Welcome to Abbott & Kindermann, Inc.’s Inaugural Environmental Action News. This summary provides a follow-up to the Abbott & Kindermann Land Use Conference and Outline provided in January 2020.

1. PREVIOUS MONTH’S UPDATE

Abbott & Kindermann, Inc., will begin providing a monthly review for environmental law starting in April 2020. Check back next month for a summary of this month’s Environmental Action News.

2. CASES PENDING AT THE CALIFORNIA 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?

3. UPDATE

A. CALIFORNIA WATER RIGHTS AND SUPPLY

1. California WaterFix Extends Public Comment Period To Respond To Pandemic.

After permits and environmental review were pulled from the WaterFix project in May 2019, the California Department of Water Resources had to start from scratch on their project to keep in line with Governor Newsom’s single tunnel plan. On January 15, 2020, the Department of Water Resources released the Notice of Preparation to begin environmental review for the single tunnel project. This smaller design would send 6,000 cubic feet of water per second from the Sacramento River, through a tunnel 150 feet below the Delta, to the Tracy intake pumps. The public comment period was to be closed on March 20, 2020, but considering the COVID-19 pandemic, the comment period has been extended to April 17, 2020 (to submit comments, e-mail them to DeltaConveyanceScoping@water.ca.gov). This new tunnel project is consistent with the Governor’s recent executive order directing state agencies to develop a portfolio of statewide water actions and investments (Executive Order N-10-19). Newsom aims to have environmental review completed by early 2022.

For more information see:

https://water.ca.gov/deltaconveyance

https://cah2oresearch.com/

https://beniciaheraldonline.com/delta-residents-speak-out-against-newsoms-controversial-tunnel-project/

2. DWR Makes Adjustments To SGMA Compliance Dates Amid COVID-19 Crisis.

SGMA went into effect in January 2015 with tiered implementation dates leading to full implementation in 2020. As part of the 2020 full scale implementation of SGMA, water districts must adopt a groundwater sustainability plan, blessed by DWR, to show how each district is meeting SGMA regulations. The groundwater sustainability plans must demonstrate how different groundwater basins will reach sustainability within 20 years of implementation. Districts must also submit annual compliance reports displaying how its groundwater management complies with the groundwater sustainability plan and SGMA writ large. On March 18, 2020, DWR announced the postponement of three SGMA deadlines in light of ongoing public health concerns related to COVID-19. First, the public comment period for groundwater sustainability plans were extended by 30 days bringing the new comment deadlines to May 15, 2020, and June 3, 2020, depending on the date the GSP was posted to DWR’s SGMA Portal. Second, the comment period for DWR’s Draft Water Budget Handbook has been extended by 30 days, bringing the new comment deadline to May 7, 2020. Lastly, DWR will accept the annual reports for basins with adopted GSPs, approved and pending alternatives to GSPs, and adjudicated areas after the April 1, 2020, deadline. No specific extension has been formally announced.

For more information see:

https://groundwaterexchange.org/news/

https://www.jdsupra.com/legalnews/covid-19-updates-for-water-agencies-and-43565/

B. WATER QUALITY

1. Point Source Pollution Further Defined By Ninth Circuit – Hawaii Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018); U.S. Supreme Court Granted Review On First Cause Of Action – County of Maui v. Wildlife Fund, 139 S.Ct 1164 (U.S. 2019).

The Ninth Circuit further defined the scope of point source pollution under the Clean Water Act (“CWA”) in a case involving the discharge liability of County of Maui, Hawaii. The County operated four water treatment wells at the Lahaina Wastewater Reclamation Facility and used the wells as groundwater injection locations for treated effluent waste. In operating all four wells at a treatment rate of two (2) to five (5) million gallons of treated water per day, the County admitted that at least two of its injection wells were known to release waste back into the ocean. The County argued that since the waste filters through a series on indirect channels and pathways before reaching the ocean, there is no discharge liability under the CWA. Discharge of pollutants from one-point source into a navigable water of the United States requires a NPDES permit under the CWA. The County failed to obtain a NPDES permit for the four wells.

