June 2007

By Janell M. Bogue and Diane G. Kindermann Henderson

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

Continue Reading EPA and Corps Issue Rapanos Guidance

By William W. Abbott

When does an easement cross over and become a “division of land” for purposes of the Subdivision Map Act? Apparently, not as frequently as suggested by the California Attorney General and noted California authority.

In Blackmore v. Powell (2007) 150 Cal.App.4th 1593, the Second Appellate District ruled on the validity of an easement granted between adjacent owners, which provided the grantee with the right to an exclusive easement for ingress and egress as well as the right to construct a garage within the easement area. In Blackmore, a property owner (grantor) granted an exclusive easement to an adjacent owner (grantee). The scope of the easement was for driveway purposes, including the right to build a garage within the easement area. Title to both the benefited and burdened parcels passed to subsequent owners, who then initiated the dispute over the nature and scope of the easement, as it related to the ability to construct and exclusively occupy a garage.

Continue Reading Easements, Exclusive Occupancy and the Subdivision Map Act

By Leslie Walker and Joel Ellinwood, AICP

Establishing estoppel against the government in land use matters requires additional findings not required against a private party. In Feduniak v. California Coastal Commission (2007) 148 Cal.App.4th 1346, two Pebble Beach landowners found out exactly how difficult that task can be.

Continue Reading The Difficulty in Establishing Estoppel Against A Public Agency