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Read need-to-know updates, commentary, and analysis on Administrative Agency issues written by leading professionals.

Wetlands Determinations - Uncertainty for the Clean Water Rule?

by Ruder Ware on

On May 31, 2016, the United States Supreme Court issued its decision in United States Army Corps of Engineers v. Hawkes Co., Inc. holding that approved judicial determinations as to the presence of wetlands issued by the...more

Are Corps Jurisdictional Decisions Final Agency Action? It Appears So. Is This a Good Thing?

According to the trade press, today’s argument in Army Corps of Engineers v. Hawkes did not go well for the government. Pretty much the entire Court was seen as likely to conclude that Corps jurisdictional determinations are...more

Bypassing Scylla and Charybdis: Pre-enforcement Judicial Review of Wetlands Determinations Under the Clean Water Act

by Ruder Ware on

In the Odyssey, Homer told of the inescapable sailing hazards that confronted Odysseus: the six-headed sea monster, Scylla, on one side of a strait and a whirlpool, Charybdis, on the other. Odysseus chose to avoid losing all...more

Eighth Circuit Creates Circuit Split By Holding Jurisdictional Determinations Under The Clean Water Act Constitute "Final Agency...

by Nossaman LLP on

On April 10, 2015, the United States Court of Appeals for the Eighth Circuit held that the issuance of a jurisdictional determination (JD) by the U.S. Army Corps of Engineers (Corps) pursuant to the Clean Water Act (CWA)...more

Fourth Circuit Upholds U.S. Army Corps of Engineers' Finding of Jurisdiction Over 4.8 Acres of Wetlands in Chesapeake, Virginia

by Nossaman LLP on

On March 10, 2015, the United States Court of Appeals for the Fourth Circuit held that the U.S. Corps of Engineers (Corps) had lawfully denied a permit to an applicant seeking to fill 4.8 acres of wetlands in order to build...more

Supreme Court Finally Schedules Oral Argument In CEQA Categorical Exemption Case

by Miller Starr Regalia on

At long last, the California Supreme Court has scheduled oral argument in the case of Berkeley Hillside Preservation, et al. v. City of Berkeley, Supreme Court Case No. S201116. By its long-awaited order issued October 31,...more

California Cities and Counties Must Expedite Their Permitting Processes for Small Residential Rooftop Solar Systems by Sept. 30,...

by Best Best & Krieger LLP on

Under AB 2188, recently signed by Gov. Jerry Brown, cities and counties must adopt ordinances, or amend their current ordinances, to create expedited, streamlined permitting processes for small rooftop solar energy systems....more

Fifth District Reaffirms Its CEQA Historicity Rules in Citizens for the Restoration of L Street v. City of Fresno

by Miller Starr Regalia on

In a published opinion filed August 29, 2014, the Fifth District Court of Appeal affirmed a judgment granting a writ of mandate and finding that the City of Fresno erred in approving a mitigated negative declaration (MND) for...more

Is It Historical Under CEQA? Court Confirms Substantial Evidence Remains the Standard

by Stoel Rives LLP on

Citizens for the Restoration of L Street v. City of Fresno, et al., No. F066498,(Cal. Ct. App. 5th Dist., August 28, 2014) - In a two-part opinion, the Fifth District Court of Appeal affirmed the trial court’s judgment...more

Miami’s Future Archipelago of Floating Houses

A team of Dutch developers would like to bring a little bit of Atlantis to Miami. Earlier this month, Dutch Docklands submitted a letter of intent and request for zoning variance to the City of North Miami Beach in order to...more

EPA Proposes to Eliminate Dual Standard for “All Appropriate Inquires” under CERCLA

EPA Proposes Rule to eliminate the dual standard for compliance with the “All Appropriate Inquiries” requirement for the Innocent Purchaser, Bona Fide Prospective Purchaser and Contiguous Property Owner Defenses to CERCLA....more

EPA Proposes Change to Environmental Due Diligence Rule For Property Transactions

by Miller Canfield on

For the second time in a year, the U.S. Environmental Protection Agency (EPA) proposed to amend the “all appropriate inquiry” rule under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). ...more

EPA Proposes to Amend All Appropriate Inquiries Rule to Remove References to 2005 ASTM Standard for Phase 1 Assessments

by Davis Wright Tremaine LLP on

Yesterday, the EPA published for comment notice of its intent to amend the “All Appropriate Inquiries Rule,” 40 CFR part 312, to remove references to ASTM E1527-05 “Standard Practice for Environmental Site Assessments: Phase...more

Bowman v. California Coastal Commission: New California Court of Appeal Decision Holds that a Collateral Attack is no Substitute...

