California Environmental Law & Policy Update - September 2020 #2

Allen Matkins


White House directs agencies to relax enforcement

Bullet Los Angeles Times – September 9

A memorandum produced by the White House Office of Management and Budget and sent to federal agency heads last week instructs them to make significant changes in how and when they bring enforcement cases, telling them, among other things, to “eliminate multiple enforcement actions for a single body of operative facts,” to apply “limiting principles to the duration of investigations,” and to obtain the approval of an “Officer of the United States” – i.e., a political appointee of the President – before initiating investigations or enforcement actions. The new guidance, released August 31, was issued by the Office of Information and Regulatory Affairs, or OIRA, a unit of the White House that typically does not get involved in enforcement policy. The memorandum focuses on administrative cases, which make up the bulk of the federal government’s enforcement activity, and is not limited to environmental enforcement.



Fish and Wildlife Service proposal would make it harder to protect habitat for endangered species, critics say

Bullet The Hill – September 4

The U.S. Fish and Wildlife Service (FWS) last Friday proposed to change the factors the agency considers before designating new “critical habitat” for endangered species under the federal Endangered Species Act (ESA), giving more weight to the financial impacts of doing so on the oil and gas industry, ranchers, and homeowners. The FWS is already required to consider economic impacts before issuing a critical habitat designation, but the proposal would require it to accept assessments of that impact from industry. Environmental groups fear the rule would bias the process in favor of industry, after the administration has already finalized a major rollback of the ESA. Designating habitat as critical does not bar development of a parcel of land, but it could lead to additional barriers or come with certain management requirements.


Six Western states rebuke Utah plan to tap Colorado River water

Bullet SFGate – September 9

Six states in the western U.S. that rely on the Colorado River to sustain cities and farms rebuked a plan to build an underground pipeline that would transport billions of gallons of water through the desert to southwest Utah. In a joint letter Tuesday, water officials from Arizona, California, Colorado, Nevada, New Mexico, and Wyoming urged the U.S. government to halt the approval process for the project, which would bring water 140 miles from Lake Powell in northern Arizona to the growing area surrounding St. George, Utah. If the approval moves forward, state water leaders wrote, “multiyear litigation" would likely be inevitable and could complicate negotiations over the future of the Colorado River, which serves 40 million people but faces threats from persistent drought and climate change that are dwindling the water supply.


Fifteen states sue over Alaskan Arctic oil and gas leasing

Bullet CNN – September 9

Fifteen states, including California, are suing the U.S. Bureau of Land Management, its parent agency the Interior Department, and Interior Secretary David Bernhardt, for opening Alaska's Coastal Plain up to oil and gas leasing in 2017 in what they say is a violation of environmental laws. The move comes after Bernhardt announced plans last month for an oil and gas leasing program in the Arctic National Wildlife Refuge, clearing the way for drilling in the remote Alaskan area, a long controversial issue. Bernhardt said future leases of the federally-owned land will make the entire 1.5 million-acre Coastal Plain area available. The 19 million-acre Arctic National Wildlife Refuge had been closed to oil exploration since 1980 due to concerns about the effect it would have on the region's caribou, polar bears, and other animals.


Santa Rosa orders sudden curtailment for farm irrigators after miscalculation on recycled water supply

Bullet The Press-Democrat – September 7

The City of Santa Rosa miscalculated its stored water forecast near the beginning of the irrigation season, leading to sudden limits on water use that farmers say will have significant impacts in an already dry year. According to the city, in mid-June, the agricultural users were put on notice that there would not be enough irrigation water for all to last through the growing season. For the affected farmers, the sudden limit means they have 30% less water to irrigate crops they planted in the spring with the assumption supply would be normal. More than 30 agricultural water users — at least half the 60 or so who use recycled wastewater for irrigation — reached their allotted amounts by early August, according to city documents.

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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