On December 20, 2010, five years after the United States Supreme Court struggled with resolving the scope of Clean Water Act (“CWA”) jurisdiction in Rapanos v. United States (2006) 126 S.Ct. 2208, the EPA and the US Army Corps of Engineers have sent a draft December 2010 “Clean Water Protection Guidance” (“2010 Draft Guidance”) to the White House Office of Management and Budget (“OMB”) that would reportedly “clarify Clean Water Act responsibilities.” The 2010 Draft Guidance represents a significant departure from the Existing Guidance as it relies more explicitly on Justice Kennedy’s “significant nexus” test for determining CWA jurisdiction in the Rapanos decision. Continue reading →

The Army Corps of Engineers recently proposed to reissue the existing NWPs authorizing the discharge of dredged or fill material into waters of the United States for specified projects. (See http://www.usace.army.mil/CECW/Documents/cecwo/reg/nwp/NWP_prop_fr_16Feb2011.pdf) For projects that fall within their scope, NWPs can take the place of individual permits under section 404 of the Clean Water Act and have the potential to streamline one part of the approval process as obtaining permit coverage through an NWP is generally quicker and less expensive than obtaining an individual 404 permit. Through its proposal, the Corps is planning to reissue 48 of the 49 existing NWPs with some modifications and to issue two new NWPs. The Corps is proposing to let one NWP expire—NWP 47 for Pipeline Safety Program Designated Time Sensitive Inspections and Repairs—and not reissue it. Continue reading →

In the continuing quest to resolve the scope of the federal Clean Water Act (CWA), the EPA has prepared draft guidance to assist field staff in identifying jurisdictional waters under the CWA. While the draft guidance is not a regulatory document, the draft guidance may be a step toward formal rulemaking. The EPA forwarded the draft guidance document to the Office of Management and Budget for interagency review on December 20, 2010. Continue reading →

Lawmakers may be asked once again to approve a bar on suits filed under CEQA for a proposed sports facility. Developer Philip Anschutz is developing plans to build a 64,000-seat NFL stadium in Los Angeles with the ability to expand the seating capacity up to 78,000. At this time, the proposed stadium project has not been officially submitted to the city council. The project would be required to complete an environmental impact report, but there is a possibility that the project proponent may ask the Legislature to protect the project from being sued under CEQA, similar to the immunity granted in 2009 to a rival stadium project in the City of Industry. So far, the stadium proposal has been endorsed by Los Angeles Mayor Antonio Villaraigosa and former basketball player Magic Johnson, among others. At least one state senator has also openly stated it would be fair for the Legislature to grant the same immunity granted to the project proponent in the City of Industry stadium. Continue reading →

Redevelopment statutes have been on the books in California since 1945 when the State became the second in the nation to adopt local redevelopment authorizing statutes. Beginning in the mid-1970s after the end of most federal urban renewal programs, redevelopment became a hugely important economic development tool for local governments. Today, however, the role of redevelopment agencies is much more uncertain. In early January 2011, Governor Brown announced sweeping cuts to the State’s budget to help close the $24 billion budget gap. Among these cuts is a proposal to eliminate redevelopment agencies. The Governor proposed to eliminate redevelopment agencies by July 1, 2011, and shift approximately $1.7 billion to state programs and schools. The potential shift in funding could stop numerous redevelopment projects from going forward. Continue reading →

In Association of Irritated Residents, et al. v. California Air Resources Board, et al. (Case No. CPF-09-509562), the San Francisco Superior Court issued a tentative statement of decision on January 21, 2011, that effectively blocks the California Air Resources Board (CARB) from implementing any greenhouse gas reducing actions outlined in the Scoping Plan passed under Assembly Bill (AB) 32 until CARB complies with CEQA. Continue reading →

The Council on Environmental Quality (CEQ) issued new guidance to federal agencies implementing the National Environmental Policy Act (NEPA) on two topics: tracking mitigation and use of mitigation in the context of a Finding of No Significant Impact (FONSI). The guidance became effective through publication in the Federal Register on January 21, 2011 (76 Fed. Reg. 3843). Continue reading →

The Sixth District Court of Appeal in Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 held that the City of Sunnyvale 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 project is expected to go on line. According to the court of appeal, the failure to analyze the project’s impacts against existing conditions constituted a failure to proceed in a manner required by law. Although CEQA states that the existing setting at the time the Notice of Preparation is published “normally” is the baseline for assessing project impacts (CEQA Guidelines, § 15125, subd. (a)), where conditions are expected to change during environmental review, project effects might reasonably be compared to predicted conditions at the date of project approval. But the court drew the line there. “We do not construe the word ‘normally’ … to mean that a lead agency has carte blanche to select conditions on some future, post-approval date as the ‘baseline’ so long as it acts reasonably as shown by substantial evidence.” The Court noted that “The Supreme Court never sanctioned the use of predicted conditions on a date subsequent to EIR certification or project approval as a ‘baseline’ for assessing a project’s environmental consequence.” The Court of Appeal, therefore, found that doing so was a failure to proceed in the manner required by law.

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On December 16, 2010, the California Air Resource Board (CARB) adopted a resolution to approve the proposed “California Cap and Trade Program” with certain modifications that will be completed through a series of 15-day rulemakings.   The cap-and-trade program is designed as a key element in implementing AB 32, the California Global Warming Solutions Act of 2006.  The final regulation must be submitted to the Office of Administrative Law prior to October 28, 2011, and the program will begin in 2012. Continue reading →