The Supreme Court ruled today that pollutant discharges to groundwater may, in some instances, be regulated in the same manner as discharges to navigable surface waters. The decision was a clear rebuff to EPA, which argued that only direct discharges to surface waters are regulable under the Clean Water Act. Coincidentally, the Court’s decision was issued just two days following EPA’s publication of a controversial rule limiting the federal government’s Clean Water Act jurisdiction over wetlands and other surface waters. Continue reading
In a far-reaching decision with sweeping implications, a federal district judge in Montana eliminated the Army Corps’ nationwide permit for utility line crossings over waters of the United States. This permit – known as Nationwide Permit 12 – was used to streamline approvals across the country for electrical lines, pipelines, and other utility projects resulting in minor encroachments on wetlands and other waters. Because of this decision’s scope, thousands of projects across the country – including projects in California – may be stalled as they re-think their permitting approach or await further direction from the courts. Even more troubling is the fact that this decision calls into question the legality of over fifty other nationwide permits intended to streamline project approvals, including those issued for housing, industrial, and other development projects Continue reading
Clark Morrison and Scott Birkey co-authored an article for Bloomberg Environment where they examine the effect of the Trump administration’s California Clean Water roll-back, as well as the state’s response. Continue reading
A. National Environmental Policy Act (NEPA).
- Presidential Executive Order 13807 (Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects) (August 15, 2017):
Applies to any project that requires approval by multiple federal agencies, requires an EIS, and has a “reasonable availability” of funding. Requires NEPA reviews to be limited to 2 years, publication of all federal decisions in a single ROD (“One Federal Agency”) and federal authorizations to be issued within 90 days of ROD.
- Interior Secretary Order 3355 (Streamlining National Environmental Policy Act Reviews and Implementation of Executive Order 13807) (August 31, 2017).
Limits environmental impact statements to 150 – 300 pages (the latter for unusually complex projects), excluding appendices, for all EIS documents prepared by DOI. Final environmental impact statements required to be completed within one year from issuance of NOI unless Asst. Sect’y approves 3-month extension. Continue reading
From timber country to the urban core, California is struggling to get its brownfield sites – land contaminated or believed to be contaminated by hazardous chemicals – back into productive use. The elimination of California redevelopment agencies in 2011-2012 set the process back dramatically, and the state’s best tool apart from redevelopment was set to expire at the end of 2016. Fortunately, a campaign spearheaded by the California Association for Local Economic Development (CALED) and Senator Bob Hertzberg secured passage of SB 820, saving California’s Land Reuse and Revitalization Act (CLRRA) from extinction.
CLRRA is Chapter 6.82 of the California Health and Safety Code. It was enacted in 2004 to help restore sites burdened by historically common, and unfortunately lax, chemical handling and disposal practices. All too often these sites sit unused, or badly underutilized, because the legal and regulatory challenges associated with them drive developers and local jurisdictions to focus on sites without such chemical problems – so-called greenfields.
The “greenfields before brownfields” cycle often reinforces downward socio-economic spiral in areas most needing economic renewal and investment, and it broadly undermines land use and environmental policies tied to reducing sprawl. Brownfield stagnation also frustrates the state’s efforts to build housing, both affordable and market-rate, in urban core areas. Many sites well suited to the production of urban housing were historically used for commercial and industrial activities that involved lax chemical handling.
CLRRA addresses these brownfield challenges by clarifying and simplifying the liability and regulatory framework applicable to brownfield sites. The fear of potentially joint and several liability for cleanup costs disproportionate to the anticipated redeveloped value of a site typically poses the first and biggest legal hurdle for brownfield redevelopers, whether private or public sector (or the public-private partnerships that have taken on the state’s most ambitious brownfield projects in places like Emeryville, downtown San Diego, and Carson and other formerly industrial areas in greater Los Angeles).
CLRRA addresses this challenge in multiple ways, most notably by conferring on “bona fide purchasers” a statutory immunity for cleanup work beyond the “response plan” needed to make the site suitable for a proposed redevelopment. As a practical matter, this enables brownfield redevelopers to understand ahead of time what their cleanup obligations will be. Clarity on this point allows a redeveloper to confirm that the cleanup obligations fit within a pro forma financial model that is viable to capital sources, both debt and equity. CLRRA also strengthens cost recovery leverage, another aspect of the liability framework that can be critical to the financial pro forma for complex brownfield sites.