The U.S. District Court held under the CWA that the County: (1) indirectly discharged into the ocean through a groundwater conduit; (2) the groundwater is a point source under the CWA; and

(3) the groundwater is a navigable water under the CWA. The Court of Appeal affirmed the District Court’s adoption of the plurality view of the “Waters of the United States” in Rapanos v. United States, 547 U.S. 715 (2006). Justice Scalia in Rapanos stated the CWA does not discern between direct and indirect point sources, and liability for both is clear under the statute. The justices of the Supreme Court unanimously affirmed his interpretation of liability for both indirect and direct point sources. The Ninth Circuit held that the County may not build an ocean outfall for an indirect point source without obtaining a NPDES permit to avoid CWA liability.

On February 19, 2019, the U.S. Supreme Court granted limited review of the case. The Court agreed only to hear the first cause of action: whether the County indirectly discharged into the ocean through a groundwater conduit. Oral argument was taken on November 6, 2019, and the Court took arguments under submission. An opinion will be issued sometime in 2020.

2. California Supreme Court Considering Whether Federal Law Preempts Application of CEQA To State Licensing Of A Hydroelectric Dam Project – County of Butte v. Department of Water Resources (2019) 39 Cal.App.5th 708, granted (case no. S258574, Dec. 11, 2019), 2019 Cal. LEXIS 9084.

Petitioners challenged the adequacy of the Draft Environmental Impact Report submitted by the Department of Water Resources in support of its request to extend its federal license from the Federal Energy Regulatory Commission (“FERC”) to operate the Oroville Dam and its related facilities. The Petitioners also sought to stay the licensing proceedings. The Third District Court of Appeal applied the California Supreme Court precedent in Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, and held that the Federal Power Act preempted state court review of the licensing project.  The appellate court reasoned that federal law provides for an alternative licensing process (“ALP”) that: (i) incorporates all federal and state license procedures into a single process involving all affected state, federal, local and private parties under the authority of FERC, and (ii) established administrative procedures before FERC for all participating entities to resolve disputes over the required environmental studies. Under the ALP, the licensing process was therefore not subject to review, but new actions to implement the project, such as mitigation for habitat loss caused by the project, may be subject to CEQA review in state courts and only upon implementation, which would not occur until after the issuance of the FERC license. The California Supreme Court granted review to consider two questions:  1. To what extent does the Federal Power Act preempt application of the California Environmental Quality Act 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 to comply with the federal water quality certification under section 401 of the federal Clean Water Act?  Briefing before the Court is now underway.

3. On Remand, District Court To Consider Which Specific Categories Of Land Contributed To Contaminated Discharges From The Central Valley’s Grasslands Bypass Project, In Violation Of The NPDES Permitting Process – Pacific Coast Federation of Fishermen’s Association v. Donald Glaser et al., 937 F.3d 1191 (9th Cir. 2019), on remand, 2020 U.S. Dist. LEXIS 61262 (E.D. CA, April 7, 2020).

In December 2019, the Ninth Circuit Court of Appeal reversed a decision of a U.S. District Court for the Eastern District of California and held that an NPDES discharge permit was required under the Clean Water Act for the Central Valley Grasslands Bypass Project (“Project”). The Project is owned and operated by the United States Bureau of Reclamation (“Bureau”) and discharges significant quantities of selenium and other pollutants into state and federal wildlife refuges leading into the Delta. The Ninth Circuit held that it was the Bureau’s burden to prove that its discharges were “composed entirely of return flows from irrigated agriculture.” An exemption cited by the Bureau was limited to “only those flows that the exemption applied so long as a ‘majority’ of the wastewater originated from agricultural activities.” The Ninth Circuit further held that the District Court erred in holding that the Bureau could rely on the exemption so long as a “majority” of the wastewater originated from agricultural activities. The court clarified that the exemption applied only where the discharges were entirely from flows related to agricultural production. On remand, the District Court will consider which specific categories of land contributed to discharges in violation of the NPDES permitting process and will otherwise consider the merits in cross-motions for summary judgment.

