Governor’s Office Moves One Step Closer to Eliminating Automobile Delay as a Significant CEQA Impact

On January 20, 2016, the Governor’s Office of Planning and Research released a revised draft of proposed new CEQA Guidelines to replace automobile congestion-based thresholds for evaluating transportation impacts with thresholds that emphasize proximity to transit and a reduction in vehicle miles traveled (VMT) on a per capita or per employee basis.

SB 743, passed by the Legislature in 2013, requires OPR to establish thresholds for measuring transportation impacts that are designed to promote the reduction of greenhouse gas emissions, the development of multimodal transportation networks, and a diversity of land uses., Further, SB 743 dictates that once the CEQA Guidelines are amended to include those new thresholds, auto delay will no longer be considered a significant impact under CEQA.  SB 743 gives OPR the option of applying the new thresholds only to certain locations near transit, or more broadly throughout the State.

OPR released its preliminary discussion draft of the Guidelines amendments in August 2014. The initial draft applied the new thresholds broadly, and focused generally on an assessment whether a project would result in VMT that would exceed regional averages. The initial draft also suggested thresholds for measuring significance based on proximity to certain types of transit stops and lines.

In the updated recommendations released on January 20, the proposed Guidelines continue to apply a new VMT-based approach to all areas of the State.  Agencies would have a two-year period to transition to the new VMT-based approach.  Further, as under the initial draft, once this transition period ends, automobile delay could no longer be considered a significant adverse effect under CEQA.

The updated recommendations also continue to include a presumption that development projects located within one-half mile of either an existing major transit stop or a stop along an existing high quality transit corridor may be presumed to cause a less than significant.

A key difference between the newly proposed Guidelines and the initial draft is that the Guidelines themselves do not set forth specific standards to assess whether a project’s effect on VMT is a significant adverse impact. Much of the detail is now found in a Technical Advisory. The Advisory recommends thresholds for specific types of land uses, including the following:

  • Residential: A project exceeding both existing city household VMT per capita minus 15 percent, and existing regional household VMT per capita minus 15 percent, may indicate a significant transportation impact.
  • Office: A project exceeding a level of 15 percent below existing regional VMT per employee may indicate a significant transportation impact.
  • Retail: A net increase in total VMT may indicate a significant transportation impact. Further, “Lead agencies should usually analyze the effects of a retail project by assessing the change in total VMT, because a retail projects typically re-route travel from other retail destinations.”
  • Mixed Use: Lead agencies can evaluate each component of a mixed-use project independently, and apply the significance threshold for each project type included (e.g. residential and retail). In the analysis of each use, a project may take credit for internal capture.

In addition, the Technical Advisory suggests that screening thresholds could be used to determine whether additional quantitative analysis is needed.  Agencies could determine not to conduct additional analysis for projects that generate fewer trips than the threshold for studying consistency with a congestion management plan (typically 100 trips). Further,  agencies may create maps that identify low-VMT areas and presume that projects in those areas that incorporate features similar to the existing low-VMT development will tend to exhibit similarly low VMT.

The Technical Advisory also contains extensive advice about analyzing VMT associated with roadway improvement projects, and about analyzing roadway safety impacts. Finally, the Technical Advisory proposes a list of potential mitigation measures for reducing vehicle trips and mileage.

The deadline for comments on the proposed new Guidelines is February 29, 2016 at 5:00 PM.  OPR has scheduled informational webinars on February 1 and 9, both from 3 to 5 p.m.  More information is available on the OPR website.

Agency’s CEQA Analysis Must Consider the Project’s Long-Term Impacts

The Third Appellate District’s opinion in North Coast Rivers Alliance v. A.G. Kawamura (January 4, 2016) has left some practitioners scratching their heads trying to decipher the court’s holdings regarding CEQA requirements for projects that might continue operating past their initial termination date, project objectives, alternatives and cumulative impacts.

The California Department of Food and Agriculture prepared a program EIR for a seven-year program to eradicate the light brown apple moth, an invasive pest. The EIR determined that because an alternative of controlling the moth would not achieve the project objective of eradicating the moth, a control program would not be studied.

After the EIR was completed the USDA advised that the moth infestation had spread to such an extent that eradication was no longer feasible. The Department then approved a seven-year control program, based on the program EIR, finding the control program would use the same methods as were proposed for the eradication program, but to a lesser degree, resulting in lesser impacts.

