with contributions from Abbott & Kindermann, LLP
The President directed the EPA and Army Corps of Engineers to clarify the 2015 Waters of the United States (“WOTUS”) Rule by taking into consideration Antonin Scalia’s 2006 Supreme Court opinion in Rapanos v. United States, 547 U.S. 715 (2006), where he opined that a wetland may not be considered “adjacent to” remote “waters of the United States” based on a mere hydrologic connection. Scalia argued that only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right should be covered by the Clean Water Act. Therefore wetlands such covered by the Act require two findings: (1) the adjacent channel contains a "wate[r] of the United States," (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and (2) the wetland has a continuous surface connection with that water, making it difficult to determine where the "water" ends and the "wetland" begins. Find details of this Executive Order.
As part of this $11B federal water infrastructure bill that was signed into law on December 10, 2016, are a number of California-specific water provisions that include:
The Act seeks to maximize water supplies for he Central Valley and State Water Projects, though no specific targets to the farming community. Some argue that while the legislation dictates that nothing in the California Rider will violate the ESA, the specific provisions about the amounts of water to be pumped from rivers (which could violate the ESA) will control application of this rider. The Act can be found here.
With the California State Water Resources Control Board (SWRCB) imposing stricter environmental controls requiring more Delta water to flow to the ocean to protect fish & wildlife, conflicts with the new federal law become inevitable.
In May of 2016, the CA Water Commission approved regulations to guide creation of sustainability plans by local groundwater agencies to bring groundwater aquifers into balanced levels of pumping and recharge. High and medium priority basins identified as critically over-drafted must have these plans in place by February, 2020, where all over high and medium priority basins must have plans effect by February 2022. The Department of Water Resources published a guide to achieve this requirement here.
The Board released this report in October of 2016 to address fisheries and flows in the Sacramento River and Bay-Delta. It recommends increased flows (40% of natural flow) to the lower San Joaquin River and tributaries and salinity objectives for the southern Delta. The plan proposed in this report attempts to rebalance allocation of water for ecosystem health vs. consumption. The report can be found here.
The CA Dept. of Water Resources and U.S. Bureau of Reclamation issued the Bay Delta Conservation Plan / CA Waterfix Final EIR/EIS (found here) on December 22, 2016. The document described the alternatives, discusses potential environmental impacts, and identifies mitigation measures to avoid or minimize impacts of the twin tunnels. A University of the Pacific economist claims that the project will deliver only 23¢ worth of water for every $1 spent because of the limited water the project will be able to deliver south of the Delta. State officials counter that though deliveries may diminish somewhat due to increasingly strict environmental regulations, fish problems would become worse and water deliveries would be reduced even more without the project. The federal government would need to pay 1/3 of the $16B cost for the project to proceed.
In the meantime, the Metropolitan Water District of Southern California has purchased five Delta islands for their water rights and to facilitate the BDCP tunnels by providing staging areas for construction equipment.
On March 19, 2017, The U.S. Army Corps of Engineers (USACE) announced adoption of revised and renewed nationwide permits (NWPs) necessary for work in streams, wetlands and other waters of the United States under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. The 2017 nationwide permits have been published in the Federal Register and have been posted to the USACE Website. You can view a summary of the renewed and revised permits.
There are two new nationwide permits. NWP 53 provides an authorization process for the removal of low-head dams to restore streams and enhance public safety. NWP 54 covers the construction and maintenance of living shorelines to control erosion in coastal areas.
Some important highlights of the re-issuance include:
Activities authorized under the 2012 NWPs that have commenced or are under contract to commence by March 18, 2017 will have one year to complete those activities subject to the terms, general and regional conditions of the 2012 NWPs. Activities authorized under the 2012 NWPs that have not commenced or are not under contract to commence by March 18, 2017, however, will require re-authorization under the 2017 NWPs, provided those activities still comply with the terms, general and regional conditions of the 2017 NWPs. If those activities no longer qualify for NWP authorization because they do not meet the terms and conditions of the 2017 NWPs (including any RCs imposed by Division Engineer), the prospective permittee will need to obtain an individual permit (Letter of Permission or Standard Permit or seek authorization under a Regional or Programmatic General Permit) if available.There are numerous other subtle changes to the suite of NWPs in this new issuance. A good summary of these changes is available here. Contact Barnett Environmental with any questions or for more specific information.
