Water Quality, Wetlands, & Clean Water Act

Welcome to Abbott & Kindermann’s 2017 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) National Environmental Protection Act, and (I) Mining / Oil & Gas, (J) Streambed Alteration Agreements, (K) Cultural Resources Protection, and (L) Environmental Enforcement.

Click Here to read the complete update.

 If you have any questions about these court decisions, contact Diane Kindermann, William Abbott, Glen Hansen, or Daniel S. Cucchi. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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 Diane G. Kindermann and Daniel S. Cucchi

In his Executive Order, President Trump directs the EPA and USACE to clarify the 2015 Waters of the United States (“WOTUS”) Rule and in doing so, to take into consideration Justice Scalia’s 2006 Supreme Court opinion in Rapanos v. United States, 547 U.S. 715 (2006).

In Rapanos, Justice Scalia opined that a wetland may not be considered “adjacent to” remote “waters of the United States” based on a mere hydrologic connection. From Rapanos, 547 U.S. at 741-42:

Riverside Bayview rested upon the inherent ambiguity in defining where water ends and abutting (“adjacent”) wetlands begin, permitting the Corps’ reliance on ecological considerations only to resolve that ambiguity in favor of treating all abutting wetlands as waters. Isolated ponds were not “waters of the United States” in their own right,… and presented no boundary-drawing problem that would have justified the invocation of ecological factors to treat them as such….

Therefore, only those wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right, so that there is no clear demarcation between “waters” and wetlands, are “adjacent to” such waters and covered by the Act.…

Thus, establishing that wetlands such as those at the Rapanos and Carabell sites are covered by the Act requires two findings: first, that the adjacent channel contains a “wate[r] of the United States,” (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the “water” ends and the “wetland” begins.

For more information: https://www.whitehouse.gov/the-press-office/2017/02/28/remarks-president-trump-signing-waters-united-states-wotus-executive

Diane G. Kindermann is a shareholder and Daniel S. Cucchi is an associate 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.

 

Reserve your seat for one of two seminars taking place in February and March 2016

This seminar addresses wetlands and associated endangered species challenges, the latest statutory and regulatory guidance, plus valuable strategies for addressing each. Compliance guidance for wetlands programs will be provided while underscoring the issues and solutions specific to the agricultural and development community.

You will hear the latest trends, case studies and policies related to wetlands and associated ESA regulations to enable you to proactively address and plan in lieu of reacting to regulatory changes and trends as they evolve.

Speakers

Diane G. Kindermann is a founding partner of Abbott & Kindermann, LLP a land use, environmental and real estate firm representing clients throughout California. Since 1989, she has been practicing in the areas of environmental, land use, and real estate law representing numerous private and public agency clients, development, agricultural, industrial, mining and other landowner interests in matters concerning environmental, land use, planning and zoning laws, CEQA, Federal and State Endangered Species Acts, wetlands, water rights and water quality, mineral rights, timber and forestry resources, NEPA and hazardous waste matters, including CERCLA. She provides legal guidance on permit acquisition and compliance at the regulatory agency level and litigation services at the Federal, State and local levels.

Diane S. Moore, M.S. is the Principal Biologist of Moore Biological Consultants, a biology-based firm specializing in compliance with Clean Water Act (CWA) and State and Federal Endangered Species Acts.  She has over 25 years experience in the management of biological resources including due-diligence, baseline inventory, impact assessment, permitting, and preparation of various environmental documents and has secured wetland permits and associated approvals from the U.S. Army Corps of Engineers and other agencies for a variety of public works, development, recreation, agriculture, mining, and restoration projects, primarily in the Central Valley.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Monday, February 29, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. – 9:00 a.m.
  • Program: 9:00 a.m. – 12:00 noon

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Tuesday, March 15, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available. (Approval pending.) 

Please call (916) 456-9595 with any questions.

Reserve your seat for one of two seminars taking place in February and March 2016

This seminar addresses wetlands and associated endangered species challenges, the latest statutory and regulatory guidance, plus valuable strategies for addressing each. Compliance guidance for wetlands programs will be provided while underscoring the issues and solutions specific to the agricultural and development community.

You will hear the latest trends, case studies and policies related to wetlands and associated ESA regulations to enable you to proactively address and plan in lieu of reacting to regulatory changes and trends as they evolve.

Speakers

Diane G. Kindermann is a founding partner of Abbott & Kindermann, LLP a land use, environmental and real estate firm representing clients throughout California. Since 1989, she has been practicing in the areas of environmental, land use, and real estate law representing numerous private and public agency clients, development, agricultural, industrial, mining and other landowner interests in matters concerning environmental, land use, planning and zoning laws, CEQA, Federal and State Endangered Species Acts, wetlands, water rights and water quality, mineral rights, timber and forestry resources, NEPA and hazardous waste matters, including CERCLA. She provides legal guidance on permit acquisition and compliance at the regulatory agency level and litigation services at the Federal, State and local levels.