The cities of Albany, Berkeley, Richmond and San Francisco, together with environmental organizations and anti-spray groups sued, challenging the Department’s approval on CEQA grounds. The appellate court agreed with several of their claims.

Fundamentally, the court found that the Department failed to evaluate the ongoing long-term impacts of the control program, in light of the EIR’s concession that a control program “would have to go on forever.” Because of these EIR statements, the court rejected the Department’s argument that it would be speculative to assume the control program would continue after the initial seven-year period.

As might be expected, the petitioners had argued that the Department’s approach amounted to unlawful piecemeal review of the first stage of an activity that would continue to operate over an indefinite period of time, but the court did not rule on that ground. Somewhat surprisingly, it instead identified a CEQA violation due to the Department’s reluctance to promise to prepare another EIR in the future. The court acknowledged that CEQA sometimes allows use of an earlier EIR for later activities, making it unnecessary to prepare a further EIR. The court, however, did not consider whether that rule could be applied to the control program, concluding that despite the possibility a new EIR might be prepared for the continuation of control activities after seven years, the EIR violated CEQA because it did not examine the impacts of those later activities.

The court also held that the EIR failed to address a reasonable range of alternatives. It did not discuss whether the alternatives that were considered – amounting essentially to a menu of potential methods of eradicating the moth and a no project alternative – comprised too narrow a range. In a novel ruling, it concluded that CEQA required study of a specific alternative that might have greater impacts than the proposed project — a never-ending control program.

The court then discussed whether the failure to study this alternative amounted to prejudicial error. To assess prejudice, it impliedly raised a question whether recirculation was required to address the impacts of a control program alternative. It cited case law to the effect that recirculation is only required when new significant information is added after circulation of a Draft EIR. The court, however, concluded that the new information “was clearly significant,” because it caused the Department “to change the program.”

The court labelled as “supposition” the Department’s reasoning that a control program would have lower impacts than an eradication program because it would employ the same measures but to a lesser degree. Noting that the record “supports an opposing inference” because a control program would need to go on forever, the court concluded that the EIR’s failure to study a control program left the record devoid of evidence to resolve the dispute. The court concluded that, as a result, there was no substantial evidence in the Department’s record sufficient to support its determination the new information was not significant.

CEQA YEAR IN REVIEW 2015

A Summary of Published Appellate Opinions Under the California Environmental Quality Act

In 2015, the California appellate courts continued to chart new ground as they grappled with some of CEQA’s most difficult and controversial questions. The  Supreme Court of California led the way, issuing four opinions on hotly contested issues. For the first time, the court addressed the problematic question of what thresholds of significance should be used to measure the significance of greenhouse gas emissions. In a decision that likely pleased few, the court blessed consistency with AB 32’s emissions reduction goal as an appropriate standard, but provided little guidance on how agencies might show consistency for specific projects. On the other hand, the court issued two decisions that place reasonable, common-sense limits on CEQA’s reach. In one decision, the court set constraints on the ability of project opponents to contest categorical exemption determinations by asserting that significant impacts will occur due to unusual circumstances. In the other, the court put an end to the counter-intuitive but persistent argument that CEQA extends beyond a project’s effects on the environment to require review of the environment’s effects on the project. In its final decision, the court held that a state university cannot use the legislature’s failure to appropriate earmarked funds as an excuse to avoid adopting mitigation measures for off-site impacts, but did not decide when a public agency can reject a proposed mitigation measure as infeasible due to budgetary constraints.

The year was also notable for the number of opinions dealing with CEQA exemptions. Two cases upheld categorical exemptions, applying the standards set by the supreme court in its decision on the unusual circumstances exception. In three others, the courts overturned the agency’s exemption determination, ruling in one case that the agency had interpreted the exemption too broadly, and in the others that the agency had failed to point to evidence in the record of its proceedings sufficient to show the exemption applied.

