Best Best & Krieger News Feed

MS4 and Construction Permit Training

01 Jan 2012 00:00:00 -0800

California's new construction general permit will go into effect July 1......

Your new municipal stormwater permit has been adopted.......

Are you ready for the changes?

The State Water Resources Control Board has adopted the revised Statewide General Construction Permit that will become effective on July 1. This new permit will profoundly alter the manner in which public works construction projects, including linear projects, are planned, designed, bid and constructed. The new permit will also change the construction site inspection process of local agencies. Understanding the requirements of the new permit is vital for all local agency employees and officials.

The Santa Ana Regional Water Quality Control Board has also recently adopted new stormwater permits for municipalities within Riverside and San Bernardino County. These new MS4 permits significantly change how local agencies address stormwater in all of their activities - from general plans, to project approvals, to public project construction and facilities maintenance. Knowledge of the new requirements at all levels of a local agency will be crucial for compliance.

Best Best & Krieger LLP and URS joined forces to offer a training program that prepared local agencies for the requirements of these new permits. The training generally covered:

The applicable water quality laws and regulations.
The requirements of the new permits.
The ways in which the new permit may affect job duties.
The local code and regulations that might be affected.
How to implement the new permits.
WQMP and inspection issues.

Both of the new MS4 permits require that all local agency staff that have a role in water quality issues must be trained on the new permit. This training was designed to comply with the formal and informal training requirements of the new permits and certificates were provided.

Best Best & Krieger lawyers have represented numerous public agency clients in matters before the State Water Resources Control Board, Regional Water Quality Control Boards and other state and federal agencies. BB&K attorneys are well versed in compliance and regulatory issues under federal and state water quality statutes and regulations.

URS is one of the world's largest environmental consulting and engineering firms with offices in Ontario and Riverside. URS has been providing environmental consulting and engineering services in California for more than 70 years, including stormwater management planning, permitting, program development, and program implementation services.

For more information contact Cynthia Sotelo at (951) 826-8374.

Environmental Regulations Require Compliance, Litigation Expertise

15 Feb 2010 00:00:00 -0800

Water regulations, greenhouse gas emission controls and litigation over alleged cancer-causing chemical exposure have given San Diego attorneys specializing in those areas plenty of work.

Andre Monette, a local attorney with Best Best & Krieger LLP specializing in water regulations, sees plenty of client demand for legal advice. Fueling it is low local water supplies and complex compliance requirements of the California Environmental Quality Act and the Clean Water Act.

With continued levels of future local water supplies from the San Joaquin Delta unclear, combined with regional drought conditions, Monette sees a dire need for new local water supplies to be developed to fill the gap.

Those sources, he says, need to be from more groundwater systems and more desalination plants.

“There’s a lot of salty groundwater near the coast the water districts are starting to tap,” he said. “It doesn’t have the same (environmental) impact as a desalination plant, the water’s not as salty and it’s easier to treat.”

Among the water issues to be resolved are local requirements for the “total maximum daily load” of allowable stormwater runoff into lakes and streams. Storm drains have to meet the standards to get permits.

This is an area, he adds, where science, policy and law come together, and determining standards takes a lot of back and forth.

If the established total maximum daily load pollution target is unachievable, says Monette, “A lot of good money gets thrown at a bad target.” But different runoff waters have different pollution levels, so arriving at standards, he adds, is “very tough.”

Proposed standards are put out for public review, comments on them gathered, and eventually the standards are adopted.

Attorneys like Monette lobby for the standards to be reasonable enough for clients to comply with in the long run. Otherwise, the option is to litigate if the adopted rules are seen as unworkable.

Click here for full article.

