On December 16, 2011, the District Court for the Northern District of California held that the United States Environmental Protection Agency (EPA) appropriately exercised its oversight authority in approving the State of California’s (State) listing of Redwood Creek as an impaired water body under Section 303(d) of the Clean Water Act. (Barnum Timber Co. v. United States Environmental Protection Agency (Case No. C08-01988) 2011 U.S. Dist. LEXIS 145155.) Barnum Timber Company (Barnum), owner of forestland in the Redwood Creek watershed challenged the EPA’s approval of the State’s listing and Total Maximum Daily Loads for sediment and temperature in Redwood Creek. Barnum brought suit under the Administrative Procedures Act arguing that, in its approval capacity, the EPA was required to review the legal adequacy of the State’s determinations of impairment. Barnum argued that in failing to review the weight of the evidence, EPA acted in an arbitrary and capricious manner. EPA argued that its role is one of oversight, leaving to the states the responsibility to identify the waters for the list.
On December 27, 2011, the California Attorney General issued an opinion (2011 Cal. AG LEXIS 16) addressing the scope of the real-estate-negotiations exception to the state’s open meeting law known as the “Ralph M. Brown Act” or “Brown Act” (Gov. Code, §§ 54950‑54963). The opinion narrowly construes the exception, favoring the public’s right to access information over the bargaining position of local government.
On December 29, 2011, the United States District Court for the Eastern District of California (“District Court”) issued three separate rulings on motions for summary adjudication in the matter of Rocky Mountain Farmers Union v. Goldstene (Dec. 29, 2011, No. CV-F-09-2234 LJO GSA; No. CV-F-10-163 LJO DLB) 2011 U.S. Dist. LEXIS 149590). Plaintiffs in the case, a coalition of associations representing agricultural interests, refineries, and biofuel companies, alleged that California’s Low Carbon Fuel Standard (“LCFS”) regulations promulgated by the California Air Resource Board (“CARB”) were unconstitutional. Specifically, Plaintiffs alleged that the regulations violated the dormant Commerce Clause of the United States Constitution by improperly discriminating against out-of-state products in favor of in-state products, and that these regulations are preempted by provisions of federal law found in the Clean Air Act (“CAA”). Defendant CARB asserted in a separate motion that provisions in the CAA both prevented Plaintiffs from making any preemption claims and prevented Plaintiffs from bringing any dormant Commerce Clause claims. The District Court ultimately found that the LCFS was discriminatory and violated the dormant Commerce Clause, and held that while there is an exception in the CAA that prevents Plaintiffs from making claims of express preemption, there was no such restriction on traditional conflict preemption claims or dormant Commerce Clause claims. These rulings could have a significant impact on the future of California’s LCFS regulations and the state’s overall approach to future regulation of greenhouse gas emissions.
On December 2, 2011, Sacramento Superior Court Judge Lloyd G. Connelly issued a decision invalidating the numeric effluent limitations (NELs) contained in the General Permit for Storm Water Discharges Associated With Construction and Land Disturbance Activities, State Water Resources Control Board Order 2009-009-DQ (the Construction General Permit or CGP). (California Building Industry Association, et al. v. State Water Resources Control Board, Sacramento County Superior Court Case No. 34-2009-80000338.) The court found the NELs were not supported by substantial evidence, and that the State Water Board failed to comply with federal Clean Water Act requirements for the establishment of technology based numeric effluent limitations. The court granted a peremptory writ of mandate ordering the State Water Board to set aside the portions of the GCP imposing NELs for turbidity and pH and to refrain from enforcing the NELs. Other provisions of the CGP remain in effect and enforceable.
In Casitas Municipal Water District v. United States (December 5, 2011), No. 05168L Court of Federal Claims, ___ Fed.Cl. ___, the Court of Federal Claims held that the only compensable water right that can be obtained under California law is a right to beneficial use. Also, the court held that a plaintiff’s claim will not accrue until the government’s action interferes with a plaintiff’s beneficial use of water. The Federal Claims Court’s decision thereby provides guidance in assessing whether and when a water right taking has occurred.
In June 2011, several environmental groups filed suit against the United States Army Corps of Engineers (“Corps”) in federal court seeking to invalidate a policy that mandates removal of vegetation along levees over which the Corps has responsibility. This vegetation removal policy was part of a larger program, allegedly initiated in 2007, designed to create vegetation free zones along levees that includes a fifteen-foot setback for trees and shrubs. According to the Corps, the rationale behind adopting such a policy is that vegetation can harm the integrity of levees, disrupt levee inspections, hinder levee access, and impede emergency flood fighting situations. Plaintiffs in Friends of the River, et al. v. U.S. Army Corps of Engineers (E.D. Cal. filed June 20, 2011) No. 2:11-cv-01650 (“Friends of the River”) include several non-profit environmental organizations that contend implementation of the vegetation removal policy will result in the destruction of critical riparian forest habitat throughout California. These plaintiffs allege that the Corps’ actions in adopting and circulating certain guidance and technical documents that call for vegetation removal, and describe the accompanying variance process, violated the Administrative Procedure Act and failed to comply with federal environmental requirements, including the National Environmental Policy Act and the federal Endangered Species Act. The most recent development in the case is the filing of a motion for intervention by the California Department of Fish and Game on November 7, 2011. The outcome of this litigation could have a significant impact on how California manages its levees, the continued existence of riparian forest habitat in the state, and the costs those responsible may incur for levee management and operation as a result of the policy.
On October 1, 2011, the State Water Resources Control Board released its updated Enforcement Report. The Enforcement Report summarizes violations of combined waste discharge requirements (WDRs) and National Pollutant Discharge Elimination System (NPDES) permits issued to wastewater and stormwater facilities. The Enforcement Report also summarizes enforcement actions taken in response to violations and includes an update on those involving minimum mandatory penalties (MMPs). This article describes the findings and conclusions in the October 1, 2011 Enforcement Report.
On September 13, 2011, the California Court of Appeal highlighted the proper scope of California Environmental Quality Act (CEQA) analysis for potential environmental impacts associated with uncertain water supplies, traffic, and historical resources mitigation measures in the context of a mixed-use development project in Madera Oversight Coalition, Inc. et al. v. County of Madera (2011) 199 Cal.App.4th 48 (Madera Oversight Coalition). At issue was a CEQA challenge to Defendant County of Madera’s (County) approval of the Tesoro Viejo mixed-use development project (Project). The trial court ruled in favor of Plaintiffs, a citizen action group, Madera Oversight Coalition, Inc., et al. (Coalition), holding that the discussion of the Project’s water supply, in the environmental impact report (EIR), was inadequate. Despite this favorable ruling, the Coalition appealed other issues raised in its petition, specifically arguing that the discussion of historical resources and traffic impacts in the EIR also violated CEQA. The County also appealed, arguing the discussion of the Project’s water supply was adequate, and challenging the trial court’s decision to augment the administrative record.
On October 17, 2011, in United Anglers of Southern California v. California Fish and Game Commission, Case No. 37-2011-00084611-CU-WM-CTL, the San Diego County Superior Court finalized a tentative ruling upholding regulations that modified certain Marine Protected Areas (“MPAs”) in the north central coast region finding that the California Fish and Game Commission (“Commission”) had the statutory authority to promulgate such regulations and its actions were consistent with all other applicable laws. Petitioners, citizen action groups, represented recreational and sport fishermen whose interests could be impacted by the adoption and implementation of regulations designating and modifying MPAs. These regulations (hereafter the “NCC Regulations”) were adopted by the Commission in 2009, and were designed to meet the goals described in the Marine Life Protection Act for the north central coast of California. More specifically, the NCC Regulations describe a preferred alternative approach to designating and redefining a total of 21 MPAs as well as certain Marine Managed Areas and special closures for the region. Petitioners sought to have the Superior Court: (1) set aside the NCC Regulations on the ground that the Commission lacked the statutory authority to adopt them; (2) declare that the Commission lacked the authority to adopt the NCC Regulations under the California Administrative Procedures Act; and (3) declare that the Commission failed to obtain a coastal development permit from the California Coastal Commission prior to adopting the NCC Regulations, thereby invalidating the action. The Superior Court found that each of these contentions was without merit, and ultimately upheld the Commission’s adoption of the NCC Regulations. This decision could impact how other petitioners and courts view future challenges to marine life protection regulations to be adopted by the Commission, a process which is currently underway for certain south coast areas.
State Water Project (SWP) and Central Valley Project (CVP) contractors that receive water pumped through SWP and CVP facilities located in the southern Delta sought to enjoin the implementation of the “Fall X2 Action” as set forth by the U.S. Fish and Wildlife Service’s (FWS) 2008 Delta Smelt Biological Opinion addressing the impacts of the CVP and SWP operations on the threatened delta smelt. The Fall X2 Action, as proposed by the FWS, would require adequate Delta outflow to maintain a monthly average location of two parts per thousand salinity (X2) no further east than 74 kilometers (km) from Golden Gate Bridge in “wet” water years and 81 km in “above normal” water years. The Fall X2 Action would require that the average location of X2 be maintained in September and October and that upstream releases be made in November.
On August 9, 2011, the Court of Appeal for the Second Appellate District held that a water district failed to satisfy its burden to establish that its new water rate structure complies with Proposition 218, including the proportionality requirement set forth in the California Constitution, article XIII D, section 6, which prohibits a fee or charge imposed upon any person or parcel as an incident of property ownership from exceeding the proportional cost of the service attributable to the parcel. (City of Palmdale v. Palmdale Water Dist. (2011) 2011 Cal.App. LEXIS 1118.) The court concluded that the water district’s tiered rate structure was unconstitutional because it charged irrigation customers, including the City of Palmdale (City), disproportionate rates without any showing of a corresponding disparity in the cost of providing water to these customers.
On September 9, 2011, the California Legislature enacted two bills designed to streamline the California Environmental Quality Act (CEQA) process for certain types of development projects. Specifically, the Legislature passed Senate Bill 292 (Padilla), pertaining to CEQA review and challenges for a new stadium project in Los Angeles, as well as Assembly Bill 900 (Buchanan), addressing CEQA procedures for environmental leadership development projects that will result in a minimum investment of $100,000,000. Both of these bills are tied directly to the development effort to build a stadium and entertainment complex in the City of Los Angeles (Project). Both the Padilla and Buchanan bills provide for an expedited judicial review of the Project, which should allow the development to proceed more quickly than it otherwise might. These bills, passed on the final day of the legislative session in 2011, are somewhat controversial, due in part to their modification of a project opponent’s avenues for judicial challenge, and in part due to the significant benefit it confers on the developer of this Project. These bills are currently awaiting the Governor’s signature.
On July 13, 2011, the Ninth Circuit Court of Appeals held that liability may attach under the Clean Water Act when mass-emissions monitoring under a municipal separate storm sewer system permit indicates that there is an exceedance of a water-quality standard. Natural Resources Defense Council v. County of Los Angeles, No. 10-56017, 2011 U.S. App. LEXIS 14443 (9th Cir. July 13, 2011) (NRDC v. County of Los Angeles). The key issues in the case are: (1) whether exceedances at mass-emissions monitoring stations located both in and out of a permittee’s storm sewer system can constitute a violation of its permit, and if so, (2) whether it is beyond dispute that Defendants (County of Los Angeles, et al.) discharged pollutants that caused or contributed to water-quality exceedances. To answer these questions, the court looks primarily to the language in Los Angeles County MS4 Permit, including the “iterative process” language contained in the receiving water limitations section.
