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California Land Use & Development Law Report Legal Commentary on Planning and Development

Category Archives: Environmental Regulation

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California Adopts Emergency Water Curtailment Regulations

Posted in Environmental Regulation, Water Supply

It is now clear that the present drought requires that there be curtailment of the exercise of some existing water rights due to the lack of sufficient surface water.  On January 17, 2014—the same day as the Governor’s Proclamation of a drought state of emergency—the State Water Resources Control Board issued a “Notice of Surface Water… Continue Reading

State Water Resources Control Board May Weigh the Use of Water for Public Purposes Against Commercial Use by Riparian Users and Early Appropriators in Determining Reasonableness of Commercial Use

Posted in Endangered Species, Environmental Regulation, Water Supply

A court of appeals, for the first time, has upheld the  State Water Resources Control Board’s authority to restrict valid pre-1914 and riparian water rights on the ground that their exercise has become an unreasonable use of water under current circumstances. While it has long been accepted that California law requires that water be put to… Continue Reading

Santa Cruz Becomes First County to Ban Fracking

Posted in Environmental Regulation, Land Use, Planning and Zoning

Santa Cruz County has become the first California county to permanently ban the controversial oil and gas drilling technique known as fracking. By a 5-0 vote, the Board of Supervisors this week amended its General Plan to prohibit all facilities for oil and gas exploration and development within the unincorporated County. The ban replaces a… Continue Reading

EPA and Army Corps of Engineers Release Proposed Rule on the Scope of Waters Covered Under the Clean Water Act

Posted in Environmental Regulation, Wetlands

On March 25, 2014, the U.S. Environmental Protection Agency and the Army Corps of Engineers jointly released a proposed rule defining waters that fall under the jurisdiction of the Clean Water Act as “waters of the United States.”  The wide sweep of the coverage afforded by the proposed rule, if finalized, would represent a significant… Continue Reading

Existing Contamination On A Development Site Does Not Necessarily Trigger Preparation Of An EIR

Posted in CEQA, Environmental Regulation

Proposals to redevelop infill sites can often present difficult issues relating to how the potential effects of preexisting contamination should be evaluated under CEQA.  In a recently published opinion, the court in Parker Shattuck Neighbors v Berkeley made it clear that, in the absence of real evidence a significant environmental impact might occur,  the fact… Continue Reading

Criminal Penalties for Bird Deaths Caused by Wind Projects

Posted in Endangered Species, Environmental Regulation

In the first criminal case ever prosecuted under the Migratory Bird Treaty Act, the U.S. Fish and Wildlife Service and Department of Justice filed misdemeanor charges against Duke Energy for more than 163 migratory bird deaths, including golden eagles, at its wind power projects near Casper, Wyoming.  On November 22, 2013, the case was resolved by… Continue Reading

Comment Periods Open on New Fracking Regulations and Scope of Statewide EIR

Posted in CEQA, Environmental Regulation

In the face of mounting public pressure to address the potential perils of hydraulic fracturing, California has embarked upon a multi-faceted program to strengthen its oil and gas regulations, perform comprehensive environmental studies, and increase public disclosure.  On November 15, 2013, the Department of Conservation published two notices seeking comments on steps it is taking to… Continue Reading

Ninth Circuit Rules that Plaintiffs Lack Standing to Compel State Agencies to Regulate Greenhouse Gas Emissions

Posted in Climate Change, Environmental Regulation

Do environmental groups have standing to sue to force state agencies to regulate greenhouse gas emissions under the Clean Air Act?  In a case decided on October 17, the Ninth Circuit said no.  Washington Environmental Councilv. Bellon, No. 12-35323 (9th Cir. Oct. 17, 2013). The plaintiffs argued that several governmental agencies in Washington State were required… Continue Reading

EPA Publishes Draft Scientific Report To Support Significant Expansion of Clean Water Act Jurisdiction

Posted in CEQA, Environmental Regulation, NEPA, Wetlands

On September 17, 2013, the Environmental Protection Agency announced the release of a draft scientific report that is widely seen as a prelude to upcoming regulations that would significantly expand federal permitting jurisdiction under the Clean Water Act. See our update for more information about the draft report, which is titled “Connectivity of Streams and… Continue Reading

Ninth Circuit Moves Low Carbon Fuel Regulations Closer to Validation

Posted in CEQA, Environmental Regulation, NEPA

Many CEQA and NEPA analyses of greenhouse gas impacts assume implementation of the Low Carbon Fuel Standard adopted by the California Air Resources Board. In a boost to the credibility of these analyses, the Ninth Circuit has dissolved a pending injunction and rejected multiple challenges to the Low Carbon Fuel Standard. Rocky Mountain Farmers Union… Continue Reading

Federal Agencies Cannot Use Consent Decrees To Adopt Stricter Regulatory Requirements, According to Ninth Circuit

Posted in Endangered Species, Environmental Regulation, Land Use

Can a district court “approve resolution of litigation involving a federal agency though a consent decree, which substantially and permanently amends regulations that the agency could only otherwise amend by complying with statutory required rulemaking procedures”?  The Ninth Circuit’s answer was no.  Conservation Northwest v. Sherman (9th Cir. Case No. 11-35729, Apr. 25, 2013).  The case… Continue Reading

Water Pollution From Utility Poles Doesn’t Violate Federal Pollution Control Laws, According to Ninth Circuit Court of Appeals

