Best Best & Krieger News Feed

California State Water Board Extends Public Comment Period for Wetlands Policy; New Permits Likely to be Required

27 Jul 2016 00:00:00 -0800

The State Water Board recently held a public hearing on controversial proposed amendments to the California Ocean Plan and the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries of California (ISWEBE Plan). The discussion focused on whether to include new permitting procedures for discharges of dredged or fill materials to waters of the State (formerly known as the Wetlands Policy). The proposed procedures provide a definition of “wetland,” wetland delineation procedures, and application procedures for those seeking to impact many types of water around the State.

The procedures are intended to accomplish several objectives:

extend protection to waters of the State that are purportedly no longer protected by the Clean Water Act due to recent U.S. Supreme Court decisions;
address inconsistencies in regional Water Board requirements for discharges of dredged or fill material into waters of the State; and
prevent the loss of California wetlands.

Common concerns among stakeholders opposing the procedures are jurisdictional uncertainties created by the wetland definition and potentially duplicative or conflicting application requirements under federal and state dredge and fill permit processes.

Due to numerous requests from a variety of stakeholders, the State Water Board extended the deadline for written comments on the proposed amendments and Draft Staff Report from Aug. 4 to noon on Aug. 18.

For more information on the draft regulations and the comment process, please contact one of the authors of this Legal Alert listed at the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

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Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Considerations for Wetlands Practitioners

03 Mar 2016 00:00:00 -0800

Best Best & Krieger LLP attorney Gary Schons will present "Consideration for Wetlands Practitioners" during CLE International's conference "California Wetlands: Permitting, Mitigation & More."

When
Thursday, March 3
1:30 - 2:30 p.m.

Where
Hotel Nikko
222 Mason St.
San Francisco, CA 94102

California Land Use Law & Policy

09 Mar 2015 00:00:00 -0800

BB&K Partner Michelle Ouellette co-chairs and BB&K co-sponsors this two-day conference, which also features several BB&K speakers. The economy has improved much throughout 2014 and is expected to continue to improve into 2015. Private development and municipal redevelopment is back. Private counsel, federal, state and municipal counsel, and land use consultants need to be ready to address the pent-up demand.

Will you be ready? What are the new hurdles to private, federal, state and community development projects? Certainly climate change requirements, CEQA and related environmental requirements are in flux. And what about the newest high hurdle to clear—water supply? Even with recent heavy precipitation, the drought is far from over and water supply will likely remain a dominant hurdle to development in California.

Other issues that need to be on your land use radar screen includes large-scale habitat and conservation planning projects; species and wetlands protection; coastal development challenges; medical marijuana sales and cultivation; and the controversial practice of “ballot box” end runs around traditional land use regulation and compliance.

MCLE credit is available.

BB&K Speakers
Shawn Hagerty: “Stormwater Management and MS4 Permits — Get It Done Right the First Time”
Monday, March 9
a.m.

Charity Schiller: “Life in the Country — Not Letting Climate Change Law Compliance Serve as a Barrier to Growth”
Monday, March 9
3:15 p.m.

Jeffrey V. Dunn: “Siting Medical Marijuana Dispensaries”
Monday, March 9
4:15 p.m.

When
Monday, March 9 – Tuesday, March 10, 2015

Location
Westin Hotel, Sacramento

For see the entire program, click here. To register, click here.

Legislative Water Update

15 Jan 2015 00:00:00 -0800

A number of conversations are occurring in the U.S. House of Representatives, and between the House and the U.S. Senate (particularly Rep. David Valadao (R-Hanford, Calif.) and Sen. Dianne Feinstein (D.-Calif.)) to reintroduce a version of last year's drought legislation (H.R. 5781). The key short-term issue is providing flexibility under the Endangered Species Act, the biological opinions for the Delta Smelt and the winter run salmon. This flexibility would take the form of increased pumping at certain times of year. The two biological opinions, respectively on the smelt, from the U.S. Fish and Wildlife Service, and the salmon, from the National Marine Fisheries Service, were litigated, and the U.S. Supreme Court declined to take up the smelt case. The opinions are very prescriptive and severe about when pumping can occur from the Delta for conveyance to the South Bay, Central Coast, Central Valley and Southern California. A specific legislative solution amending the Endangered Species Act or directing how the Act would be applied in certain circumstances is likely to be extremely controversial and challenging to accomplish, so any bill will have to try to work through those constraints.The conversations also include Rep. Ken Calvert (R-Corona, Calif.), who wants to make sure that the stormwater flows can be integrated.

