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ENVIRONMENTAL LAW & POLICY ALERTS |
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 The California Supreme Court Confirms that the Filing of a Notice of Determination Triggers 30-Day Statute of Limitations for All CEQA Challenges
By Joseph M. Carpenter
March 2, 2010
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.
 Department of Water Resources Begins Listening Sessions for Water Conservation Legislation
By Jennifer T. Buckman
March 2, 2010
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).
Judge Wanger Temporarily Enjoins Implementation of Delta Pumping Restrictions Under the Salmon Biological Opinion, then Reverses Course Under Smelt Biological Opinion
By Brian D. Poulsen
February 17, 2010
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. Federal Court Hears Arguments in Clean Water Act Citizen Suit Alleging Non-Compliance with Municipal Stormwater Permit
By Cassie N. Aw-yang
February 17, 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.
Court Invalidates The Colorado River Quantification Settlement Agreement
By Joseph M. Carpenter
January 27, 2010
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. Commission on State Mandates’ Draft Analysis Finds New Municipal Stormwater Permit Requirements Are Reimbursable State Mandates
By Cassie N. Aw-yang
January 13, 2010
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.
State Water Board Takes Initial Steps Towards Establishing New Delta Flow Criteria To Protect Public Trust Resources
By Brian D. Poulsen
January 13, 2010
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.
Court Releases Tentative Ruling That Would Invalidate The Colorado River Quantification Settlement Agreement
By Eric W. Davis
December 22, 2009
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.
California Appellate Court Holds That Base Rate Charges Imposed On Parcels With Utility Connections, Regardless Of Actual Use, Constitute Fees Under Proposition 218 And Are Exempt From Ballot Approval
By Joseph M. Carpenter
December 22, 2009
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). $20 Million of Proposition 1E Funds To Be Appropriated For Delta Levees Special Flood Control Projects Over Next Two Years
By Cassie N. Aw-yang
December 8, 2009
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.
Judge Wanger Rules That Bureau of Reclamation Violated NEPA In Accepting and Implementing U.S. Fish & Wildlife Service’s Biological Opinion On Delta Smelt
By Brian D. Poulsen
December 8, 2009
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. Used Oil Recycling: Beware of Mixtures of Used Oil and Water
By Michael E. Vergara
November 17, 2009
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.
The Ninth Circuit Finds Army Corps of Engineers’ Jurisdiction Extends Over Existing Shoreline Development Under the Rivers and Harbors Appropriation Act
By Joseph M. Carpenter
November 17, 2009
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.” California Legislature Passes New Delta and Water Policy Legislation
By Daniel Kelly
November 6, 2009
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.  California Appellate Court Upholds Indirect Source Rule for San Joaquin Valley
By Eric W. Davis
November 3, 2009
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.
California Further Integrates Stormwater Into Water Supply Planning
By Cassie N. Aw-yang
November 3, 2009
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. Federal Circuit Court of Appeals Holds Bureau of Reclamation Liable for Water Shortage Deliveries from the New Melones Unit of the Central Valley Project
By Brian D. Poulsen
October 20, 2009
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. Potential Dam Removal In The Klamath Basin—Proposed Klamath Hydroelectric Settlement Agreement
By Paul Simmons
October 6, 2009
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. Second Circuit Allows Nuisance Case Against
Greenhouse Gas Emitters To Move Forward
By Eric Davis
October 6, 2009
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. State Water Resources Control Board Adopts New Construction General Permit With Significant Changes And Requirements For Storm Water Discharges
By Kanwarjit S. Dua
September 24, 2009
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.
California Appellate Court Affirms CEQA Lead Agencies’ Authority To Make Infeasibility Findings Based On Policy Grounds
By Kelley M. Taber
September 24, 2009
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. State Water Resources Control Board Directs New Approach to Application of Land Disposal Regulations to Wastewater Facilities
By Theresa A. Dunham
August 4, 2009
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.
Resources Agency to Hold Public Hearings on Proposed CEQA Guidelines for Greenhouse Gas Emissions Impacts
By Eric W. Davis
August 4, 2009
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.
Supreme Court to Review Florida “Judicial Takings” Case: Did the Florida Supreme Court Redefine Constitutionally-Protected Property Rights without Just Compensation?
By Brian D. Poulsen
July 22, 2009
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.
The United States Geological Survey Releases Central Valley Groundwater Report
By Somach Simmons & Dunn
July 22, 2009
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.
New Merced Wild and Scenic River Management Plan Could Limit Number of Yosemite Park Visitors
By Brian D. Poulsen
July 7, 2009
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.
Eighth Circuit Denies Intervention to Dischargers in a Clean Water Act Lawsuit
By Eric W. Davis
July 7, 2009
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.