The State Water Resources Control Board (State Water Board) is proposing to adopt a new general permit (Proposed Permit) for discharges from small municipal separate storm sewer systems (MS4s). Small MS4s are stormwater conveyance systems owned and operated by specified entities, including cities with a population under 5,000. The Proposed Permit significantly departs from the existing general permit (Existing Permit) for small MS4s. In particular, the Proposed Permit is more prescriptive, comprehensive and stringent. For example, unlike the Existing Permit, the Proposed Permit specifies numerous compliance deadlines, performance standards and measurable goals or quantifiable targets for implementation. Under the Existing Permit, small MS4s may include such elements in their individual stormwater management plans (SWMPs). The Proposed Permit would supersede the Existing Permit.
On August 1, 2011, the Ninth Circuit Court of Appeals held that to state a claim for contributor liability under the Resource Conservation and Recovery Act of 1976 (RCRA) a plaintiff must allege that the defendant was actively involved in or had some degree of control over the disposal of hazardous waste. The court concluded that the mere design of equipment that produces waste as a byproduct, which is then improperly discarded by others, is not sufficient to trigger liability under RCRA. Hinds Invs., L.P. v. Angioli, 2011 U.S. App. LEXIS 15809 (9th Cir. 2011). In so holding, the court affirmed the district court’s judgment, which held that plaintiffs’ allegations that defendant manufacturers contributed to waste disposal, by the design of machines that generated waste and by the instructions they gave on use of these machines, were insufficient as a matter of law to support a civil action under RCRA because all of the manufacturers’ alleged contributions to the disposal of waste were passive.
On July 8, 2011, the Fourth District Court of Appeal upheld a Supplemental Environmental Impact Report (SEIR) for the Silverado Ranch Canyon Project (Project) in Orange County (County) without requiring revision or recirculation, finding that the public had been given reasonable opportunity to comment on recently submitted observations regarding the presence of the arroyo toad in the project area. More specifically, the court found that such observations did not amount to “new material information” which would trigger recirculation requirements. This decision and the underlying litigation are an outgrowth of a related proceeding initiated in 2003 challenging the Final EIR for the same project. In Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, Plaintiffs Silverado Modjeska Recreation and Park District and Rural Canyons Conservation Fund asserted two distinct causes of action: (1) that the SEIR for the Project did not comply with a writ issued in the 2003 action requiring the County to make certain changes to the Final EIR; and (2) the discovery of information relating to the presence of the arroyo toad near the Project site constituted “significant new information” and the County’s failure to recirculate a revised SEIR to address this information violated the requirements of the California Environmental Quality Act (CEQA).
On July 26, 2011, the Ninth Circuit Court of Appeals held that a company selling a product that uses and/or generates a hazardous substance as part of its operation may not be held liable as an “arranger” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) unless the plaintiff proves that the company entered into the relevant transaction with the specific purpose of disposing of a hazardous substance. Team Enterprises, LLC v. Western Inv. Real Estate Trust, 2011 U.S. App. LEXIS 15383 (9th Cir. 2011). The court also held that arranger liability does not attach where a party does not have the legal authority to direct the conduct of the party disposing of the hazardous substance, and does not exercise actual control over the disposal of the hazardous substance.
In the context of a petition to compel a lead agency to prepare an EIR relative to a proposed ordinance banning the provision of plastic bags at the point of sale, the California Supreme Court recently rejected the heightened public interest standing requirement for corporations seeking to compel a public agency to act. After affirming that an industry group had standing, the California Supreme Court carefully applied the CEQA fair argument standard, and determined that a public agency did not err when it determined that there was not substantial evidence supporting a fair argument that the proposed ordinance may have a significant adverse environmental effect. (Save the Plastic Bag Coalition v. City of Manhattan Beach, No. S180720, 2011 Cal. LEXIS 6866 (Cal. July 14, 2011) (Save the Plastic Bag).)
On June 20, 2011, the United States Supreme Court held that plaintiffs had failed to state nuisance claims against carbon-dioxide emitters under the federal common law. The Court concluded that the Clean Air Act, which authorizes the Environmental Protection Agency (EPA) to regulate carbon-dioxide emissions, “displaces” any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Am. Elec. Power v. Connecticut, 180 L. Ed. 2d 435 (2011).
With the State of California in an ongoing fiscal crisis, the Governor recently signed legislation, Assembly Bill X1 29, that would allow the Department of Forestry and Fire Protection to assess a fire protection and prevention fee of no more than $150 per structure on property owners in state responsibility areas. According to the Legislature, this fee would be consistent with the “beneficiary pays” principle. Yet fees, assessments, and other revenue raising mechanisms are subject to a multitude of California constitutional provisions created through the initiative process, including Proposition 13, Proposition 218, and most recently Proposition 26. These constitutional requirements place serious limitations on how revenue from fees and assessments can be calculated and spent, as well as the procedures that a state or local agency must go through in order to legally levy such charges. One of the most important of these restrictions is the requirement that special assessments, fees, and charges cannot be used for purposes that confer a general benefit on groups other than those paying the fees. The other is that such fees and assessments must be proportional to the benefit conferred upon the fee payers. While these “special benefit” and proportionality requirements have been litigated in numerous appellate cases, a recent Third Appellate District decision contains a poignant discussion of these issues as it relates to fees supporting fire protection and prevention services.
On February 22, 2011, the San Joaquin County Superior Court issued an order (Entry Order) authorizing the Department of Water Resources (DWR) to enter more than 130 Delta properties, comprising tens of thousands of acres, to conduct environmental studies that DWR claims are necessary to comply with the California Environmental Quality Act for the ongoing Bay Delta Conservation Plan (BDCP). Depending on the size of any given property, the Entry Order allows access on each property for up to 8 people per day for up to 66 days over the course of one year.
A recent California appellate decision rejecting a CEQA petitioner’s claims based on information contained in a last-minute “document dump” provides helpful authority regarding the level of specificity required to exhaust administrative remedies and maintain a CEQA lawsuit. The case also confirms that greenhouse gas emissions do not constitute new information or changed circumstances affecting an agency’s ability to rely on an earlier EIR without the need for supplemental environmental review on the greenhouse gas issue.
On June 27, 2011, the California Court of Appeal in Latinos Unidos De Napa v. City of Napa, No. A129584, 2011 Cal.App. LEXIS 818 (Cal.App.1st Dist. June 27, 2011), held that strict compliance with statutory requirements for posting, as well as filing, a CEQA Notice of Determination (NOD) is necessary to trigger the 30-day limitations period for challenging a public agency determination under CEQA. Lead agencies and project applicants seeking to avail themselves of the shortened statute of limitations thus need to ensure that the NOD is posted for a full 30 days, not counting the day it is posted.
On June 1, 2011, the Ninth Circuit Court of Appeals affirmed the dismissal of a citizen suit seeking civil penalties during the pendency of remedial activity under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or the Act). Pakootas v. Teck Cominco Metals, LTD, 2011 U.S. App. LEXIS 10931 (9th Cir. 2011). The court held that federal courts lack subject matter jurisdiction over citizen suits that “challenge” ongoing CERCLA cleanup actions. The court concluded that a citizen suit seeking civil penalties is a prohibited “challenge” within the meaning of the statute because it might interfere with the prompt cleanup of hazardous waste sites.
On May 27, 2011, the Ninth Circuit Court of Appeals held that new rules promulgated by the Monterey Bay Unified Air Pollution Control District (“District”) involving fees, registration, and emission requirements for diesel engines used in agricultural operations were not preempted by the Clean Air Act (“CAA” or “Act”) and were therefore valid. In Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist., 2011 U.S. App. LEXIS 10680 (9th Cir. Cal. May 27, 2011), Petitioner Jensen Family Farms (“Jensen”) asserted that the fee and registration requirements at issue were “standards and other requirements relating to the control of emissions” and therefore preempted by specific provisions of the CAA that prevent states and their political subdivisions from promulgating such standards. Jensen also asserted that the type of emission source being regulated was a “non-road” source and thus not within the authority of the District to control. The Ninth Circuit found that because the fee and registration rules were only tenuously related to emissions standards in that they did not require a vehicle or engine to emit below a certain level of a given pollutant, or impose equipment or design requirements, therefore the new rules were not preempted by the CAA. The court also found that the diesel engines at issue were “stationary” and thus subject to state regulation. This decision provides the basis for other California air pollution control districts to regulate certain emissions sources via fee and registration requirements, and could impact agricultural operations that utilize this type of diesel equipment in the future.
On May 10, 2011, the Sacramento County Superior Court issued a Final Statement of Decision concluding that a writ of mandate should be issued directing the State Water Resources Control Board (Water Board) to reconsider the southern Delta salinity objectives and enjoining the Water Board from applying the objectives to the City of Tracy’s and other municipal treated wastewater discharges.
On April 25, 2011, the Superior Court of California, County of Los Angeles, invalidated a replenishment assessment levied by the Water Replenishment District of Southern California (“WRD” or “District”), finding that it was a fee assessed incident to property ownership and was not passed in accordance with the requirements of Proposition 218. In City of Cerritos, et al. v. Water Replenishment District of Southern California (Superior Court of Los Angeles County, Case No. BS128136), Petitioner Cities of Cerritos, Downey and Signal Hill (“Cities”) asserted that the replenishment assessments levied by the District over the previous four years were invalid in that: (1) the District failed to comply with the procedural and substantive mandates of Proposition 218; and (2) the District used funds from the assessment for purposes not authorized by the District’s enabling Act and in violation of Proposition 218. The Superior Court found that the replenishment assessments imposed on the extraction of groundwater are property-related fees subject to Proposition 218, and that because the District had at no time adopted the assessments in compliance with Proposition 218’s procedural or substantive mandates, those fees were invalid. This decision could impact the ability of California special districts to levy assessments on groundwater pumping activities, and is one of the few decisions to explore the relationship between assessments on the right to pump water and the strictures of Proposition 218.
On May 2, 2011, the United States Supreme Court held that upstream appropriators’ use of more efficient irrigation systems did not breach a river compact between Montana and Wyoming because the compact incorporated the doctrine of appropriation, which allows upstream appropriators to increase their net water consumption by improving the efficiency of their irrigation systems, even to the detriment of downstream appropriators in the form of decreased return flows. Montana v. Wyoming, No. 137, 2011 U.S. LEXIS 3369, *1 (U.S., 2011) (Montana). The Court concluded that the efficiency improvements were within the scope of the right of appropriation because they did not result in a change in the acreage irrigated or the amount of water diverted, and thus did not injure downstream appropriators.
The latest development in the ongoing debate regarding federal jurisdiction over waters is the United States Environmental Protection Agency’s (EPA) release of draft guidance addressing the scope of Clean Water Act (CWA) jurisdiction. (Draft Guidance on Identifying Waters Protected by the Clean Water Act.) The CWA applies only to waters that are “waters of the United States” and the question of which waters Congress intended to come within that description has been the subject of much disagreement and several recent United States Supreme Court cases, including Rapanos v. United States, 547 U.S. 715 (2006). The draft guidance, jointly developed with the U.S. Army Corps of Engineers (Corps), attempts to clarify the reach of CWA jurisdiction.