One of the difficulties with this new approach is that it targets only California, and does not address any issues that may be problematic for other Western states. Since California only has two senators, despite such a large population, any bill will be difficult in the Senate. A broader bill dealing with other Western issues would be more likely to succeed, since it could gain more support in the Senate. Therefore, other issues may be taken up in the context of this bill, or separately, including facilitating storage projects and expediting permitting processes.This may potentially encompass some of the provisions of the recently introduced “Water in the 21st Century Act—H.R 291,” although the funding would be problematic. Congress could provide some matching funds for state development programs. In fact, it could be that Congress will use this opportunity to develop drought legislation that applies to all Western states, including Texas.

All of these issues are being considered by the key players, including the new chairman of the House Natural Resources Committee, Rep. Rob Bishop (R-Utah), and the new chairman of the Senate Energy and Natural Resources Committee, Sen. Lisa Murkowski (R-Alaska). If a larger bill emerges, it could be an opportunity for municipalities and agencies to solve any number of problems, including funding, contracts, permitting and other legislative and regulatory matters.

BB&K’s Washington D.C. office is following these conversations closely and is available to answer any questions. For more information or to discuss any possible implications for your agency, please contact the author of this legal alert in the firm’s Government Relations Services practice group listed at the right, or your BB&K attorney.

BB&K Partner Eric Garner Named the Best Lawyers® 2015 Water Law “Lawyer of the Year” in Los Angeles

26 Sep 2014 00:00:00 -0800

LOS ANGELES, Calif. - Best Best & Krieger LLP is pleased to announce that Eric Garner was named the Best Lawyers® 2015 Water Law “Lawyer of the Year” in Los Angeles. In Best Lawyers magazine, appearing in Los Angeles newspapers today, Garner is featured among the City’s most prestigious lawyers, who were selected by their peers.

In the magazine profile, Garner discusses how he’s made water law his primary practice for 27 years, drawn to the field as early as law school because of its complexity. “I thought water law was fascinating because it was so challenging to determine whose interests should come first,” Garner said.

Garner began his legal career at BB&K, and has served as the firm’s managing partner since 2005. Best Lawyers cites the work Garner has done in litigating and negotiating key agreements involving major western U.S. water bodies, including the Santa Maria and Antelope Valley groundwater basins, as well as work he’s done internationally — such as helping South Africa rewrite its water laws after apartheid.

He told Best Lawyers his success is a testament to the mentors he’s had over the years. “From working with brilliant lawyers, I’ve learned that being creative is perhaps the most important part of resolving disputes in this area,” Garner said.

“Only a single lawyer in each practice area and designated metropolitan area is honored as ‘Lawyer of the Year,’ making this accolade particularly significant,” according to Best Lawyers.

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Best Best & Krieger’s Water Rights practice area is a nationally recognized force in water law since James Krieger’s significant role in implementing the State Water Project. As general counsel to water providers, BB&K represents dozens of public agencies that serve water to more than 21 million people, in addition to countless developer, agricultural and manufacturing clients. We regularly advise public agency and private clients on all aspects regarding allocation of scarce water supplies. For more information, visit www.bbklaw.com or follow @BBKlaw or @BBKEricGarner on Twitter.

Legislature Adopts Historic Sustainable Groundwater Management Act

29 Aug 2014 00:00:00 -0800

On Friday night, the California Legislature adopted a lawmaking package, including Senate Bills 1168 and 1319 and Assembly Bill 1739, and the bills are now awaiting Gov. Jerry Brown’s signature. Once signed, the bills would establish the Sustainable Groundwater Management Act and comprehensively regulate groundwater for the first time in California’s history. In light of the ongoing drought, the Act intends to provide local and regional agencies with the authority to sustainably manage groundwater basins within their respective jurisdictions.

To do so, the Act requires that all high and medium priority groundwater basins, as characterized by the Department of Water Resources, be governed by one or more groundwater sustainability agencies by June 30, 2017. Counties will be presumed to be the groundwater sustainability agency for unmanaged areas. Groundwater sustainability agencies for all high and medium priority basins must adopt a groundwater sustainability plan by Jan. 31, 2022. For basins subject to critical overdraft conditions, the plan must be adopted by Jan. 31, 2020.

