandum seeking additional water for the Central Valley.

The memorandum instructs the Secretaries of the Interior and Commerce to coordinate efforts to broaden their agencies’ actions, consistent with existing law, in order to ensure a reliable source of water for municipal and agricultural uses in the Central Valley. It also directs the Secretaries to fully implement recent administrative changes to the management of programs established under the Endangered Species Act. Agencies are taking different approaches to achieve these directives which are estimated to deliver 600,000 acre-feet of water to the San Joaquin Valley. The U.S. Fish and Wildlife Service is working collaboratively to improve technology and contemporize current water delivery systems. Other federal agencies are working on improving rainwater capture, storage systems, and regulations to provide increased certainty for water users in the valley, while at the same time taking measures to protect endangered species.

Environmental groups have expressed concerns that the changes will divert water away from these species to agricultural and municipal uses which instead could use already allocated water more efficiently. On the other hand, President Trump and Republican legislators hope that these changes will allow for more flexibility in water deliveries instead of allowing authorities to “flush[ed] millions of gallons into the Pacific.” In response, Governor Newsom told the Sacramento Bee that he would be taking legal action to protect more than a dozen endangered fish within the delta which are already close to extinction. Attorney General, Xavier Becerra, filed suit two days after Governor Newsom’s public statement.

In the meantime, the Central Valley has seen numerous groundwater markets emerging under the Sustainable Groundwater Management Act (SMGA). Most of the San Joaquin Valley basins are considered “critically over drafted” and implementation has created a series of challenges. However, according to David Orth, the principal of a water resources strategic planning program, it is important to remember that the basic objective of SGMA is to manage groundwater locally and remaining flexible “within the corners of law…[will help] maintain that local management.”

At the federal level, the EPA has also recently sought to expand the role of water reuse for both potable and non-potable uses. This well-established practice is “low-hanging fruit” when it comes to increasing sustainability and will likely continue to grow in prevalence across states and associations. The EPA action plan details 37 actions to promote water reuse over the next three years. The plan aims to increase eligibility of water reuse for federal funding but fails to identify sources for the funding. Amid the EPA’s administrative actions, California contest the Trump Administration’s modifications to the Central Valley Project in court.

See the following links for further information:

https://www.doi.gov/pressreleases/wtas-trump-administration-optimizes-water-delivery-and-increases-species-protection

https://www.whitehouse.gov/presidential-actions/memorandum-developing-delivering-water-supplies-california/

https://mavensnotebook.com/2020/02/19/this-just-in-trump-administration-optimizes-water-delivery-and-increases-species-protection-in-californias-central-valley-governor-newsom-promises-to-sue/

https://www.foxnews.com/politics/trump-signs-memorandum-diverting-more-water-to-california-farmers

https://www.msn.com/en-us/news/politics/trump-promises-more-water-for-southern-central-valley-farmers/ar-BB10bbzK

https://mavensnotebook.com/2020/03/19/sgma-implementation-david-orth-gives-his-observations-on-how-sgma-implementation-is-playing-out-in-the-san-joaquin-valley/

https://sjvwater.org/central-valley-groundwater-markets-emerging-under-sgma/

https://news.bloombergenvironment.com/environment-and-energy/insight-epa-seeks-to-expand-federal-role-in-water-reuse

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles, 2020 Cal.App. LEXIS 272

On March 3, 2017, the Director of Planning, serving as the “advisory agency” pursuant to the Subdivision Map Act, approved a negative declaration and vesting tentative map for a mixed use project consisting of a 220 room hotel, 41 story residential tower and a 70,000 square foot learning, cultural and performing arts center. The Director’s decision included notice of a 10-day appeal period.  On March 15th, the City filed a Notice of Determination (“NOD”). Seven months later, the Planning Commission approved conditional use permits and other related project approvals, determining that the project had been analyzed in the previously approved negative declaration for the vesting tentative map. Tenants in an existing building on the project site filed appeals. On appeal, the City Council denied the appeals and approved general plan amendments associated with the project. Project opponents then filed a petition for writ of mandate, challenging the City’s approval of the negative declaration. The City and developer filed a demurrer asserting that the statute of limitations had expired following the filing of the Notice of Determination in March. The trial court sustained the demurrer without leave to amend, concluding the litigation. The project opponents appealed.

The Court of Appeal affirmed the dismissal. The appellate court recognized that either one of only two procedural errors would not have triggered the running of the statute of limitations and allow the case to proceed: (1) the filing of an NOD which contains erroneous information (e.g. approval date)(Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 532); or (2) an NOD filed before the decisionmaking body approves the project (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 963).  In this case, the appellate court determined that the March NOD “included an accurate identification and description of the Project” and detailed findings and information regarding the project.  There was no debate that the NOD was filed after the approval of the tract map.  Although the opponents asserted procedural errors (e.g. was the Director authorized to approve the CEQA document) with the actions of the Director, those claims were part of the CEQA approval covered by the original NOD.

Comment: An approach of segmented project approvals is attractive in that it creates the opportunity to manage CEQA exposure early on. If interested in this option, local agencies should review applicable ordinances to confirm that the agency has codified the required delegations for both the entitlements and CEQA approvals. Segmentation may not be appropriate for every project, however. Some local governments prefer to bundle and concurrently process all of the entitlements through the planning commission and legislative body as a single package. Finally, segmented approvals only impact CEQA exposure: it does not foreclose related non-CEQA claims. The later approvals (use permits, rezoning, general plan amendments) can still be challenged on other grounds including compliance with the state planning and zoning law and local ordinances.

William Abbott is Of Counsel at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.