Water Quality

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By Glen C. Hansen

Lost Tree Village Corp. v. United States, ___ F.3d ___, 2013 U.S. App. LEXIS 690 (Fed.Cir. 2013). Between 1968 and 1974, Lost Tree Village Corporation (“Lost Tree”) purchased approximately 2,750 acres of property on Florida’s mid-Atlantic coast, which included a barrier island on the Atlantic Ocean. That property included 4.99 acres now known as Plat 57, which is part of the entire peninsula known as the Island of John’s Island. From 1969 through the mid-1990s, Lost Tree developed approximately 1,300 acres it purchased into the upscale gated residential community of John’s Island. The development was made in a piecemeal manner, and not as a master-planned community.Continue Reading US Army Corps Denies A §404 Permit: Can A Takings Claim Be Based On Consideration Of The Economic Affect On the Wetlands Parcel Only?

The State Water Resources Control Board is poised to release a final draft of the Industrial General Permit by April 2013. Public comments will be received for 45 days, and a formal workshop will be held on May 8, 2013.

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

By Glen C. Hansen

For decades, oil and gas producers in California have been engaged in the process of hydraulic fracturing, commonly called “fracking.” That process involves injecting a high pressure stream of water and chemicals deep underground to split rocks and release oil and natural gas. The technique is designed to free oil and natural gas trapped in shale rock. There is a significant amount of such rock in California. For example, the Monterey Shale, which lies under Central California and the southern San Joaquin Valley, could hold up to 15 billion barrels of oil, making it possibly the nation’s largest oil shale formation and almost half of the nation’s total shale oil resources.Continue Reading As Lawsuits Begin In California Over Oil And Gas “Fracking,” The State Issues “Discussion Draft” Regulations For The Process

The EPA issued a new rulemaking on the Silvicultural Rule on the eve of oral argument in the Supreme Court in a legal challenge to the earlier version of the rule. At oral argument, a host of new procedural questions were raised by the Justices about what to do with the existing lawsuit. And the arguments of counsel demonstrated that another citizen suit is likely on its way challenging the new rule.
Continue Reading EPA Tells Supreme Court Its Actions Were “Suboptimal” — But The Oral Argument On The Challenge To EPA’s Silvicultural Rule Raises More Questions Than It Answers.

The BIA challenged several provisions of the State Water Board’s newly adopted general NPDES construction permit. While a majority of their claims were denied and most of the permit provisions were upheld, the court struck down the newly imposed numeric effluent limits set for pH and turbidity.
Continue Reading SACRAMENTO TRIAL COURT STRIKES DOWN KEY PROVISIONS OF STATE WATER BOARD’S GENERAL NPDES CONSTRUCTION PERMIT

The recent case of Voices of the Wetlands v. State Water Resources Control Board (August 15, 2011, S160211) 52 Cal.4th 499, involves the issuance of an NPDES permit by the Central Coast Regional Water Quality Control Board (“Regional Board”) authorizing the Moss Landing Power Plant (then owned by Duke Energy, now owned by Dynegy) to draw cooling water from Moss Landing Harbor and Elkhorn Slough. Plaintiff Voices of the Wetlands challenged the permit raising a number of legal issues, including whether the trial court improperly ordered an interlocutory remand. The appellate court affirmed and the trial court denied the writ.
Continue Reading California Supreme Court Rules Interlocutory Remand a Valid Remedy in Writ Petitions

In early 2011, the State Water Resources Control Board (“SWRCB”) released three draft statewide NPDES permits for public review and comment. To say that these permits were not well-received by the regulated community (i.e., small municipalities, CalTrans and industrial business owners) is an understatement. In a rare intervention by members of the state legislature into the realm of state agencies, the Senate Select Committee on California Job Creation and Retention held an informational hearing on the draft permits on October 6, 2011. The message from the hearing came across loud and clear: time for a do-over.
Continue Reading Senate Committee Scolds SWRCB in Recent Hearing on Draft Statewide Permits

Two Federal District Court opinions in California examined the sufficiency of pre-lawsuit notices that must be given to responsible parties and relevant agencies before citizen suits are filed either under the Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq. (“60-Day Notice”), and/or under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901, et seq. (“90-Day Notice”).
Continue Reading Two Instructive District Court Opinions on RCRA (90-Day) and CWA (60-Day) Pre-Lawsuit Notices: One “Boilerplate” Notice Was Insufficient; the Other Was Specific Enough