Air Quality District in California Urges Governor to Delay AB 32 Implementation

05 Feb 2010 00:00:00 -0800

The governing board of the Mojave Desert Air Quality Management District (“MDAQMD”) sent a letter yesterday to Gov. Schwarzenegger urging him to delay implementation of AB 32, also known as the California Global Warming Solutions Act of 2006. The MDAQMD, which has air quality jurisdiction over large areas of the High Desert in San Bernardino County and the Palo Verde Valley of Riverside County, is one of the pioneering air districts in reducing the carbon print of both government and industry. The district, however, expressed in its letter a great deal of concern about the potential impacts that implementing AB 32, as suggested by the California Air Resources Board (CARB), will have on environmental regulations, the local environment, the economy and the development of renewable clean energy sources such as solar power.

AB 32 aims to reduce California greenhouse gas emissions (GHGs) to 1990 levels by 2020 and to 80 percent below 1990 levels by 2050. CARB is charged with determining the implementation plan for AB 32, which is scheduled to go in effect in 2012. Local air districts like the MDAQMD play an important role in that plan. The MDAQMD letter asks the governor to reconsider moving forward with regulations and implementation under AB 32 until a careful review of both scientific facts and impacts on California’s already existing regulatory scheme, jobs, the economy and the environment is prepared.

The letter also requests that AB 32 not be implemented until the U.S. Environmental Protection Agency enacts federal uniform regulations on greenhouse gasses to avoid California being penalized in terms of loss of jobs and companies to neighboring states that either have much lower greenhouse gas emissions requirements or none at all. In addition, the MDAQMD asks for a review of the current regulations dealing with new projects and describes the current regulatory scheme as an impediment to progress for the economy and the environment as the development of much needed environmentally sensible projects in California gets mired in unnecessary regulation.

Click here for a copy of the MDAQMD letter.

For more details or if you have any questions, please contact BB&K attorney Piero Dallarda or your BB&K Environmental Law and Natural Resources attorney.

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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.

Michelle Ouellette Named One of California's Most Powerful and Influential Women

14 Jan 2010 00:00:00 -0800

Attorney Michelle Ouellette of the law firm Best Best & Krieger was selected by California Diversity magazine as one of the most powerful and influential women in California for 2010.

Known for her legal expertise in the environmental and renewable energy fields, Ouellette sits on the firm's executive committee, which guides the direction of the firm and its nearly 200 attorneys who work at eight offices across the state. Earlier this year, Ouellette was chosen by the Daily Journal as one of the top women litigators in the state.

Click here for full article.

Two Recent Cases Support Use of Exemptions Under the California Environmental Quality Act

12 Nov 2009 00:00:00 -0800

Public agencies can use exemptions under the California Environmental Quality Act ("CEQA") to avoid environmental review of their financing actions, according to two opinions published this week by the California Court of Appeal.

The opinions issued by the 2^nd District Court of Appeal provide public agencies with further guidance as to under what circumstances a CEQA exemption may be appropriate and when further environmental review may not be necessary. If a project fits within a CEQA exemption, a public agency may be wise to use such an exemption to avoid detailed and extensive environmental review, and thus save money and time in getting a project approved.

In Sustainable Transportation Advocates of Santa Barbara (“Advocates”) v. Santa Barbara County Association of Governments (“County”), the Court of Appeal upheld the passage of Measure A, a retail sales and use tax to fund transportation projects in Santa Barbara County. The County had placed Measure A on the ballot without conducting environmental review by claiming that its action was not a “project” and thus not subject to CEQA (which is a claim that public agencies often consider an “exemption” from CEQA). Under CEQA Guidelines section 15378(b)(4), a “project” for the purposes of CEQA does not include “the creation of government funding mechanisms or other government fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant impact on the environment.”

The Court agreed that Measure A did not qualify as a “project” under that section. Although Measure A did contain a list of potential transportation projects that could be funded by the revenues that it would provide, Measure A did not actually approve any specific transportation projects. While the petitioner in this case argued that the environmental impacts of the listed transportation projects should have been analyzed, the Court held that Measure A was simply a financing mechanism in light of the fact that Measure A did not constitute a commitment by the County to actually implement any of the listed projects.

