Welcome to Abbott & Kindermann, Inc.’s August Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2020.
1. PREVIOUS MONTH’S UPDATE
To read the July 2020 Environmental Action News- Part 2 post, click here:
2. 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?
A. CALIFORNIA WATER RIGHTS AND SUPPLY
1. As The COVID-19 Pandemic Continues, Many Wineries Fear Compliance With New SWRCB Order For Permitting.
In mid-August, the State Water Resources Control Board released an order proposing to modify the statewide winery permitting process for water discharge. The order classified different wineries into regulatory categories holding the wineries to different tiers of compliance based on the reporting requirement in other codified water laws. In response to the order, many wineries submitted public comments reflecting the fear of many wineries and stating that amid pandemic shutdowns of tasting rooms and burgeoning fires throughout the state, wineries will be unlikely to comply with the order. The Board will address public comments submitted and begin the process of finalizing the permitting process over the coming months.
For more information see:
2. Bureau Of Reclamation Opens Public Comment Period For Expansion Of Shasta Dam.
The U.S. Bureau of Reclamation (“Reclamation”) published its Draft Supplemental Environmental Impact Statement in early August, including in its modified proposal, raising the height of Shasta Dam by 3% or 18.5 feet. The proposal looks to raise storage capacity in the critical water basin by 200 billion gallons equating to support for two million people throughout the state each year. The DEIR states that the increased dam height will improve water quality in the Sacramento River and allow for increased breeding grounds for anadromous fish species. Members of the public will have until September 21st to provide comments on the Supplemental DEIR before Reclamation finalizes the environmental
3. Stanford Vina Ranch Irrigation Co. v. State of California (2020) 50 Cal.App.5th 976.
An elongated analysis of this critical appellate court decision was published to the Abbott and Kindermann blog earlier this month. Please see attached link to this longer blog article: https://blog.aklandlaw.com/2020/08/articles/ak-news/water-for-the-fishes-the-third-appellate-district-takes-measured-actions-to-protect-threatened-fish-populations/ .
B. WATER QUALITY
1. A Late July Memo From The Department Of Justice Grants States The Power To Enforce Civil Matters Under The Clean Water Act.
The DOJ issued a memo to the chiefs of the Justice Department setting guidance for DOJ divisions to pull back from prosecuting enforcement actions under the Clean Water Act where states are already pursuing CWA enforcement. The guidance attempts to prevent “piling on” enforcement actions since it is a belief of the DOJ that Congress did not craft the CWA with double recovery in mind for claims arising from the same operative facts. DOJ further laid out a set of criteria for enforcement divisions to utilize when determining whether to pursue enforcement actions or not. DOJ will pursue enforcement action if states are not diligently prosecuting civil enforcement actions or the civil assessment of penalties do not comport with the federal statute. The federal government will continue to prosecute all criminal matters under the statute.
For more information see:
2. San Diego Regional Water Quality Control Board Issues An NPDES Permit To Add Purified Water To The Miramar Reservoir.
The City of San Diego (“City”) was issued an NPDES permit by the San Diego Regional Water Quality Control Board (“Board”) as part of Phase 1 of the City’s Pure Water San Diego Program. The permit would allow the City to add purified water to the Miramar Reservoir and allow the existing Miramar Reservoir to become a complete water system allowing for reuse of the water supply and reduce ocean discharge. As part of Phase 1 of the project, the City must construct a series of facilities and pipelines to clean recycled water and produce 30 million gallons of purified water per day. The project is the first of its kind in the state and was recognized by the Governor as a high-profile program with potential long term solutions to California’s water shortage problem.
For more information see:
3. Santa Ana Regional Water Quality Control Board Supports Permitting The Huntington Beach Desalinization Project As Private Organizations Threaten Lawsuits.