Posted in Environmental Regulation

Is rain water washing over utility poles and carrying wood preservatives into waterways the kind of pollution that violates the Clean Water Act or the Resource Conservation and Recovery Act? No, according to a recent decision by the federal Ninth Circuit Court of Appeals: There is no Clean Water Act violation because the pollution discharge… Continue Reading

County Biosolids Ban Halted

Posted in Environmental Regulation, Land Use

In 2006, the voters of Kern County adopted “Measure E,” an initiative which sought to prohibit the use of agricultural fertilizer made from recycled municipal sewage sludge.  Land application of this material, referred to in the industry as “biosolids,” is a widespread and comprehensively regulated form of recycling.  Many local waste management systems depend on… Continue Reading

NPDES Permit Not Required for Stormwater Discharges from Logging Roads, Supreme Court Rules

Posted in Environmental Regulation

Do the Clean Water Act and its implementing regulations require permits before stormwater runoff from logging roads can be discharged into the navigable waters of the United States?  No, said the Supreme Court in its March 20th decision, reversing the Ninth Circuit’s decision in Northwest Environmental Defense Center v. Brown. The high court reaffirmed that… Continue Reading

Definition of “Agency Action” under the Endangered Species Act to be Reheard by Ninth Circuit

Posted in Endangered Species, Environmental Regulation, Water Supply

In July 2012, a three-judge panel of the Ninth Circuit ruled in Natural Resources Defense Council v. Salazar, 686 F.3d 1092 (9th Cir. 2012),  that the decision by the U.S. Bureau of Reclamation to renew a series of water service contracts in connection with the Central Valley Project did not constitute “agency action” under the Endangered… Continue Reading

CEQ Issues Handbooks on Coordinating NEPA Review with Review Under CEQA and Review Under the Historic Preservation Act

Posted in CEQA, Environmental Regulation, NEPA

On March 5, 2013, the Council on Environmental Quality released a handbook intended to help agencies and practitioners coordinate environmental reviews under the National Environmental Policy Act with overlapping review requirements under the California Environmental Quality Act.  It also released a separate handbook on coordination of review under NEPA and the National Historic Preservation Act. Neither handbook makes new… Continue Reading

New Forest Service Roadless Rule Upheld

Posted in Environmental Regulation, NEPA

The Ninth Circuit Court of Appeals has rejected environmentalists’ challenges to a new “roadless rule” governing federal lands in Idaho.  In Jayne v. Sherman, the court found the U.S. Forest Service followed an inclusive, thorough, and transparent process and that its approval of the new rule did not violate the Endangered Species Act or NEPA…. Continue Reading

Flow of Polluted Water from Lined to Unlined Section of River Doesn’t Constitute “Discharge of a Pollutant”

Posted in Environmental Regulation, Water Supply

The U.S. Supreme Court has reversed a Ninth Circuit Court of Appeals opinion that the flow of polluted water from a concrete channel to an unlined section of the same river constituted a “discharge of pollutants.”  Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, Inc. Environmental organizations sued the Los Angeles County… Continue Reading

Water Discharge Permit for Dairies Invalidated Under State’s Antidegradation Policy

Posted in Environmental Regulation, Land Use

In 2007, after decades of allowing most dairies in the Central Valley Region to operate without a water quality discharge permit, the Central Valley Regional Water Quality Control Board issued a general, region-wide permit regulating wastewater discharges from existing diaries.  Environmental groups sued, claiming the permit’s protections for groundwater were inadequate.  The court of appeal… Continue Reading

California Court Sidesteps Jurisdictional Question Under The Clean Water Act

Posted in Environmental Regulation, Wetlands

Since the U.S. Supreme Court decided the Rapanos case in 2006, federal courts have grappled with the question of what qualifies under the Clean Water Act as “waters of the United States.”  Last week in Garland v. Central Valley Regional Water Quality Control Board, a California court sidestepped the question.  The Regional Board issued an… Continue Reading

Court Upholds “Tributary Rule” But Leaves Open the Possibility of a Future Challenge

Posted in Environmental Regulation

Background – Basins Plans, Beneficial Uses & the “Tributary Rule” The California Regional Water Quality Control Boards establish water quality standards under the Clean Water Act through the adoption of Basin Plans that identify the “beneficial uses” of the water bodies with their respective jurisdictions.  The problem is that it is not possible for the… Continue Reading

Ninth Circuit Upholds Fish & Wildlife Service Regulations Against Environmentalists’ Challenge

Posted in Endangered Species, Environmental Regulation, NEPA

The Chukchi Sea off the North Slope of Alaska is a promising place for oil and gas development.  But it’s also home to polar bears and walruses.  This clash of interests led to a lawsuit by two environmental groups against the Fish & Wildlife Service, decided by the Ninth Circuit in the Service’s – and… Continue Reading

The Ninth Circuit Interprets “Agency Action” under the Endangered Species Act – Again

Posted in Endangered Species, Environmental Regulation

On July 17, 2012, a three-judge panel of the Ninth Circuit ruled in Natural Resources Defense Council v. Salazar that the U.S. Bureau of Reclamation’s renewal of water delivery contracts with senior priority water rights holders was not “agency action” under section 7 of the Endangered Species Act. The panel held that because the Bureau… Continue Reading