Welcome to Abbott & Kindermann, Inc.’s June Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2021.


To read the May 2021 Environmental Action News post, click here:



There is one case pending at the California Supreme Court. The case and the Court’s summary is 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. Governor Newsom Extends Drought Emergency To 41 California Counties.

 California Governor Gavin Newsom updated his April 21, 2021, drought emergency proclamation to include a total of 41 counties that make up 30% of California’s population. On May 10, 2021, Newsom added Klamath River, Sacramento-San Joaquin Delta and Tulare Lake Watershed counties to the list of counties under a drought state of emergency. The proclamation directs the State Water Board to consider modifying requirements for reservoir releases and diversion limitations to conserve water upstream later in the year to maintain water supply, improve water quality and protect cold water pools for salmon and steelhead. The state of emergency also enables flexibilities in regulatory requirements and procurement processes to mitigate drought impacts and directs state water officials to expedite the review and processing of voluntary transfers of water from one water right holder to another.

For more information see:




  1. State Water Resources Control Board Proposed Emergency Rulemaking To Protect Water Supplies And Threatened And Endangered Fish In The Russian River Watershed.

 On June 22, 2021, the State Water Resources Control Board (“SWRCB” or “Board”) issued a notice of proposed emergency rulemaking to address drought conditions in the Russian River watershed. The proposed regulations were approved unanimously by the Board during the June 15, 2021, Board Meeting following Governor Gavin Newsom’s state of emergency declaration in April. The Governor’s April 2021 proclamation also suspended environmental review under the California Environmental Quality Act for certain activities, including the adoption of emergency regulations by the State Water Board pursuant to Water Code section 1058.5. SWRCB findings state the need to curtail water diversions in response to decreased natural or abandoned flows so that water is available for: (1) senior water right users; (2) water right permits’ drought-adjusted minimum permit flow requirements for fish and wildlife, aligned with minimal flows for threatened and endangered fish species; and (3) minimum human health and safety needs. Proposed curtailments include both the Upper and Lower Russian River watershed. Upper Russian River watershed curtailments would be triggered if Lake Mendocino storage targets are not met and supplemental storage releases are occurring to satisfy in basin uses, while Lower Russian River watershed curtailments would be triggered when flows are insufficient to satisfy all water right demands. The Board also stressed the need to ensure adequate carry-over storage in Lake Mendocino to ensure continued access to water for minimum human health and safety in the event of prolonged drought conditions. The proposed rule has been submitted for evaluation to the California Office of Administrative Law (“OAL”). Comments on the proposed regulations can be sent to Andrew Deeringer at andrew.deeringer@waterboards.ca.gov and the OAL Reference Attorney at staff@oal.ca.gov.

For more information see:





  1. Antelope Valley Groundwater Cases(2021) 62 Cal.App.5th 992 California Appellate Court Limited Groundwater Pumping In An Overdrafted Basin In Antelope Valley Groundwater Cases.

In Antelope Valley Groundwater Cases, the Fifth District Court of Appeals for California held that where a court must adopt a physical solution and allocate a limited water supply that is insufficient to meet the needs of all water right holders in an overdrafted basin, a court may equitably allocate the available water resources among competing claimants with equivalent priorities. The case, which started when one landowner filed suit and claimed superior groundwater rights to the overdrafted Antelope Valley Groundwater Basin (“basin”), became a comprehensive groundwater adjudication involving roughly 70,000 landowners in the Antelope Valley. Two separate classes of landowners are included in the suit as well as the United States. One class, referred to as the “Non-Pumper Class,” was formed by the court to represent the interests of a large group of persons who owned overlying land in the Antelope Valley Adjudication Area (“AVAA”) but who had not pumped water from the aquifer for any purposes. Another smaller class, the “Small Pumper Class,” was formed by the court to represent the interests of another large group of overlying landowners who historically had pumped not more than 25 acre-feet per year from the aquifer during the relevant period.

In this case, the appellate court affirmed that the trial court’s physical solution equitably allocated the native safe yield. The court explained that a physical solution can “subordinate” overlying rights of non-pumpers to overlying rights of landowners who are currently pumping but cannot “entirely extinguish unexercised” water rights. The court thusly allowed Non-Pumper Class members to pump groundwater in the future without paying any assessments only if the pumping is de minimis and limited to domestic use for a single household. The court also affirmed other established principles concerning water right and physical solution: (i) allocation of native safe yield can be permanent, provided that subsequent unreasonable use may be challenged; (ii) provisions permitting transfer or carrying over of water allocations do not violate the doctrine of reasonable and beneficial use; and (iii) while courts should consider a physical solution regardless of whether all parties agree to it, courts need not consider every proffered alternative physical solution. An appeal of this decision has been filed by one landowner who had pumped groundwater but was not allocated a share of the physical solution. The trial court rejected evidence of his claimed amount of pumping and reasonableness of his beneficial use and the appellate court affirmed.