C. WETLANDS

1. New WOTUS Rule Under Trump Administration Is Finalized, Likely Leading to New Litigation.

In July 2017, the new Trump Administration announced a two-step plan to rescind the Clean Water Rule implemented under the Obama Administration, and then directed the Army Corps of Engineers (“USACE”) to implement that plan. The Obama era definition of the Waters of the United States (or “WOTUS”) under the Clean Water Rule was rescinded in September 2019.  Lawsuits were filed opposing that repeal, including by the State of California.  (See e.g., New York et al. v. U.S. Envt’l Protection Agency (S.D.N.Y., Dec. 20, 2019), No. 1:19-cv-11673.) Then, on January 23, 2020, the U.S.  Environmental Protection Agency (“EPA”) and USACE finalized the new “Navigable Waters Protection Rule” to define “Waters of the United States,” thereby establishing the status of federal regulatory authority under the Clean Water Act.  Full implementation went into effect 60 days later in March 2020.

Under the new WOTUS rule, federal 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 (7) waste treatment systems from the previously defined waters of the United States and, therefore, from U.S. regulatory 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. Opponents of the new rule have dubbed it the “Dirty Water Rule” in order to contrast it with the Obama Administration’s rule.  New litigation to oppose the new Navigable Waters Protection Rule is expected soon.

For more information see:

https://www.epa.gov/nwpr

https://www.epa.gov/nwpr/navigable-waters-protection-rule-step-two-revise

https://ag.ny.gov/sites/default/files/12.20.19_clean_water_complaint.pdf

https://thehill.com/policy/energy-environment/490248-nrdc-gears-up-to-sue-over-trump-rollback-of-obama-water-law

D. AIR QUALITY AND CLIMATE CHANGE

1. Ninth Circuit Panel Orders Parties To Answer Petition For Rehearing In Landmark Decision That Federal Courts Cannot Provide A Remedy In Novel Climate Change Challenge To 50 Years Of U.S. Government Fossil Fuel Policies – Juliana v. United States, 947 F.3d 1159 (9th Cir., Jan. 17, 2020).

A group of 21 individuals aged 8-19, an environmental organization, and a guardian for plaintiff “future generations” filed a lawsuit in the U.S. District Court in Oregon to challenge 50 years of fossil fuel policies of the United States Government. Plaintiffs alleged that the Federal Government’s actions and inactions are a substantial cause in the scope and severity of climate change and will lead to substantial harm to “future generations.” Plaintiffs did not allege that the Federal Government was violating any statute or regulation, denying a procedural right, or owes damages. Rather, plaintiffs sought declaratory and injunctive relief under claims that allege (a) a violation of the Equal Protection Clause of the Fifth Amendment; (b) a substantive constitutional right to a “climate system capable of sustaining human life” under the Due Process Clause of the Fifth Amendment; (c) an implicit right to a stable climate under the Ninth Amendment; and (d) a violation of the federal public trust doctrine.

The U.S. District Court for the District of Oregon granted the Federal Government’s Motion For Summary Judgment as to the Ninth Amendment claim, and as to a part of the equal protection claim and dismissed President Trump as a defendant. As to every other claim, the District Court denied the Motion For Summary Judgment brought by the U.S. An interlocutory appeal was taken to the Ninth Circuit. On January 17, 2020, a 2-1 decision by a Ninth Circuit panel held that the Motion For Summary Judgment should be granted and the case dismissed. The Ninth Circuit held that Article III standing was not met in this case because the plaintiffs’ alleged injuries are not likely redressable by a favorable judicial decision. The court explained:  “The crux of the plaintiffs’ requested remedy is an injunction requiring the government not only to cease permitting, authorizing, and subsidizing fossil fuel use, but also to prepare a plan subject to judicial approval to draw down harmful emissions. The plaintiffs thus seek not only to enjoin the Executive from exercising discretionary authority expressly granted by Congress, but also to enjoin Congress from exercising power expressly granted by the Constitution over public lands.”  The Court reluctantly concluded that “such relief is beyond our constitutional power.” Specifically, the Court held that “it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”