On April 5, 2011, the Second District Court of Appeal upheld an Environmental Impact Report (EIR) for the Legacy Park Project in Malibu, California, finding that the analyses in the EIR were supported by substantial evidence and that one of Plaintiff’s claims had been rendered moot by developments before the case was decided. In Santa Monica Baykeeper v. City of Malibu, 2011 Cal.App. LEXIS 388 (Cal.App.2d Dist. Apr. 5, 2011), Plaintiff Santa Monica Baykeeper (Baykeeper) asserted that the EIR for the Legacy Park Project was deficient in that it failed to adequately analyze: (1) the construction-related water quality impacts of the project; (2) the environmental impacts of using treated effluent from the adjoining Malibu Lumber Yard on the project site; and (3) the cumulative groundwater impacts of the project. The Appellate Court rejected each of Baykeeper’s contentions and held that the Legacy Park EIR was supported by substantial evidence in the record. In addition, the court found that Baykeeper’s claims regarding the construction-related impacts of the project were rendered moot because those activities had already been completed at the time of the decision. Although this decision does not necessarily contain novel interpretations of California Environmental Quality Act (CEQA) requirements, it provides an excellent example of how a City can successfully defend against CEQA challenges, and potentially serves as a model for how to structure an EIR in support of multi-use projects addressing stormwater and water quality treatment.
On March 14, 2011, the Ninth Circuit Court of Appeals held that the holder of a revocable permit to use real property was not an “owner” of that property for purposes of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). City of Los Angeles v. San Pedro Boat Works, 2011 U.S. App. LEXIS 4980 (9th Cir. 2011). In so holding, the court concluded that “owner” liability under CERCLA does not extend to holders of mere possessory interests in real property, such as permittees, easement holders, or licensees, where the owners of the property retain power to control the use of the property.
The San Joaquin County Superior Court held a final hearing today on the Department of Water Resources’ (DWR) Petitions for Entry seeking access to hundreds of Delta properties for the purpose of conducting certain geological activities related to the conveyance alternatives currently being considered as part of the Bay Delta Conservation Planning process. DWR sought entry via the precondemnation statutes found at Code of Civil Procedure sections 1245.010 through 1245.060.
On March 9, 2011, the U.S. Fish and Wildlife Service (USFWS) announced it is accepting comments through April 9, 2011, regarding a status review of the longfin smelt (Spirinchus thaleichthys). The USFWS will review the scientific, commercial, and other information received to determine whether a listing of the longfin smelt may be warranted under the Endangered Species Act (ESA). The USFWS expects to issue the determination by September 30, 2011.
On March 2, 2011, the Alameda County Superior Court entered a Final Judgment and Permanent Injunction on Consent (Judgment) in People v. Target Corporation, Alameda Case No. RG0957686 (Target). Under this Judgment, Target agrees to “pay civil penalties, fund ... supplemental environmental projects ... and pay costs” totaling $22.5 million. This action is the latest in a series of lawsuits filed by a coalition comprised of the California Attorney General (AG) and numerous county district attorneys and city attorneys to enforce the State’s Hazardous Waste Control Law (HWCL), and Hazardous Materials Release Response Plans and Inventory Law (Response Plan Law). Recently, the AG filed similar actions against other large retailers: Home Depot, Kmart, and Wal-Mart. All of these cases allege the same core statutory and regulatory violations, and they all allege slightly different versions of the same supporting facts. Each of these cases was filed in a different county: The Home Depot case was filed in Los Angeles County; the Kmart case was filed in Ventura County; and the Wal-Mart case was filed in San Diego County. Oddly, except for the Home Depot case, the selected venue was not the county with the most identified store locations. Finally, all four cases resolved through very similar consent judgments: Home Depot resolved for $9.9 million; Kmart resolved for $8.65 million; and Wal-Mart resolved for approximately $24.7 million.
For nearly two years, the Department of Water Resources (DWR) has been seeking access to tens of thousands of acres of privately owned land throughout the Delta region. DWR seeks entry via the precondemnation statutes found at Code of Civil Procedure sections 1245.010 through 1245.060. DWR filed more than 100 actions against landowners and the cases were eventually coordinated and are pending in San Joaquin County Superior Court. DWR’s petitions for entry seek entry to conduct various environmental studies as well as more invasive geological studies. The Court bifurcated the environmental from the geological studies and has previously ruled that DWR can enter these properties to conduct environmental studies, although for a duration and scope more narrow that DWR had originally sought.
On March 1, 2011, the Third District Court of Appeal invalidated a California State Lands Commission (Lands Commission) policy used to determine the mean high tide line based on the Lands Commission’s failure to comply with the rulemaking provisions of the California Administrative Procedure Act (APA). In Bollay, et al., v. California Office of Administrative Law, (2011) 193 Cal.App.4th 103, Plaintiffs are landowners who were initially denied construction permits from Santa Barbara County to build a beachfront home based on findings by the Lands Commission that their property was located seaward of the most landward historical position of the mean high tide line, and was therefore protected tideland on which development is prohibited. Plaintiffs challenged the Lands Commission policy defining the mean high tide line and the resultant development restrictions on the grounds that the policy was an underground regulation that had not gone through the formal rulemaking process required by the APA. The Appellate Court agreed with Plaintiffs and found that the Lands Commission Policy was an underground regulation that did not fall under any of the exemptions to the procedural requirements of the APA. Although the court limited its holding to this issue and did not go so far as to determine whether the policy itself would be valid had the Lands Commission followed the proper procedures, the decision in this case has the potential to affect the viability of development on beachfront property in some areas along the California coast.
On February 25, 2011, the Ninth Circuit Court of Appeals held that to obtain a preliminary injunction a plaintiff must establish, among other things, that he is likely to suffer irreparable harm in the absence of preliminary injunctive relief. Center for Food Safety v. Vilsack, 2011 U.S. App. LEXIS 3790 (9th Cir. 2011). In so holding, the court confirmed that the mere possibility of irreparable harm is not sufficient to obtain a preliminary injunction.
When it precluded delivery of water to irrigation users in the Klamath Irrigation Project (Project) in 2001, directing the use of water instead to fish species listed under the Endangered Species Act, did the United States thereby “take” private property (water rights) without just compensation, in violation of the Fifth Amendment to the Constitution? Did it commit an actionable breach of contracts that provide for delivery of water via Project facilities? On February 17, 2011, the United States Court of Appeals for the Federal Circuit issued the latest in a series of court decisions in a case that raises these issues, effectively restoring life to claims to damages that had been denied by the trial court. Klamath Irrigation District, et al. v. United States (2011) 2011 U.S. App. LEXIS 3204 (Fed. Cir. Feb. 17, 2011) (KID IV).
On February 25, 2011, environmentalists and water project users reached a temporary settlement agreement in the ongoing battle to balance water delivery output and the sustainability of the delta smelt. Between now and June 30, 2011, farmers and other water contractors of the federal Central Valley Project (CVP) and State Water Project (SWP) may receive more water than originally expected to be pumped through the two systems. The settlement maintains the same level of protection to the delta smelt that existed prior to the agreement, but allows for higher pumping output to meet the needs of contractors. The settlement will govern until at least June 30, 2011, when the U.S. Fish and Wildlife Service is expected to issue a revised biological opinion.
On February 3, 2011, the United States Court of Appeals for the Ninth Circuit held that a property owner challenging the U.S. Environmental Protection Agency (EPA) approval of a decision to list a water body as impaired under Clean Water Act (CWA) section 303(d) has standing to sue based on asserted economic losses. In Barnum Timber Co. v. United States EPA, 2011 U.S. App. LEXIS 2123, the 9th Circuit concluded that Plaintiff Barnum Timber Company’s amended complaint, which included declarations of California forestry experts regarding decreases in property value as a result of the EPA listing decision, sufficiently demonstrated that Barnum has standing to challenge the EPA’s continued designation of Redwood Creek as an impaired water body. While the ruling does not constitute a decision on the merits of the underlying challenge, this case indicates that in the future the 9th Circuit may allow lawsuits from nontraditional plaintiffs (i.e., affected landowners) relating to 303(d) listing decisions. As these listings continue to be revised by the states and approved by the EPA, this case may open the door for additional challenges from property owners who face direct adverse economic impacts from the designation of impaired water bodies on or adjacent to their land.
On January 24, 2011, a San Francisco Superior Court judge issued a tentative decision (see Tentative Statement of Decision) holding that the California Air Resources Board (ARB) violated the California Environmental Quality Act (CEQA) by failing to present facts or data supporting the conclusions stated in the alternative analysis prior to approving the Climate Change Scoping Plan (Scoping Plan) required by the Global Warming Solutions Act of 2006 (AB 32). (Association of Irritated Residents, et al. v. California Air Resources Board, et al., Case No. CPF-09-509562.) The court also found that ARB violated CEQA by approving the Scoping Plan before adequately reviewing and responding to public comments. As a consequence, the court tentatively ordered ARB to set aside the environmental certification for the Scoping Plan, and enjoined implementation of the Scoping Plan until ARB complies with CEQA.
The State Water Resources Control Board (Board) is considering adoption of a proposed wetland area protection policy and regulations to govern the discharge of dredged and fill material into waters of the state (Policy). In preparation for adoption of the Policy, the Board is developing an environmental impact report (EIR) under the California Environmental Quality Act (CEQA). The EIR will be a program-level analysis, as undetermined future projects will be undertaken in accordance with the Policy. The Board prepared and released an Initial Study of the proposed Policy’s potential environmental impacts. The Board will accept written comments on the Initial Study and other environmental concerns related to the proposed Policy until noon on February 15, 2011.
On January 31, 2011, the California Supreme Court issued its decision in the water right fee case. There, the Court upheld, as constitutional, the statutes adopted by the Legislature in 2003 imposing new water right fees, but remanded the case back to the superior court for a determination of whether the fees, as applied through the State Water Resources Control Board’s (“SWRCB”) regulations, meet the standard for valid regulatory fees. In its decision, the Court also held that the statutes authorizing a “pass-through” of fees imposed on the water held by the United States did not violate the Supremacy Clause of the United States Constitution. On remand, the superior court will need to determine whether it was appropriate for the SWRCB, through its implementing regulations, to pass through the entire fee imposed on the water rights held by the United States, or whether only a portion of the fee is appropriate to pass through.
On January 14, 2011, the Ninth Circuit Court of Appeals held that the categorical prohibition on intervention as a matter of right in actions brought under the National Environmental Policy Act of 1996 (NEPA) no longer applies. Wilderness Soc’y v. United States Forest Serv., 2011 U.S. App. LEXIS 734 (9th Cir. 2011). In doing so, the court abandoned its “federal defendant” rule, which prevented private parties and state and local governments from intervening of right on the merits of NEPA claims.
In a ruling that will force substantial changes in how many lead agencies approach their California Environmental Quality Act (CEQA) analysis of traffic impacts, a California appellate court has ruled that traffic impact analyses may not measure impacts against predicted future traffic conditions. Instead, impacts must be measured against the baseline defined by CEQA’s implementing regulations, which for traffic purposes normally will constitute the conditions existing at the time the agency commences its preparation of an environmental impact report (EIR).
In December 2010, the California Court of Appeal overturned a superior court decision involving the consideration of stormwater in the periodic review of the Los Angeles Regional Water Quality Control Board’s (Regional Water Board) water quality control plan (Basin Plan). (City of Arcadia v. State Water Resources Control Board (2010) 2010 Cal.App.LEXIS 2150.) Although the ruling is fact-specific in many regards, the Court of Appeal held the that Regional Water Board had no duty to consider Water Code provisions related to establishing water quality objectives when revising the Basin Plan to regulate stormwater discharges from municipal separate storm sewer systems (MS4s) into waters already covered by the Basin Plan objectives. Further, the Regional Water Board could develop the Basin Plan based in part on potential (not just probable future) beneficial uses of water bodies.