In late July, Santa Ana Regional Water Quality Control Board (“Board”) recommended approval for the proposed Huntington Beach Desalinization Project and directed staff to issue the permit for the project on July 30, 2020. The project known as Poseidon, proposed to preserve, enhance, and restore 1,500-acres of Bolsa Chica Wetlands. The project was further approved conditionally based on Poseidon’s commitment to offset 100% of the direct and indirect GHG emissions resulting from operations. Critics of the project expressed concern over the effects large volumes of processed salt will have on the surrounding ecosystem. Further, many pointed out that the Poseidon project has yet to secure a single contract from purchasers for the treated water. Critics pointed out that the Board was required to consider whether a need existed for the plant as one of the factors for approval and failed to do so.
C. RENEWABLE ENERGY
1. Two Bay Area CCAs Issue A Joint Request To Procure Roughly 1 Million MWh Of Renewable Power Annually For Operations.
San Jose Clean Energy and Peninsula Clean Energy issued a request for proposals to electrical energy providers throughout the state with an aim to sign power purchase agreements (“PPAs”) for at least 10 years. The CCAs plan to procure enough renewable energy from PPAs to power 200,000 homes per year from new renewable energy or renewable energy-plus battery storage. The entities jointly provide energy to 1.7 million people in San Jose and San Mateo County and currently procured 45% of all energy supply from renewable energy sources. Although both entities have plans to procure 100% renewable energy supply within the next 10 years, each entity has a different approach to reaching these target goals. The joint PPAs entered by both entities will bring the CCAs that much closer to their 100% supply goal. Renewable energy generators have until September 4, 2020 to submit proposed PPAs.
For more information see:
2. Breaking Ground: Why Municipalities And Landowners Should Pay Attention To California’s Renewable Portfolio Standard And The 2030 Benchmark.
An elongated analysis of this critical renewable energy subject was published to the Abbott and Kindermann blog earlier this month. Please see attached link to this longer blog article: https://blog.aklandlaw.com/2020/08/articles/ak-news/breaking-ground-why-municipalities-and-landowners-should-pay-attention-to-californias-renewable-portfolio-standard-and-the-2030-benchmark/
D. HAZARDOUS MATERIALS AND REMEDIATION
1. California et al. v. Bernhardt, 2020 U.S. District LEXIS 128961 (N.D. Cal. July 15, 2020).
The U.S. District Court granted summary judgment to citizen suit plaintiffs over the federal government’s failure to comply with the Mineral Leasing Act, the Administrative Procedures Act (“APA”), and the National Environmental Policy Act (“NEPA”) when redefining “waste.” California and numerous other citizen suit plaintiffs contested the Bureau of Land Management’s (“BLM”) modifications to the Mineral Leasing Act alleging that the agency failed to consider scientific findings when modifying the definition of “waste.” In its opinion, the Court describes BLM’s history of modifying the waste definition over a span of three years without providing proper scientific evidence to support modifying the rules implementing the Mineral Leasing Act. The Court stated that core to the litigation is BLM’s arbitrary and capricious modifications of the rule without following proper protocols through the APA. The Court further stated that the decision of the BLM failed to take a “hard look” at the science to support modifying the rule under NEPA. The Court stated that the “BLM could not act in a vacuum. It was required to provide a reasoned explanation for its abrupt reversal as to the findings in the Waste Prevention Rule and to comply with its obligations under NEPA.” The Court granted summary judgment for Plaintiffs and instructed BLM to provide the Court with a detailed report outlining how it will bring the rule into compliance with updates every thirty and sixty days thereafter.
2. California River Water v. City of Vacaville, 2020 U.S. Dist. LEXIS 127562 (E.D. Cal. July 20, 2020).
On cross motions for summary judgment for the presence of hexavalent chromium in the public water supply, the Court granted relief to the City of Vacaville. Under the Court’s reasoning, while it cannot deny that hexavalent chromium exists and presents a risk to human health, plaintiffs overstretched the Resource Recovery and Conservation Act (“RCRA”) statute in order to attach liability to the City. The Court agreed with the City and held that hexavalent chromium is not a “solid waste” under RCRA. The Court further stated that attempting to determine whether the waste was hazardous to human health regardless of whether it is a solid waste under RCRA would be unnecessary, confusing, and advisory since Plaintiffs cause of action was limited to RCRA claims. The Court reiterates that it is not stating that hexavalent chromium does not pose a threat to Vacaville residents; rather, that plaintiffs brought their claims against the City under the wrong statute to attribute liability. The Court further ordered the case closed without further proceeding.
E. NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
1. CEQ Finalizes Rule Codifying 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 (Note: This has the potential to exclude 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 finalized rule also codified a series of documents including judicial interpretations, presidential directives, guidance documents, and non-active legislation. On July 16, 2020, CEQ codified the finalized rule and the new rule will apply to all projects commencing after September 14, 2020.
For more information see:
F. FOREST RESOURCES
1. Mt. Cmtys. for Fire Safety v. Elliott, 2020 U.S. Dist. LEXIS 91593 (C.D. Cal. May 26, 2020).
Plaintiffs filed suit against the U.S. Forest Service (“USFS”) for violations of NEPA and the National Forest Management Act (“NFMA”) resulting from USFS approving the Cuddy Forest Health and Fuels Reduction Project which removes trees from Mt. Pinos Place in the Los Padres National Forest. The parties filed cross motions for summary judgment. The Court held that USFS’s use of categorical exemptions under NEPA were appropriate and were not arbitrary or capricious. The Court granted summary judgment on the NEPA claim in favor of USFS, holding that Plaintiffs failed to prove that the NEPA determination by USFS was arbitrary and capricious. Plaintiffs further alleged that USFS failed to consider the aesthetic management and desired conditions for the Los Padres Forest Plan. The Court held that since the actions of the USFS was not arbitrary or capricious as to the NEPA claims, the actions of the USFS were not arbitrary or capricious as to the NFMA claims. As such, the Court dismissed the NFMA claims as moot. The Court granted USFS’s motion for summary judgment in full and denied plaintiffs’ motion for summary judgment in full.
G. STREAMBED ALTERATION AGREEMENTS
1. California Department Of Fish And Wildlife Inform Public Of Need To Notify Agency If Cannabis Cultivation Affects Lakes And Streambeds.
In late July, California Department of Fish and Wildlife (“CDFW”) held a webinar informing members of the public how they intended to implement the State’s cannabis cultivation permitting requirements. As part of the permitting process, CDFW introduced the tools the department uses to ensure that cannabis permitting comports with the Lake and Streambed Alteration (“LSA”) Program. Under the Program, all entities must notify CDFW before conducting activity which would materially alter the natural flow of a river, stream, lake, or body of water (perennial, ephemeral, or intermittent) within the state. CDFW noted that an LSA Agreement may not be required to obtain a cannabis cultivation permit, but the notice to CDFW will drive whether the agency believes entities need to obtain an LSA Agreement prior to project commencement. Applicants for LSA Agreements can utilize CDFW’s new permitting tool online and receive approval in as little as 72 hours or work with CDFW staff directly for more complex permitting applications.
H. ENVIRONMENTAL ENFORCEMENT
1. Crystal Geyser Pays $5 Million In Criminal Penalties For Illegal Storage Of Arsenic Waste.
A U.S. District Court Judge ordered Crystal Geyser to implement a compliance plan within 90 days, pay criminal fines totaling $5 million, and remain on probation for three years because of the corporations illegal storage and transportation of hazardous waste generated from filtering arsenic out of spring water. The DOJ brought two counts of criminal liability against Crystal Geyser and the district court imposed $2.5 million in criminal fines for each count. Crystal Geyser discharged contaminated wastewater into a manmade arsenic pond in Inyo County for a period of 15 years without following any environmental health and safety laws. California’s Department of Toxic Substances Control tested the pond in 2015 and determined that it contained nearly five time the federal limit for arsenic leading to the federal criminal charges brought against Crystal Geyser. The company has 90 days from July 29, 2020, to set forth a plan to bring the pond into compliance and 120 days to implement said plan.
William Abbott, Diane Kindermann, Glen Hansen, and Daniel 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.