Welcome to Abbott & Kindermann, Inc.’s May Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions beginning in January 2020.


To read the April 2020 Environmental Action News post, click here: https://blog.aklandlaw.com/2020/04/articles/ak-news/land-use-law-blog-april-environmental-action-news/ .


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. King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814.

The trial court determined that an EIR under the California Environmental Quality Act for a permit ordinance for oil and gas wells was adequate in some respects and deficient in others. The Court of Appeal reversed and remanded. Instead, finding that an EIR for a permit ordinance for oil and gas wells lacked sufficient mitigation because it improperly deferred and delayed mitigation as to water supply, inadequately discussed uncertain impacts, and did not ensure conversion of agricultural land would be offset. Response to the public comments were lacking on the mitigation issue because there was insufficient reasoned analysis. A complete analysis of this issue was posted to the Abbott and Kindermann blog and located here: https://blog.aklandlaw.com/2020/03/articles/ceqa/rethinking-the-use-of-ag-conservation-easements-to-the-extent-feasible-phrases-as-mitigation-after-sprawling-fifth-district-ceqa-opinion-on-kern-county-oil-gas-ordinance/ .

2. Coronavirus highlights link between health and clean water.

Even as the novel Coronavirus pandemic emerged, the first bit of advice was to wash your hands. But several studies since have come out highlighting the link between clean water, or lack thereof, and health. Over 40% of the world’s population face constant water scarcity, and everyday nearly 1,000 children die from preventable water/sanitation related diseases. That being said, taking up the first line of defense against COVID-19, washing your hands, has been a challenge in many developing countries. Even with increased efforts in many countries to improve access to water, access to clean water remains inadequate.

For more information see:


1. CA requiring stormwater runoff licenses for certain businesses.

Effective January 1, 2020, businesses are required to provide proof of coverage for operations where a stormwater permit is necessary. Any business that does not have the necessary stormwater permit will need to obtain a temporary license until it obtains full coverage before a standard business license will be granted. A temporary license lasts 90-days and business owners are expected to obtain the stormwater permit during the 90-day period. Businesses subject to a stormwater permit are those mentioned in the standard classification system in the government code. The State Water Resources Control Board implemented a series of resources aimed at guiding business owners through the permitting process.

For more information see:

2. Delta Stewardship Council Cases (2020) 2020 Cal.App.LEXIS 402.

An unpublished opinion in the Court of Appeal for the Third Appellate District affirmed the resource plan for the Sacramento-San Joaquin Delta on twelve of thirteen causes of action alleged by plaintiffs. The Court held that the only argument that required further agency action was where the Delta Plan failed to promote options for new and improved infrastructure relating to water conveyance, storage systems, and operations. The Court remanded the case to the trial court to further evaluate whether a revised Delta Plan corrected the errors identified. The Court further held that the fees for prevailing parties under CCP Section 1021.5 required specific guidance. A complete analysis of the implications of this holding are posted to Abbott and Kindermann’s blog located here: https://blog.aklandlaw.com/2020/05/articles/ak-news/i-lost-92-of-my-case-can-i-still-get-ccp-1021-5-attorneys-fees-a-case-study-from-the-third-appellate-district/ .

3. County of Maui v. Wildlife Fund, 139 S.Ct. 1164 (2020).

A complete analysis of this recent SCOTUS decision is posted to Abbott and Kindermann’s blog located here: https://blog.aklandlaw.com/2020/05/articles/point-source-pollution-definition-further-expanded-by-u-s-supreme-court/ .


1. Trump Administration’s New “Waters of the United States” Rule Published In The Federal Register On April 21, 2020.

On December 11, 2018, the U.S. Environmental Protection Agency and the Army Corps of Engineers under the Trump Administration proposed a new definition of the “Waters of the United States.” Under the new “WOTUS” rule, the 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 waste treatment systems from that definition and, therefore, from U.S. 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. Nearly every environmental organization and several states expressed their outrage for the proposed rule citing several sections where the rule does not comport with the Clean Water Act and the Endangered Species Act. President Trump’s WOTUS rule will replace the 2015 rule, and a final rule was published on April 21, 2020 with full implementation to occur on June 22, 2020.