In Bus Riders Union (“Bus Riders”) v. Los Angeles County Metropolitan Transportation Agency (“MTA”), the Court of Appeal upheld the use of a statutory exemption to CEQA when the MTA approved a fare increase to pay for operational expenses. The MTA reasoned that under CEQA section 21080(b)(8), environmental review was unnecessary in this instance. That section exempts an agency from performing CEQA review for the setting of “rates, tolls, fares or other charges," which “the public agency finds” are for the purposes of meeting operating expenses, purchasing supplies and equipment, meeting financial reserve needs and obtaining funds for capital projects necessary to maintain service within existing service areas. Based on the detailed resolution that specified the reasons for the fare increase and the uses for the fare revenue, along with other documents – including past and future budgets that showed how revenue streams were used – the Court found that there was substantial evidence in the administrative record to support MTA’s use of the statutory exemption.

For more information on either of these cases and how they may affect your agency or a specific project your agency is pursuing, please contact Charity Schiller, Fernando Avila or any other Best Best & Krieger Natural Resources and Environmental attorney.

"Green Team" Associate Maintains Small Carbon Footprint in Work, Life

06 Nov 2009 00:00:00 -0800

SAN DIEGO _ For Sophie Akins, sustainability is more than a way to make a living, it is how she works to better her community and preserve the environment.

As a senior associate on the Best Best & Krieger LLP "Green Team," Akins has been involved in many solar energy and energy efficient construction projects during her past eight years practicing with the firm. During the past year alone, she has participated in approximately 15 percent of all municipal solar energy projects in the state.

Akins also makes every effort to minimize her personal impact on the environment. She maintains a very small carbon footprint by living in a 1,100-square-foot home in Golden Hill and walking to work every day. It's a lengthy but enjoyable walk to Best Best & Kreiger's offices on the east end of downtown San Diego, Akins said.

Working in the firm's renewable energy practice, gives Akins the opportunity to work with people with similar values.

"I believe in it," Akins said, referring to the solar industry. "It's something you feel good about at the end of the day."

Click here to read the entire article.

Pursuit of LEED Ratings Could Lead to Contract Disputes

28 Sep 2009 00:00:00 -0800

Attorney Sophie Akins Chimes In On Developers Testing The Waters for Meeting Complex Green Standards

The San Diego Business Journal
Sept. 28, 2009

As property owners embrace energy-saving practices in their construction projects — and spend more money to achieve the cachet of having a building certified by the U.S. Green Building Council — some industry observers expect an inevitable increase in contract disputes if projects fall short of expectations.

The internationally recognized USGBC has become the gold standard for certifying buildings through its nine-year-old Leadership in Energy and Environmental Design, or LEED, program.

Pamela Lawton Wilson, an attorney with Wertz McDade Wallace Moot & Brower in San Diego, says drafting contracts between development stakeholders takes unique knowledge about LEED responsibilities and understanding the role of all parties.

“There’s new doctrine out there about how to write leases and construction contracts, so that you minimize chances of dispute,” said Wilson, who recently received LEED professional accreditation following a contract dispute on a LEED project.

“LEED is very exacting. To get certification levels like gold and platinum, it’s an interactive process back and forth with the Green Building Council,” she said. “People are going to wind up in litigation if something doesn’t pan out.”

While some property owners eschew the additional paperwork to document each phase of construction, demolition and debris removal, which is required for LEED certification, others are willing to pony up the expense.

“To me, LEED is like a symbol right now — to say you have a LEED-certified silver or platinum building,” said Sophie Akins, an environmental attorney with Best Best & Krieger, which has offices in San Diego. “It’s a nice resume builder.”

And it’s still relatively uncommon to achieve.

To read the entire article, click here.

California Agency Adopts New Statewide Construction Stormwater Permit

03 Sep 2009 00:00:00 -0800

The State Water Resources Control Board has adopted a new version of its permit regulating stormwater discharges from construction sites and other land disturbance activities such as grading and landscaping.

Effective July 2010, the permit will impose significant new site design and construction management restrictions on any construction activity over one acre in size. The State Board has spent more than two years developing the General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities (“General Construction Permit”).