For more analysis on the Ninth Circuit’s decision, see Glen Hansen, “Divided Ninth Circuit Panel Decides That Federal Courts Cannot Provide A Remedy In Novel Climate Change Challenge To 50 Years Of U.S. Government Fossil Fuel Policies,” Abbott & Kindermann Land Use Law Blog, Jan. 21, 2020, found at https://blog.aklandlaw.com/2020/01/articles/air-quality/divided-ninth-circuit-panel-decides-that-federal-courts-cannot-provide-a-remedy-in-novel-climate-change-challenge-to-50-years-of-u-s-government-fossil-fuel-policies/

On March 2, 2020, Plaintiffs/Appellees filed a Petition For Rehearing En Banc, and numerous third parties have filed amicus briefs in regard to that petition. The parties are currently briefing that petition.

2. President Trump’s Decision To Revoke California’s Emissions Waiver Results In Consolidated D.C. Circuit Case To Be Heard In 2020.

The Trump Administration moved to revoke its formal authority to allow California to set its own auto emission standard above the federally required standard. The move by the Trump Administration directly impacts 14 states, and indirectly impacts the nationwide auto industry as a whole.  In response to the California waiver revocation, several federal lawsuits were immediately filed to block the administrative action. In December 2019, the Trump Administration moved to transfer the California case to the Court of Appeals for the District of Columbia Circuit and to consolidate all of the cases into one matter before that court. (State of California, et al. v. Andrew Wheeler, et al., Case No. 19-1239 (November 20, 2019); Union of Concerned Scientists, et al. v. NHTSA, Case No. 19-1230 (October 28, 2019)).

The move to remove the waiver in part removes the heightened standard set during the Obama Administration to move all vehicles toward doubling the fleetwide fuel economy standard with 20% less emissions by 2025. Four automakers signed a compliance deal with California in July 2019, agreeing to manufacture based on California’s more restrictive waiver standard. Three other auto manufacturers supported the Trump Administration’s defense in litigation by providing an amicus brief in support of the lower, federal emission standard. Since EPA has the express authority to remove the California emissions waiver at any time, California and the affected states have the more difficult burden of proving the federal government acted arbitrarily when removing the waiver. As the subsequent cases continue toward briefing and arguments in court, auto manufacturers are left to question which standard to put into vehicle production in the next few years, and whether it will comply with state or federal code.

For more information see:

https://www.courthousenews.com/feds-push-to-dismiss-suit-over-california-emissions-standards/

https://fox6now.com/2019/11/27/trump-california-at-odds-over-new-emission-standards/ https://www.law360.com/articles/1226351/dc-judge-wants-calif-auto-emissions-suits- consolidated

https://www.cnet.com/roadshow/news/trump-administration-fuel-economy-regulations/ https://www.mercurynews.com/2019/12/01/california-asks-for-clarity-in-clean-car-rollbacks/

https://seekingalpha.com/news/3523474-con-edison-challenges-trump-auto-emissions-policy

https://www.msn.com/en-us/news/technology/epas-response-to-clean-car-rollbacks-might-affect-ca-commuters/ar-BBXWmfh

E. ENDANGERED SPECIES

1. National Marine Fisheries Service Wins Ruling For Water Diversions In Yuba River – Friends of the River v. National Marine Fisheries Service, 293 F.Supp.3d 1151 (E.D. Cal., 2018); reversed, 786 Fed.Appx. 666 (9th Cir. 2019).