For more information see:

2. Trump Administration Takes Executive Action On Federal Central Valley Water Allocations.

A complete analysis of the Trump Administration’s memorandum seeking additional water for the Central Valley Project was posted to the Abbott and Kindermann blog, and located here: https://blog.aklandlaw.com/2020/04/articles/water-quality-wetlands-clean-water-act/trump-administration-takes-executive-action-on-federal-central-valley-water-allocations/ .


1. Trump’s Administration on Clean Car Rollback.

On March 31, 2020, the EPA finalized the Safe Affordable Fuel-Efficient Vehicles (SAFE) rule. The rule completes a two-part rollback of the Obama-Era clean car standards, which mandates a fuel economy increase by 5% annually. The SAFE rule mandates the automakers increase fuel standards by 1.5%. The first part of the SAFE rule removed California’s waiver of clean air emission standards, which allowed the state to set more stringent tailpipe pollution rules on all automobiles sold within the state. The second part of the SAFE rule implements the 1.5% increase in fuel economy for future auto manufacturing. The action by the Trump administration and EPA resulted in an immediate legal challenge by the State of California and several environmental groups nationwide.

For more information see:

2. Communities for a Better Environment v. South Coast Air Quality Management District (2020) 47 Cal.App.5th 588.

A complete analysis of this opinion related to approval of an EIR related to pollution emissions was posted to the Abbott and Kindermann blog, and located here: https://blog.aklandlaw.com/2020/04/articles/ceqa/second-district-court-of-appeal-upholds-eir-for-revisions-to-operating-permit-of-oil-refinery-facility-finding-1-districts-consistency-with-federal-peak-baseline-was-sup/ .

3. United States v. California, 2020 U.S. Dist. LEXIS 43422 (E.D. Cal., March 12, 2020).

A complete analysis of this opinion related California’s win in a partial summary judgment over California-Quebec’s Cap-and-Trade Program was posted to the Abbott and Kindermann blog, and located here: https://blog.aklandlaw.com/2020/03/articles/ak-news/california-wins-partial-summary-judgment-over-california-quebecs-cap-and-trade-agreement-buoying-californias-landmark-greenhouse-gas-emissions-reduction-program/ .


1. California solar mandate not required.

California’s solar mandate, effective January 1, 2020, required most new single family homes or low-rise apartments to install solar panels on the rooftops. Seven weeks later, the California Energy Commission (“CEC”) approved an application to allow an off-site “community solar” project to power single family homes. The approval essentially cancels out the need for builders to install solar on each new house and provides developers with a larger array of options to meet the solar mandate.

For more information see:


1. CDFW issues take permits for the endangered Delta Smelt.

As the Delta Smelt enters is second life cycle with zero reported sightings, California Department of Fish and Wildlife (CDFW) issued an incidental take permit (take permit) for operations related to the State Water Project. The take permit covers four species of endangered fish including: Delta smelt, Longfin smelt, Winter-run Chinook salmon, and spring-run Chinook salmon. The Delta smelt is arguably one of the most controversial fish species on the ESA list. In a public statement, the CDFW stated that issuance of a take permit would strike a balance between the health of the Delta and necessary infrastructure projects. CDFW further stated that the permit provides an adaptive water management program where if the ecosystem is in jeopardy CDFW can adjust the strategy for infrastructure development.

For more information see:


1. Where is all the wastewater going?

The solar power industry has experienced significant growth between 2015 and 2020, sparked by favorable incentives with the renewable portfolio standard targets and tax credits. Now, California is facing the rapid increase of end-of-life solar panels, despite SB 489’s passage which helps facilitate collection and processing of these materials. Part of the issue stems from an ambiguity in the law, making it uncertain whether photovoltaic panels are considered hazardous waste. Stakeholders are pushing for more definitive legal action and language to help them find means for disposing, recycling, or reusing older solar panel material.