These guidelines, issued by the Corps in November of 2016, supplement the Final Regional Compensatory Mitigation & Monitoring Guidelines for mitigation banks, in-lieu fee programs and permittee-responsible projects involving compensatory mitigation for unavoidable losses of vernal pools and vernal pool complexes. Mitigation ratios will be determined by the Corps on a case-by-case basis, through use of the South Pacific Division’s Standard Operating Procedure for Determination of Mitigation Ratios. The goal of such mitigation is to establish highly functional wetlands. Other federal, state and local agencies with separate authority over waters, wetlands and/or endangered species may also use these guidelines, which can be found here.
The Board proposed amending the Water Quality Control Plan for Ocean Waters of California (Ocean Plan) and the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays and Estuaries of California (ISWEBE Plan) to include procedures for discharges of dredged or fill materials into waters of the state. These procedures, formerly known as the Wetland Riparian Area Protection Policy, consists of three major elements:
The Board’s rationale for the proposed Procedures include:
A comparison of Clean Water Act 404(b)1 Guidelines to the State Supplemental Dredged or Fill Guidelines, which indicates how the Water Board would implement the 404(b)1 Guidelines under the proposed Procedures can be found here.
This Act reaffirms the: (1) authority of the Air Resources Board and its mandate in achieving California’s stringent (in comparison to U.S.) greenhouse gas emission reductions; (2) the continued need to reduce greenhouse gas emissions in California. The Act requires the Air Board to ensure that statewide greenhouse gas emissions are reduced to at least 40% below 1990 levels by 2031. The companion AB197, among other things, creates a joint legislative committee to make recommendations on state climate change programs, policies and investments and to establish a panel of experts to independently analyze state climate change policy. These respective bills can be found here and here.
This legislation requires The State Air Resources Board (ARB) and other relevant state agencies to:
The focus on methane is due to it being a 25-times more potent greenhouse gas than CO2, but no one yet knows how this mandated methane reduction may be met, as no technologies currently exist to efficiently reduce these levels in livestock and dairy operations.
The capture/recovery of methane at landfills as renewable energy faces local smog-reduction (NOx) rules, however, leading landfill operators to flare methane instead, which increases CO2 emissions. Competing air quality goals, along with heavily-subsidized solar and wind energy that underbids methane-based energy production, is causing an increasing number of landfills to cease renewable energy generation altogether. SB 1383 can be found here.
In March of 2016, the Services finalized a policy and two rules that revise the process for designating critical habitat under the Federal Endangered Species Act (FESA). One rule revises the definition of habitat “destruction or adverse modification,” while the other rule clarifies the procedures, standards and criteria for designating critical habitat. The new policy addresses how the Services consider exclusion of specific areas from designated critical habitat. You can read more about this here.
In December of 2016, the FWS issued revisions to eagle (and eagle nest) incidental take regulations originally issued in 2009. The FWS felt that these regulations needed revising, because:
The proposed revisions include changes to permit issuance criteria and duration, definitions, compensatory mitigation standards, eagle nest removal permit criteria, permit application requirements and fees.
The DRECP provides renewable energy developers with permit timing and cost certainty under the FESA and California Endangered Species Act (CESA) for the next 25 years, while preserving, restoring and enhancing natural communities and related ecosystems. The Plan sets aside 600 square miles of land for renewable energy development with streamlined permitting for utility-scale solar and wind projects, with future potential for another 625 square miles. It also mandates conservation, prohibits energy development and reduces recreational (e.g. ORV) uses on more than 6,500 square miles. You can learn more about the DRECP here.
AB 52 (2014) specifies that any project that may cause a substantial adverse change in the significance of a tribal cultural resource does indeed have significant effects on the environment. The bill requires a CEQA lead agency to consult with a California Native American tribe that is traditionally/culturally affiliated with a geographic area in which a project is proposed and has requested consultation on projects in that area prior to determining the type of CEQA document to be prepared. AB 52 also specifies examples of mitigation for avoidance and minimization of tribal cultural resource impacts.