On December 7, 2010, the United States Court of Appeals for the Ninth Circuit upheld the San Joaquin Valley Air Pollution Control District’s (the District) Indirect Source Review rule (the Rule). The Rule requires emissions reductions during the construction and subsequent operation of certain development projects. The Court upheld the Rule against a challenge that it was preempted by the Federal Clean Air Act.
On December 14, 2010, Judge Oliver Wanger of the United States District Court for the Eastern District of California issued a long-awaited decision in the Delta Smelt Consolidated Cases. The case consists of five consolidated challenges to the 2008 U.S. Fish and Wildlife Service’s (Service) Biological Opinion (BiOp) addressing the impacts of the coordinated operations of the federal Central Valley Project (CVP) and State Water Project (SWP) on the delta smelt. (San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al.; State Water Contractors v. Salazar, et al.; Coalition for a Sustainable Delta, et al. v. U.S. Fish & Wildlife Serv., et al.; Metropolitan Water Dist. v. U.S. Fish & Wildlife Serv., et al.; Stewart & Jasper Orchards, et al. v. U.S. Fish & Wildlife Serv., No. 1:09-CV-407 OWW DLB (E.D. Cal. filed March 3, 2009).) In a 225-page decision, Judge Wanger granted Plaintiffs’ motion for summary judgment on certain challenges relating to the Service’s failure to use the best available science in support of the BiOp and the associated Reasonable and Prudent Alternative (RPA). The court then remanded the BiOp to the Service to address the identified deficiencies. However, the court also determined a number of provisions within the BiOp were amply supported by the record, including the BiOp’s general conclusion that entrainment by SWP and CVP operations adversely affect the delta smelt. A January 4, 2011, status conference has been scheduled to address the next steps in the case and the possible need for future proceedings in light of the decision.
On November 29, 2010, the Fifth Appellate District of the California Court of Appeal upheld the Stanislaus County Farmland Mitigation Program, overturning a trial court decision that found the program invalid under Civil Code section 815.3(b). (Building Industry Ass’n v. County of Stanislaus, et al., 2010 Cal.App. LEXIS 2007.) The Farmland Mitigation Program requires mitigation on a 1:1 basis of agricultural lands proposed for conversion to residential use.
On November 19, 2010, the Fifth District Court of Appeals held that the County of Kern (County) was required (and failed) to evaluate the entire environmental effects of a surface mining project under the California Environmental Quality Act (CEQA). (Nelson v. County of Kern (2010) 190 Cal.App.4th 252 (Nelson).) In so holding, the court found that the County improperly concluded that it was not obligated to review and approve the whole project (i.e., the proposed mining operations and the reclamation plan) on the basis that the mine was located on federal land. The court reasoned that, contrary to the trial court’s assumption, federal review of the mining operations under the National Environmental Policy Act (NEPA) did not preclude the County from undertaking environmental review under CEQA. The fact that a project comes under NEPA and will be reviewed by a federal agency does not eliminate the responsibility of a lead agency to ensure compliance with CEQA.
The State Water Resources Control Board (State Water Board) released its Staff Report providing recommendations for monitoring of constituents of emerging concern (CECs) in certain recycled water projects and additional related research. The projects at issue involve the use of municipal recycled water to recharge groundwater (via surface spreading or direct injection) and irrigate landscape. The Staff Report is based on recommendations by a blue-ribbon CEC advisory panel and input from the California Department of Public Health (CDPH).
On December 15, 2010, the State Water Board will hold a public hearing in Sacramento to receive comments on the Staff Report. The State Water Board encourages participants to submit written comments prior to the hearing and will accept written comments until December 27, 2010, at noon.
On November 22, 2010, the Court of Appeal, Fourth Appellate District, decided Cherry Valley Pass Acres and Neighbors v. City of Beaumont, No. E049695, 2010 Cal.App. LEXIS 1995 (Nov. 22, 2010) (Cherry Valley). In that case, the City of Beaumont, California (City) certified an environmental impact report (EIR) and adopted a statement of overriding considerations for a 560 residential unit project on a 200-acre site long used for commercial egg production (Project). Plaintiffs, which included a neighborhood group and an environmental group, challenged the EIR, alleging the EIR relied upon an improper baseline in assessing the Project’s impacts on local and regional water supplies and failed to demonstrate a reasonable likelihood the Project would have sufficient long-term water supplies. Plaintiffs also claimed the EIR failed to adequately consider mitigation measures and alternatives for reducing the Project’s impacts on agricultural land uses. Finally, Plaintiffs alleged a lack of substantial evidence to support the City’s statement of overriding considerations. The Court upheld the EIR on each issue.
On October 20, 2010, the First Circuit Court of Appeals upheld the district court’s determination that plaintiffs were required (and failed) to show irreparable harm for an injunction in an Endangered Species Act (ESA) case. Animal Welfare Inst. v. Martin, 2010 U.S. App. LEXIS 21611 (1st Cir. 2010). In so holding, the court concluded that Congress did not eliminate the traditional test for injunctions in ESA cases.
When Californians voted to approve Proposition 26 this November, the result may effectively gut the implementation scheme for AB 32, California’s landmark greenhouse gas reduction law for which implementing regulations are now being considered. Somewhat ironically, AB 32 may be affected despite the fact that voters defeated Proposition 23, a more direct challenge to the implementation of the AB 32. Though voters defeated Proposition 23, the passage of Proposition 26 could be equally detrimental to implementation of AB 32 because the cap and trade program proposed by the California Air Resources Control Board (CARB), the implementing agency for AB 32, is predicated on the collection of fees from industries that produce and emit greenhouse gases. Proposition 26 restricts the ability of agencies to assess a number of fees after January 1, 2010, including regulatory fees that benefit the public broadly. While the assessments contemplated by CARB may or may not fall into that category because the authorizing legislation for AB 32 was passed in 2006, before the effective date of Proposition 26, it is unclear what affect, if any, the new restrictions will have on assessment of fees in support of AB 32.
Supreme Court to Hear Water Right Fees Case in December
In 2003, several organizations and hundreds of individual water right holders challenged new charges on water rights enacted by the Legislature under the guise of “regulatory fees.” These organizations and water right holders argued, in part, that the charges violated Proposition 13’s prohibition on new and increased taxes absent a two-thirds vote and that the charges, also imposed on water rights held by the United States, violated federal law. While the Third District Court of Appeal held that the underlying statutes did not violate Proposition 13, the Court invalidated the State Water Resources Control Board’s regulations implementing the statutes, finding the regulations resulted in an unlawful tax. The case is currently pending at the California Supreme Court, and oral argument is scheduled to be heard in Los Angeles on December 7, 2010.
The State Water Resources Control Board (State Water Board) recently released a draft policy of minimum requirements for toxicity assessment and control to protect aquatic life beneficial uses (Draft Policy). If adopted, the Draft Policy would establish numeric water quality objectives for acute and chronic toxicity applicable to inland surface waters, enclosed bays, and estuaries and related implementation requirements. Dischargers regulated under waste discharge requirements (WDRs), National Pollutant Discharge Elimination System (NPDES) permits, and conditional waivers of WDRs would be subject to the Draft Policy. It would supersede the toxicity test provisions in the state’s 2005 Policy for Implementation of Toxic Standards for Inland Surface Waters, Enclosed Bays, and Estuaries of California (SIP) and regional water quality control plans (Basin Plans). Existing narrative toxicity objectives would remain in effect.
In Sackett v. United States Environmental Protection Agency (9th Cir. 2010) 2010 LEXIS 19519 (Sackett), the Ninth Circuit addressed whether the federal Clean Water Act (CWA) allows a court to review a compliance order issued by the Environmental Protection Agency (EPA) before it files a lawsuit to enforce the compliance order. In a matter of first impression for the Ninth Circuit, it held that the CWA does not authorize such pre-enforcement judicial review.
On September 29, 2010, the California Legislature enacted Senate Bill No. 1456 and Assembly Bill No. 231, both amending the California Environmental Quality Act (CEQA). SB 1456 and AB 231 (collectively the “Legislation”) amend CEQA by: (1) adding to CEQA’s tiering provisions; (2) providing for mediation, to be conducted concurrent with other judicial proceedings; (3) allowing a court to impose sanctions for frivolous claims; (4) clarifying CEQA’s exhaustion of administrative remedies requirements; and (5) authorizing the Attorney General to seek an expedited schedule for resolution. While all amendments and additions became effective immediately, it is unlikely that the Legislation will have significant impact on CEQA litigation.
On October 12, 2010, a collection of property owners filed suit in Santa Cruz County Superior Court alleging that recent groundwater augmentation fees passed by the Pajaro Valley Water Management Agency were adopted in violation of Proposition 218 and failed to comply with statutory rules addressing special taxes and conflicts of interest. (Joseph Pendry et al. v. Pajaro Vly. Mgmnt Agc., Monterey Superior Court Case No. CV169080.) Through this suit plaintiffs are seeking a declaration that the new charges are invalid and that the court should issue an injunction to prevent the Agency from assessing those charges. The Agency has been a party to several lawsuits over the last decade, some dealing with precisely the same issue. In 2007, the Court of Appeal for the Sixth Appellate District ruled that an earlier increase in the groundwater augmentation fee was invalid for failure to adhere to the requirements of Proposition 218. The new groundwater augmentation charge is the result of a multi-year effort by the Agency to create an assessment that would survive legal challenge.
On October 8, 2010, the First District Court of Appeal reversed the trial court’s determination that an agency’s urban water management plan was deficient. The court held that the trial court, in rejecting the agency’s conclusions, improperly weighed the evidence before the agency and substituted its own judgment for that of the agency, and in doing so failed to give appropriate deference to the expertise and discretion of the agency. (Sonoma County Water Coalition v. Sonoma County Water Agency (2010) 2010 Cal.App. LEXIS 1745 (Sonoma County).) The court concluded that the plan is valid because it is supported by substantial evidence and is in compliance with statutory requirements.
State Water Resources Control Board (State Water Board) staff is proposing the adoption of a statewide policy to control trash pollution in the state’s waters. It is anticipated that the proposed policy will define “trash,” identify it as a pollutant and establish water quality objectives and an implementation plan that applies to stormwater dischargers and certain nonpoint source dischargers. Development of the trash policy is in the environmental review stage and will include as one alternative consideration of not adopting a trash policy.
On October 5, 2010, the State Water Resources Control Board (State Water Board), pursuant to provisions of the Delta Legislation passed in 2009, delegated authority over monitoring and enforcement of water diversions within the Sacramento-San Joaquin River Delta (Delta) to the newly appointed Delta Watermaster. Interestingly, the State Water Board’s resolution delegating such authority provides that the Watermaster may redelegate the authority back to the staff of the State Water Board’s Division of Water Rights. This maneuver raises questions about the Delta Watermaster’s enforcement role, and whether such a redelegation of authority complies with the Delta Legislation.
On September 2, 2010, the California Water Impact Network (C-WIN), joined by the California Sportfishing Protection Alliance (CSPA) and AquAlliance, filed a petition for writ of administrative mandamus in Sacramento County Superior Court challenging the validity of actions taken and not taken by the California State Water Resources Control Board (State Board) and the California Department of Water Resources (DWR). The petition alleges that by allowing continued export of Bay-Delta water despite evidence of ecosystem decline, the State Board and DWR have failed to protect the public trust, violated the California Constitution by allowing unreasonable use and diversion of water, and failed to properly enforce permit and licensing conditions. The petition further alleges the actions of the State Board have resulted in a marked decline in threatened and endangered species such as the Chinook salmon and Delta smelt, and will continue to cause extensive damage to the Bay-Delta estuary. C-WIN and its partners are seeking to enjoin DWR from diverting Bay-Delta water, and prevent the State Board from allowing such diversions, until such time as their operations conform to the law.