Seven court of appeal decisions addressed EIR adequacy, and upheld the EIR in every case. The proper baseline for analyzing impacts was an important theme, with the courts making it clear that a lead agency has broad discretion to set a baseline that reflects historical conditions occurring well before CEQA review starts. In another precedent-setting decision, a court held that an increased demand for emergency services due to a project is not an environmental impact that triggers CEQA’s mitigation requirements. The use and benefits of program EIRs also received significant attention in opinions recognizing that agencies may use program EIRs to defer evaluation of project-specific impacts and mitigation strategies to a later stage of approval when the information necessary for a detailed analysis becomes available. Finally, in what may prove to be one of the year’s most influential decisions, a court disapproved the practice of besieging the lead agency with burdensome comments on a draft EIR in order to stymie the EIR process, emphasizing that the purpose of comments should be to improve the EIR, and that the opportunity to comment should not be used as a means to wear out the lead agency.

READ THE FULL REPORT

CEQA Year in Review 3

CEQA Requires An Analysis Of The Project’s Impacts On The Environment, Not The Environment’s Impacts On The Project; California Supreme Court Sets Clear Limits On CEQA’s Reach

CEQA generally does not require that public agencies analyze the impact existing environmental conditions might have on a project’s future users or residents, according to the California Supreme Court’s decision in California Building Industry Association v Bay Area Air Quality Management District (S213478, December 17, 2015).  An agency must analyze how environmental conditions might adversely affect a project’s residents or users only where the project itself might worsen existing environmental hazards in a way that will adversely affect them, or if one of the provisions of CEQA which require such an analysis for certain airport, school, and housing projects applies.

Background. The California Building Industry Association, along with other organizations interested in the development of infill housing, objected to certain CEQA thresholds of significance proposed for adoption by the Bay Area Air Quality Management District. Their key concern was that the thresholds would impede development of infill housing by making an EIR necessary virtually any time future residents might be adversely affected by existing air pollution. CBIA filed a legal challenge after the thresholds were adopted, arguing that CEQA does not require an analysis of the impacts that existing environmental conditions might have on a new project’s occupants.

An analysis of the environment’s impact on a project’s users or residents is generally not required. A central issue before the supreme court was the validity of a provision of the CEQA Guidelines that indicates that CEQA requires an evaluation of existing environmental conditions at the site of a proposed project that might cause significant adverse impacts to future residents or users of the project. The District contended that CEQA’s references to a project’s effects on people imply that such analysis was required. The supreme court disagreed, concluding that in light of CEQA’s text, structure and purpose, a general requirement for an analysis of how existing environmental conditions will affect a project’s future users or residents would improperly expand the scope of the statute and add significantly to the burdens of compliance. As the court put it: “Given the sometimes costly nature of the analysis required under CEQA when an EIR is required, such an expansion would tend to complicate a variety of residential, commercial, and other projects beyond what a fair reading of the statute would support.”

An analysis of whether a project may exacerbate existing environmental hazards is required. While there is no general requirement in CEQA that the environment’s effects on a project be evaluated, CEQA does mandate that an analysis of a project’s impacts consider whether the project might cause existing environmental hazards to get worse. The court accordingly upheld language in the Guidelines which require an analysis of any significant effects on the environment a project might cause by bringing development and people into an area or by locating development in areas susceptible to hazardous conditions. “Because this type of inquiry still focuses on the project’s impacts on the environment — how a project might worsen existing conditions — directing an agency to evaluate how such worsened conditions could affect a project‘s future users or residents is entirely consistent with this focus and with CEQA as a whole.”

Several statutory exceptions to the general rule require an analysis of impacts to project users or residents in specific situations. The court also discussed several provisions of CEQA that require an analysis of the adverse effects of existing environmental conditions on persons who will occupy or use a project site. These statutes address certain airport and school construction projects, and the applicability of certain CEQA exemptions to specified types of housing development projects. The court emphasized, however, that “these statutes constitute specific exceptions to CEQA‘s general rule requiring consideration only of a project‘s effect on the environment, not the environment‘s effects on project users”

Perkins Coie attorneys Geoff Robinson and Steve Kostka represented a coalition of organizations interested in the development of infill housing together with various industry groups who participated in the case as Amici Curiae.

 

Court Rebuffs CEQA Challenge to Subway Tunnel Under Beverly Hills High

Beverly Hills and its school district have failed to persuade the court of appeal to block construction of a subway line beneath Beverly Hills High School. Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority, 241 Cal. App. 4th 627 (2015). The court upheld the CEQA analysis for the project against claims that significant new information had been disclosed relating to the viability of alternatives, and that localized air pollution and public health impacts had not been adequately studied.