In an appeal of a lower court ruling on Alaska Oil & Gas Assn. v. Pritzker that long-term climate projections were volatile and that the listing agency lacked data on a species’ adaptability and population trends – including a specified time at which a species would reach an extinction threshold – the 9th Circuit Court of Appeals described the key issue as follows: “When the listing agency determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, can that agency list that species under the Endangered Species Act?”
The court ruled that it would affirm a listing action so long as the agency considers the relevant factors and articulates a rational connection between the facts found and the choices made. The court’s highly deferential standard of review held that the agency’s robust rulemaking process was not arbitrary or capricious and that its listing decision was supported by reasonable, scientifically sound conclusions based on substantial evidence. The 9th Circuit Court stated that the Endangered Species Act simply requires the agency to consider the best and most reliable scientific and commercial data and to identify the limits of that data when making a listing determination. It does not require an agency to quantify population losses, the magnitude of risk, or a projected extinction date or extinction threshold to determine whether a species is more likely than not to become endangered in the foreseeable future.
Numerous courts and judges till now have deemed long-range climate change projections as too speculative. However, the 9th Circuit now appears to have changed that analysis with the declaration in this case that, though climate projections for 2050 through 2100 may be volatile, it does not deprive those projections of value in the rulemaking process. This legal victory could have major implications for many other climate-threatened species.
The Clean Water Act (“CWA”) regulates the discharge of pollutants into “the waters of the United States.” (33 U. S. C. §§1311(a), 1362(7), (12).) Because it can be difficult to determine whether a particular parcel of property contains such waters, the U. S. Army Corps of Engineers (“Corps”) issues property owners an “approved jurisdictional determination” (“JD”) stating the agency’s definitive view on that matter.
Taking a “pragmatic approach” to the “finality” doctrine for agency action, the United States Supreme Court unanimously held that a JD is a final agency action that is judicially reviewable under the Administrative Procedure Act. (5 U. S. C. §704.) There are important consequences when property contains waters of the U.S., in that the CWA imposes substantial criminal and civil penalties for discharging any pollutant into such waters without a permit, and the costs of obtaining such a permit are significant. JDs are defined by regulation to constitute a “final agency action” by the Corps, and JDs give rise to “direct and appreciable legal consequences.” The Corps argued that there were adequate alternatives for challenging the JD in court, in that petitioners could either discharge fill material without a permit and risk an EPA enforcement action in which they could argue that no permit was required, or petitioners could apply for a permit and seek judicial review if dissatisfied with the results. The court rejected that argument because those alternatives were inadequate.
This decision adds to the judicial options that property owners now have regarding CWA jurisdictional issues and builds on the Court’s holding that a civil action could be brought under the Administrative Procedures Act to challenge the issuance of a compliance order issued by the EPA before the Government sought to enforce that order.
Sixth Circuit Court of Appeals Holds That It Has Jurisdiction To Review The New Rule By EPA And USACE Defining “Waters of the United States” Under The Clean Water Act.
On May 26, 2015, the United States Environmental Protection Agency and the United States Army Corps of Engineers issued a final rule (“Rule”) on defining the meaning and extent of “Waters of the United States” for purposes of establishing federal jurisdiction under the Clean Water Act (“CWA”). 80 Fed.Reg. 37,054 (June 29, 2015). A number of lawsuits were filed around the country in different U.S. District courts by at least eighteen States challenging the Rule. Those cases were consolidated into case no. EPA-HQ-OW-2011, Judicial Panel on Multi-District Litigation, No. 135, before the United States Court of Appeals for the Sixth Circuit. On February 22, 2016, the Sixth Circuit denied all motions to dismiss by multiple petitioners and held that it had jurisdiction to review the Rule. The Clean Water Act provides that certain specified actions of the EPA Administrator are reviewable directly in the U.S. Circuit Courts of Appeal. Taking a “functional” approach over a “formalistic” one, the court held that “Congress’ manifest purposes are best fulfilled by our exercise of jurisdiction to review the instant petitions for review of the Clean Water Rule.”
