California Environmental Law & Policy Update - June 2016

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Environmental and Policy Focus

U.S. Supreme Court allows pre-permit challenges to approved jurisdictional determinations

Allen Matkins - May 31 In a major new legal development for the Clean Water Act's Section 404 wetlands permitting program, landowners can now challenge the federal government's claim that areas targeted for fill are "waters of the United States" without first having to seek a permit to fill those waters, according to the Supreme Court's decision issued this week in United States Army Corps of Engineers v. Hawkes Co., Inc., No. 15-290 (U.S. May 31, 2016) (Hawkes). Until now, landowners could not immediately contest in court a determination by the Corps of Engineers ("Corps") or the U.S. Environmental Protection Agency that jurisdictional wetlands, ephemeral drainages, vernal pools or any other types of "waters" existed on property targeted for fill. Instead, landowners had to first complete the Section 404 permitting process – a process that can take months or even years – before challenging the underlying jurisdictional determination, or proceed to fill the site without a permit and risk possible civil penalties of up to $37,500 per day, or even criminal prosecution. Under Hawkes, a landowner can now seek judicial review of the Corps' formal assertion of jurisdiction without waiting for the conclusion of the Section 404 permitting process.

Federal agencies lift moratorium on hydraulic fracturing off California coast

San Diego Union-Tribune - May 27 An environmental assessment from the Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement released last week determined that hydraulic fracturing off the coast of California causes no significant impact, thus lifting a moratorium on the practice that was instituted earlier this year. "The comprehensive analysis shows that these practices, conducted according to permit requirements, have minimal impact,” Abigail Ross Hopper, director of the Bureau of Ocean Energy Management, said in a statement. The environmental assessment analyzed well stimulation treatments on 23 oil and gas platforms off California's coast between 1982 and 2014, and came back with a “Finding of No Significant Impact.” The Center for Biological Diversity, the environmental group that filed a lawsuit that resulted in the moratorium, said it is considering filing another suit in light of the agencies' decision.

State moves to drop $1.5 million fine in water rights case

Sacramento Bee - May 27 Last week, the State Water Resources Control Board said it was moving to drop a $1.55 million fine and enforcement action against Byron-Bethany Irrigation District (BBID) after several days of hearings because prosecutors failed to provide enough supporting evidence that BBID illegally diverted water last year. State water regulators claimed last June that BBID, located in the southern Sacramento-San Joaquin Delta, defied a state order issued to dozens of senior water rights holders to stop drawing water from streams and rivers due to drought conditions. It was the first time since 1977 that California had curtailed water used by agricultural districts with senior water rights that predate a system the Legislature put into place in 1914. The complaint alleged that after the state issued the stop order, BBID continued to divert 2,067 acre-feet of water over the next 13 days from an intake channel at the state-run Banks pumping station near Tracy. The board will vote on the dismissal at its June 7 meeting.

Delta tunnels won't take northern California's water, say officials

San Jose Mercury News - Jun 3 According to papers filed this week by California Department of Water Resources and U.S. Bureau of Reclamation officials, Governor Jerry Brown's $17 billion Delta tunnels will not divert water that belongs to northern Californians to Southern California; instead, it will use water that already is promised to the State Water Project and federal Central Valley Project. Environmentalists, Delta farmers, and some Northern California lawmakers call the tunnels project a water grab by Los Angeles and corporate farmers in the Central Valley that would harm the water quality of the San Francisco Bay and the Delta. Months of contentious public hearings start July 27. This first set of hearings will focus on water rights; a second set of hearings, scheduled for 2017, will debate the tunnels' impact on the environment. 

Water quality improves at Southern California beaches

Los Angeles Times - May 26 Water quality at Southern California beaches has shown marked improvement for the second year in a row in what experts say is the result of the severe drought that has reduced urban storm water runoff—which can contain motor oils, pesticides, yard and pet wastes, and other pollutants—into the Pacific Ocean. Based upon low bacteria counts, about 97 percent of Southern California beaches received an A or B grade for water quality during the busy summer months, according to the annual Beach Report Card released by the environmental group Heal the Bay, up three percentage points from last year’s report. In California as a whole, 95 percent of the 450 state beaches evaluated earned an A or B during the summer—the same as 2015.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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