The Los Angeles County Metropolitan Transportation Authority prepared and certified an environmental impact statement/environmental impact report for extension of Metro’s subway system to the Westside of Los Angeles. The EIS/EIR studied two alternative location options for a Century City station and recommended locating the station at Constellation Boulevard and Avenue of the Stars. Metro approved the subway project with the Constellation station location and a related tunnel alignment beneath the high school. The City and the school district consistently objected to the tunnel location and filed petitions for writ of mandate following Metro’s approval.

The court rejected two CEQA claims the City and/or the school district raised against the project. First, the court held that Metro was not required to prepare and recirculate a new draft EIS/EIR for public comment after introducing in the final EIS/EIR new information in the form of a fault investigation and tunnel safety reports. The court found that the new information “merely confirmed” that the alternative Century City station location was not viable due to a potential seismic hazard, and “also confirmed and expanded upon the draft EIS/EIR’s analysis of the potential environmental impacts from the Constellation station.” Contrary to the plaintiffs’ claims, the draft EIS/EIR fully evaluated both station options and addressed environmental issues arising from tunneling. The court also held that Metro did not trigger an obligation to recirculate by issuing an addendum to the final EIS/EIR that revised reported air quality impacts.

Second, the court upheld the EIS/EIR’s air quality analysis, concluding that CEQA did not require an assessment of localized air pollution and public health impacts from the project’s construction. The court determined that Metro was not required to analyze air quality impacts against localized significance thresholds, given that the agency analyzed the impacts against thresholds established by the regional air quality management district. Similarly, the EIS/EIR appropriately included a technical report that identified potential adverse health effects from exposure to identified pollutants from construction emissions; the document did not also need to include “an analysis showing how the actual construction emissions will specifically impact public health.”

Additionally, the court of appeal rejected non-CEQA claims raised by the City, concluding that Metro did not violate Public Utilities Code statutes when conducting a transit hearing requested by the City, the City received a full and fair hearing, and substantial evidence supported Metro’s decision and findings of fact.

 

Complex New Requirements for CEQA Analysis of Greenhouse Gas Emissions Set by Supreme Court

Newhall Ranch, a proposed mega-development in Los Angeles County, can’t seem to catch a break: besieged by setbacks since Newhall Land first filed an application to develop the land in 1994, the project has been the subject of over twenty-one public hearings and several law suits over its more than twenty year history. In Center for Biological Diversity v. California Department of Fish and Wildlife, the California Supreme Court dealt the project yet another blow, finding that the Department of Fish and Wildlife’s environmental impact report on two natural resource plans for the development violated CEQA.

While the County had already approved the land use plan for the development in 2003, DFW approval of resource plans and permits were still required.  DFW and the Army Corps of Engineers prepared a new environmental document, a joint EIS/EIR, for the resource plans.

The California Supreme Court invalidated DFW’s CEQA review, deciding that standard of significance used in the EIS/EIR’s analysis of Greenhouse Gas emissions was not supported by sufficient evidence and that mitigation measures calling for capture and relocation of a fully protected species were invalid. The Court’s ruling, especially its treatment of goals for statewide emissions reductions that were developed to implement A.B. 32, the Global Warming Solutions Act of 2006, will likely have a major long-term impact on environmental reviews for proposed projects throughout California.

Analysis of Greenhouse Gas Emissions

DFW analyzed GHG emissions using consistency with A.B. 32 emissions reductions goals as the standard of significance, using the 29 percent below “business as usual” target set out in the Air Board’s 2008 Scoping Plan as the measure of consistency. The EIR/EIS concluded that because the development’s GHG emissions would be 31 percent below the business as usual estimates for the project, it exceeded the statewide goal set out in the Scoping Plan, and would therefore not result in any significant GHG impacts.

The Court approved of DFW’s use of consistency with A.B. 32 and the Scoping Plan as a standard of significance. Under the Court’s reasoning, agencies may show that a project would have no significant impact on GHG emissions by demonstrating that the project will not interfere with attainment of the Scoping Plan’s goal that GHG emissions statewide be reduced by 29 percent from business as usual.

The court ruled, however, that the EIR had not adequately established the project’s consistency with the Scoping Plan.  Disagreeing with the approach that has become standard practice,  the Court ruled that that showing a “project-level reduction” that meets or exceeds the Scoping Plan’s overall statewide GHG reduction goal is not necessarily sufficient to show that the project’s GHG impacts will be adequately mitigated: “the Scoping Plan nowhere related that statewide level of reduction effort to the percentage of reduction that would or should be required from individual projects, and nothing … in the administrative record indicates the required percentage reduction from business as usual is the same for an individual project as for the entire state population and economy.”