Sometimes in land use law, the most impactful court holdings come from the simplest of cases. That may be the situation with the new California Court of Appeal decision in Bowman v. California Coastal Commission, issued by...more

Warrantless Inspections are Not Warranted under the Freshwater Wetlands Protection Act

by Cole Schotz on

The New Jersey Supreme Court recently held that the New Jersey Department of Environmental Protection (NJDEP) may not conduct a warrantless administrative inspection of a residential property subject to a Freshwater Wetlands...more

The ASTM Standard Practice for Phase II Environmental Site Assessments

by Pullman & Comley, LLC on

Originally published in the Environment Reporter, 43 ER 3080, 11/30/2012. Phase II Site Assessments - This article reviews the background of the revised Phase II Environmental Site Assessment Standard issued in...more

U.S. EPA Issues New Guidance on Bona Fide Prospective Purchaser Defense for Tenants

by Saul Ewing LLP on

The United States Environmental Protection Agency ("EPA") released revised guidance on the applicability of the bona fide prospective purchaser ("BFPP") defense to tenants under the Comprehensive Environmental Response,...more

Supreme Court Case Involving CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions Now Fully Briefed by Parties;...

by Miller Starr Regalia on

The Respondent City of Berkeley and Real Parties (Kapors) filed their joint Reply Brief on the Merits in the California Supreme Court in a much-watched categorical exemption case, Berkeley Hillside Preservation, et al. v....more

City May Adopt Housing Element Revisions Inconsistent With General Plan If City Also Adopts Timeline To Correct Inconsistencies

Recently, the Fourth District Court of Appeal in Friends of Aviara v. City of Carlsbad affirmed the trial court’s judgment directing the City of Carlsbad to adopt a timeline for proposed changes to its general plan that would...more

How Much Uncertainty Does CEQA Allow? Court Upholds EIR's Practical Approach for Evaluating Uncertain Cumulative Impacts, but...

by Perkins Coie on

In Preserve Wild Santee v. City of Santee, the court immersed itself in an EIR’s evaluation of the impacts of a large residential project proposing 1,395 homes and 1,400 acres of open space preserve. The court upheld the...more

CERCLA and Original Sin -- Who Has to Pay For Other People's Contamination

In an environmental dispute between innocents involving a Church and a downgradient property owner, a federal court recently found the Church, although without original sin, was less innocent and should bear all the costs of...more

Are Courts Actively Limiting CEQA’s Scope In The Absence of Meaningful Legislative Reform?

by Miller Starr Regalia on

Governor Jerry Brown was recently quoted in a Capitol Alert piece as calling legislative reform of CEQA “the Lord’s work” – hopefully he didn’t mean the quest for the Holy Grail – although he admitted in the same article he...more

PACE Fights Regulatory and Legal Headwinds

by Lane Powell PC on

Once lauded by the Harvard Business Review as a “Breakthrough Idea of 2010,” the promise of an innovative financing method for residential renewable energy and energy conservation retrofits under Property Assessed Clean...more

Does CEQA Provide For Classes of Exempt Projects? Parties File Opening Merits Brief in Supreme Court in Berkeley Hillside...

by Miller Starr Regalia on

Following up on previous posts (see February and May archives), the City of Berkeley Respondents and the Kapors (Real Parties in Interest) filed their joint 80-page opening brief on the merits on July 27 in Berkeley Hillside...more

Legal Issues Associated with Building “Green”

by Reed Smith on

State and local governments have enacted a variety of incentives to encourage energy efficient “green” design and construction practices. Projects owned or leased by government authorities are often subject to mandatory green...more

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