Fear of a byzantine, even Kafka-esque, regulatory process that will swallow time, resources and sanity itself is the second legal hurdle that must be overcome at many brownfield sites. CLRRA addresses this challenge by laying out a procedural path that balances interests with inherent tensions – development efficiency, scientific certainty, and public input.
In general, the CLRRA process starts with a Phase I Environmental Site Assessment and an agreement to pay the oversight costs incurred by the Department of Toxic Substances Control or a Regional Water Quality Control Board. The statutory immunities trigger at this early juncture. Thereafter, the applicant works through four “streamlined” steps: site assessment, cleanup planning, public comment, and implementation/completion certification. The objective is to make the site safe for its intended use(s) as defined in local planning and zoning documents, not to evaluate and cure every conceivable issue associated with the historic chemical impacts.
Needless to say, the statute has technical intricacies. This brief survey should be taken as encouragement to work with experienced practitioners (both legal and technical) when pursuing a CLRRA site. It must also be noted that the legislative effort to enact the original CLRRA statute involved a good amount of awkward sausage making. Certain sites are ineligible for CLRRA treatment for reasons that defy logic and sound public policy. The statute clearly can be improved, hopefully in the upcoming legislative session now that SB 820 has resolved the looming sunset issue.
Nonetheless, CLRRA’s enactment and SB 820 represent huge steps forward for California’s ongoing efforts to revitalize urban areas, build affordable housing, and pursue smart growth management.
The California Water Commission recently approved new emergency regulations for Groundwater Sustainability Plans (“GSPs”). In addition to substantially affecting groundwater management practices and procedures under California’s Sustainable Groundwater Management Act (“SGMA”), the new regulations are also likely to have a significant economic impact on current businesses and industries, as well as on future development projects.
The new emergency regulations will affect groundwater basins throughout California. SGMA provides a comprehensive approach to the sustainable management of groundwater basins through the development and implementation of GSPs or alternatives to GSPs. The Department of Water Resources has designated 127 groundwater basins as high or medium priority, accounting for approximately 96 percent of groundwater use in California. Although only high- and medium-priority basins are subject to SGMA, agencies overseeing the remaining basins, designated as low or very low priority, are encouraged and authorized to develop GSPs, update existing groundwater management plans, or coordinate with other agencies to develop new groundwater management plans.
The new regulations establish requirements for the development and maintenance of GSPs, such as specific monitoring protocols and standards for data and reporting, including the requirement to develop and maintain a data management system for storage and reporting of relevant information. The regulations outline procedures for submitting, withdrawing, and amending GSPs; notice and public comment requirements; annual reporting requirements to the Department of Water Resources; and initial and ongoing evaluation and assessment of GSPs by the Department. The regulations also authorize two types of interagency agreements: “interbasin agreements,” which allow two or more agencies to establish compatible sustainability goals, and “coordination agreements,” which allow two or more agencies to develop and implement multiple GSPs that utilize the same data and methodologies. Continue reading
We previously shared with you the critical role that the late Justice Antonin Scalia played in landmark Supreme Court land use decisions. So now let’s look at how Judge Merrick Garland, President Obama’s current nominee for Justice Scalia’s seat, might shift the ideological leanings of the Court on environmental issues, if confirmed.
Although leading experts are still analyzing Garland’s past opinions to discern his potential influence on future Supreme Court environmental law decisions, there appears to be universal agreement that Garland’s addition would make the Court more likely to defer to agencies’ regulatory interpretations, rulemakings, and rule implementation. In particular, those legal analysts have found consistent deference to actions of the Environmental Protection Agency. As SCOTUSblog noted in 2010, “Judge Garland has in a number of cases favored contested EPA regulations and actions when challenged by industry, and in other cases he has accepted challenges brought by environmental groups.” Indeed, according to Bloomberg, one third of Garland’s dissents have been over challenges to agency decision-making. In all of those dissents, Garland sided with the agency.
UCLA Law Professor Ann Carlson analyzed three important Garland decisions, two majority opinions and one dissent. From these opinions, Professor Carlson deduced that Garland is likely to afford great respect to EPA’s judgment where that judgment is grounded in good science and the public interest. Carlson expects Garland to be likely to defer to the EPA or, where he rules against the EPA, to side with environmentalists on the grounds that the EPA has not gone far enough to enforce the law. Continue reading
Most of us know that the California Department of Fish and Wildlife is the state agency in charge of administering the California Endangered Species Act, which is the state’s version of the federal Endangered Species Act. CDFW is also the state agency that regulates certain work activities within streambeds. Under the California Fish and Game Code, CDFW has regulatory authority over the installation of culverts, bridge supports, erosion controls, or other such work within streambeds. But beware! CDFW’s regulatory reach has been extended significantly. A recent decision by a California Court of Appeal now gives CDFW regulatory authority over the mere taking of water out of its natural flow for agricultural purposes, even if the streambed itself is not altered to facilitate the taking of that water.