According to the court, an EIR cannot simply assume that the overall level of effort required to achieve the statewide goal for emissions reductions will suffice for a specific project.

The Court indicated that “methods for complying with CEQA do exist” and briefly described a number of “potential options”  for compliance.  The Court noted, for instance, that an agency might be able to determine what level of reduction from business as usual is required for an individual project based on an examination of the data behind the Scoping Plan’s model.  As another option it noted that agencies might resort to numerical thresholds for analysis of the significance of greenhouse gas emissions.  The court, however, did not give any guidance on how these and the other  options it identified might be implemented, and  warned that the “potential pathways to compliance” it referred to may not be “sufficient to satisfy CEQA’s demands as to any particular project.”   As a result, the decision raises many more questions than it answers. 

Capture and Relocation Mitigation

DFW adopted numerous biological impact mitigation measures for the project, including measures that provided for collection and relocation of the unarmored threespine stickleback, a fully protected species. The Court acknowledged that DFW may conduct capture and relocation of the stickleback as a “conservation measure to protect the fish and aid in its recovery,” but held that an agency “may not rely in a CEQA document on the prospect of capture and relocation as mitigating a project’s adverse impacts.”

The Court reasoned that Fish and Game Code section 5515 prohibits “taking” a fully protected species, and that actions to capture and relocate must be considered a taking given the statutory language, structure, and history.

OPR Issues Discussion Draft of Proposed Changes to Appendix G of the CEQA Guidelines to Incorporate Tribal Cultural Resources

The Governor’s Office of Planning and Research (OPR) has announced the availability of a discussion draft of proposed changes to Appendix G of the CEQA Guidelines incorporating tribal cultural resources, pursuant to Assembly Bill 52. (For more on AB 52, see our web report here). The discussion draft, available here, provides background on AB 52 and Appendix G, an explanation of the three alternatives put forth as draft questions about tribal cultural resources for inclusion in the initial study form, and information about effective public comment.

  • AB 52: AB 52 went into effect in July 2015 and establishes tribal cultural resources as a new category of resources under CEQA. AB 52 also creates a process for consultation with California Native American Tribes in the CEQA process. Under the new law, tribal governments may request consultation with a lead agency and give input into potential impacts to tribal cultural resources. The Public Resources Code now requires avoiding damage to tribal cultural resources or mitigating impacts to the extent feasible. Additional information about AB 52 is available in OPR’s Draft Technical Advisory issued in May 2015.
  • Appendix G: Appendix G in the CEQA Guidelines contains a sample initial study form, the purpose of which is to assist lead agencies in determining whether a project may cause a significant impact on the environment. Appendix G asks a series of questions regarding a range of environmental resources and potential impacts. As a result of AB 52, the sample environmental checklist form must be revised to include questions about tribal cultural resources.
  • Three Alternatives: The discussion draft presents three alternative sets of draft Appendix G questions regarding tribal cultural resources. OPR drafted the alternatives following intensive outreach to California Native American Tribes, local governments, CEQA practitioners, and others. OPR now seeks further public input on the three alternatives, which vary as to the amount of detail:
    • Alternative 1 is minimal and merely cites to the definition of tribal cultural resources in the Public Resources Code.
    • Alternative 2 paraphrases the definition of tribal cultural resources, rather than simply providing a citation to the Public Resources Code.
    • Alternative 3 is the most detailed. It creates a new section of Appendix G, titled Tribal Cultural Resources, and it includes introductory language for context, similar to the agricultural resources and air quality sections of Appendix G.

Comments on the discussion draft are due on December 18, 2015, and OPR will host a public workshop in Sacramento on December 11, 2015.

Historical Level Of Use May Serve As CEQA Baseline For Replacement Of Vacant Building

The California Court of Appeal’s Fourth Appellate District’s recent decision, North County Advocates v. City of Carlsbad is a potentially major decision on the issue of using historical levels of operations as the baseline for gauging the environmental impacts of a proposed project under CEQA. In this case, which concerned renovation of a large Westfield shopping center in Carlsbad, the court upheld the city’s use of a traffic baseline that assumed an existing department store building was fully occupied, even though the store had been vacant for almost six years at the time the draft EIR was released. North County Advocates v. City of Carlsbad, Fourth Dist., First Div., Oct 9. 2015.