For more information see:


1. CEQ submits modifications to NEPA.

In January 2020, The Council on Environmental Quality (“CEQ”) issued a notice of proposed rulemaking with extensive changes to the National Environmental Policy Act (“NEPA”). The changes include a new timeline for NEPA review, increased coordination between stakeholders and relevant agencies, and redefining the scope of NEPA. Comments on the proposed rulemaking were accepted until March 10, 2020. Significant changes to the act include: 1) redefining what constitutes a “major federal action” initiating NEPA review, 2) minimizing the range of alternatives a project needs to consider before deciding on the most technically and economically feasible option, 3) limiting identification of effects of a project to only direct effects on the environment from a project potentially excluding all climate change analysis, 4) provides vague guidance in defining mitigation as part of a complete mitigation plan, 5) adds page limits to environmental assessments and environmental impact statements, 6) shortens the timeframe for NEPA review from project implementation to approval, and 7) provides a series of exemptions for projects non-federal in nature or covered by other statutes among other things. The proposed rule also seeks to codify a series of documents including judicial interpretations, presidential directives, guidance documents, and non-active legislation. CEQ must now take the comments provided by the public, address them, and then codify a finalized rule.

For more information see:


1. Swinomish Indian Tribal Community v. BNSF Railway. Inc., 951 F.3d 1142 (9th Cir. Mar. 4, 2020).

In 2011, the Swinomish Indian Tribe learned that BNSF Railway Co. (“BNSF”) was violating a right-of-way agreement, issued to BNSF under the Indian Right of Way Act. The right-of-way incorporated terms of an easement agreement between the parties, which BNSF was violating by running more trains and cars across the reservation than permitted by its terms. BNSF also had failed to submit the required annual cargo reports to the Tribe, and as a result, the Swinomish brought suit in district court. The court of appeals granted interlocutory review and affirmed the district court’s holding, finding that summary judgement was properly granted to the Tribe in its action to enforce an easement. It reasoned that the Interstate Commerce commission Termination Act did not repeal the Indian Right of Way Act and did not defeat the Tribe’s right to enforce conditions in a right-of-way easement.


1. EPA suspends all enforcement actions during COVID pandemic.

In late March the EPA announced they would be suspending a number of environmental enforcement actions during the novel coronavirus pandemic. Many state, local, and regional public officials expressed extreme concern about the EPA’s administrative action stating that the pandemic spotlights the need to prioritize public health and safety, of which environmental enforcement is key. The EPA’s reasoning for suspending enforcement stated industries were likely to experience difficulty complying with enforcement measures as a result of travel and social distancing restrictions. Many regional agencies throughout California have halted non-essential inspections and reporting requirements. However, the same agencies continue to enforce critical land use enforcement as well as appropriately respond to hazardous materials incidents. Among those industries requesting relaxation of reporting and compliance standards was the oil and gas industry citing staffing problems from illness and a lack of social distance assurances. EPA Administrator Andrew Wheeler stated the order was open ended and backdated to March 13th. The order further stated that the industries must take reasonable practical compliance measures and where businesses cannot comply with enforcement actions, they must demonstrate where there was an attempt to reduce the harm as well as tie the violations back to coronavirus impacts. The Agency also expects public water systems not to relax any water standards so as to ensure that public water supply remains at potable standards for consumption. EPA further stated that superfund and other hazardous and solid waste management reporting requirements are not exempt since enforcement in these areas is of critical importance.

In May, Administrator Wheeler appeared before the Senate Environmental and Public Works Committee and defended the decision by the administration. During his time before the Senate, Administrator Wheeler also spoke of what he considered an “impressive list of more than 60 deregulatory actions” taken by the EPA during the Trump Administration. When pressed by various Senate Democrats as to why the agency did not seek additional information as to why industry stakeholders could not comply with enforcement during the pandemic, Administrator Wheeler stated that the action simply allows companies to cite the pandemic if they are unable to comply but does not allow for increased pollution. Prior to the hearing in the Senate Committee, ranking member Thomas Carper of Delaware released a report emphasizing the connection between air pollution, the COVID-19 infection and death rates and lower income and minority communities. At the conclusion of the hearing, Administrator Wheeler stated the EPA would further look into the connection between air pollution and the pandemic.

For more information see:

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.