By way of background, before a person may start work in a streambed, typically he or she must submit a “notification” to CDFW informing the agency of the nature of the work and any anticipated impacts to waterways or special species habitats within or adjacent to those waterways due to that work. If CDFW determines the work may “substantially adversely affect” any fish and wildlife resources, then the agency will attempt to negotiate a “streambed alteration agreement” with the party. These agreements often include significant, and sometimes quite onerous, conditions and restrictions on development. Moreover, the whole process can take several months and typically requires some form of environmental clearance under the California Environmental Quality Act. Only after both (i) CDFW and the party performing the work have signed the agreement and (ii) all other necessary approvals have been obtained may work in the streambed commence.
In Siskiyou County Farm Bureau v. Department of Fish and Wildlife, the Third District Court of Appeal determined Continue reading
- A new CEQA requirement to evaluate impacts on tribal cultural resources
- New fracking reporting requirements for oil operators
- New wetlands guidelines from the Corps
- A mandatory change to notary acknowledgment forms
- A new CDFW CEQA filing fee schedule
In addition to the endangered California Red-Legged Frog being named as the official State of California Amphibian (AB 2364), here are some other items of note as we move into 2015:
Tribal Cultural Resources: Under AB 52, for projects for which either an EIR notice of preparation or a notice of negative declaration is filed on or after July 1, 2015, potential impacts on “tribal cultural resources” must be evaluated. For more information on AB 52 and other 2014 CEQA legislation and CEQA court decisions, please click here to see Mike Zischke’s post entitled “CEQA Update: 2014 Case Law And Legislative Developments.”
Fracking Reporting: Effective January 1, 2015, oil and gas operators must submit quarterly water reports to the State’s Division of Oil, Gas & Geothermal Resources providing information related to fracking activities, such as the source, volume, quality, and disposition of all injected water, the quality, treatment and disposal method of all produced waters, and the source, quality, and use of all other treated and recycled waters used in their oil and gas field activities. For the Legislative Counsel’s Digest and full text of SB 1281 click here. For DOGGR’s “Notice to Operators” regarding the requirements of SB 1281, click here.
New Wetlands Mitigation Guidelines from the Corps. The U.S. Army Corps of Engineers (Corps) has issued a comprehensive new set of guidelines for mitigation to be required under Section 404 wetland fill permits. Click here to review the post of Clark Morrison and Scott Birkey on the scope and implications of the new guidelines.
Notaries: Effective January 1, 2015, Civil Code Section 1189 requires new wording and formatting for notary acknowledgements. County Recorders will not record documents that are not notarized in compliance with the new provisions of Section 1189. Click here to review the amended Section 1189. Continue reading
The U.S. Army Corps of Engineers has issued a comprehensive new set of guidelines for mitigation to be required under Section 404 wetland fill permits. The 2015 Regional Compensatory Mitigation and Monitoring Guidelines for the South Pacific Division USACE became final on January 12, 2015, and will apply to all wetland permits issued throughout the State of California. They will undoubtedly complicate and significantly increase the cost of preparing and implementing mitigation plans for new development.
On one hand, the Guidelines seek to increase the predictability of the Corps’ regulatory process by defining the various technical considerations that should go into the development of wetland mitigation plans. On the other hand, the Guidelines recognize the vastly increased scientific understanding of wetlands that has developed since the Corps’ regulatory program was born in the 1980s. Basically, wetlands have become a much more complicated business over the last twenty-five years. The Guidelines seek to improve the effectiveness of the wetlands regulatory program by harnessing this growing body of knowledge.
Building on nationwide regulations adopted by the Corps in 2008, the Guidelines strongly support a “watershed approach” to mitigation projects, particularly where mitigation is implemented through an in lieu fee program or mitigation bank (rather than a turnkey mitigation project proposed by a developer). This can offer a welcome degree of flexibility in certain instances, particularly where the agencies have developed or are developing regional conservation plans such as those in Contra Costa, Santa Clara, Placer, or Solano Counties. Continue reading