California Enacts Historic Groundwater Legislation In The Midst Of A Historic Drought

By Peter Prows

In the midst of a historic drought, California groundwater law is undergoing historic changes. This past year, the California Legislature, for the first time, enacted comprehensive groundwater legislation requiring that groundwater be regulated to achieve “sustainable groundwater management”. While landowners can take some comfort in the Legislature’s stated intent to respect existing groundwater rights, landowners should be aware that the legislation authorizes agencies to restrict or even stop existing groundwater uses. More

December 5, 2014
Court Rules That Constitution Does Not Empower Federal Government To Regulate A Threatened Species Living Only Within One State

By David Ivester

A federal district court in Utah has ruled in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service that Congress’s constitutional power to regulate interstate commerce does not enable the federal government to regulate under the Endangered Species Act a species that lives entirely in one state and that has no substantial effect on interstate commerce. More

November 24, 2014
Coastal Commission’s Enforcement Orders Against Drakes Bay Oyster Company Invalidated By Marin County Superior Court

By Peter Prows

The California Coastal Commission had a most frustrating week. After decades of lobbying the Legislature, the Commission finally gained new powers to impose administrative penalties on people who violate certain provisions of the Coastal Act. But, just six days later, the Marin County Superior Court imposed significant restrictions on the Commission’s entire enforcement program. More

June 30, 2014
Construction of Residential Housing “Can’t Be Fast Enough” For San Francisco

By William Most

If San Francisco’s mayor has his way, the city is about to enter a major residential construction boom. According to Mayor Ed Lee, the city is suffering from a housing shortage that has led to pent-up demand and price escalation. To combat that shortage, the mayor recently set a goal of 30,000 new or rehabilitated homes by 2020 — an ambitious target, considering that the city’s chief economist says that only 100,000 new units have been built in San Francisco since the 1920s. More

April 3, 2014
Scoping The Scope Of Easements

By Richard Wallace

Recent developments in the law of easements may affect property owners whose land is subject to an easement or is benefited by an easement on someone else’s land. Easements come in multiple shapes and sizes, and affect almost all real property in some form or another. If the scope of an easement is not clearly defined, it may be determined by the actual use of the easement. More

February 26, 2014
Bird’s Eye View: Federal Government Focuses on Wind Energy

By David Ivester

Two recent developments signal the federal government’s increased attention to the effects of wind energy projects on birds, including collisions with wind turbines, towers, and power lines, electrocution, and abandonment of nests and habitat. First, on November 22, 2013, Duke Energy Renewables pleaded guilty to criminal violations of the Migratory Bird Treaty Act by killing 14 golden eagles and 149 other protected birds in the operation of two wind energy projects in Wyoming. Duke agreed with the Department of Justice to pay $1 million in fines and other payments in this first criminal prosecution of a wind project for bird deaths. More

January 10, 2014
U.S. District Court Dismisses Suit Claiming That EPA Violated The Endangered Species Act With Respect To Hundreds Of Pesticides

By David Ivester

A U.S. District Court in California has dismissed a suit by citizens groups alleging that the Environmental Protection Agency violated the Endangered Species Act (“ESA”) by failing to consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service regarding the effects of 382 registered pesticides on endangered and threatened species. More

May 6, 2013
Some Pipes Are Not Point Sources: Supreme Court Upholds EPA Interpretation Of Stormwater Rule

By Lawrence Bazel

For the second time this year, the U.S. Supreme Court has concluded that not all pipes and channels are regulated by the Clean Water Act, even though the act regulates “point sources” and that term is defined as “any discernible, confined and discrete conveyance including … any pipe, ditch, channel [etc.]”. More

March 21, 2013
Ninth Circuit Grants Emergency Injunction To Protect Drakes Bay Oyster Company From “Artificial Wilderness” Designation

By Peter Prows

Drakes Bay Oyster Company and its owner, Kevin Lunny, argued in a brief to the Ninth Circuit last week that the federal government’s decision to boot out their oyster farm was an attempt to “impose an artificial wilderness in the middle of a historic farming community”, in violation of several laws. More

March 11, 2013
Diverting Water Without Otherwise Altering A Stream Does Not Require A Streambed Alteration Agreement With The California Department Of Fish And Game Wildlife

By David Ivester

Those who divert water from streams in exercise of water rights without otherwise altering the streams need not notify the California Department of Fish and Wildlife (formerly Department of Fish and Game) nor enter into streambed alteration agreements with the Department, ruled the superior court in Siskiyou County. More

January 17, 2013
Is A Coastal Development Permit Now Required To Visit, Live, Or Die Near The Coast?