  1. State Water Resources Control Board Issues Report Of Investigation And Draft Cease And Desist Order To Nestlé Over Alleged Unauthorized Diversions Of Water.

On April 23, 2021, the California State Water Resources Control Board (“SWRCB”) sent a Report of Investigation (“ROI”) and draft Cease and Desist Order (“CDO”) to Nestlé Waters North America (“Nestlé”) for unauthorized diversion and threatened unauthorized diversions from Strawberry Creek in San Bernardino National Forest. This ROI was a revised version of a 2017 ROI and includes numerous conclusions relating to Nestlé’s diversion and use of water. The draft CDO alleged that Nestlé is subject to a CDO for the unauthorized diversion of water identified in the ROI conclusions and, if finalized, would order Nestlé to immediately cease all unauthorized diversions of water. The SWRCB started an investigation of Nestlé after the board received several water rights complaints and an online petition against Nestlé starting in April 2015. The complaints alleged diversion of water without a valid basis of right, unreasonable use of water, injury to public trust resources, and incorrect or missing reporting, all regarding Nestlé’s diversion of water from springs at the headwaters of Strawberry Creek bottling under the Arrowhead label. Nestlé’s response to the SWRCB’s letter alleged errors in the ROI and draft CDO but included a promise to abide by any final determinations after the conclusion of the appeal process.

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  1. California AG Filed Comments To The U.S. Army Corps Of Engineers Regarding Proposed Wetland Filling And Gas Drilling In The San Francisco Bay-Delta

On April 2, 2021, acting California Attorney General Mathew Rodriguez filed comments to the U.S. Army Corps of Engineers (“USACE”) regarding concerns over a Clean Water Act (“CWA”) Section 404 permit (“permit”) to fill wetlands and conduct exploratory oil and gas development in the San Francisco Bay-Delta. Oil and gas developer Sunset Exploration filed the permit as part of its proposed Hunter’s Point Natural Gas Well Drilling Project (“Project”) in Suisun Marsh. The California AG submitted several recommendations to USACE, including urging the agency to: (i) make the application itself available to the public; (ii) review the project’s potential environmental justice and greenhouse gas impacts; (iii) consult with wildlife agencies concerning potential impacts to all federal- and state-listed species; (iv) consider alternatives that would not harm the saltwater marsh habitat and species, (v) perform an environmental impact statement rather than the proposed environmental assessment; and (vi) evaluate all available mitigation measures. The AG also asked USACE to defer issuing the permit until the San Francisco Bay Conservation and Development Commission (“Commission”) determines whether the Project is consistent with the enforceable policies of the Commission’s federally approved coastal management program pursuant to the Coastal Zone Management Act.

For more information see:




  1. Environmental Protection Agency Proposes Reinstating California’s Waiver For Car Emission Standards, Reversing Trump Era Rule.

The U.S. Environmental Protection Agency (“EPA”) issued a Notice of Reconsideration of the Trump Administration’s 2019 final rule titled The Safer Affordable Fuel-Efficient Vehicles Rule Part One: One National Program Rule (“Rule”). In 2019, the Trump Administration EPA finalized the rule which revoked California’s waiver for greenhouse gas pollution standards for cars under the Clean Air Act (“CAA”). California is the only state eligible for such a waiver because California had vehicle emission standards in place before congress passed the CAA. The rule affected more than just California, as the waiver allowed other states to adopt California’s more strict standards. EPA Administrator Michael Regan stated that “[he is] a firm believer in California’s long-standing statutory authority to lead. The 2019 decision to revoke the state’s waiver to enforce its greenhouse gas pollution standards for cars and trucks was legally dubious and an attack on the public’s health and wellbeing.”

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  1. Twenty-One Attorneys General Sent Letter To Congressional Leaders In Support Of Congressional Review Act Resolution To Reinstate Environmental Protection Agency Regulations On Methane Emissions.

