Archives: February 2020

EPA Releases Navigable Waters Protection Rule that Redefines Waters of the U.S.

On January 23, 2020, the U.S. Environmental Protection Agency (EPA) released its Navigable Waters Protection Rule to replace the 2015 Clean Water Rule, promulgated by the Obama administration and repealed by the current administration in 2019. The new rule purports to clarify federal regulation of waters within the U.S. by differentiating “waters of the U.S.,” which are subject to federal jurisdiction under the Clean Water Act, and non-jurisdictional waters. It identifies four categories of protected waters—the territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds, and impoundments; and wetlands that are adjacent to jurisdictional waters. The new rule also identifies waters not subject to federal control, including groundwater; ephemeral features; ditches; prior converted cropland; farm and stock watering ponds; waste treatment systems; and rainfall collection features.

The new rule is moored to late Justice Antonin Scalia’s plurality opinion in the landmark Supreme Court case Rapanos v. United States, 547 U.S. 715 (2006), that offers a more restrictive view of jurisdictional waters. Justice Anthony Kennedy’s concurrence in the same case offers a more expansive view and spawned what became known and implemented as the “significant nexus” test—which placed all waters that bear a significant nexus to traditional navigable waterways within federal jurisdiction. For nearly a decade, Kennedy’s significant nexus test, imprecise as it may be, supplemented the 1986 U.S. Army Corps of Engineers (USACE) definition of jurisdiction waters in a majority of regions—later serving as the basis for the 2015 Rule.

Implications of the new Trump administration rule vary state by state but mark a clear reduction in federal protection for waters that were formerly classified as jurisdictional, notably wetlands and ephemeral waterways. California is especially affected because of its unique climate and abundance of wetlands and seasonal streams. A primary stated goal of the current administration with the Navigable Waters Protection Rule was to increase state responsibility for managing their waters, which is the exact outcome in California where the State Water Board will soon regulate what are referred to as “Waters of the State.” This new regulatory program becomes effective on May 28, 2020, and closely tracks the 2015 rule in terms of protection and coverage.

The Navigable Waters Protection Rule arrives on the heels of nearly 620,000 public comments on its proposal, fewer than the over one million received on the 2015 rule’s proposal.  The rule will take effect 60 days after publication in the Federal Register, although a publication date has yet to be released. Until such time, the 1986 USACE definition prevails, along with any adopted Supreme Court clarifications. For Ninth Circuit territory, this means a return, if only temporary, to Kennedy’s “significant nexus” test.

Casey Shorrock

California Supreme Court Justice Ming Chin to Retire in August 2020

Justice Ming W. Chin will retire from the Supreme Court of California on August 31, 2020, after 25 years on the State’s highest court. Appointed in 1996 by then Governor Pete Wilson, Justice Chin is the high court’s longest sitting member, having served with three different chief justices. Justice Chin is the high court’s longest sitting member and its first Chinese-American justice.

During his tenure on the Supreme Court, Justice Chin authored more than 350 majority opinions and more than 100 separate opinions, including several on environmental and land use issues. Justice Chin penned the widely cited opinion in Berkeley Hillside Preservation v. City of Berkeley, (2015) 60 Cal.4th 1086, where he clarified the definition of “unusual circumstances” within the exceptions to CEQA exemptions and articulated a two-part test with a bifurcated standard of review for determining whether the exception applies. Ten years prior, in Sierra Club v. California Coastal Com., (2005) 35 Cal.4th 839, Justice Chin upheld the California Coastal Commission’s reading of the California Coastal Act in approving a development permit. In his ruling, Justice Chin looked to the “statutory framework” and the “evolution of…legislative history” but ultimately relied on a facial reading of the Act to affirm agency discretion. More recently, in Sierra Club v. County of Fresno, (2018) 6 Cal.5th 502, he issued the “Friant Ranch” decision that established a hybrid CEQA standard of review for claims challenging the informational sufficiency of an EIR’s discussion of significant impacts, where a “do novo” review is appropriate for “a mixed question” of fact and law that “requires a determination whether statutory criteria were satisfied” and “a more deferential standard is warranted” for predominantly “factual questions.” Justice Chin also rendered highly impactful opinions on water rights, Agua Caliente Band of Cahuilla Indians v. Superior Court, (2006) 40 Cal.4th 239 and City of Barstow v. Mojave Water Agency, (2000) 23 Cal.4th 1224; endangered species, Central Coast Forest Assn. v. Fish & Game Com., (2017) 2 Cal.5th 594; and eminent domain, Mt. San Jacinto Community College Dist. v. Superior Court, (2007) 40 Cal.4th 648, to name a few.

Justice Chin is the high court’s longest sitting member and its first Chinese-American justice. He grew up the son of Chinese immigrants who, though unable to attend school themselves, taught he and his seven siblings the importance of education. Justice Chin’s two children both followed his footsteps into the law and became attorneys—Jason Chin, an Alameda County Superior Court judge, and Jennifer Chin, senior counsel for the University of California’s Office of the President.