By Peter Prows

The answer, following the logic of a case decided by the California Supreme Court last week, may well be ‘yes’. That case, Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles, concluded that a permit is required for all “changes in density or intensity of use” in the Coastal Zone—regardless of whether any changes actually occur. If the Legislature does not step in, a permit might now be required to do, or contemplate doing, almost anything at all along the California coast. More

December 5, 2012
U.S. District Court Ruling Undercuts Federal Regulations Governing Use of “Farmed Wetlands”

By David Ivester

A federal district court in California has ruled that a farmer did not “convert” wetlands under the Food Security Act when he releveled rice fields and, accordingly, did not render himself ineligible for farm program benefits. In Koshman v. Vilsack, the court set aside a contrary determination of the U.S. Department of Agriculture (“USDA”), finding that the USDA’s interpretation of its “farmed wetlands” regulations conflicts with the statute. The decision undercuts the validity of the USDA’s regulations prescribing limits on how farmers use “farmed wetlands.”. More

November 5, 2012
California Governor Signs Bill To Break Impasse Over How To Mitigate Impacts On Natural Resources

By David Ivester

Governor Brown recently signed Senate Bill 1094, prescribing how state and local agencies and private organizations should hold and manage lands and associated endowment funds provided by project proponents to mitigate the impacts of their projects on wildlife habitat and other natural resources. The bill, which the Legislature passed as an urgency measure so it will take effect immediately, promises to break a logjam of mitigation efforts held up in recent years owing to objections and uncertainty over who should handle endowment funds that, properly invested, provide the revenue needed to manage mitigation lands. More

October 19, 2012
Meaningful Remedies Are Possible In Challenges To Coastal Commission Permit Decisions, Holds Court Of Appeal

By Peter Prows

“Private” property does not mean “public” property, the Fourth District Court of Appeal has told the California Coastal Commission in Bay Island Club v. California Coastal Commission. The case arose from the Commission’s decision to permit the Bay Island Club to rebuild its bridge connecting Balboa Peninsula to Bay Island in Lower Newport Bay in the City of Newport Beach, but only on the condition that the new bridge be opened to around-the-clock public access. The Club lost its challenge to the public access condition in the trial court, but prevailed on appeal. More

July 26, 2012
A Project’s Need For Public Services Is Not An Environmental Impact Requiring Mitigation

By David Ivester

A project that adds homes and commercial buildings to a community typically increases the need for various municipal services, such as fire and police protection. As the Court of Appeal recently confirmed in City of Hayward v. Board of Trustees, that need, though, is not itself an “environmental impact” of the project that the California Environmental Quality Act (“CEQA”) requires the project proponent to mitigate. More

July 10, 2012
New Nationwide Permit Regulations Go Into Effect

By Alicia Guerra and Peter Prows

On March 19, 2012, 50 nationwide permits (“NWPs”) issued by the U.S. Army Corps of Engineers (“Corps”) for work done in navigable waters or wetlands went into effect. Forty-eight of these NWPs were reissued or revised versions of prior NWPs, and the other two NWPs were brand new. Most notably, these new and reissued NWPs impose new requirements on mining activities, while streamlining the permitting process for alternative energy projects. More

March 26, 2012
Landowners Can Sue to Contest EPA’s Claim of Jurisdiction to Regulate Their Land under the Clean Water Act

By David Ivester

The U.S. Supreme Court has unanimously ruled that landowners can sue the Environmental Protection Agency (“EPA”) to challenge its issuance of an administrative “compliance order” claiming their land is a “wetland” subject to its regulatory jurisdiction under the Clean Water Act (“CWA”). More

March 23, 2012
State Water Resources Control Board Advances New Wetland Regulatory Program

By David Ivester

Undeterred by California’s budgetary and economic woes, the State Water Resources Control Board continues its efforts to develop a new wetland regulatory program, and toward that end it recently released a Preliminary Draft Policy for Wetland Area Protection and Dredge and Fill Permitting. More

March 13, 2012
Unitended “Taking” of Birds Incidental to Otherwise Lawful Activities Does Not Violate Migratory Bird Treaty Act