On August 17, 2010, the Ninth Circuit Court of Appeals held that stormwater runoff from logging roads that is collected, channeled and controlled in a systematic way before being discharged into navigable waters constitutes a “point source” discharge for which National Pollutant Discharge Elimination System (NPDES) permits are required. Northwest Environmental Defense Center v. Brown, 2010 U.S. App. LEXIS 17129 (9th Cir. 2010) (NEDC). In so holding, the court concluded that the Silvicultural Rule does not exempt such discharges from the Clean Water Act’s definition of a point source.
On July 28, 2010, the Central Valley Regional Water Quality Control Board (Board) released its Draft Program Environmental Impact Report (DPEIR) for a long-term irrigated lands regulatory program (ILRP) for agricultural waste discharges. In accordance with the California Environmental Quality Act (CEQA), the DPEIR analyzes the environmental impacts of a series of actions based on five project alternatives addressing discharges from irrigated agricultural lands to state waters. The DPEIR includes a recommended program alternative that selects various elements from the five alternatives analyzed. The last day to submit comments on the DPEIR is September 27, 2010.
On August 26, 2010, the Little Hoover Commission (Commission) submitted a report to the Governor and Legislature titled, “Managing For Change: Modernizing California’s Water Governance.” The Commission’s report recommends making drastic changes to the way California manages its water resources. The report’s three primary recommendations include that: (1) the Governor and Legislature create a new state agency, the Department of Water Management (DWM) (the DWM would take over and consolidate the planning and management functions that currently lie with several agencies); (2) the California Water Commission (CWC) oversee all bond-funded natural resource expenditures; and (3) the Governor and Legislature create a separate, independent, publicly-owned entity, the California Water Authority, to own and operate the State Water Project with the ultimate goal of merging the State Water Project and the Central Valley Project into one integrated system under State control.
On July 22, 2010, the Ninth Circuit Court of Appeals held that the owner of property at the time cleanup costs are incurred is the current “owner” for purposes of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675. State of Cal. Dep’t of Toxic Substances Control v. Hearthside Residential Corp., 2010 U.S. App. LEXIS 15080 (9th Cir. 2010) (Hearthside). In so holding, the court rejected the notion that “owner” status under CERCLA is determined at the time the lawsuit seeking reimbursement for cleanup costs is filed.
On August 10, 2010, Governor Schwarzenegger signed AB 1265, removing the $11 billion bond measure passed as part of the “comprehensive” water package in 2009 from the November 2010 ballot, delaying the bond vote until 2012. In addition to many other projects that would be funded by the Bond, $2.25 billion in appropriations were identified for Delta sustainability, including funding for activities contemplated by the Bay Delta Conservation Plan (BDCP) and implementation of other projects consistent with the Delta Legislation enacted last year. While there has been much discussion of the affordability of the Bond and the likelihood of its passage, there has not been a great deal of discussion of the potential implications of delaying the Bond. In particular, a delay in the Bond will likely have implications for the BDCP and may result in legislative authorization for “fees” to pay for Delta restoration.
On July 21, 2010, the State Water Resources Control Board (State Water Board) released the Draft Report on the Development of Flow Criteria for the Sacramento-San Joaquin Delta Ecosystem (Draft Report) that contains recommended criteria to establish water flow requirements for the Sacramento-San Joaquin Delta (Delta), the Sacramento and San Joaquin Rivers, and their tributaries. The stated goal of the Draft Report is to develop flow criteria to inform planning decisions for the Delta Plan and the Bay Delta Conservation Plan necessary to protect public trust resources in the Delta ecosystem. The State Water Board will meet August 3-4, 2010, to consider whether to adopt the Draft Report as final.
On June 17, 2010, the United States Supreme Court issued its decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Env’l Protection, 130 S. Ct. 2592 (2010) (“Stop the Beach Renourishment”) addressing whether judicial decisions that change the character of existing property rights violate the United States Constitution by “taking” property without due compensation. While the Court held that no such “taking” took place under the facts presented in this case, a plurality opinion concluded that such a taking may exist under other circumstances. The plurality opinion may open the door for future litigation testing the “judicial takings” doctrine; and application of California’s public trust doctrine, may provide just the vehicle for such a challenge.
Recently, the California Air Resources Board (ARB) has focused its enforcement efforts on violations of its Solid Waste Collection Vehicle Rule (SWCV Rule). In fact, some of the largest administrative and civil penalty awards recently received by the ARB are the result of either administrative actions or civil actions prosecuted under the SWCV Rule. One such recent action was commenced against Key Disposal, Inc., and its principals.
On June 23, 2010, several fishing and conservation organizations (Petitioners) filed suit against the State Water Resources Control Board (SWRCB) and the County of Siskiyou (County), challenging the management of groundwater resources allegedly interconnected with the Scott River. (Environmental Law Foundation, et al., v. State Water Resources Control Board, et al., (2010) 34-2010-80000583.) Petitioners allege that the SWRCB and the County have violated the public trust doctrine by failing to manage and regulate groundwater extractions that are depleting surface water flows and causing harm to fish and wildlife in the Scott River.
On June 2, 2010, the Ninth Circuit Court of Appeals (Ninth Circuit) issued a decision that is likely to change the landscape of early settlement negotiations in cases brought under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In U.S. v. Aerojet General Corp. (9th Cir. 2010) 2010 WL 2179169 (Aerojet), the Ninth Circuit held that CERCLA allowed the non-settling potentially responsible parties (PRPs) to intervene in litigation to oppose a consent decree between the federal government and settling PRPs. The decision rested on the consent decree’s effect of barring the non-settling PRPs from seeking contribution from the settling PRPs for CERCLA-related liability and the non-settling PRPs’ inability to protect their financial interests absent intervention.
On June 1, 2010, the Ninth Circuit Court of Appeals upheld the decisions of two federal agencies approving the construction of a business park on protected wetlands in Redding, California, in Butte Environmental Council v. United States Army Corps of Engineers, No. 09-15363, 2010 U.S.App. LEXIS 11024 (9th Cir. June 1, 2010). The Court rejected Butte Environmental Council’s challenge that the Army Corps of Engineers and the U.S. Fish & Wildlife Service violated the Clean Water Act and Endangered Species Act, respectively, in approving a project that will impact several acres of wetlands and many more acres of critical habitat for listed species.
On May 25, 2010, the California Farm Bureau Federation (Farm Bureau) filed suit against the California Department of Fish and Game (DFG), alleging that DFG has exceeded its authority by recently interpreting Fish and Game Code section 1602 as requiring surface water users with valid water rights to notify DFG prior to diverting water, and potentially to obtain a streambed alteration permit. The Farm Bureau alleges that DFG’s interpretation is contrary to the obligations prescribed under section 1602, which only apply to water diversions that substantially divert or obstruct the natural flow of a watercourse. The Farm Bureau further alleges that DFG’s interpretation constitutes a fundamental change in the application of section 1602, and will have the effect of requiring nearly every surface water user in California to notify DFG of its water use and potentially obtain a permit prior to diverting water from a watercourse.
The State Water Resources Control Board (SWRCB) through its Office of Enforcement recently announced that a substantial judgment was entered on its behalf against an environmental engineering and consulting firm for the alleged submission of fraudulent reimbursement requests to the Underground Storage Tank Fund (UST Fund). (See March 16, 2010 Press Release by SWRCB.) This action was the first of its kind, and is likely the precursor for similar actions against other environmental consultants and/or engineers who have allegedly submitted fraudulent claims to the UST Fund.
On May 4, 2010, the State Water Resources Control Board adopted the Statewide Water Quality Control Policy on the Use of Coastal and Estuarine Waters for Power Plant Cooling (Policy), signaling a fundamental shift in the permitting of power plants under the National Pollutant Discharge Elimination System (NPDES) program.
In Center for Biological Diversity v. County of San Bernardino, the Fourth District Court of Appeal clarified how to apply the statutory criteria to determine whether the project requires a Water Supply Assessment (WSA) under SB 610 (codified at Wat. Code, §§ 10910, et seq.).
Unless you are diverting surface water pursuant to an appropriative water rights permit or license, and subject to certain exceptions, surface water diverters must file an Initial Statement of Water Diversion and Use with the Division of Water Rights of the State Water Resources Control Board (State Water Board) by July 1, 2010. Diverters that fail to meet the deadline may be subject to an initial $1,000 penalty, and additional fines of $500 per day if the violation continues after 30 days of a violation notification from the State Water Board.
In a decision water users throughout the state should watch, the State Water Resources Control Board (SWRCB) in May adopted a “Policy for Maintaining Instream Flows in Northern California Coastal Streams” (North Coast Instream Flow Policy). The “North Coast Instream Flow Policy, which applies to the Russian River and other Northern California coastal streams, reveals an approach the SWRCB may take with respect to the various impending instream flow proceedings throughout California.
On May 18, 2010, in The Consolidated Salmonid Cases, Case No. 1:09-cv-01053-OWW-DL (E.D. Cal., June 15, 2009), Judge Oliver Wanger of the United States District Court, Eastern District of California, concluded that the National Marine Fisheries Service (NMFS) likely violated the Endangered Species Act (ESA) by failing to rely on the “best available science” when drafting its June 4, 2009 biological opinion (BiOp). The BiOp addresses the impact of coordinated operations of the Central Valley Project (CVP) and State Water Project (SWP) (collectively, Projects) on certain salmonid and other species, and its corresponding Reasonable and Prudent Alternative (RPA). The decision follows two recent decisions invalidating and temporarily restraining implementation of the BiOp and RPA for failure to comply with the National Environmental Policy Act (NEPA). In its most recent ruling, the Court signaled its intent to enjoin implementation of the RPA until the agencies have conducted an adequate NEPA review and revised the RPA in light of the best available science, pending a determination that an injunction will not jeopardize the continued existence of the species and/or adversely modify their critical habitats. Enjoining implementation of the BiOp and RPA will most likely increase Project deliveries.
In a case arising from the 2007 adjudication of the Seaside Groundwater Basin in Monterey County, California, the Sixth District Court of Appeal upheld the trial court’s decision disallowing a local water management agency from using its permitting authority in conflict with the adjudication judgment. The decision struck a balance by acknowledging that the Monterey Peninsula Water Management District (District) retains certain powers to regulate the Seaside Basin – provided those powers are not exercised in a manner inconsistent with the 2007 judgment. As a result, a development company with water rights confirmed in the 2007 judgment will be able to continue processing its project without environmental review of potential impacts to the Seaside Basin, and without the District imposing reductions in the company’s Seaside Basin water rights.
On May 5, 2010, the State Water Resources Control Board (“State Water Board” or “Board”) began formal enforcement proceedings to determine the validity of pre-1914 and riparian water rights claimed by several landowners in the Sacramento-San Joaquin Delta. The Central Delta Water Agency and South Delta Water Agency filed suit against the State Water Board to prevent the Board from engaging in such enforcement proceedings, arguing that the State Water Board lacks authority to determine the validity of pre-1914 and riparian rights in enforcement proceedings. Ultimately, those efforts failed. The State Water Board’s decision could have significant precedential effects.
On April 13, 2010, the Court of Appeal for the Third Appellate District affirmed the denial of petitions for writ of mandate that challenged the validity of two amendments to the Water Quality Control Plan for the Sacramento River and San Joaquin River Basins (Basin Plan). (San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Bd. (Cal. Ct. App., April 13, 2010, No. C060697) 2010 Cal.App. LEXIS 514 (San Joaquin River). The court upheld the trial court's determination that the Basin Plan amendments complied with the requirements of federal and state water law and the California Environmental Quality Act (CEQA).