In June 2015, the House of Representatives passed H.R.2576 (“Frank R. Lautenberg Chemical Safety for the 21st Century Act”), a bill that reformed the national Toxic Substances Control Act (“TSCA”), originally enacted in 1976. In December 2015, the Senate passed the bill with an amendment. The reforms enhance the ability of the U.S. Environmental Protection Agency (“EPA”) to regulate dangerous chemicals. For example, H.R. 2576 does the following:
By a unanimous vote, the California Fish and Game Commission listed the northern spotted owl (Strix occidentalis) under the California Endangered Species Act on August 26, 2016, ending a four-year review process first initiated by the Environmental Protection Information Center’s (EPIC) petition for listing in 2012. The species has been listed as a California threatened species since 1990. The listing decision will ultimately be published by the CA Fish & Game Commission at www.fgc.ca.gov/CESA/#nso.
All three of these species were listed in 2014 as threatened under the Federal Endangered Species Act. Designation of critical habitat for these species is designed to assist with their recovery. Most of the critical habitat for the frogs is on federal land, with significant overlap lands designated for each species. The total acreage the Service identified as required to recover the three species is 1,812,164 acres. Land use in the designated critical habitat areas consists primarily of high-elevation wilderness and forested lands with multiple uses, including recreation, fire and timber management, livestock grazing, and mining. Recreational activities in these areas should not significantly threaten the recovery of these species. The Federal Register Notice can be found at Critical Habitat Designation for Three Sierra Nevada Amphibian Species.
The California State Assembly has approved two medical marijuana-related bills, including one that would create a new type of license for MMJ “micro farmers” and another that addresses a host a of regulatory issues.
According to Assemblyman Jim Woods, the sponsor of the grower bill, AB 2516 will add a specialty cottage cultivator license that would be available for farms with up to 2,500 square feet of total canopy size for outdoor cultivation, or up to 500 square feet for indoor cultivation..
The second bill, AB 1575, would:
The new Medical Marijuana Regulation and Safety Act consists of three separate bills (AB 266, AB 243, SB 643) which were enacted together on Sept 11, 2015 (despite its title, the term "medical cannabis" is used throughout the act). The bill creates a comprehensive state licensing system for the commercial cultivation, manufacture, retail sale, transport, distribution, delivery, and testing of medical cannabis. All licenses must also be approved by local governments.
The law will take effect on Jan 1, 2016. After that, the state will need several months (probably at least a year) to set up the necessary agencies, information systems, and regulations to actually begin issuing licenses. In the interim, local governments may choose to adopt new ordinances to permit or license local businesses in preparation for state licensing. Facilities currently operating in accordance with state and local laws may continue to do so until such time as their license applications are approved or denied. In the meantime, prospective applicants are strongly advised to apply to the state Board of Equalization for a Resale Permit, and to prepare for seeking approval from their local governments.
UPDATE 2/3/2016 - Gov. Brown signed an urgency bill (AB21 - Wood) to delete a provision requiring localities to regulate cultivation by March 1, 2016 or else defer to state regulations. The bill also deletes language that explicitly authorized local governments to ban storage, cultivation, provision, transport, etc. by patients and caregivers.
UPDATE 1/7/2016 - A "clean up bill" on MMRSA, AB 1575, has been introduced, with new regulations on "virtual dispensaries" (delivery services); it ends the 2026 sunset on 10A licensees holding multiple licenses and leaves it up to the bureau to review by 2025; it amends rules on testing and residual levels of volatile solvents; it clarifies that cities and counties can add fees and taxes on top of state fees; it clarifies that a collective "may operate for profit, not for profit, or any combination thereof"; and it clarifies (in three places) that certain criminal statutes do not apply to licensees under the new law.