Casey Shorrock

Howard F. Wilkins III (“Chip”)

Howard F. Wilkins III (“Chip”)

Partner

Mr. Wilkins joined the firm in 2005 and became a partner in 2010.  His practice focuses on land use and environmental law.  Mr. Wilkins handles all phases of the land use entitlement and permitting processes, including administrative approvals and litigation.  Mr. Wilkins’s practice covers the California Environmental Quality Act (CEQA), the State Planning and Zoning Law, the Subdivision Map Act, the Williamson Act, the California Endangered Species Act, the California Native Plant Protection Act, the Brown Act, the National Environmental Policy Act (NEPA), the federal Endangered Species Act, the federal Clean Water Act, waste management, water law, administrative law, as well as initiative and referendum law.

Prior to joining the firm, Mr. Wilkins was an associate attorney in the complex litigation and litigation groups at Kronick, Moskovitz, Tiedemann & Girard, where he represented public and private clients in state and federal court proceedings involving a broad range of matters, including inverse condemnation, eminent domain, contracts, products liability, unfair competition, and class actions. While working at Kronick, Mr. Wilkins volunteered for a month at the Yolo County District Attorney’s office, handling hearings, bench trials and a jury trial. Before entering law school, he served in various positions in the political arena, including research director for a state political party, political consultant and campaign manager.

Mr. Wilkins regularly teaches land use and environmental continuing education classes and seminars for organizations such as the State Bar of California, Law Seminars International, and Association of Environmental Professionals. He also regularly speaks at conferences and meetings, such as the annual Environmental Law Conference at Yosemite.

Representative matters include:

  • Outside counsel to Marina Coast Water District for review under CEQA of water and land use projects and in litigation defending a challenge to a proposed annexation.  Mr. Wilkins also currently represents the District in challenges relating to well permits and a large desalination plant.
  • Representing Homewood Village Resorts LLC, JMA Ventures LLC, Squaw Valley Resort LCC, Mountainside Partners LLC, and Kila Lodge LLC, in separate matters navigating CEQA, the Tahoe Regional Planning Compact, and land use entitlement processes to obtain permits from Placer County and the Tahoe Regional Planning Agency, as well as litigation in federal and California courts.
  • Outside counsel defending Yuba County Water Agency in federal Endangered Species Act cases.  The current case involves a challenge to several Biological Opinions regarding Central Valley spring-run Chinook salmon, Central Valley steelhead, and southern Distinct Population Segment of North American green sturgeon on the Yuba River. In prior cases, the plaintiffs alleged separate Section 9 “take” violations against the Agency.
  • Represented Tahoe Regional Planning Agency in defense of challenge to its adoption of Regional Plan in the United States Court for the Eastern District of California and Ninth Circuit Court of Appeals.
  • Represented Treasure Island Community Development, LLC and San Francisco Waterfront Partners II, LLC in separate matters navigating CEQA and land use entitlement processes to obtain permits from the City and County of San Francisco and the State Lands Commission, as well as litigation in California superior and appellate courts.
  • Represented County of Contra Costa in defense of two challenges to its CUPA Hazardous Waste Generator program fees and refund claims.  Successfully settled the matter after filing demurrer on behalf of County. The case settled on favorable terms for the County, and the fees remained valid.
  • Represented large retailer in successfully navigating CEQA and local land use entitlement processes to obtain a conditional use permit for home improvement store. Despite vocal opposition during the permitting process, the project did not draw any litigation. The entitlements sought included a tentative parcel map, design review, demolition permit, grading permit, building permits, encroachment permit from Caltrans, Asbestos Dust Mitigation Plan, approval for a piped canal, National Pollutant Discharge Elimination System (NPDES) Permit, Clean Water Act Section 401 Water Quality Certification, and Nationwide 404 Permit.
  • Represented California Department of Fish and Game (now Department of Fish and Wildlife) in defense of petition for a writ of mandate and declaratory relief claims relating to whether it was exempt from annual water-related assessments. The case was settled on favorable terms for the Department as it was not required to pay any past or future assessments and incurred no financial obligations to the plaintiffs.
  • Represented clients in administrative hearings, including the California Energy Commission, Central Valley Regional Water Quality Control Board, and State Water Resources Control Board.
  • Represented start-up companies in connection with proposals to site and obtain entitlements for proposed anaerobic digester facilities that transform organic waste into biogas fuel (hydrogen, methane), as well as biofuel, solar, and other clean energy projects.  Assisting clients in consultations with stakeholders and advising on environmental review process.  Assisted clients in successfully obtaining millions in grant funding.