On April 26, 2021, a coalition of twenty-one attorneys general led by New York Attorney General Letitia James sent a letter to congressional leaders expressing support of a Congressional Review Act (“CRA”) resolution to invalidate a Trump administration rule that rescinded emission controls for the oil and gas industry. The Environmental Protection Agency (“EPA”) under Trump removed controls on emissions of methane and harmful conventional pollutants that the EPA acknowledged would trigger significant increases in pollutant emissions. The coalition of AGs described the rescission as doing away with “common sense, cost-effective approaches” established by the Obama administration that protected public health and the environment as well as the efficiency of natural gas operations by reducing leakage in all segments of the industry. If the CRA resolution passes, the EPA will be precluded from promulgating a rule that is substantially the same as the one that was repealed.





  1. Biden Administration Plans To Allow Commercial Offshore Wind Farms In California.

The Biden administration has pledged to rapidly increase offshore wind energy in the United States and has identified two areas off the California coast for development of wind turbines: a 399-square-mile area in Morro Bay about 20 miles offshore of central California and another area off the coast of Humboldt County near the Oregon border. Traditionally, offshore wind units have been blocked in California due to logistical challenges and opposition from the Navy. Opponents from the California fishing industry claim that the Biden administration plan is larger and more potentially disruptive to marine life than they had discussed, with the Morro Bay location being substantially larger than the earlier 120-square-mile proposal. Other opponents emphasize that offshore wind is expensive, double that of an advanced nuclear reactor and three times the cost of natural gas. Proponents, including California Governor Gavin Newsom, cite rapidly advancing climate change and the need to transition to renewable energy as well as the creation of new jobs. Offshore wind is new to the United States, although the practice is widely used in Europe. The first ever commercial-scale offshore wind farm in the United States was recently approved by the Biden administration and the Department of the Interior (“DOI”) is currently reviewing about a dozen other projects along the East Coast. The DOI plans to auction a lease in one of the identified areas in California in the middle of 2022.

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  1. U.S. Fish And Wildlife Service And The National Marine Fisheries Service Start Rulemaking Process To Rescind, Revise, and Reinstate Endangered Species Act Regulations. 

Pursuant to an Executive Order issued by President Biden, the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) announced upcoming rulemaking activities with regard to five Endangered Species Act (“ESA”) regulations finalized by the Trump Administration. In January of 2021, President Biden issued Executive Order 13990, which directed all federal agencies to review and address agency actions during the last four years that conflict with Biden-Harris administration objectives, such as addressing climate change. The proposed changes are as follows:

  • Rescind regulations that revised FWS process for considering exclusions from critical habitat designations under section 4(b)(2) of the ESA.
  • Rescind regulatory definition of the term “habitat” for the purposes of critical habitat designation.
  • Revise regulations for listing species and designating critical habitat to reinstate prior language affirming that listing determinations are made “without reference to possible economic or other impacts of such determination,” along with other potential revisions also under discussion.
  • Revise regulations for interagency cooperation including the definition of “effects of the action” and associated provisions to that portion of the rule, with other potential revisions also under discussion.
  • Reinstate protections for species listed as threatened under the “blanket 4(d) rule,” which was withdrawn by the previous administration (84 Fed. Reg. 44753; August 27, 2019). The blanket 4(d) rule establishes the default of automatically extending protections provided to endangered species to those listed as threatened unless the Service adopts a species-specific 4(d) rule.

For more information see:



  1. La. v. Biden (W.D.La. June 15, 2021, No. 2:21-CV-00778) 2021 U.S.Dist.LEXIS 112316 – United States District Court Blocked The Biden Administration’s Pause On Oil And Gas Leasing

In response to a lawsuit by the State of Louisiana and twelve other states, the U.S. District Court for the Western District of Louisiana issued a preliminary injunction that stopped the Biden Administration’s pause on oil and gas leasing. The Biden Administration’s pause directed agencies not to issue new leases for oil and gas drilling in offshore waters and on public lands while officials conduct an environmental and financial review of leasing practices. The injunction applies nationwide and will be in place pending resolution of the lawsuit itself. To receive a preliminary injunction, the movant must show (1) the substantial likelihood of success on the merits, (2) that he is likely to suffer irreparable harm in the absence of a preliminary injunction, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. The states’ lawsuit claims that the Biden Administration violated the Administrative Procedure Act (“APA”) because the administration (i) acted contrary to law in violation of APA § 706(2)(A) and (C) by effectively amending congressional statutes OCSLA and MLA; (ii) acted in an arbitrary and capricious manner in violation of APA § 706(2)(A) by omitting any “any rational explanation in cancelling the lease sales”; (iii) failed to provide notice and comment required by APA § 553(a); and (iv) unreasonably withheld and unreasonably delayed lease sales which constitute agency required activity in violation of APA § 706(1). The Biden Department of the Interior confirmed that it will comply with the order while continuing to work on an interim report that will include initial findings on the state of the federal conventional energy program.