On April 20, 2010, in a potentially groundbreaking case, the federal Ninth Circuit Court of Appeals issued an opinion addressing a novel issue: whether an irrigation district that violated its decreed water rights provisions can be required to pay interest in the form of more water rather than money. (U.S. v. Bell (9th Cir., April 20, 2010, No. 05-16154, D.Nev. No. CV‑95‑00757-HDM) 2010 U.S. App. LEXIS 8148.)
On April 22, 2010, the Central Valley Regional Water Quality Control Board (Central Valley Water Board) will consider whether to adopt a proposed program to control methylmercury and inorganic mercury in the Sacramento-San Joaquin Delta Estuary (Delta). The program would involve adoption of a total maximum daily load (TMDL) per federal law for mercury and other amendments to the water quality control plan for the Sacramento and San Joaquin River Basins (Basin Plan). The proposed program addresses beneficial uses of the Delta’s waters, fish tissue objectives and an implementation program to achieve the objectives. The program’s requirements would apply to a wide range of sources, such as municipal and industrial wastewater discharges, urban runoff, irrigated agriculture, and managed wetlands. If adopted, the program would have significant regulatory and economic impacts by requiring source control, monitoring and studies as part of a comprehensive effort to reduce mercury inputs to the Delta.
On April 1, 2010, the California Supreme Court narrowly interpreted a statute of limitations under the California Environmental Quality Act (CEQA) in Stockton Citizens for Sensible Planning v. City of Stockton, Calif. Supreme Court Case No. S159690 (2010 Cal.LEXIS 2358, April 1, 2010) (Stockton Citizens). In that case, the Supreme Court unanimously overturned both the trial court and the Third District Court of Appeal, holding that the filing of a Notice of Exemption (NOE) begins the 35-day statute of limitations for challenging the validity of an agency’s approval of a project deemed exempt from CEQA’s environmental review requirements.
On March 1, 2010, the Court of Appeal for the Second Appellate District held that public agencies are authorized to impose a reasonable fee on persons filing an administrative appeal challenging an agency’s determination under the California Environmental Quality Act (CEQA), Public Resources Code, section 21000 et seq. (Friends of Glendora et al. v. City of Glendora (2010) 182 Cal.App.4th 573 (Friends of Glendora).) In Friends of Glendora, the court concluded that the City of Glendora did not violate CEQA by charging a fee to a project opponent for an appeal to the city council from the planning commission’s decision to approve a negative declaration.
On February 11, 2010, the Tehama-Colusa Canal Authority filed suit against the United States Bureau of Reclamation (Bureau) to challenge its exporting of Central Valley Project (CVP) water without regard for California’s area-of-origin rules. Area-of-origin rules prevent CVP operations from depriving areas where water originates of their prior right to all water reasonably required to supply adequately their beneficial needs. A ruling that the Bureau must comply with area-of-origin rules in times of water shortages would significantly affect the allocation and distribution of California’s water supply in dry years.
In a much anticipated decision with significant consequences for both public and private entities holding permits for the operation of ongoing facilities, the California Supreme Court yesterday unanimously affirmed that the baseline for environmental analysis of new projects under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) are the physical conditions actually existing at the time of the analysis, not the maximum capacity allowed under prior or existing operating permits. (Communities for a Better Environment v. South Coast Air Quality Management District, S 161190, March 15, 2010.)
On March 5, 2010, Judge Oliver Wanger of the United States District Court, Eastern District of California, invalidated the Bureau of Reclamation’s (Reclamation) decision to accept and implement the National Marine Fisheries Service’s (NMFS) June 4, 2009 biological opinion (BiOp) addressing the impact of coordinated operations of the Central Valley Project (CVP) and State Water Project (SWP) (collectively, Projects) on certain salmonid and other species, and its corresponding Reasonable and Prudent Alternative (RPA). The Court’s ruling follows a previous, and nearly identical ruling invalidating the Bureau’s implementation of the U.S. Fish & Wildlife Service’s (FWS) December 15, 2008 BiOp and RPA for Delta smelt. See Judge Wanger Rules That Bureau of Reclamation Violated NEPA In Accepting and Implementing U.S. Fish & Wildlife Service’s Biological Opinion On Delta Smelt, December 8, 2009. In both cases, the Court ruled that Reclamation failed to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., by provisionally accepting and implementing the BiOps and RPAs without first completing an environmental impact statement (EIS) to consider their significant effects on the human environment.
On February 11, 2010, the California Supreme Court held that when a local agency gives public notice of a California Environmental Quality Act (CEQA) determination, any challenge to that decision must be brought within 30 days. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 2010 Cal. LEXIS 874.) The 30-day statute of limitations applies to any action for which the agency files a notice of determination, regardless of the CEQA violation alleged. In this case, the Court specifically found that the 30-day statute of limitations applied to an agency’s decision to approve an action that followed an earlier environmental impact report without supplemental environmental review.
On March 8 and March 10, 2010, the California Department of Water Resources (DWR) will hold “Listening Sessions” for members of the public to comment on DWR’s implementation of the Water Conservation Act of 2009 (Senate Bill X7 7). The March 8 meeting will take place in Sacramento, while the March 10 meeting will be held in Los Angeles. SB 7 was part of the new water legislation package passed in late 2009 that addressed a number of water issues, including conservation. See “California Legislature Passes New Delta and Water Policy Legislation.” This bill specifically set urban water use targets designed to result in a 20 percent reduction from the baseline daily per capita water use by December 31, 2020 (20% by 2020).
On February 5, 2010, Judge Oliver Wanger of the United States District Court, Eastern District of California (Court) granted a temporary restraining order and preliminary injunction halting implementation of a Central Valley Project and State Water Project pumping restriction aimed at protecting endangered salmon. The effect of the injunction, however, was short-lived. Less than a week later, on February 10, 2010, Judge Wanger denied an application to enjoin a nearly identical pumping restriction aimed at protecting Delta smelt. The smelt pumping restriction became effective the day of the Court ruling and will likely last until March 2010.
On February 8, 2010, the United States District Court for the Central District of California (Court) heard oral argument in Natural Resources Defense Council, et al. v. County of Los Angeles, et al. (CV08-01467-AHM (PLAx)), a case filed under the citizen suit provisions of the Clean Water Act (CWA). Petitioners, Natural Resources Defense Council and Santa Monica Baykeeper allege that the County of Los Angeles and Los Angeles County Flood Control District violated and continue to violate their municipal separate storm sewer system permit (MS4 Permit) issued under the CWA’s National Pollutant Discharge Elimination System (NPDES) program. After oral argument, the Court took the parties’ summary judgment motions under submission. The Court will issue an order at some future date.
On January 14, 2010, Judge Roland L. Candee of the Sacramento Superior Court issued a final statement of decision invalidating the 2003 Quantification Settlement Agreement (QSA), a landmark pact to reduce California’s reliance on Colorado River water through farm-to-city water transfers. This decision, if upheld on appeal, will affect how farms and municipalities in the southern part of the state share water as well as the future Salton Sea restoration. The decision will also undoubtedly result in a reprise of the contentious and complex negotiations that led to the 2003 pact.
In 2008, San Diego County and 18 of its incorporated cities (Permittees) requested that the Commission on State Mandates (Commission) review their new municipal stormwater permit requirements. The Permittees asked the Commission to determine whether the California Constitution requires state reimbursement of certain compliance costs associated with the new permit requirements. On December 7, 2009, the Commission released a draft Staff Analysis (Draft Analysis) that finds municipal costs associated with some of the new permit requirements are reimbursable state mandates.
In late 2009, the California Legislature passed legislation requiring the State Water Resources Control Board (State Water Board) to develop new flow criteria for the Sacramento-San Joaquin Delta (Delta) ecosystem to protect public trust resources. As an initial step towards complying with this mandate, on January 7, 2010, the State Water Board held a pre-proceeding conference to prepare for and discuss procedural aspects of its upcoming informational proceeding to develop flow criteria for the Delta ecosystem.
On December 10, 2009, Judge Roland L. Candee of the Sacramento Superior Court issued a tentative ruling that, if adopted, would invalidate a series of accords that were intended to resolve disputes over the allocation of water from the Colorado River. The court’s ruling could jeopardize a whole network of agreements and water transfers executed in 2003 that would have reduced California’s reliance on the waters of the Colorado River.
On December 3, 2009, the California Court of Appeal for the First Appellate District held that the imposition of minimum monthly water and sewer base rate charges constitute fees, not assessments. (Paland v. Brooktrails Township Community Services Dist. Board of Directors (2009) 2009 Cal.App. LEXIS 1940 (Paland). As such, these charges are exempt from the majority voter approval requirements contained in Proposition 218 (Cal. Const., art. XIII D, § 4).
On October 30, 2009, the Department of Water Resources (DWR) released Draft “Near-Term” Guidelines for Providing Funding to Local Public Agencies for Delta Levees Special Flood Control Projects (the Program). The Program will authorize the appropriation of $20 million of the $100 million Proposition 1E funds through Senate Bill 2X1 during the 2009-2010 and 2010-2011 budget years for Delta Levee flood control projects.
On November 13, 2009, Judge Oliver Wanger of the United States District Court, Eastern District of California, invalidated the Bureau of Reclamation’s decision to accept and implement the United States Fish & Wildlife Service’s December 15, 2008 biological opinion (BiOp) addressing the impact of coordinated operations of the Central Valley Project and State Water Project on the threatened delta smelt, and its corresponding Reasonable and Prudent Alternative (RPA). The Court ruled that Reclamation failed to comply with the National Environmental Policy Act (NEPA) by provisionally accepting and implementing the BiOp and RPA without first completing an environmental impact statement to consider significant effects on the human environment.
The presumption under federal law, and a requirement under California state law, is that used oil will be recycled. An issue frequently encountered by generators, transporters, and recyclers of used oil, however, is how to characterize and regulate mixtures of used oil and water.
On October 9, 2009, in United States v. Milner, 2009 U.S. App. LEXIS 22253 (9th Cir. 2009) (Milner), the United States Court of Appeals for the Ninth Circuit held, among other things, that the Army Corps of Engineers’ (Corps) jurisdiction over navigable waters under the Rivers and Harbors Appropriation Act of 1899 (RHA) extends to where the mean high water (MHW) line would be in its unobstructed, natural state. In so holding, the court specifically defined navigable waters under the RHA to mean “all places covered by the ebb and flow of the tide to the mean high water ... mark in its unobstructed, natural state.” Under federal law, the upper boundary of any tidelands is the MHW line, which is determined by projecting onto the shore the average of all high tides over a period of 18.6 years. Notably, the court stated that structures previously above the MHW line are not exempt from Corps regulation because the tide line has moved, noting that “those who build too close to the MHW line ... run the risk that their structures may become obstructions and be subject to regulation by the Corps.”
Earlier this week, the California Legislature sent the Governor a package of bills touted as a “comprehensive solution” to what is viewed by many as California’s current water crisis. This package, passed in the 2009-2010 Seventh Extraordinary Session, consists of four policy bills and one bond bill. The policy bills are Senate Bills 1, 6, 7, and 8, with Senate Bill 2 being the bond bill. A brief overview of each bill is provided below, with a more detailed analysis to follow in the near future.