Sixth Circuit Holds Off on Requiring Additional Clean Water Act Regulation of Pesticide Applications
By Eric W. Davis
June 23, 2009
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.
Eleventh Circuit Reexamines the Unitary Waters Theory
By Theresa A. Dunham
June 23, 2009
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.
Third District Court of Appeal Holds CEQA Compliance Documents Produced by Agency Counsel Are Subject to Attorney-Client Privilege and Need Not Be Included in Administrative Record
By Kelley M. Taber
June 23, 2009
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.)
Key House Committee Approves Far-Reaching Climate & Energy Bill, While Senate Prepares to Move Legislation
By Matthew W. Ward
June 17, 2009
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.
PLF Complaint Alleges That The Delta Smelt Biological Opinion Is Unconstitutional
By Brian D. Poulsen
June 9, 2009
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.
Fish and Wildlife Service Required to Justify Pumping Restrictions in the Delta
By Jacqueline L. McDonald
June 9, 2009
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.
California Supreme Court Weighs in on What Constitutes Permissible Local Spending of Public Funds on Ballot Measures
By Cassie N. Aw-yang
May 20, 2009
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.
Santa Clara Court Invalidates Groundwater Extraction Fee on the Grounds That It Violates Proposition 218
By Somach Simmons & Dunn
May 20, 2009
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.
EPA Proposes Findings That Climate Change Threatens Public Health
By Jacqueline L. McDonald
May 5, 2009
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.
DWR Sues Delta Landowners for "Temporary Entry" to Study Canal Routes
By Brian D. Poulsen
May 5, 2009
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.
Sacramento River Settlement Contractors Prevail in Federal Court Against Challenge to Their Long-Term Water Contract Renewals
By Andrew M. Hitchings
April 30, 2009
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.
SB 681 Proposes Significant New Water Fees and Enforcement Penalties
By Daniel Kelly
April 22, 2009
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.
Environmental Organizations File Lawsuit Alleging the Drought Water Bank Violates the California Environmental Quality Act
By Somach Simmons & Dunn
April 21, 2009
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.
Delta Water Agencies Challenge Bay Delta Conservation Plan Process
By Jacqueline L. McDonald
April 21, 2009
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.
Appeals Court Holds That County's Flood Control Activities Were Not a Taking of Private Lands
By Eric W. Davis
April 7, 2009
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. Disadvantaged Communities and "Frozen" Grant Projects Get Priority for Federal Water Quality Economic Stimulus Funding
By Cassie N. Aw-yang
April 7, 2009
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.
First District Court of Appeal Holds That Fee Elections Must Be Conducted by Secret Ballot
By Nicholas A. Jacobs
March 24, 2009
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.
Three New Lawsuits Challenge Limitations on Delta Pumping
By Eric W. Davis
March 24, 2009
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.
9th Circuit Upholds NMFS Policy on Considering Hatchery-Spawned Fish in ESA Listing Decisions
By Brian D. Poulsen
March 24, 2009
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).
State Water Board Denies Temporary Urgency Change Petition to Relax February Delta Outflow Objectives for the Projects
By Somach Simmons & Dunn
March 10, 2009
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.
Proposed Legislation Focuses on Water Reuse, Salinity and Mandatory Minimum Penalties
By Cassie N. Aw-yang
March 10, 2009
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. Federal Circuit Court Finds That the Federal Government Must Pay Water District to Divert Surface Water to Benefit Endangered Fish
By Jacqueline L. McDonald
March 10, 2009
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. State Water Board Adopts Recycled Water Policy for Landscape Irrigation and Groundwater Recharge Reuse Projects
By Cassie N. Aw-yang
February 24, 2009
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.
Oregon Supreme Court to Decide Questions of Water Rights in "Takings" Case
By Brian D. Poulsen
February 24, 2009
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.
Little Hoover Commission Report Calls for Structural and Policy Changes to the State Water Board System
By Roberta L. Larson
February 9, 2009
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.”
SB 375: California Thinks Globally and Acts Regionally on Land Use Policy
By Eric W. Davis
February 3, 2009
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.
Delta Vision Committee Issues Its Implementation Report to the Governor
By Brian D. Poulsen
January 2009
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.
State Water Board Continues Process to Develop Statewide Recycled Water Permit by July 31, 2009
By Cassie N. Aw-yang
January 2009
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.
Court of Appeals Upholds City of Rohnert Park's Water Supply Assessment in O.W.L. Foundation, et al. v. City of Rohnert Park, et al. (2008) 168 Cal.App.4th 568
By Somach Simmons & Dunn
January 14, 2009
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).
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