For more information see:



  1. California Prosecutor Files Criminal Charges Against Pacific Gas & Electric Over The 2019 Kincade Wildfire.

The Sonoma County District Attorney (“DA”) charged Pacific Gas & Electric (“PG&E”) with five felony and twenty-eight misdemeanor counts that allege the utility of endangering public health and injuring six firefighters. The California Department of Forestry and Fire Protection reported that the fifteen-day fire, which ultimately destroyed 374 buildings and forced 100,000 people to evacuate, was sparked when high winds broke a PG&E transmission line. The DA accuses the company of destroying inhabited structures and endangering public health by causing contamination of the air “with reckless disregard for the risk of great bodily injury” from toxic wildfire smoke. They allege that the utility failed to maintain facilities including transmission lines, among the numerous related misdemeanor charges. While PG&E accepts the finding that its transmission line caused the fire, the company asserts that no crimes were committed.

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  1. Supreme Court Sends Climate Change Lawsuit Against Five Major Oil Companies Back To District Court, Future Of Lawsuit Uncertain.

In June of 2021, the Supreme Court upheld a Ninth Circuit Court of Appeals decision that public nuisance claims brought by cities and local governments against major oil companies could be pursued in state court. This ruling moves forward the lawsuits by the cities of San Francisco and Oakland, among others, against ExxonMobil, BP, Chevron, ConocoPhillips, and Shell in California state court over their roles in climate change driven sea level rise. In 2017, San Francisco filed the first of many lawsuits that seek to force the companies to fund a sea level rise abatement program that will be used to build sea walls and other structures to protect about $49 billion in public and private property sitting within six feet of the current sea level. Since 2017, 26 state and local governments, including the states of Connecticut, Delaware, Massachusetts, Minnesota, and Rhode Island; the District of Columbia, and 20 city and county governments in California, Colorado, Hawaii, Maryland, New Jersey, New York, South Carolina, and Washington have filed similar lawsuits. The cities, states, and local governments brought public nuisance claims against the companies alleging the firms have known for decades that their products were accelerating global warming and instead of acting to reduce harm, the companies attempted to undermine climate science and mislead the public by claiming fossil fuel production is environmentally responsible. As the suits allege only public nuisance claims, San Francisco and Oakland stated explicitly that the cities are not seeking to impose any liability for the companies’ greenhouse gas emissions or stop the companies from producing fossil fuels. In response to the lawsuits, the oil companies transferred the suits to federal court. In 2018, U.S. District Court Judge William Alsup denied the cities’ request to move the cases back to state court. Judge Alsup then dismissed the suits, saying that emissions control is up to policymakers, not judges. The Supreme Court’s decision not to review the Ninth Circuit’s ruling sends the issue back to Judge Alsup to reconsider the case and decide whether there are any other grounds to hear it in federal court, meaning he could dismiss the suits for a second time.

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  1. California Senators Introduce Bill That Would Expand Protected Wilderness In The State By More Than One Million Acres.

A package of bills in the United States Senate would expand protections for more than one million acres of public land in California. The bill, introduced by California Senator Alex Padilla and co-sponsored by fellow California Senator Diane Feinstein, passed through the House of Representatives in February. This designation prohibits development, vehicles, and commercial activity. The package of legislation would also designate as wilderness about 262,000 acres of public lands in northwest California and 288,000 acres of land in the Los Padres National Forest and Carrizo Plain National Monument, as well as establish a 400-mile-long Condor National Scenic Trail stretching from Los Angeles to Monterey County. The designation of land as “wilderness” is the most restrictive classification of federal land and would limit commercial activities such as logging, mining, and ranching. The protections in this bill are almost entirely limited to federal lands and not private holdings.

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  1. California Attorney General Rob Bonta Announced Expansion of Environmental Justice Bureau.

On April 28, 2021, California Attorney General Rob Bonta announced an expansion of the California AG’s Bureau of Environmental Justice (“Bureau”). The Bureau was established in 2018 and will expand to include eleven attorneys. Bonta explained that the expansion will allow the office to increase oversight and take on more cases. The Bureau focuses on oversight and enforcement work, specifically:

  • Ensuring compliance with the California Environmental Quality Act (“CEQA”) and land use planning laws;
  • Penalizing and preventing illegal discharge to air and water from facilities located in communities already burdened disproportionately with pollution;
  • Eliminating or reducing exposure to lead and other toxins in the environment and consumer products;
  • Remediating contaminated drinking water; and
  • Challenging the Federal Government’s actions that repeal or reduce public health and environmental protections.

For more information see:


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.