On October 6, 2009, in a case entitled California Building Industry Association v. San Joaquin Valley Air Pollution Control District
(Case No. F055448), a California appellate court upheld regulations
enacted by the San Joaquin Valley Air Pollution Control District
(SJVAPCD) that require developers to reduce indirect pollution
attributable to their projects or, in the alternative, to pay a fee to
SJVAPCD to fund off-site emissions reductions. The regulations, known
collectively as the Indirect Source Rule (ISR), are similar to rules
that have been discussed or proposed statewide and in other regional
air quality management districts.
On October 11, 2009, Governor Schwarzenegger signed into law SB 790 (Pavley), which includes the Stormwater Resource Planning Act. The Act addresses stormwater resource planning as a means to reduce surface water pollution and increase the state’s water supplies. SB 790 authorizes the State Water Resources Control Board (State Water Board) to award grants for projects that implement a voluntary stormwater resource plan (SRP) (as defined by the Act) or implement or promote low-impact development to improve water quality or reduce stormwater runoff. As a result of SB 790, stormwater may play a more critical role in the development of solutions to address California’s water supply crisis.
On September 30, 2009, the United States Court of Appeals for the Federal Circuit (“Circuit Court”) issued a landmark decision in Stockton East Water District v. United States, No. 2007-5142, 2009 U.S. App. LEXIS 21466 (Fed. Cir. Sep. 30, 2009). The Circuit Court held that the United States Bureau of Reclamation (“Bureau”) breached its contracts with two water suppliers, Stockton East Water District and Central San Joaquin Water Conservation District (collectively “the Districts”) for delivery of water from the New Melones Unit of the Central Valley Project (“CVP”) for the years 1999-2004. The Circuit Court also left open the possibility that the Bureau committed an unlawful “taking” of private property without just compensation in violation of the Fifth Amendment of the United States Constitution for its failure to deliver contracted water amounts for the years 1994-1995. Besides the potential for requiring the government to pay a large sum in damages, this decision may serve as important precedent for other CVP contractors and for water suppliers generally.
On September 30, 2009, negotiators for an array of Klamath River Basin stakeholders released a proposed Klamath Hydroelectric Settlement Agreement (KHSA), outlining a path for potential removal of four hydroelectric dams on the mainstem Klamath River which are owned by PacifiCorp, an investor-owned utility. Parties will consider approval of the KHSA along with the Klamath Basin Restoration Agreement (KBRA), a proposed agreement released in early 2008 that would address multiple water allocation and resources issues in the watershed. While neither agreement is lacking for controversy, approvals could occur within the next few months. Thereafter, the parties would pursue necessary authorizing legislation for both agreements. Implementation would proceed over a period of decades.
On September 21, 2009, in a case entitled State of Connecticut v. American Electric Power Company, Inc., Nos. 05-5104-cv, 05-5119-cv (2nd.Cir., Sept. 21, 2009),the U.S. Court of Appeals for the Second Circuit revived an action that seeks to curtail carbon dioxide emissions from power plants in multiple states. As a result, a federal district court will hear a case that seeks to control greenhouse gas emissions based on federal common law rather than any statutory regime.
On September 2, 2009, the State Water Resources Control
Board (SWRCB) adopted a new General Permit for Discharges of Storm Water
Associated with Construction Activities (CGP) that imposes new requirements for
the discharge of storm water runoff from construction sites. The CGP, which has a current effective
date of July 1, 2010, replaces the amended Order 99-08-DWQ.
An important new appellate decision in a California Environmental Quality Act (CEQA) case affirms a lead agency’s authority to reject environmental impact report (EIR) alternatives as infeasible on policy grounds. (California Native Plant Society et al. v. City of Santa Cruz (6th District Court of Appeal, filed Aug. 20, 2009, pub. order Sep. 18, 2009, Case No. H032502).) CEQA clearly provides that an agency may find that an environmentally superior alternative is infeasible on various grounds, including “[s]pecific economic, legal, social, technological, or other considerations . . . .” (Pub. Resources Code, § 21081(a)(3); CEQA Guidelines, § 15091(a)(3), emphasis added.) Until last week, however, it had been more than 25 years since any published decision specifically affirmed this right with regard to policy considerations. (See City of Del Mar v. City of San Diego (1982) 133 Cal.App.3d 401, 417 (Del Mar).) California Native Plant Society squarely addresses this issue and provides important authority that an agency’s decision to reject an alternative as infeasible because it is “impractical or undesirable from a policy standpoint” or otherwise inconsistent with project objectives should be upheld so long as the decision is supported by substantial evidence in the record.
On July 7, 2009, the State Water Resources Control Board (State Water Board) adopted a precedential order interpreting regulations that govern waste disposal to land, and construing exemptions in these regulations as they pertain to wastewater treatment facilities and the disposal of treated effluent. (In the Matter of Own Motion Review of City of Lodi Waste Discharge Requirements and Master Reclamation Permit, Order WQ 2009-0005.) More specifically, the State Water Board’s order evaluates the Central Valley Regional Water Quality Control Board’s (Central Valley Water Board) application of exemptions contained in title 27 of the California Code of Regulations at section 20090 to the discharge of treated effluent and food processing waste by the City of Lodi (Lodi) at its White Slough Water Pollution Control Facility. The State Water Board’s decision narrows the application of the exemptions in title 27 to wastewater facilities and activities, which may result in higher costs to wastewater treatment facilities.
The California Resources Agency will hold two public hearings this month on proposed amendments to regulations under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA). The proposed amendments (Proposed GHG Guidelines) provide guidance to lead agencies regarding the analysis and mitigation of greenhouse gas (GHG) emissions from projects subject to environmental review. The Proposed GHG Guidelines are, to date, the most comprehensive and authoritative attempt to address the question of how lead agencies should discuss greenhouse gas emissions in CEQA documents.
On June 15, 2009, the United States Supreme Court granted certiorari in Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 2009 U.S. LEXIS 4458 (U.S. June 15, 2009) (“Stop the Beach Renourishment”),
to address whether the Florida Supreme Court’s decision upholding a
Florida statute that eliminates certain property rights in the course
of beach restoration, constitutes a “judicial taking” in violation of
the United States Constitution. The United States Supreme Court’s
decision in Stop the Beach Renourishment could significantly affect how
courts interpret property rights by deciding whether and how courts
themselves commit unconstitutional takings without just compensation.
This month, after five years of study, the United States Geological Survey (USGS) released USGS Professional Paper 1766: Groundwater Availability of the Central Valley Aquifer, California (Report). The Report provides stakeholders with information to manage groundwater resources in the Central Valley, including an overview of the Central Valley’s hydrogeology and an assessment of groundwater availability in the Central Valley’s aquifer system. The report may have groundwater policy effects as it enables water managers to more clearly see and model the groundwater implications of decreased surface water deliveries.
On June 30, 2009, the National Park Service (the “Park Service”) announced that it would reopen the public scoping period for the New Merced Wild and Scenic River Comprehensive Management Plan and Environmental Impact Statement (the “Plan”). The Plan will serve as a “comprehensive blueprint” for management of the Merced River corridor in Yosemite National Park, including the famous Yosemite Valley. The Park Service indicated that the Plan could limit the number of visitors allowed, and/or the “kinds and amounts of use,” in Yosemite Valley.
On June 22, 2009, the U.S. Court of Appeals for the Eighth Circuit affirmed an order denying a motion brought by industrial wastewater dischargers to intervene in a lawsuit alleging violations of the Clean Water Act (33 U.S.C. § 1251 et seq.) by the Metropolitan St. Louis Sewer District (District). This decision in United States v. Metropolitan St. Louis Sewer District (Case No. 08-3404, E.D. Missouri) may impose new requirements on parties seeking to intervene in Clean Water Act enforcement actions, even in courts that have traditionally taken a more permissive approach toward intervention.
The State Water Resources Control Board (State Water Board or Board) began an iterative public process to develop a statewide general permit for landscape irrigation uses of recycled water (General Permit). In this context, "recycled water" is "water which, as a result of treatment of waste, is suitable for a direct beneficial use or a controlled use that would not otherwise occur and is therefore considered a valuable resource." (Wat. Code, § 13050(n).) Water Code section 13552.5 (Assembly Bill 1481 (AB 1481), De La Torre, 2007) requires the Board to adopt the General Permit on or before July 31, 2009. Water Code section 13552.5 specifies additional conditions for the General Permit's development and implementation.
On June 8, 2009, the Sixth Circuit of the United States Court of Appeals stayed its decision in a case that overturned regulations adopted by the United States Environmental Protection Agency (USEPA). The regulations at issue clarified that pesticides applied directly to waters of the United States were not a pollutant as long as the application was consistent with federal pesticide regulations. The two-year stay will allow the USEPA to design a permitting program for pesticide applications that may introduce pollutants into the waters of the United States from point sources.
On June 4, 2009, the United States Court of Appeals for the Eleventh Circuit found it was unnecessary for a water management district in Florida to procure a National Pollution Discharge Elimination System (NPDES) permit before discharging polluted waters into a neighboring lake. The court in Friends of the Everglades v. South Florida Water Management District, No. 07-13829, 2009 WL 1545551 (C.A.11 (Fla.)) (Friends of the Everglades), held that the recent Water Transfers Rule, 40 C.F.R. § 122.3(i), adopted by the Environmental Protection Agency (EPA) supported the unitary waters theory, and is a reasonable interpretation of ambiguous language in the Clean Water Act. The decision is a marked departure from previous rulings on the unitary waters issue and is the first decision to interpret NPDES permitting requirements in light of EPA’s Water Transfers Rule.
Clarifying a point of ambiguity in the California Environmental Quality Act (CEQA), Public Resources Code section 21000 et seq., regarding the contents of administrative records, the Third District Court of Appeal has ruled that documents prepared by a lead agency’s legal counsel for the purpose of ensuring compliance with CEQA are protected by the attorney-client privilege, that privilege is not waived, and the documents are not required to be included in the administrative record, where the agency shares those documents with the real party in interest. (California Oak Foundation v. County of Tehama (June 11, 2009), Case No. C057578, 2009 D.A.R. 8485.)
The U.S. House Committee on Energy & Commerce passed a major climate change and energy bill on May 21 that includes a number of new federal mandates, incentives, programs and resources. The House is expected to consider this legislation on the floor prior to the July congressional recess. Meanwhile, the Senate Energy & Natural Resources Committee is underway with a stand-alone energy bill, while the Senate Environment & Public Works Committee prepares to tackle climate change legislation in August. President Obama and Democratic leadership have identified climate change and energy legislation as a top-level priority, and are seeking final legislation by the time a major international climate change summit takes place in Copenhagen, Denmark in mid-December 2009. This legislation will have far-reaching effects on the direction of the U.S. economy, create both challenges and opportunities for local governments and other entities, and provide the potential for broad deployment of clean energy and green technologies.
On May 21, 2009, the Pacific Legal Foundation (PLF), on behalf of three farms in the San Joaquin Valley, filed a complaint in federal court against the United States Fish & Wildlife Service (Service) challenging the validity of the Service’s December 15, 2008, Biological Opinion on the effects of operating the diversion facilities in the Sacramento-San Joaquin Delta Estuary to the threatened delta smelt. The complaint alleges various violations of the Administrative Procedures Act, but more fundamentally, it challenges the constitutionality of the Endangered Species Act’s application to purely intrastate species. Such application, PLF asserts, violates the Commerce Clause of the United States Constitution. Given the current state of the case law on this issue, it is possible that this case could reach the United States Supreme Court.
