Archives: May 2011

EPA and Army Corps of Engineers Issue Draft Guidance Which Would Expand Their Jurisdiction Under the Federal Clean Water Act

On May 2, 2011, the US Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) jointly issued a draft of new guidance for determining whether a particular body of water is protected by the Clean Water Act. The two agencies indicated that the reason for the new draft guidance was the significant uncertainty over the scope Clean Water Act’s jurisdiction, in particular, what bodies of water are subject to regulation by the Act. This uncertainty derives in large part from two United States Supreme Court decisions issued in the past decade—Solid Waste Authority of Northern Cook County v. Army Corps of Engineers (2001) 531 U.S. 159 (SWANCC) and Rapanos v. United States (2006) 547 U.S. 715. In SWANCC, the court struck down the “migratory bird rule,” holding that the Corps exceeded its jurisdiction when it extended the definition of navigable waters to include intrastate waters solely based on its use by migratory birds. To further confuse matters, in Rapanos, a fractured court issued three separate opinions regarding the extent of Clean Water Act’s jurisdiction. The agencies’ draft guidance was issued to give field staff more specific assistance in determining whether a particular water feature is protected by the Act. This new guidance, which may be read to expand the agencies’ jurisdiction, will likely be the subject of litigation based on allegations that it is contrary to the Court’s holdings and exceeds the outer boundaries of authority given to the agencies in the Act.
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Second District Court of Appeal Ruled City of Los Angeles’ Voluntary Acquisition of Properties Did Not Create Condemnation Blight.

On April 12, 2011, in City of Los Angeles v. Superior Court (2011) 194 Cal.App.4th 210, the Second District Court of Appeal considered whether landowners had shown that the City of Los Angeles’ voluntary acquisition program, adopted in lieu of a sound insulation program in certain neighborhoods near LAX, created “condemnation blight”—therefore entitling the landowners to inverse condemnation compensation. Property owners argued that the City had been purchasing properties in their neighborhoods through a voluntary acquisition program, relocating the residents, and demolishing the structures. Thereafter, the land was left vacant and undeveloped. In ruling against the landowners, the Court of Appeal held that the property owners had failed to establish that the city had either a plan to use the acquired property for a public purpose, or intended to acquire the landowners’ property or any nearby property through condemnation. The landowners, therefore, failed to show they were entitled to summary adjudication on their inverse condemnation claim.
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California Supreme Court Denied Request for Depublication of Sunnyvale Case, which Rejected Use of Hypothetical Baseline of Future Conditions

On April 27, 2011, the California Supreme Court denied several requests to depublish the opinion in Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351. California Rules of Court, rule 8.1125, authorizes this unusual request. In Sunnyvale, the Sixth District Court of Appeal held the City violated CEQA because its EIR for a proposed roadway improvement project failed to analyze the project’s impacts against existing, present day conditions. Instead, the EIR used as its baseline for analyzing project impacts projected traffic conditions in the year 2020, the year the City expected the project to actually go on line. According to the court of appeal, the failure to analyze the project’s impacts against existing conditions, even if apparently such an analysis is wholly artificial, constituted a failure to proceed in a manner required by law. For more information on the case, see our blog post of January 19, 2011. Continue reading

Sixth District Holds that the Approval of a Term Sheet for a Proposed Stadium Development Is Not a “Project” or “Project Approval” Requiring Prior CEQA Review

The Sixth Appellate District in Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150 affirmed the judgment of the trial court, sustaining a demurrer to a petition for writ of mandate. The court held that City of Santa Clara and its redevelopment agency’s approval of a term sheet setting forth the basic terms of a proposed transaction to develop a stadium in Santa Clara for use by the San Francisco 49ers football team did not constitute a “project” or a “project approval” that required preparation of an environmental impact report (EIR) under the California Environmental Quality Act (CEQA).
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