As of July 1, 2015, the California State Water Resources Control Board (SWRCB) adopted a new New National Pollutant Discharge Elimination System (NPDES) Industrial General Permit (2014-0057-DWQ), which regulates storm water discharges associated with 10 broad categories of industrial activities. For more information, go to www.waterboards.ca.gov/board_decisions/adopted_orders/water_quality/wqo14.shtml
On May 26, 2015 the EPA and USACE issued a final rule (“Rule”) on defining the meaning and extent of “Waters of the United States for the purposes of establishing federal jurisdiction under the Clean Water Act (CWA) 80Fed.Reg. 37,054. According to EPA and Corps of Engineers, 3% more waterways would be covered by the new rule (June 29, 2015). However, the United States Court of Appeals has issued an order that stayed the Rule nationwide and the preexisting rule still be in place until further notice. At least 18 states have filed lawsuits challenging the rule, which have been consolidated into a single case (EPA-HQ-OW-2011) before the 6th Circuit Court of Appeals. For more information, go to: www2.epa.gov/sites/production/files/2015-05/documents/rule_preamble_web_version.pdf and www.ca6.uscourts.gov/opinions.pdf/15a0246p-06.pdf
On Tuesday, January 19, 2016, President Obama issued a veto rejecting Senate Joint Resolution 22 – a congressional resolution that would have overturned federal regulations on The Waters of the United States Rule adopted by the Obama administration in 2014, which expanded the definition of waters subject to jurisdiction of the EPA under the CWA.
Exemptions regarding agricultural conservation practices have been on the books for review. On March 25, 2014, the EPA and U.S. Department of the Army signed an interpretive rule, “Interpretive Rule Regarding Applicability of the Exemption from permitting under Section 404(f)(1)(A) of the CWA to Certain Agricultural Practices.” In late 2014, Congress directed the agencies to withdraw the interpretive rule which the agencies complied with and published a memorandum withdrawing the interpretive rule on January 29, 2015. For more information, go to www.usace.army.mil/Portals/2/civilworks/regulatory/cwa_guide_memo_withdrawing_ir.pdf
CITGO Petroleum was convicted of multiple violations of the Migratory Bird Treaty Act (MBTA). However, on appeal, CITGO argued that illegal “take” involves only intentional conduct directed at the birds, but does not include unintentional or indirectly caused birds deaths. The Fifth Circuit Court agreed and overturned Citgo’s MBTA conviction on the grounds that “MBTA’s ban on ‘takings’ only prohibits intentional acts (not omissions) that directly (not indirectly or accidentally) kill migratory birds.”
In May of 2015, the U.S. Fish & Wildlife Service (USFWS) began an Environmental Review Process to evaluate the potential environmental impacts of a proposal to authorize the incidental take of migratory birds under the MBTA. The Service is considering various approaches to the Incidental Take Of Migratory Birds, including: (1) take authorizations for hazards associated with particular industry sectors; (2) individual permits authorizing incidental take from particular projects or activities; (3) memoranda of understanding with Federal agencies authorizing incidental take from federal agencies’ operations and activities; and/or (4) voluntary guidance for industry techniques or technologies to avoid or minimize incidental take.
For more information, go to www.federalregister.gov/articles/2015/05/26/2015-12666/migratory-bird-permits-programmatic-environmental-impact-statement or /www.fws.gov/birds/news/150627incidental-take.php or birdregs.org/
On December 10, 2015, the California Fish and Game Commission voted to advance the tricolored blackbird to candidacy under the California Endangered Species Act. As a candidate species, the Tricolored Blackbird receives the same legal protection afforded to an endangered or threatened species (California Fish & Game Code, Section 2085). For more information, go to www.fgc.ca.gov/meetings/2015/Dec/exhibits/31_TricoloredBlackbird.pdf
In June 2015, the California Third Appellate District Court of Appeals held that, under California Fish & Game Code, Section 1602, DFW must be notified before water is pumped out of a river or stream (for agricultural purposes) that substantially diverts the natural flow of the water, even if there is no alteration of or damage to the streambed itself. The court’s ruling changes the 50-year practice of ranchers and farmers who had not provided such notification.
The California Public Resources Code, Section 21083.4 requires a county to determine if a project will result in a conversion of oak woodlands that will have a significant effect on the environment. While the Statute defines “oaks”, it does not define “oak woodlands.” The Department of Forestry & Fire Protection appears to use the definition provided in the Oak Woodlands Conservation Act (CA Fish & Game Code, 1361), as an oak stand with a greater than 10 percent canopy cover or that may have historically supported greater than 10 percent canopy cover. If a project will have a significant impact on the environment through the conversion of oak woodlands, the impact must be mitigated in one or more of the following ways: (1) conserve woodlands through conservation easements; (2) plant appropriate number of trees (covers up to ½ mitigation requirement); (3) contribute to the Oak Woodlands Conservation Fund; or (4) other measures developed by a given county.