Published Decisions:

  • Friends of the River v. National Marine Fisheries Service (E.D. Cal., July 18, 2017, No. 216CV00818JAMEFB) 2017 WL 3034700 (Federal Endangered Species Act).
  • Sierra Club v. Tahoe Regional Planning Agency (Tahoe Regional Planning Compact)
    • 840 F.3d 1106 (9th Cir. 2016)
    • 2014 WL 1366253 (E.D. Cal., Apr. 7, 2014) and
    • 2013 WL 3070632 (E.D. Cal. June 17, 2013).
  • Defend Our Waterfront v. California State Lands Commission (2015) 240 Cal.App.4th 570 (CEQA).
  • Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036 (CEQA).
  • Alliance for the Protection of the Auburn Community Environment v. County of Placer (2013) 215 Cal.App.4th 25 (CEQA).
  • Sierra Club v. Tahoe Reg’l Planning Agency, 916 F.Supp.2d 1098 (E.D. Cal.2013) (Tahoe Regional Planning Compact, CEQA).
  • Citizens for Open Government/ Lodi First v. City of Lodi (2012) 205 Cal.App.4th 296 (CEQA).
  • S. Yuba River Citizens League v. Nat’l Marine Fisheries Serv. (Federal Endangered Species Act)
    • 851 F. Supp. 2d 1246 (E.D. Cal. 2012);
    • 629 F. Supp. 2d 1123 (E.D. Cal. 2009); and
    • 257 F.R.D. 607 (E.D. Cal. 2009).

Education

  • J.D., University of California, Davis, 1999
    B.S., Political Science, Santa Clara University, 1995

Professional Affiliations

  • State Bar of California
    • Member
    • Environmental Law Section Chair (2015-2016) and Executive Committee Member (2010-2016); Advisor (2016-2017)
  • California Lawyers Association
    • Board of Directors, Vice Chair and member (2018-present)
    • Environmental Law Section Executive Committee Advisor and Representative to Board of Directors (2018-present)
    • Environmental Law Section member
  • Admitted to all California State Courts
  • U.S. District Courts, Northern, Eastern and Central Districts of California
  • United States Court of Appeals for the Ninth Circuit
  • Sacramento County Bar Association
    • Environmental Law Section member
    • Executive Committee (2010-2015), Chair (2014-2015)
    • Selected for inclusion in Northern California Super Lawyers® magazine in 2018 & 2019

Community Involvement

  • Master of the Bench, Schwartz/Levi Inn of Court
  • Board Member and Vice-President, Harry S. Truman Club

Tiffany K. Wright

Tiffany K. Wright

 Partner

Ms. Wright joined the firm in 2000 and became a partner in 2006.  Ms. Wright represents public agencies and private applicants in a variety of land use and environmental law matters.  Ms. Wright handles all phases of the land use entitlement and permitting processes, including administrative approvals and litigation.  Her practice covers the California Environmental Quality Act (CEQA), the State Planning and Zoning Law, the Subdivision Map Act, the Williamson Act, the California Endangered Species Act, the National Environmental Policy Act (NEPA), the federal Endangered Species Act, and the federal Clean Water Act provisions associated with wetlands permitting.

Ms. Wright teaches several land use and environmental law continuing education classes and seminars each year for professional organizations such as the Association of Environmental Professionals and Law Seminars International. She also regularly speaks at conferences and meetings, such as conferences for the California Chapter of the American Planning Association, the California Association of Environmental Professionals, the League of California Cities, the County Counsels’ Association of California and the American Public Transportation Association.

Representative matters include:

  • Outside counsel to the Los Angeles County Metropolitan Transportation Authority for CEQA review of several transit and transportation projects and in litigation challenging the approval of the Crenshaw/LAX transit line, the Regional Connector transit line, and the Westside Subway transit line.
  • Outside counsel to the Port of Los Angeles for CEQA review of various projects to implement the Port’s Master Plan.
  • Representing Richland Communities for several large specific plan projects, including the Lincoln Village 5 Specific Plan, a 4,943-acre mixed-use development in western Placer County.
  • Counsel to Friant Ranch, LP in litigation over the adequacy of Fresno County’s EIR for the Friant Ranch Specific Plan, decided by the California Supreme Court on December 24, 2018.
  • Outside counsel to Calaveras County and Tuolumne County in the updates of their general plans.

Published Cases

  • Sierra Club v. County of Fresno (2018) __ Cal.5th ___ (Supreme Court Case No. S219783).
  • Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439.
  • Japanese Village, LLC v. Federal Transit Administration, 843 F.3d 445 (9th Cir. 2016).
  • Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627.
  • South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316.
  • Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara County Association of Governments (2009) 179 Cal.App.4th 113.
  • St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 161 Cal.App.4th 989.
  • CalBeach Advocates v. City of Solana Beach (2002) 103 Cal.App.4th 529.

Education

  • J.D., University of California, Davis, King Hall School of Law, 2000
  • B.S., Environmental Toxicology, University of California, Davis, 1995

Professional Affiliations

  • State Bar of California
    • Environmental Law Section
  • Admitted to all California State Courts
  • U.S. District Court, all California Districts
  • U.S. Court of Appeals for the Ninth Circuit
  • Sacramento County Bar Association
  • Association of Environmental Professionals
  • Selected as a Super Lawyer in 2018 & 2019 and as a Rising Star in the 2009 & 2010 Northern California Super Lawyers® magazine