November 2015

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.

 

Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943. 

By William W. Abbott

The history of the controversial home in the Berkeley Hills is well documented. (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (The California Supreme Court Tackles CEQA’s Gordian Knot: Unusual Circumstances and CEQA Exemptions [https://blog.aklandlaw.com/2015/03/articles/ceqa/the-california-supreme-court-tackles-ceqas-gordian-knot-unusual-circumstances-and-ceqa-exemptions/] Admittedly, it is no ordinary residence: a two story home of 6,478 square feet with a 3,394 square foot 10-car garage, located on a hillside. The new home construction necessitated demolition of an existing dwelling. It is at the end of the day, a single family home nonetheless. The architect filed plans with the City in 2009, and the application was approved in early 2010. In approving the plans, the City relied upon a categorical exemption. The ensuing legal challenges eventually made it to the California Supreme Court, resulting in the Court’s decision addressing the required analysis for the use of CEQA exemptions, including the limitations of the “unusual circumstances” exception. Following the Supreme Court’s decision (BH1), the matter was remanded to apply the Supreme Court’s guidance to the remaining claims.

Although the appellate court had sided with the opponents in BH1, the appellate court rigorously followed the Supreme Court’s strictures on remand. In BH2, the court noted that the opponents had conceded that there was substantial evidence in the record to support the use of an exemption, so the legal debate on remand centered on the alleged unusual circumstances. In asserting unusual circumstances, the opponents focused on two issues: size of the home and the setting. The opponents also argued that the City had improperly mitigated its way into an exemption by using a traffic mitigation plan. As to home size, the evidence in support of the City’s decision was that the proposed home was not unusual when evaluated in the context of the surrounding homes.  As to the claim based upon setting, there was no evidence of a geological fault onsite, or that the house was visible from the public right of way (and therefore would have no effect on the aesthetic values of the neighborhood.) (The appellate court also concluded that any argument based upon geotechnical issues was foreclosed in BH1.) The final issue of note was the traffic mitigation plan. The opponents relied upon Salmon Protection & Watershed Network (2004) 125 Cal.App.4th 1098, in which the appellate court concluded that a lead agency could not mitigate its way into an exemption. In BH2, the court after reviewing the record agreed with the City that the traffic mitigation plan was a standard development condition and was not intended as specific mitigation. Therefore, Salmon Protection was not controlling and the use of the exemption was proper.

The applicants still have one more potential hurdle to cross. Will the Supreme Court take this case up? After six years, what is the hurry?

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

By 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 Glen C. Hansen

In Scher v. Burke (2015) 240 Cal.App.4th 381, the Court of Appeal for the Second Appellate District held, in the published portion of the decision: (1) that Civil Code section 1009 bars all use of non-coastal private real property, not simply recreational use of such property, from ever ripening into an implied dedication to the public after the March 4, 1972 effective date of that statute; and (2) that evidence about the use of a road on private property after that date cannot support a finding that the road was impliedly dedicated to public use prior to that date. (In the unpublished portion of the decision, the Court of Appeal examined extensive historical evidence and affirmed the trial court’s judgment that Plaintiffs had not established their right to an express, prescriptive, or equitable easement for access across Defendants’ properties. A copy of the entire Court of Appeal decision can be found here.)

Continue Reading Court of Appeal Disagrees With Other Courts And Holds That California Civil Code Section 1009 Bars All Use Of Private Real Property From Developing Into An Implied Public Dedication, Not Just Recreational Use.