Background

The shopping center Westfield sought to renovate was built in 1969, with five anchor department store buildings and numerous smaller retail shops, including a now-vacant Robinsons-May department store. Under the terms of an existing precise plan for the shopping center, Westfield was entitled to renovate the interior of the former Robinsons-May store and fully occupy it without obtaining discretionary approvals from the city. The development plan the city approved for renovation of the center, however, included the demolition and reconstruction of the former Robinsons-May store.o

City’s Analysis

In its analysis of traffic impacts, the city’s EIR, completed in 2012, assumed full-occupancy of the former Robinsons-May store, which had been vacant since 2006, three years before the city began work on the EIR. The EIR and supporting documents explained this baseline was appropriate because the “nature of a shopping center is that tenants change and the amount of occupied space constantly fluctuates” and that portions of the space are periodically occupied with temporary uses. The EIR also noted that the new building would not increase the square footage allowed under the precise plan and that the vacant space could be reoccupied at any time without further discretionary action. It also pointed out that the full occupancy assumption comports with SANDAG’s regional traffic modeling methodology, which assumes full occupancy of all entitled square footage. Continue Reading

Losing Plaintiff Cannot Recover Legal Fees

Commenting that “we have not found a threat of victory in this record,” the court of appeal ruled against a citizens’ group that brought a motion for attorneys’ fees after losing a CEQA challenge in the trial court. Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa, 238 Cal. App. 4th 513 (2015).

In 2005, Target entered into a contract to purchase land for a shopping center. The City Council approved the shopping center project in October 2007 based on an EIR. Later that same month, Target sued to force the property owner to complete the land sale. Plaintiff, a citizens’ group, then filed this action challenging the project entitlements under CEQA. Target defended the action on the City’s behalf pursuant to an indemnity requirement in its conditions of approval. The trial court ruled against the plaintiff. While plaintiff’s appeal was pending, Target abandoned the project and withdrew its defense of the City. The City then revoked the shopping center entitlements, rendering the appeal moot.DSCN6760-Piotr-Andzel

Plaintiff sought attorneys’ fees, claiming that its CEQA lawsuit, and specifically its appeal from the trial court’s judgment, was the “catalyst” that motivated the City to revoke the entitlements. The appellate court had no difficulty concluding otherwise. Citing City Council hearing minutes indicating that the entitlements were revoked because Target had breached the indemnity condition of approval, the court determined that the City “did not revoke the entitlements for any reason related to the EIR or any violation of CEQA.” Consistent with prior decisions and common sense, the court held that the “fact that [plaintiff] filed an appeal from the adverse judgment did not convert the action into a meritorious one under the catalyst theory.”

Court of Appeals Issues Nationwide Stay of New Clean Water Act Rules

A federal court of appeals has blocked implementation of new Clean Water Act rules adopted by the EPA and Army Corps of Engineers. U.S. Environmental Protection Agency v. Ohio et. al., No. 15-3751 (6th Cir. Oct. 9, 2015).  In issuing the stay pending full consideration of the case, the court concluded there was a substantial possibility that the challenge to the new rule would succeed on the merits. The court found the new rule’s definitions of “tributaries,” “adjacent” waters and “significant nexus” to navigable waters to be inconsistent with the U.S. Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006).  The court also observed that the rule-making process leading to adoption of the new rules likely was not conducted in accordance with the Administrative Procedure Act, 5 U.S.C. § 551 et. seq. The court concluded that “the sheer breadth of the ripple effects caused by the [r]ules’ definitional changes counsels strongly in favor of maintaining the status quo for the time being.”

As we previously reported (see Federal Court Blocks Enforcement of New Clean Water Act Rules), a federal district court in North Dakota granted a preliminary injunction on August 27, 2015—the day before the new rules were to take effect—barring implementation of the rules in 13 states.  The stay issued by the Court of Appeals applies nationwide.  Pending the court’s decision on the merits of the new rules, the preexisting definition of “waters of the United States” will govern.  Read our full Update on the decision. For an analysis of the details and potential impact of the new Clean Water Act rules, see our June 1, 2015 Update: Controversial Clean Water Act Rule Published.

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