Coastal Commission’s Enforcement Orders Against Drakes Bay Oyster Company Invalidated By Marin County Superior CourtBy 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 FranciscoBy 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 EasementsBy Richard WallaceRecent 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 EnergyBy 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 PesticidesBy 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 RuleBy 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” DesignationBy 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 WildlifeBy 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 ResourcesBy 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 AppealBy 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 MitigationBy 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 EffectBy 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 ActBy 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 ProgramBy David IvesterUndeterred 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 ActBy 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 SpeciesBy 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


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