Groundwater sustainability plans must include long-term planning, objectives and goals to achieve basin sustainability within 20 years of plan implementation. Upon adoption of a groundwater sustainability plan, the groundwater sustainability agency must submit an annual report to the Department of Water Resources of groundwater data for the basin, including elevation, aggregate extraction, water usage and any changes in groundwater storage to monitor progress toward this sustainability goal.

The Act will impose a number of new requirements on public agencies related to groundwater management and provides avenues for state intervention when local agencies are unwilling or unable to manage the state’s groundwater basins. With more than 100 years of experience representing public agencies, and its national reputation on water and environmental issues, BB&K is equipped to handle all issues for complying with these new legal requirements. Among other areas, BB&K attorneys have extensive experience in the following:

Water Rights/Water Usage/Water Supply Planning: Groundwater sustainability agencies have the power to regulate, limit or suspend water extractions from the basin. BB&K has extensive experience with the exercising of water rights and assisting water supply agencies with contingency planning.
General Plan Adoption/Amendment: The substantial amendment or adoption of a general plan must consider any adopted groundwater sustainability plan. As experts on general plan issues, BB&K can assist with integrating the review and requirements of those plans with the general plan process.
Joint Powers Authorities/Agreements: A groundwater sustainability agency can consist of multiple local agencies. Particularly, where groundwater basins underlie more than one county, coordination and potential exercise of joint powers may be necessary.
Negotiation/Mediation: The Act does not include guidance for resolving disputes amongt agencies who may wish to form a groundwater sustainability agency. Additionally, the Act provides that it can apply to Native American Tribes to the extent permitted by law. Thus, negotiating and handling outreach amongt multiple agencies/entities may be crucial.
Validation Actions/Administrative Writ Litigation: The Act would allow groundwater sustainability plans to be verified via validation action. Unless the validation statutes are relied upon, the Act also provides that agency actions may be challenged via petition for a writ of administrative mandate.
Imposing Fees/Fines and Enforcement Actions: Groundwater sustainability agencies are given the authority to impose fees, and also to impose fines and to undertake enforcement proceedings for violations of groundwater sustainability plans. BB&K attorneys have expertise in the process and requirements for such actions, including the applicability of Proposition 218.
Inspection Warrants/Property Access Agreements: The Act requires agencies to conduct baseline studies of groundwater conditions, requiring access to lands overlying the basin.
Open Meeting/Public Hearing/Notice Requirements: The Act would impose a variety of public consultation, notice, public hearing and other outreach requirements.

For more information about how the Sustainable Groundwater Management Act will affect your agency, please contact one of the attorney authors of this legal alert listed at right in the Environmental Law & Natural Resources or Special Districts practice groups, or your BB&K attorney.

EPA Issues Proposed Rule Interpreting Jurisdictional Reach of Clean Water Act

21 Apr 2014 00:00:00 -0800

The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) formally issued a Proposed Rule today designed to clarify their regulatory jurisdiction under the Clean Water Act. The Proposed Rule will potentially expand EPA and Corps jurisdiction to reach a far greater number of lands, drainage systems and development projects than are currently regulated under the Clean Water Act. Comments on the Proposed Rule are due by July 21 and can be filed electronically here. Best Best & Krieger is assembling a coalition of local governments and special districts to offer operational insights on the Proposed Rule. See our previous legal alert on the Proposed Rule.

An expansion of Clean Water Act jurisdiction would make an increased number of projects and activities subject to the Clean Water Act’s permitting requirements. These permitting requirements apply to discharges of pollutants as well as fill material and potentially impose discharge limitations, mitigation requirements and other limitations where they previously did not apply. Additionally, because Clean Water Act permits are enforceable by members of the public, any person or group who can establish standing can file a lawsuit to enforce the Act. An expansion of Clean Water Act jurisdiction will therefore result in an increased risk of litigation for those who find themselves subject to the Act.

In the Proposed Rule, the agencies are seeking comment on how they should evaluate Clean Water Act application to “other waters” and whether waters in several “ecoregions” should be evaluated individually or systemically. For questions regarding the Proposed Rule, or to join the coalition to comment on the Proposed Rule, please contact Shawn Hagerty in the firm’s Water Quality practice, or your BB&K attorney.

