The Clean Water Act sometimes requires a permit for the indirect discharge of pollutants from a point source to navigable waters, but only when the discharge is the “functional equivalent” of a direct discharge, the Supreme Court held on April 23. The Court’s 6-3 opinion in County of Maui v. Hawaii Wildlife Fund (No. 18-260) addresses a circuit split regarding whether indirect discharges to navigable water via groundwater are subject to the Act’s National Pollutant Discharge Elimination System (“NPDES”) permitting program, but it has implications for other types of indirect discharges as well. Although the Court identified some factors that may help determine when a discharge is the functional equivalent of a direct discharge—especially the time and distance between the discharge of a pollutant from a point source and the pollutant’s arrival in navigable waters—its opinion is likely to create substantial uncertainty for the regulated community as the Environmental Protection Agency (“EPA”), litigants, and the courts attempt to apply the Court’s multi-factor test to a variety of factual scenarios.
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State-Level Rent Relief Due to COVID-19 Impacts: California Governor Newsom’s Executive Order Explained
As state and local governments act to address the economic fallout of the COVID-19 pandemic, relief for renters impacted by the coronavirus has come from both state and local policymakers. In previous posts, we covered San Francisco’s and San Diego’s efforts to temporarily ban evicting residential and commercial tenants impacted by COVID-19. In this post, we explain Governor Gavin Newsom’s Executive Order, issued on March 27, creating a statewide moratorium on evicting renters impacted by COVID-19. Here are key takeaways from the statewide Executive Order.
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New Shelter-in-Place Orders Dramatically Restrict Bay Area Construction, Including Residential Projects
As the number of COVID-19 cases continues to rise, state and local officials in California are taking increasingly aggressive action to stop the virus’ spread through Shelter-in-Place (“SIP”) orders. In addition to Governor Newsom’s statewide SIP order, six Bay Area counties – San Francisco, Santa Clara, San Mateo, Marin, Contra Costa, and Alameda – have issued more restrictive local SIP orders. New versions of these local orders, published on March 31st and substantially identical, clarify uncertainties in prior orders and dramatically narrow the scope of allowable construction projects. These new orders are in effect from April 1st through May 3rd, but are subject to further extension.
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San Francisco Temporarily Bans Evicting Residential and Commercial Tenants Impacted by COVID-19 Epidemic
As of the beginning of April, more than one million Californians have applied for unemployment assistance. While state and local officials are seeking to address this aspect of the economic fallout of the COVID-19 pandemic in a number of ways, renter protections are among the most visible measures to emerge. In San Francisco, Mayor London Breed issued a series of Declarations temporarily banning commercial and residential evictions if the tenant cannot pay rent due to COVID-19 impacts. Here are important takeaways from the Declarations.
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Housing in California in 2020: A Look Ahead and a Lesson in Try, Try Again
Indisputably, 2019 was an important year for housing in California. As we noted in our prior blog post, Governor Newsom signed legislation creating statewide rent control, preventing discrimination against people paying rent with vouchers, and preventing cities from downzoning in order to inhibit new construction projects. And, according to legislators involved in these efforts, the State wants to keep up this momentum in 2020.
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EPA and Army Repeal Clean Water Rule and Move Forward with Plan to Redefine Waters Subject to Federal Regulation under Clean Water Act
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) published a rule on October 23, 2019, repealing the Clean Water Rule promulgated by the Obama administration in 2015. The rule, which goes into effect on December 23, 2019, puts the pre-2015 regulations governing areas subject to federal jurisdiction under the Clean Water Act back into place nationwide. Environmental groups and state attorneys general have vowed to challenge the repeal in court.
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Endangered Species Act Rulemakings Face Immediate Challenge
On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) published final rules amending three important parts of the federal regulations that implement the Endangered Species Act (16 U.S.C. §§ 1531 et seq.). The amended rules, which will take effect on September 26:
- Eliminate the automatic extension of protections to threatened (as opposed to endangered) species;
- Revise the provisions for designating critical habitat and listing and de-listing species under ESA Section 4; and
- Revise the procedures for interagency consultation under ESA Section 7.
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On Repeat: Courts Again Uphold Low Carbon Fuel Standard Programs
The Ninth Circuit Court of Appeals recently upheld – for the second time – California’s Low Carbon Fuel Standard (“LCFS”) against constitutional challenges brought by industry groups. The case, Rocky Mountain Farmers Union v. Corey (9th Cir. 2019) (No. 17-16881) (“Rocky Mountain II”), considered the groups’ claims that all 3 historical versions of the LCFS violate the Commerce Clause and the “federal structure of the Constitution” by regulating extraterritorially. The court held that while the plaintiff’s claims had changed form since the first time the court upheld the LCFS, “both the regulations and the claims have the same core structure now as they did then.” The court used this similarity to guide its analysis and uphold the district court’s dismissal.
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Critical Habitat Must Be Habitat for Listed Species, Supreme Court Says
An area designated as critical habitat under the Endangered Species Act must first qualify as “habitat” for listed species, the Supreme Court held this week in the closely watched Weyerhaeuser case. The Court’s November 27, 2018 ruling, which reversed a decision by the Fifth Circuit, has the potential to narrow federal agencies’ discretion to designate as critical habitat areas that are currently unoccupied by endangered or threatened species, but the opinion leaves important questions to be answered by the lower courts – including the meaning of “habitat.” The Court also held that agency decisions not to exclude specific areas from a critical habitat designation on economic grounds are subject to judicial review, reversing the Fifth Circuit and overturning the current law in the Ninth Circuit.
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