On May 29, 2009, in the United States Eastern District Court case of San Luis & Delta-Mendota Water Authority, et al v. Salazar (Case No. 1:09-CV-00407), the United States Fish and Wildlife Service (Service) was enjoined from restricting pumping operations in the Delta without justification and an explanation of why alternative, less severe restrictions would not adequately protect the delta smelt. The Court found that Plaintiffs San Luis & Delta-Mendota Water Authority and Westlands Water District (collectively “Westlands”) were reasonably likely to succeed on their claim that the Service violated the National Environmental Policy Act (NEPA) in failing to conduct environmental review before establishing pumping restrictions for the protection of delta smelt.
On April 20, 2009, the California Supreme Court (the Court) issued a decision to clarify when local agencies may spend public funds on activities related to ballot measures. In Vargas v. City of Salinas (2009) 46 Cal.4th 1 (Vargas), the Court sorts through statutory and case law to distinguish permissible spending on “informational activities” from impermissible spending on “campaign activities.” Vargas is certain to shape how local agencies communicate with the public and spend public funds on ballot issues.
On April 23, 2009, the Santa Clara Superior Court ruled that the Santa Clara Valley Water District’s (District) groundwater extraction fee violates the provisions of the California Constitution added by Proposition 218. The fee applied to approximately 4,000 well owners, and the Court’s ruling could require that the District refund up to $250,000,000. The case continues a recent trend of rulings where a local agency’s fee program has been invalidated under Proposition 218.
On April 17, 2009, the United States Environmental Protection Agency
(EPA) issued proposed findings that a collection of gases, which are
commonly referred to as “greenhouse gases,” contribute to air pollution
that may endanger public health. While not necessarily surprising for
Californians, whose own state government has blazed the trail of
climate change regulation in recent years, these findings mark the
federal government’s entrance into greenhouse gas regulation.
The California Department of Water Resources (DWR) has filed as many as
36 petitions for orders permitting entry and investigation of real
property (Petitions) in the Superior Courts of the five counties
covering the Sacramento-San Joaquin River Delta Estuary (Delta). The
Petitions seek more than two and one-half years of access to thousands
of acres of private property in the Delta in order to conduct surveys
and studies purportedly related to the Bay Delta Conservation Plan
(BDCP). Landowners have resisted DWR’s efforts and many have filed
official opposition to these Petitions with the courts. Landowner
opposition could create a significant hurdle to DWR as it rolls toward
BDCP’s call for the construction of a new isolated conveyance facility.
On April 27, 2009, Judge Oliver Wanger of the United States District
Court, Eastern District of California, issued an 86-page Supplemental
Memorandum Decision (“Final Decision”) in the NRDC v. Kempthorne
case (Case No. 05 CV 01207 OWW LJO). The Final Decision resolved the
parties’ cross-motions for summary judgment on Plaintiffs’ claims
challenging the Sacramento River Settlement Contract (“SRS Contract”)
renewals. These long-term contract renewals between the SRS Contractors
and the United States Bureau of Reclamation (“Bureau”) were executed in
2005. They renewed the original water rights settlement contracts
between the parties that had been executed in the early 1960’s.
Plaintiffs challenged the contract renewals under section 7(a)(2) of
the Endangered Species Act (“ESA”), alleging that by executing and
implementing the SRS Contract renewals, the Bureau failed to avoid
causing jeopardy to the delta smelt and adverse modification of its
critical habitat.
On April 20, 2009, Senate Bill No. 681 (SB 681), introduced by Senator
Pavely, was substantially amended in the Senate. As introduced, SB 681
would have provided the State Water Resources Control Board (SWRCB)
with the independent authority to initiate a water rights adjudication.
As amended, SB 681 now proposes to add significant new water right fees
and substantially higher liability amounts associated with SWRCB
enforcement actions, among other things.
On April 13, 2009, several plaintiffs filed a lawsuit challenging the
California Department of Water Resources’ (DWR) approval of the 2009
Drought Water Bank (Water Bank). The Plaintiffs include the Butte
Environmental Council (BEC), the California Sportfishing Protection
Alliance (CSPA), and the California Water Impact Network (C-Win).
Plaintiffs brought the lawsuit directly against DWR, the California
Resources Agency, and Governor Arnold Schwarzenegger. Plaintiffs also
named 36 real parties in interest as potential sellers of water to the
Water Bank.
On April 13, 2009, the Central Delta Water Agency and South Delta Water
Agency (Delta Water Agencies) filed a Complaint for Declaratory Relief,
Injunctive Relief, and Mandamus challenging the preliminary actions of
various state and federal agencies, urban and agricultural water
purveyors, agricultural interests, and environmental groups related to
the collaborative Bay Delta Conservation Plan (BDCP) process. (Central Delta Water Agency et al. v. United States Fish and Wildlife Service et al.,
United States Eastern District Court, Case No. 09-CV-01003-JAM-GGH.) In
recent years, politicians, state and federal agencies, and various
stakeholders have advocated the BDCP process as a means to improve the
failing San Francisco Bay/Sacramento-San Joaquin Delta (Delta)
ecosystem and increase the reliability of water supplies exported
through the Delta, including consideration of a potential isolated
conveyance facility.
The Hauselt decision reinforces the peculiar rules
governing flood takings cases in California. For reasons both practical
and historical, State law sets the bar higher for plaintiffs seeking
compensation through inverse condemnation for flood damages resulting
from the operation or failure of a publicly owned or publicly designed
flood control system. To the extent that it confirms the particularity
of takings cases in the flood control context, the Hauselt
opinion may also come as welcome reassurance to public agencies
responsible for the maintenance or design of flood control systems.
On March 17, 2009, the State Water Resources Control Board (State Water
Board or Board) unanimously adopted Resolution No. 2009-0027
(Resolution). The purpose of the Resolution is to implement the federal
economic stimulus legislation known as the American Recovery and
Reinvestment Act (ARRA) of 2009. The ARRA provides approximately $270
million to the Clean Water State Revolving Fund (CWSRF). The State
Water Board’s Division of Financial Assistance (Division) administers
the CWSRF program. The program serves to finance publicly owned
treatment facilities, non-point source projects and programs, and
estuary comprehensive conservation and management plans.
In a case filed March 11, 2009, the First District Court of Appeal held
that secret ballots must be used in property related fee elections. (Greene v. Marin County Flood Control and Water Conservation Dist. Case No. A120228 (Greene).)
Such elections are required by Article XIII D of the California
Constitution, which is a 1996 amendment to the state constitution
commonly referred to as Proposition 218. The Greene decision
invalidated a storm drainage fee, and should be carefully considered by
California local agencies engaged in fee elections.
Separate groups of contractors who receive water from California’s two
largest water projects filed three different lawsuits this month
challenging the U.S. Fish and Wildlife Service’s (FWS) recent
Biological Opinion imposing restrictions on the operation of pumping
facilities in the San Francisco Bay Delta. The lawsuits challenge both
the substance of the FWS determination that pumping operations
jeopardize the endangered delta smelt (Hypomesus transpacificus)
and the procedure by which FWS arrived at that determination.
Interestingly, two of the three suits also allege that, in issuing the
Biological Opinion, FWS had an independent duty under the National
Environmental Policy Act (NEPA) to review the environmental
consequences of the Biological Opinion.
On March 16, 2009, the United States Court of Appeals for the Ninth Circuit, published its decision in Trout Unlimited v. Lohn, No. 07-35623, 2009 U.S. App. LEXIS 5353 (9th Cir. March 16, 2009) (Trout Unlimited).
The case addresses the controversial distinction between naturally-
versus hatchery-spawned fish, and certain levels of protection afforded
each under the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq.
The case upholds the National Marine Fisheries Service’s (NMFS) Policy
on the Consideration of Hatchery-Origin Fish, 70 Fed.Reg. 37204 (June
28, 2005) (the Policy).
On February 10, 2009, the California Department of Water Resources and the United States Bureau of Reclamation (Petitioners) filed a temporary urgency change petition with the State Water Resources Control Board. In their petition, they sought to temporarily modify conditions imposed in their water right permits for the State Water Project and the Central Valley Project by State Board Decision 1641. In the end, because of a change in hydrological conditions between the time the Petitioners filed their change petitions and the time of the hearing, the State Board denied the change petition.
Among the State legislation proposed this year to address water quality
issues are bills related to water reuse, salinity and penalties imposed
for discharge violations under the National Pollutant Discharge
Elimination System (NPDES). As described below, these bills would
affect wastewater discharges to the ocean, urban water management plans
(UWMPs), the use of residential self-regenerating water softeners, and
the implementation of mandatory minimum penalties for NPDES discharges.
Several of these proposed changes to California’s water quality law are
intended to increase recycled water use and provide regulators and
local agencies a tool to reduce salinity in waters used for drinking
water supply and other beneficial uses. In addition, the proposed
legislation may alleviate to some degree what some dischargers consider
to be harsh effects of the State’s mandatory minimum penalty law.
On February 17, 2009, a per curiam order of the United States Court of
Appeals for the Federal Circuit (Federal Circuit) found that requiring
a water district to divert some water under its appropriative water
right to benefit the endangered steelhead trout warrants just
compensation under the United States Constitution. This decision in Casitas Municipal Water District v. United States,
Case No. 2007-5153, may establish important precedent affecting the
ability of federal agencies to force water users to sacrifice water
supplies under their established water rights, without any compensation
for their loss, to meet requirements imposed under the Endangered
Species Act, 16 U.S.C. § 1531 et seq.
On February 3, 2009, the State Water Resources Control Board adopted a Recycled Water Policy at a regularly scheduled Board meeting. The Policy culminates a public process that began in March 2007 to develop a consistent regulatory approach for the nine regional water quality control boards to issue permits for the use of recycled water for landscape irrigation and groundwater recharge reuse projects throughout the state.
On January 29, 2009, the Oregon Supreme Court accepted three certified questions from the United States Court of Appeals for the Federal Circuit that will address the application of Oregon water law in a federal takings case.
In late January, the Little Hoover Commission posted its report
regarding the structure and governance of the State and Regional Water
Boards. Titled “Clearer Structure, Cleaner Water: Improving Performance and Outcomes at the State Water Boards,”
the Commission report concludes that the existing structure of a
five-member State Water Resources Control Board and nine largely
“autonomous” regional water boards is “antiquated” and “lacks
consistency, accountability and transparency.”
In California, regulation of land use traditionally has been almost
exclusively the domain of local government. In the wake of the State’s
adoption of an aggressive program to reduce greenhouse gas (GHG)
emissions, however, State authorities have taken a much more active
interest in influencing the decisions made by local jurisdictions
related to land use planning. On January 1, 2009, a new state-level
regulatory regime affecting how California’s urban areas plan for and
approve new land uses took effect. The new law, adopted by the
Legislature in 2008 as Senate Bill 375 (SB 375), purports to leave
intact the State’s historical deference to local authorities on land
use matters. But by establishing a mechanism for State-level review of
regional land use plans, SB 375 could represent a watershed moment in
California land use law, the first step in the development of more
direct State or regional involvement in land use planning.
On January 2, 2008, the Delta Vision Committee released its
report to the Governor and Legislature recommending actions to address
the environmental crisis in the Sacramento-San Joaquin Bay Delta (the
"Delta") and shore up the State's hub for drinking and irrigation water
supply. Among the most significant recommendations is the call to
construct an isolated conveyance facility that would divert water
around the Delta. Other recommendations, however, will likely be
equally contentious to certain stakeholders.
Water Code section 10910 requires a public water system to prepare a
water supply assessment (WSA) to determine whether water supplies are
sufficient for proposed development projects. In this case, the Court
addressed the issue of whether the WSA adopted by the City of Rohnert
Park (City) complied with Water Code section 10910(f).