Waters of the US: EPA Seeks Input to Clarify Scope of Clean Water Act

04 Apr 2014 00:00:00 -0800

The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) released a Proposed Rule designed to clarify their regulatory jurisdiction under the Clean Water Act. The Proposed Rule will potentially expand EPA and Corps jurisdiction to reach a far greater number of lands, drainage systems and development projects than are currently regulated under the Clean Water Act. Best Best & Krieger is assembling a coalition of local governments and special districts to offer operational insights on the Proposed Rule.

The changes to jurisdiction in the Proposed Rule are not benign. An expansion of Clean Water Act jurisdiction means an increased number of projects and activities will be subject to the Clean Water Act’s permitting requirements. These permitting requirements apply to discharges of pollutants as well as fill material and potentially impose discharge limitations, mitigation requirements and other limitations where they previously did not apply. Additionally, because Clean Water Act permits are enforceable by members of the public, any person or group who can establish standing can file a lawsuit to enforce the Act. An expansion of Clean Water Act jurisdiction will therefore result in an increased risk of litigation for those who find themselves subject to the Act.

In the Proposed Rule, the agencies are seeking comment on how they should evaluate Clean Water Act application to “other waters” and whether waters in several “ecoregions” should be evaluated individually or systemically. Comments on the Proposed Rule are due 90 days after it is officially published in the Federal Register and can be filed electronically here.

Background

The Clean Water Act grants the EPA and the Corps regulatory authority to protect the quality of “the waters of the United States” but leaves up to the agencies to define what constitutes “the waters of the United States.” A decade in the making, the agencies developed the Proposed Rule to address regulatory uncertainty that arose from a pair of Supreme Court decisions in 2001 and 2006. In those cases, Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers and Rapanos v. United States, the Supreme Court established limits on what the EPA and the Corps can define as “waters of the United States.”

In a 5-4 decision, the Court held in SWANCC that the Corps’ use of the long controversial “migratory bird rule” (that the Clean Water Act covers waters “which are, or would be, used as habitat by... migratory birds that cross state lines”) adopted by the Corps and the EPA to interpret the reach of their section 404 authority over discharges into “isolated waters” (including isolated wetlands), exceeded the authority granted by that section. In Rapanos v. United States, a divided Court could not agree whether the reach of the Clean Water Act extended to non-navigable waters and isolated wetlands. A plurality ruled that non-navigable waters are subject to Clean Water Act regulation only if they exhibit a relatively permanent flow and that wetlands are subject to Clean Water Act regulation only if they have a continuous surface water connection to a relatively permanent water body. The lack of a clear ruling means that regulators and the courts are not divided by a clear and universal policy, with some decisions resting on other court precedent and others relying on the concurring opinion of Justice Anthony Kennedy to set regulatory parameters.

It would appear that the Proposed Rule is largely guided by Justice Kennedy’s concurring opinion and generally relies on his “significant nexus” test to define which waters are subject to Clean Water Act regulation. According to Justice Kennedy, an intermittent stream or isolated wetland has significant nexus to a navigable waterway if it, either by itself or through connections with other bodies of water, significantly affects the physical, chemical or biological integrity of a downstream navigable waterway.

The Proposed Rule specifically defines “waters of the United States” as:

All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide
All interstate waters, including interstate wetlands
The territorial seas
All impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary
All tributaries of traditional navigable water, interstate water, the territorial seas or impoundment
All waters, including wetlands, adjacent to traditional navigable water, interstate water, the territorial seas, impoundment or tributary
On a case-specific basis, other waters, including wetlands, provided those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas

The Proposed Rule would maintain the following exemptions:

Water treatment systems
Prior converted cropland
Ditches that are wholly excavated in uplands, drain only uplands and have less than perennial flow
Ditches that do not contribute flow to traditional navigable waters, interstate waters, or the territorial seas
A wide array of features, such as irrigated farmland, small ornamental waters and water-filled depressions incidental to construction work

In the Proposed Rule, the EPA and the Corps are specifically seeking comment on new definitions for:

Significant nexus
Tributary
Neighboring waters
Floodplains
Wetlands

If your agency is interested in joining the coalition to comment on the Proposed Rule and help shape the regulatory process, please contact the attorney author of this legal alert listed at right in the firm’s Water Quality practice, or your BB&K attorney.

Dischargers Can Sue Over Clean Water Act Compliance Orders

22 Mar 2012 00:00:00 -0800

The U.S. Supreme Court unanimously ruled this week that administrative compliance orders issued by the U.S. Environmental Protection Agency (EPA) under the Clean Water Act are subject to judicial review. The nation’s highest court held that the courts can review compliance orders in actions brought by those against whom the orders are directed, even though the EPA is not attempting to enforce the orders. Although the ruling in Sackett v. Environmental Protection Agency stems from a wetlands case in Idaho, it will have widespread impacts in California, where compliance orders are routinely issued.

