California Environmental Law & Policy Update - April 2015 #3

Allen Matkins

Environmental and Policy Focus

Army Corps jurisdictional determinations subject to pre-permit judicial review, Eighth Circuit says

Allen Matkins - Apr 13

EPA and Army Corps of Engineers imposition of federal Clean Water Act requirements can now be challenged in court without waiting for the agencies to bring an enforcement action, at least in states within the jurisdiction of the federal Eighth Circuit Court of Appeals. (The states are in the Midwest: Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota.) On April 10, 2015, in a major milestone in the history of Clean Water Act jurisprudence, the U.S. Court of Appeals for the Eighth Circuit issued an opinion holding that CWA jurisdictional determinations (JDs) are subject to "pre-enforcement" judicial review. The decision conflicts with a recent case in which the Fifth Circuit held that JDs are not reviewable, setting the stage for a possible Supreme Court resolution of the circuit split.

State authorizes condemnation for additional high-speed rail property

Fresno Bee - Apr 10

On April 10, 2015, the California State Public Works Board adopted resolutions authorizing the use of eminent domain or condemnation to acquire almost 152 acres of land in Fresno, Kings, Madera, and Tulare counties for California’s high-speed rail route through the central San Joaquin Valley. The properties targeted for condemnation represent the largest number of parcels and acreage for which the Public Works Board has approved eminent domain on behalf of the California High-Speed Rail Authority since the first resolutions were adopted in December 2013. To date, the board has authorized condemnation for 192 properties amounting to about 425 acres.

Metropolitan Water District approves 15 percent cut in water deliveries

KPCC - Apr 14

Starting July 1, 2015, Metropolitan Water District (MWD), a water wholesaler that provides 19 million people across Southern California and San Diego County with much of their drinking water, will be cutting supplies by 15 percent. MWD buys Northern California and Colorado River water and sells it to cities and local water agencies stretching from Ventura County to the Mexican border. Not all agencies will face a 15 percent reduction in supplies. The individual numbers will be determined by the availability of local supplies and how much water the districts have saved already.

Ninth Circuit hears argument on Mojave Desert solar plant

Courthouse News Service - Apr 13

On April 10, 2015, the Ninth Circuit heard from both sides in two cases challenging the government-approved development of a land parcel in California's Mojave Desert for a solar power plant. BrightSource Energy's Ivanpah project is currently the largest solar thermal power plant in the world, covering 3,600 acres. It began commercial operations in 2013. In the first action, Western Watersheds Project alleges that the government failed to adequately analyze the project's impact on the area's desert tortoise population, in violation of the National Environmental Policy Act. In the second action, La Cuna De Aztlan claims that the project blocks access to native American sacred sites.

Mendocino County suspends contract with Wildlife Services

KCET - Apr 13

Mendocino County has decided to hold off on renewing a contract with Wildlife Services, an agency within the U.S. Department of Agriculture that kills predators and other animals. The move came as a result of settlement of a lawsuit filed in November by wildlife protection activists, who charged the county had violated state law in renewing its contract with the agency, which has attracted increasing controversy over its aims and methods. Wildlife Services kills approximately 80,000 wild animals annually in California, usually at the behest of agricultural interests. As part of this settlement, Mendocino County will assess non-lethal predator management techniques, and will conduct an environmental review before considering another contract with Wildlife Services. 

U.S. Forest Service investigates expired Nestle permit

San Jose Mercury News - Apr 12

The U.S. Forest Service is investigating an expired permit that Nestle has been relying upon to draw water out of a national forest in Southern California for its bottled water business. Nestle Waters North America's permit to transport water across the San Bernardino National Forest expired in 1988. The water is piped across the national forest and loaded on trucks to a plant where it is bottled for retail distribution. Environmentalists have raised concerns about the expired permit and the lack of government oversight in tracking the water being tapped amid the state's ongoing drought. Nestle, the largest producer of bottled water in the U.S., said it monitors its water use and the environment around the springs where water is drawn.

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Allen Matkins

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