Diane S. Moore, M.S. is the Principal Biologist of Moore Biological Consultants, a biology-based firm specializing in compliance with Clean Water Act (CWA) and State and Federal Endangered Species Acts.  She has over 25 years experience in the management of biological resources including due-diligence, baseline inventory, impact assessment, permitting, and preparation of various environmental documents and has secured wetland permits and associated approvals from the U.S. Army Corps of Engineers and other agencies for a variety of public works, development, recreation, agriculture, mining, and restoration projects, primarily in the Central Valley.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Monday, February 29, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. – 9:00 a.m.
  • Program: 9:00 a.m. – 12:00 noon

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Tuesday, March 15, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available. (Approval pending.) 

Please call (916) 456-9595 with any questions.

 

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.

 

By Glen Hansen

In September 2013, the United States Environmental Protection Agency and the U.S. Army Corps of Engineers sent a draft rule to clarify the jurisdiction of the Clean Water Act to the Office of Management and Budget for interagency review. The proposed rule is designed to provide greater consistency, certainty, and predictability nationwide in determining what are “Waters of the United States” under the Clean Water Act. The proposed rule includes exclusions from Clean Water Act jurisdiction for:

•         Non-tidal drainage, including tiles, and irrigation ditches excavated on dry land.

•         Artificially irrigated areas that would be dry if irrigation stops.

•         Artificial lakes or ponds used for purposes such as stock watering or irrigation.

•         Areas artificially flooded for rice growing.

•         Artificial ornamental waters created for primarily aesthetic reasons.

•         Water-filled depressions created as a result of construction activity.

•         Pits excavated in uplands for fill, sand, or gravel that fill with water.

The draft rule takes into consideration the draft science report titled “Connectivity of Streams and Wetlands to Downstream Waters,” which presents a review and synthesis of peer reviewed scientific literature. EPA’s independent Science Advisory Board is soliciting public comment and will hold a public peer review meeting later this year. That report will eventually provide a scientific basis needed to clarify Clean Water Act jurisdiction, including a description of the factors that influence connectivity and the mechanisms by which connected waters affect downstream waters.

For more information:

http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm;

http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345

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. 

The Central Valley Regional Water Quality Control Board (“CVRWQCB”) adopted new waste discharge requirements within the Tulare Lake Basin area on September 19, 2013, in order to protect ground and surface water from irrigated agricultural discharges.  The area impacted by the new requirements includes farmland in Fresno, Tulare, Kings and Kern counties.  The requirements apply to farmers in the region who join an approved third-party group or coalition.  (Those growers who do not join a coalition will be directly regulated by the CVRWQCB, and will be subject to higher costs.)  Under the new rules, farmers will be required to report their water quality protection practices to their respective coalition.  Growers who have not already implemented practices that protect water quality will be required to improve their practices.  All growers will be required to prepare nitrogen management plans. Farmers whose land lies above the most vulnerable groundwater aquifers must submit information to the coalition on their nitrogen use efficiency. The coalition will prepare technical reports, conduct required studies and monitoring, and submit reports to the Central Valley Water Board on behalf of the growers.

For more information:

http://www.swrcb.ca.gov/rwqcb5/press_room/announcements/press_releases/r5_2013sep24_ilrptlbwdr_press.pdf

http://www.fresnobee.com/2013/09/19/3507274/state-oks-new-water-rules-for.html

http://www.bakersfieldcalifornian.com/local/x558589998/State-mandates-additional-groundwater-monitoring-in-valley

By Katherine J. Hart

In reversing the U.S. District Court, the U.S. Court of Appeal for the Ninth Circuit held in California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., ___ F.3d ___, 2013 U.S. App. LEXIS 14777 (9th Cir., No. 11-16959, July 22, 2013), that where the state of California had not brought either a court action to require compliance with the Clean Water Act (“CWA”), or commenced an administrative penalty action comparable to one under the CWA, neither 33 U.S.C. section 1365(b)(1)(B) nor section 1319(g)(6)(A)(ii) barred a citizen suit to enforce California’s storm water general NPDES permit.

Continue Reading Citizen Suit Under The Clean Water Act Is Not Barred Where State Of California Had Not Brought Either A Court Action To Enforce Compliance With The Act, Or Commenced An Administrative Penalty Action Comparable To One Under The Act.

State Water Resources Control Board anticipates the release of the revised draft of the Industrial General Permit and supporting documents around July 20, 2013, written comment period of 45 days, and a public hearing tentatively scheduled for August 20, 2013.

For more information visit: http://www.waterboards.ca.gov/water_issues/programs/stormwater/