The EPA issued an administrative compliance order directing property owners in northern Idaho—Michael and Chantell Sackett—to restore wetlands that they had filled in with rock and dirt, as part of their construction of a house on property located a short distance from Priest Lake, a navigable waterbody. Under the Clean Water Act, if the EPA issues a compliance order directing a discharger to restore a body of water and the discharger does not comply with the order, the EPA can initiate an enforcement action against the discharger in federal court for civil penalties of up to $75,000 per day ($37,500 per day for violation of the Clean Water Act and $37,500 per day for violation of the compliance order).

The Sacketts, attempting to avoid liability for substantial civil penalties for violating the compliance order, brought an action against the EPA in federal court, arguing that the compliance order is invalid because their property is not subject to the EPA’s jurisdiction under the Clean Water Act.

The Ninth Circuit Court of Appeals held that the Sacketts could not pursue their claim because the Clean Water Act precludes the courts from reviewing administrative compliance orders before the EPA attempts to enforce them, and the Due Process Clause of the U.S. Constitution does not provide for such judicial review. Under the Ninth Circuit view, a discharger cannot challenge an administrative compliance order until the EPA attempts to enforce it, and thus has no choice except to either comply with the order or risk substantial civil penalties by not complying.

The U.S. Supreme Court, in a decision written by Justice Antonin Scalia, unanimously overturned the Ninth Circuit decision. First, the Court ruled that the Administrative Procedure Act authorizes judicial review of an administrative compliance order issued under the Clean Water Act, because the order is a “final agency action” and the discharger has “no other adequate remedy,” in that the order imposes a legal obligation on the discharger to comply and subjects him to substantial civil penalties if he does not comply. Second, the Court ruled that the Clean Water Act does not preclude judicial review, because—while the Act allows the EPA to issue compliance orders as a means of quickly resolving issues through voluntary compliance—this purpose is not inconsistent with a discharger’s right to seek judicial review if he elects not to voluntarily comply. As the Court stated, the Clean Water Act is not “uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.”

If you have any questions about this ruling or how it might impact you or your agency, please contact Roderick Walston in the firm’s Environmental Law and Natural Resources practice group or your Best Best & Krieger attorney.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

State Water Board Takes Step Toward Implementing New Wetlands Regulations

01 Feb 2011 00:00:00 -0800

The State Water Resources Control Board (“State Water Board”) has taken a step toward implementing a new policy in California that would expand the state’s role in regulating wetlands no longer under the jurisdiction of the federal government. The State Water Board issued its California Environmental Quality Act (“CEQA”) Notice of Preparation related to the proposed Wetland Area Protection Policy and Dredge and Fill Regulations (the “Policy”) last month, and is currently accepting public comment on the initial study.

United States Supreme Court decisions, including Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. United States (Rapanos), limited the scope of federal jurisdiction under the Clean Water Act and excluded many California wetlands from federal regulation. According to the State Water Board, the new Policy is being considered “due to the diminishing jurisdiction of the federal government.”

Currently, the U.S. Army Corps of Engineers defines wetlands as “those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.” The State Water Board’s Policy, as proposed, would define an area as a wetland if, under normal circumstances, it:

• Is saturated by ground water or inundated by shallow surface water for a duration sufficient to cause anaerobic conditions within the upper substrate;

• Exhibits hydric substrate conditions indicative of such hydrology; and,

• Either lacks vegetation or the vegetation is dominated by hydrophytes.

At first glance, the State Water Board’s proposed definition appears to rely on the same three factors that the Army Corps has long used to distinguish wetlands from non-jurisdictional uplands: namely, wetland hydrology, wetland soils and wetland vegetation. However, the proposed State definition in the new Policy may well expand the types of wetlands that can be regulated.

Comment letters from agencies and members of the public must be received by the State Water Board no later than noon on Tuesday, Feb. 15. Click here to read a description of the Policy and the CEQA documents.

For more information on how the new Policy may impact your projects, please contact Roderick Walston or Steven Anderson in the Environmental Law and Natural Resources practice group at Best Best & Krieger LLP.

Disclaimer: BB&K e-Bulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.