California Assembly Bill 52 – signed by the Governor on September 25, 2014 – specifies that a project with an effect that may cause a substantial adverse change in the significance of a tribal cultural resource is a project that may have a significant effect on the environment. The bill requires a lead agency to begin consultation with a California Native American tribe that is traditionally and culturally affiliated with the geographic area of the proposed project, if the tribe requested to the lead agency to be informed by the lead agency of proposed projects in that geographic area and the tribe requests consultation, prior to determining whether a negative declaration, mitigated negative declaration, or environmental impacts report is required for a project. For more information, go to www.opr.ca.gov/s_ab52.php
Assembly Bill 1034, passed by the Legislature and signed by the Governor, exempts the operation of a renewable energy generation facility on disturbed mine lands from the Surface Mining & Reclamation Act of 1975 (SMARA).
Federal agencies responsible for drafting the Desert Renewable Energy Conservation Plan, have decided to adjust the plan in response to numerous comments from California counties that the plan would: (1) conflict with existing environmental programs in areas they have already designated for renewable energy in their regions; (2) would lead to a loss of tax revenue on private lands exempted by the State; or (3) would restrict moneymaking land uses, including mining. The agencies will first address public lands and then deal with private lands on a county-by-county basis, which will allow time to engage with counties to determine best options and timing for proceeding with private land components and better align renewable energy development and local/state/federal conservation. For more information, go to www.drcep.org/documents/docs/2015-03-_DRCEP_Path_Forward_News_Release.pdf
The California Supreme Court confirmed that CEQA directs lead agencies to analyze the impact of a project on the environment, and not vice-versa, as claimed by the California Building Industry. The court noted that, in certain circumstances, a proposed project may exacerbate or increase the effects associated with an existing physical conditions and, in those cases, a lead agency would have to acknowledge, analyze and possibly mitigate for the increased effects.
The California 4th District Court of Appeals ruled that, following an emergency, a lead agency can reset the existing conditions “baseline” to the post-emergency repair condition when that lead agency had already considered undertaking the full project, including pre- and post-emergency work.
The California 4th District Court of Appeals also ruled that community change by itself is not an impact that must be addressed under CEQA, as part of or in the absence of a particular project, and concluded that community character was not the type of issue that CEQA should be concerned with.
The California Supreme Court upheld the use of a Scoping Plan as an appropriate threshold of significance for evaluating greenhouse gas (GHG) impacts, when a Newhall Ranch (Los Angeles) EIR concluded that a project’s impact on the environment would be less than significant, given that the project’s design anticipated GHG levels below the Scoping Plan targets. In effect, the court ruled that it was proper in this case to rely upon a future baseline to evaluate potential impacts.
California Assembly Bill 323 extends the sunset date until January 1, 2020 for the CEQA exemption for project to repair or make minor alterations to an existing roadway to improve public safety if the project is carried out by a city or county with a population less than 100,000.
California Senate Bill 88 enacts the following new CEQA exemptions: (1) a project carried out by a public agency to construct a recycled water pipeline for groundwater replenishment within and existing right-of-way that does not affect wetlands or sensitive habitat and fully mitigates its construction impacts (in effect until drought declaration ends or January 1, 2017); (2) a state agencies’ adoption of building standards for recycled water systems (in effect until July 1, 2017); and (3) adoption of a local agency ordinance limiting the drilling of new or deeper groundwater wells, or limiting or prohibiting increased water extractions from existing wells through conditions on issuance of well permits or changes in land use intensity that increases groundwater demand (in effect until drought declaration ends or July 1, 2017.)
California Senate Bill 348 requires a lead agency to file a Notice of Exemption (with CA OPR and every affected county) for a railroad grade separation project that either eliminates an existing grade crossing or reconstructs an existing grade separation (in effect until January 1, 2019)
California Assembly Bill 1303 extends by 24 months the expiration date of any approved tentative map approved on or after January 1, 2002 until July 11, 2013 and also requires extension of an approved or conditionally approved tentative map or vesting tentative map or parcel map that was approved on or before December 31, 2001, upon application by the subdivider at least 90 days prior to the map expiration.