Archives: January 2015

DWR Increases Water Deliveries to State Agencies

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As California enters its fourth year of drought, the Department of Water Resources (DWR) is increasing the amount of State Water Project (SWP) water allocated to state agencies by 5 percent—from 10 percent of the requested amount to 15 percent. This translates to a total allocation of 635,759 acre-feet annually to 29 agencies, compared to the requested 4,172,686 acre-feet. DWR is able to make this increase thanks to early-December storms that raised reservoir water levels. Last year at this time, no water was initially allocated.

DWR states that this allocation is consistent with the long-term water supply contracts and public policy. DWR considered several factors prior to settling on this increase, such as existing storage, operational constraints (i.e., potential harm to endangered fish), and contractor demands. DWR may revise the allocations over the course of the year based on changing water supply and sustainability conditions.

The two largest regions in terms of water received are the San Joaquin Valley at 170,035 acre-feet, and Southern California at 394,433 acre-feet.

National Marine Fisheries Service Reverses Finding that CWA Streamlined Permitting Program Could Create Jeopardy Under ESA

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In a newly issued Biological Opinion, the National Marine Fisheries Service (NMFS) has reversed its 2012 finding that the Clean Water Act’s (CWA) streamlined nationwide permitting program could result in jeopardy under the Endangered Species Act (ESA). Nationwide permits govern actions that have limited environmental impacts, and streamlining is intended to expedite the permitting process for those actions. In contrast, activities the Army Corps of Engineers (Corps) determines may discharge dredged or fill material into waters of the United States, but do not qualify for coverage under a nationwide permit, must be authorized under individual 404 permits.

NMFS emphasized that though streamlining of nationwide permits is now considered acceptable under the ESA, new measures promulgated by the Corps will ensure species are protected. These measures include amending notification requirements, holding semi-annual staff meetings, and improving tracking of the permits’ authorized activities. The Corps also plans to issue guidance specifying that regulated entities must report injuries or death of certain marine species listed under the ESA.

The Corps’ new rules will require pre-construction notifications for activities in jurisdictional waters where impervious surface materials will be used and where the waters are inhabited by listed species or are designated critical habitat under the species law. The Corps also plans to modify a nationwide permit covering utility lines and authorization of some oil and gas infrastructure. The oil and gas industry is concerned that the Biological Opinion might result in limitations on the permit, creating an impasse on new energy infrastructure.

US EPA Delays Rollout of New Clean Power Rules

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On January 7, the EPA announced that it is delaying release of proposed power plant rules. The rules are intended to lower the power sector’s greenhouse gas emissions 30 percent by 2030. EPA states the delay is meant to give states time to develop compliance plans.

The rules for new power plants were originally slated to be released this week, but their release is now postponed to align with the later release of rules governing existing and modified plants. EPA explained that finalizing the rules for all three types of plants concurrently will allow it to consider overlapping issues in a coordinated fashion. Finalization of the rules is set for mid-summer.

One consequence of the delay is that Congress cannot attempt to override the rules under the Congressional Review Act until later this year. Another outcome of releasing all three rules together is that this strategy could make it harder to bring effective legal challenges against rules; EPA could claim that the new rules constitute a single action, and thus must be challenged in a single brief. EPA, however, denies that legal strategy is motivating the delay.

It is unclear whether there could be further delays down the road, but EPA has at least one important reason for getting the rules finalized on schedule: it would be one of the Obama Administration’s last actions.

First District Holds Timber Management Plan Does Not Violate CEQA

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The court held that a Nonindustrial Timber Management Plan (NTMP) approved by the California Department of Forestry and Fire Protection (Cal Fire) authorizing logging on 615 privately owned acres in Mendocino County did not violate CEQA. Center for Biological Diversity v. Cal. Dept. of Forestry and Fire Protection (Dec. 30, 2014) ___ Cal.App.4th ___, Case No. A138914.

Timberland use in California is primarily governed by the Forest Practice Act and Forest Practice Rules. An NMTP is a long-term plan for sustained yield timber production utilized by owners of less than 2500 acres of timberland and whose focus is not manufacturing forest products. Though Cal Fire’s approval of timber operations is generally subject to CEQA, the Forest Practice Act’s regulatory scheme is a certified regulatory program. An NTMP functions as the equivalent of an EIR.

In October 2008, the Bower family submitted a proposed NTMP to Cal Fire seeking authorization for timber harvesting activities northeast of Gualala. Petitioners took issue with the fact that Cal Fire approved, and the Department of Fish and Wildlife (DFW) did not object to, logging activity on a 17-acre section that DFW identified as a Late Succession Forest Stand (LSFS). This LSFS was considered a potential functional nesting habitat for a threatened seabird, the marbled murrelet. At the same time, there was no known history of any actual murrelet nesting in the LSFS.

Following a preharvest inspection of the Bowers’ property, a forester asserted the LSFS had only marginal potential for marbled murrelet occupation. A revised NTMP submitted in 2009 required retention of several large-diameter trees to benefit wildlife. Cal Fire issued responses to public comments on the NTMP and approved the document, concluding that large wildlife trees were being preserved, and species largely dependent on late seral habitat features would not be adversely impacted. DFW did not submit a nonconcurrence.

Petitioners filed a petition for a writ, complaint for breach of public trust, and request for injunctive relief. Petitioners contended that Cal Fire, in approving the NTMP, had failed to comply with CEQA and the Forest Practice Rules. They insisted the cumulative impacts of the proposed logging would eliminate enough large trees in the LSFS to render the stand unsuitable for murrelet nesting. Petitioners also argued the NTMP violated the California Endangered Species Act (CESA) by authorizing logging that would be adverse to nesting habitat essential for the survival and recovery of the murrelet.

Reviewing Cal Fire’s approval under the substantial evidence standard, the court denied the petition. It characterized petitioners’ contentions as disagreements over the evidence—parties drawing “dramatically differing conclusions from the same record.” The calculations and comparisons petitioners attempted to make, even if accurate, did not offer a complete description of the resulting environment, the court stated. Furthermore, Cal Fire was entitled to choose between differing expert opinions. Petitioners failed to affirmatively show that there was no substantial evidence in the record to support Cal Fire’s findings. The court also rejected petitioners’ claims that the NTMP did not analyze a reasonable range of alternatives.

Petitioners also claimed the NTMP should have been recirculated based on “significant new information” added prior to certification. They cited to a 2009 one-page memorandum from a Cal Fire biologist recommending additional protective measures for large tree retention. Each of the biologist’s recommendations were addressed in additional mitigation measures. The court found that the memo disclosed no new environmental impacts nor any substantial increase in the severity of an impact. The mitigation measures added in response to the memo were discussed in a second review, in which petitioners participated, and were accepted eight days prior to the close of the public comment period.

Petitioners’ CESA claims failed because Cal Fire found that implementation of the plan, as mitigated, would not result in take, jeopardy, or adverse modification of habitat in violation of the CESA. That finding was supported by substantial evidence.

Petitioners’ claim against DFW also failed. Petitioners cited no authority for the proposition that an NTMP is subject to review through traditional mandamus under CCP section 1085, particularly when the petition is not directed to the agency with authority to approve or reject the project. DFW’s decision not to actively oppose Cal Fire’s decision was merely an exercise of agency discretion.