The National Marine Fisheries Service (“NMFS”) released the first biological opinion on projects slated for the Yuba River in 2000. In 2002, NMFS released a full biological opinion stating there was minimal to no impact on the spring Chinook and steelhead populations in the Yuba River. Between 2002 and 2014, NMFS, in coordination with the Army Corps of Engineers (“USACE”) to support its Yuba River Projects, issued several more biological opinions. Plaintiff challenged NMFS and USACE’s execution and reliance on these opinions when analyzing whether the Listed Species were unreasonably impaired by Yuba River activities. Plaintiff alleged violations of the federal Endangered Species Act (“ESA”) and the Administrative Procedures Act (“APA”) arising out of water diversion in the Yuba River. The Court rule din favor of defendants on all of plaintiff’s claims and granted summary judgment for both defendants.

Plaintiffs appealed. The Ninth Circuit held that NMFS acted arbitrarily and capriciously when it changed its approach to analyzing dam impacts on threatened fish species. NMFS did not dispute it changed its analysis, but stated it has a reasoned explanation for the change. However, there was no reasoned explanation available in the record for the Court to consider. Thus, the Ninth Circuit reversed the summary judgment motion and remanded to the District Court. The Court of Appeals provided instructions to NMFS to reassess its 2014 Biological Opinion and Letter of Concurrence in light of the Court’s opinion. The Ninth Circuit also held that the District Court should not have reversed the claims against USACE for a Section 9 take analysis. However, the Court of Appeals affirmed summary judgment denying that consultation under Section 7 needed to be reinitiated. The appellate court will rule on the attorney’s fees later in 2020.

2. Tribes File Suit Against U.S. Bureau of Reclamation Over The Klamath Irrigation

Project – The Klamath Tribes v. United States Bureau of Reclamation et al., Case No. 18-cv-03078 (N.D. Cal. May 23, 2018).

In late May 2018, a collection of tribes in the Klamath River area filed suit against the U.S. Bureau of Reclamation (“Bureau”), seeking to shut down the Bureau’s Klamath Irrigation Project. The project would eliminate a lake above the Klamath River Basin to increase water supply to family farms in northern California and southern Oregon. The tribes cited two fish species under the protection of the California Endangered Species Act (“CESA”) and the federal Endangered Species Act (“ESA”) as the primary reason for stopping the project. The Lost River sucker and shortnose sucker spawn and live in the river basin of the Klamath River. In order for the project to move forward, the Bureau needs to waive the protections of the two listed species with the California Legislature. Assembly Bill 2640, passed by the Legislature and signed by Governor Brown on September 20, 2018, granted the legislative waiver necessary to permit the project. Legislative waivers of this type are generally rare and not a favorable option. The government needed to prove that the actions taken by the Bureau were fair and consistent in order to pass the legislation without a lawsuit. The case is currently before the Southern District of Oregon. The Klamath Tribes motion for a preliminary injunction was denied by the Court as the case proceeds. In late 2019, the Court granted the Hoopa Valley Tribe and Klamath Tribe’s motion to intervene and set a hearing date in April 2020 to consider the cross motions to dismiss filed by parties.

F. NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)

1. Trump Administration Considers An Update Limiting NEPA Burdens

The White House Council on Environmental Quality (“CEQ”) is considering updating NEPA regulations to limit the enforcement of NEPA. On January 10, 2020, CEQ published a notice of proposed rulemaking in the Federal Register. Changes to NEPA under consideration include the following:

• For EIS Preparation: Limits page numbers, requiring more joint EISs for projects involving multiple agencies, and time for completion to two years and EA to one year,
• Includes economic feasibility in EIS considerations requiring “reasonable alternatives,”
• Requires the use of required environmental documentation prepared by states, tribes and localities to comply with NEPA and refrain from “duplicative” environmental review,
• Facilitate use of more Categorical Exemptions and EAs, and
• Allow applicants to assume greater roles in preparation of

CEQ accepted public comments on the proposed rulemaking through March 10, 2020. CEQ also held two public hearings in Denver and Washington, DC in February 2020. CEQ will respond to public comments and plans to finalize the regulations by publication in the Federal Register later in 2020.

For more information see:

https://www.federalregister.gov/documents/2020/01/10/2019-28106/update-to-the-regulations- implementing-the-procedural-provisions-of-the-national-environmental

https://ceq.doe.gov/laws-regulations/regulations.html

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.