By David Ivester

A U.S. District Court in North Dakota has added its voice to that of several other courts saying that the federal Migratory Bird Treaty Act (“MBTA”) does not prohibit otherwise lawful activities that result in unintended deaths or injuries of birds. More

February 14, 2012
Federal Agencies Request Comment on Modified Definition of Endangered Species

By William Most

On December 9, 2011, the two federal agencies responsible for the Endangered Species Act (ESA) announced a draft policy providing a new interpretation of a key phrase in the ESA’s definition of “endangered species.” More

January 20, 2012
Governor Brown Signs Senate Bill 436 (KEHOE) Authorizing Non-Profits and Special Districts to Hold Easements and Endowments

By Alicia Guerra

On October 8, 2011, Governor Brown signed into law Senate Bill (SB) 436 authorizing state and local agencies to transfer funds to a nonprofit organization, special district or land trust that are set aside for long-term management of land acquired as mitigation for a development project. More

October 12, 2011
Corps of Engineers and Environmental Protection Agency Propose to Extend Their Reach over Waters and Wetlands

By David Ivester

The U.S. Army Corps of Engineers and Environmental Protection Agency propose to expand their regulatory jurisdiction by reinterpreting two U.S. Supreme Court decisions. More

June 23, 2011
Mauritius Brings Law of the Sea Arbitration Against the United Kingdom

By Peter Prows

The Chagos Archipelago, which dots the heart of the Indian Ocean, is in the middle of a very 21st century international dispute. More

April 12, 2011
State Water Resources Control Board Plans New Wetland Regulatory Program

By David Ivester

While California’s newly elected Governor Brown aims to cut the state budget and, toward that end, proposes rolling back some environmental programs, such as preservation of agricultural and open space preserves under the Williamson Act, the State Water Resources Control Board appears headed in the opposite direction. More

January 14, 2011
Bay Area Air Quality Management District Adopts Greenhouse Gas Guidelines

By Anne Arnold and William Most

Is there an environmental impact report in your future? If you are among those planning a development project within the geographic boundaries of the Bay Area Air Quality Management District (“BAAQMD”) or even beyond, odds that the answer is “yes” just increased. More

July 12, 2010
In Upholding the Designation of Critical Habitat for the Mexican Spotted Owl, The Ninth Circuit Decides Critical Issues for Future Designations

By David Ivester

The Ninth Circuit Court of Appeals recently resolved two issues fundamental to officially designating “critical habitat” for species protected under the federal Endangered Species Act. More

June 25, 2010
July 1 Deadline Looming for Riparian and Pre-1914 Water Rights Holders to Report Diversions Or Face Stiff Penalties

By Peter Prows

A new California law requires water rights holders around the state to begin reporting pre-1914 and riparian water diversions to the State Water Resources Control Board (“Water Board”) by July 1, 2010 or face penalties of $1,000 and up to $500 per day. Previously, riparian and pre-1914 water rights holders could abstain from reporting without consequence, and diverters in the Sacramento-San Joaquin Delta (“Delta”) were exempt from reporting their diversions. More

June 14, 2010
California Tiger Salamander Listed as “Threatened” Under California Endangered Species Act

By David Ivester

The California Fish and Game Commission voted 3-2 on March 3, 2010, to list the California tiger salamander (CTS) as “threatened” under the California Endangered Species Act (CESA), capping six years of hotly contested administrative proceedings and litigation. More

March 8, 2010
Federal Agencies Should Consider Climate Change When Reviewing Environmental Effects of Projects, Says Council on Environmental Quality

By David Ivester

The Council on Environmental Quality (CEQ) published draft guidance on February 23, 2010, advising federal agencies how to consider climate change and greenhouse gas (GHG) emissions in their review of the environmental effects of proposed projects under the National Environmental Policy Act (NEPA). More

March 1, 2010
The Mean-High-Water Line Is Not Where It Is, but Where It Would Be — If Seawalls And Levees Had Never Been Built, The Ninth Circuit Rules

By John Briscoe

The mean-high-water line – this country’s principal waterfront property boundary, and too the jurisdictional limit of the Corps of Engineers under the Rivers and Harbors Act – is not where it lies on the ground, the Ninth Circuit ruled last Friday, October 9. More

October 12, 2009
Daunting Complexity and Cost Confront California Builders as State Readies New Rules for Storm Water Discharges from Construction Sites

By David Ivester

The State Water Resources Control Board proposes to adopt a new General Permit for storm water discharges from construction sites that, if adopted, would impose unprecedented requirements on builders in California. More