Under the new permit, those undertaking large construction projects, including linear projects such as pipelines and roads, must adhere to limits on pH and turbidity levels in discharges from the project site, comply with new site-design requirements and conduct increased monitoring and reporting.

Prior to adopting the permit yesterday, the State Board made several changes from its latest draft. Most notably, the permit was changed to:

Exempt projects that are completed within three years of the permit’s adoption from the permit’s site design requirements. Some projects may obtain longer exemptions with approval from the local Regional Water Quality Control Board’s Executive Officer.
Extend the time period for filing permit registration documents ("PRDs") for emergency construction projects. Dischargers will need to file an initial brief description of the work within five days of the emergency and must file all PRDs within 30 days.
Modify the exemption for routine maintenance to make it the same as that required by federal law.
Add language clarifying that documents that are prohibited from disclosure by Homeland Security cannot be requested by the State Board.
Add language limiting the discretion of the Regional Water Quality Control Boards to push grandfathered projects that come in as Risk Level 1 project, into a higher risk level. Only in situations of prior noncompliance or significant risk to water quality can the Regional Board demand that the grandfathered project comply with the requirements for Risk Levels 2 or 3.
Remove definitions of conventional/non-conventional pollutants.
Add an exemption for an exceedance of the NEL caused by run-on to a construction site from an area damaged by a forest fire or other natural disaster
Incorporate sediment TMDLs, known as Total Maximum Daily Loads.

The State Board may reopen the General Construction Permit for possible updates after the U.S. Environmental Protection Agency issues its effluent guidelines for construction site discharges. This could take place as early as December.

If you have any questions regarding the permit and the impact it may have on your city, district, agency or business, please contact your Best Best & Krieger attorney or BB&K attorneys Shawn Hagerty and Andre Monette.

California Agency Issues Latest Draft of Statewide Construction Storm Water Permit

27 Aug 2009 00:00:00 -0800

The California State Water Resources Control Board has issued the latest draft of its permit regulating storm water discharges and runoff associated with construction projects and land disturbance activities.

If approved, the permit would impose significant new site design and construction management restrictions on any construction activity over one acre in size, and may subject violators to fines in excess of $10,000 per day, per violation.

More than two years in the making, the fifth draft of the National Pollutant Discharge Elimination System (“NPDES”) General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities (“General Construction Permit”) was released on Aug. 17. The water board will consider adopting the permit at its Sept. 2 meeting.

Significant changes to the General Construction Permit include the addition of requirements for linear projects such as pipelines and roads, numeric limits for certain pollutants, increased monitoring and reporting requirements and increased planning level, site-design requirements. A copy of the draft permit and its most recent changes can be found by clicking here.

Best Best & Krieger LLP representatives will be in attendance at the Sept. 2 meeting, and will provide additional information as it becomes available.

In the meantime, if you have any questions regarding the permit and the impact it may have on your city, district, agency or business, please contact your Best Best & Krieger attorney or BBK attorneys Shawn Hagerty and Andre Monette.

California Agency's Furlough Days May Affect CEQA Public Review Periods

06 Aug 2009 00:00:00 -0800

State-mandated furlough days may impact public review periods for land-use projects, such as housing developments or infrastructure improvements, that must comply with the California Environmental Quality Act, known as CEQA.

Starting Aug. 7, the California Office of Planning and Research’s State Clearinghouse will be closed on the first, second and third Fridays of every month. The action is part of a larger effort by the state to lower expenses and address the current budget deficit.

On furlough Fridays - when the State Clearinghouse is closed - no CEQA documents will be accepted, posted, or processed. Any documents that would have been delivered to the State Clearinghouse on a furlough Friday will not be posted or processed until the following Monday.

This means that any public review periods applicable to CEQA documents will not begin until that Monday - the day upon which the CEQA document is posted by the State Clearinghouse. Similarly, the end date of any CEQA public review period that falls on a furlough Friday will now presumably remain open until the following Monday.

Please make note of these important changes as they may affect your CEQA processes, the environmental review and approval schedules applicable to ongoing and future projects.