August 27, 2009
Obama Administration Revokes Bush Administration Endangered Species Consultation Rule­—and Reopens Questions about Assessing Effects of Greenhouse Gas Emissions

By David Ivester

Secretary of Interior Ken Salazar and Secretary of Commerce Gary Locke recently announced they are revoking “an eleventh-hour Bush administration rule that undermined Endangered Species Act (ESA) protections.” More

May 5, 2009
California Proposes New General Permit for Storm Water Discharges from Construction Sites

By David Ivester

Builders face ever more stringent and complicated regulation of storm water discharges from construction sites under a new draft General Permit recently issued by the staff of the State Water Resources Control Board for public comment. More

May 4, 2009
The Permitting Process for the Next Phase of “Shovel Ready” Projects Funding of Projects under the Stimulus Bill

By Alicia Guerra and Anne Arnold

Grappling with environmental regulations may be the next hurdle facing many of the projects the federal government seeks to fund in its effort to stimulate the economy out of its doldrums. On February 17, 2009, President Obama signed into law the ambitious American Recovery and Reinvestment Act of 2009 (“Bill”). The Bill authorizes the investment of approximately $787 billion in federal funding and tax cuts to preserve and create jobs and promote economic recovery. More

March 12, 2009
New Rule Revises Consultation Process by which Federal Agencies Assure their Actions Do Not Harm Endangered Species

By David Ivester

The U.S. Fish and Wildlife Service and National Marine Fisheries Service issued a rule on December 16, 2008, revising the process for federal agencies to “consult” with the Services in order to assure that their actions do not harm species listed as threatened or endangered under the Endangered Species Act (“ESA”). More

January 6, 2009
Two Major Proposals of Endangered Species Critical Habitat

By David Ivester

Federal agencies have proposed to designate millions of acres in California as “critical habitat” of two species—the green sturgeon and California red-legged frog.  The designations could lead to restrictions on activities in the affected areas that are carried out, funded, or approved by federal agencies. More

September 22, 2008
Court Orders State and Regional Water Boards to Revise Water Quality Standards to Account for Economic Impacts and Housing Needs

By David Ivester

A California superior court has ordered the State Water Resources Control Board and the Los Angeles Regional Water Quality Control Board to review and revise their water quality standards governing storm water and urban runoff to reflect what can “reasonably be achieved” taking into account economic considerations, housing needs, and other factors. More

California Supreme Court Complicates State Regulation of Endangered Species

By David Ivester

The California Supreme Court has interpreted the California Endangered Species Act (“CESA”) to require landowners and businesses to mitigate the impacts of their activities on endangered species to a greater degree and in different ways than required under the federal Endangered Species Act. More

Supreme Court Decreases Federal Control Over Waters And Wetlands

By Larry Bazel

On June 12, 2006, the Supreme Court issued its decision on the jurisdictional reach of the Clean Water Act. Although the act applies only to “waters of the United States,” EPA and the Corps have asserted jurisdiction over dry washes in the desert, and over wetlands with little or no connection to a navigable-in-fact water. In the consolidated cases of Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, landowners argued that their wetlands were not within the reach of the act. More

June 12, 2006
California Court of Appeal Upholds City’s Determination that Ordinance Restricting Discount Superstores is Exempt from Environmental Review under the California Environmental Quality Act

By Anne Arnold

The power of cities and counties to adopt laws restricting the development of certain commercial projects, particularly large “superstores,” and do so without reviewing environmental effects under the California Environmental Quality Act (“CEQA”) was recently confirmed by the California Court of Appeal.. More

Trial Court Invalidates Rohnert Park’s Water Supply Assessment and Puts Regional Development in Doubt

By Melanie Tang

n Center for Biological Diversity v U.S. Fish and Wildlife Service, Case No. 04-55084 (9th Cir., June 5, 2006), the Ninth Circuit Court of Appeals held that the United States Fish and Wildlife Service (“Service”) may authorize incidental take of species under the Endangered Species Act (“ESA”), even if those species are “fully protected” under California law. More

June 5, 2006
Supreme Court Decreases Federal Control Over Waters And Wetlands

By Christian Marsh

In a ruling issued May 31, 2006, the Sonoma County Superior Court invalidated a water supply assessment prepared by the City of Rohnert Park for a number of residential and commercial developments planned within the City. More

May 31, 2006


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