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Keith Garner is a partner and Practice Group Leader of the Real Estate, Land Use, Natural Resources and Environmental Practice Group in the firm's San Francisco office.

On July 27, 2017, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published their proposed rule to rescind the Clean Water Rule. This is the same rule that was released in pre-publication form in June, which we described in a previous entry.
Continue Reading Corps and EPA Solicit Public Comment on Restoring Pre-Clean Water Rule Regulations

On July 21, 2017, the California State Water Resources Control Board (State Board) published its latest proposal for new permitting procedures that would apply to waters of the State, including wetlands. The proposal – which would define wetlands, create delineation procedures, and impose requirements for an alternatives analysis and mitigation – will be vetted through workshops and a public hearing, with the public comment period ending September 7, 2017. The State Board could adopt the proposal as early as the fall of 2017.
Continue Reading California Proposes New Permitting Procedures for Impacts to Wetlands and Waters of the State

The Environmental Protection Agency and Army Corps of Engineers on Tuesday announced a proposed rulemaking that would rescind the “Clean Water Rule” — which the agencies finalized in 2015 to revise the definition of “waters of the United States” subject to federal jurisdiction under the Clean Water Act — and recodify the prior regulatory definition of such waters. The action essentially would maintain the status quo, since the Sixth Circuit had already enjoined implementation of the Clean Water Rule nationwide pending the outcome of a legal challenge. But the agencies also said they intend to conduct a separate rulemaking to promulgate a new definition of waters of the United States that will consider the principles outlined in Justice Scalia’s plurality opinion for the Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006). Both the repeal and the new definition would be consistent with direction given in an executive order signed by President Trump on February 28, 2017.
Continue Reading EPA, Corps Propose Rescinding Clean Water Rule

On June 17, 2017, the State Water Resources Control Board (State Board) published proposed amendments to the Ocean Plan and the water quality control plan for Inland Surface Waters and Enclosed Bays and Estuaries and Ocean Waters of California to adopt procedures for discharges of dredged or fill material to waters of the state that are not protected by the federal Clean Water Act (CWA).  In addition to the proposed amendments, the State Board also published a detailed staff report and a separate comparison of the new “State Supplemental Dredged or Fill Guidelines” to the CWA’s Section 404(b)(1) Guidelines, which requires sequencing of impacts to avoid, minimize, and mitigate impacts to waters.  Two workshops and a public hearing are scheduled in June and July, with the public comment period ending on August 4, 2016.  The proposal is tentatively scheduled to be considered by the State Board in the fall of 2016.
Continue Reading California Proposes Adopting New Permitting Program for Wetlands and Waters of the State

On May 6, 2016, the U.S. Fish and Wildlife Service (“Service”) published a proposed rule  that would amend various aspects of its permitting program under the Bald and Golden Eagle Protection Act (“Eagle Act”).  As widely anticipated, the proposed rule seeks to extend the maximum permit term from five to thirty years, but it also creates more stringent conservation standards and more flexible mitigation requirements for permits.  The comment period for the proposed rule ends on July 5, 2016.

Along with the proposed rule, the Service also released a status report, which showed increases in bald eagle populations but possible declines in golden eagle populations; and a Draft Programmatic Environmental Impact Statement (DPEIS), which analyzed potential impacts of the proposed rule under NEPA and which the Service intends to use as the basis for tiered, subsequent project-level review.

Continue Reading USFWS Proposes (Again) To Issue 30-Year Eagle Act Permits

The U.S. Army Corps of Engineers (“Corps”) has proposed new and revised Nationwide Permits (“NWPs”) for certain activities that require authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act.  Nationwide Permits provide streamlined authorization for dredge and fill activities that the Corps has determined will have minimal adverse effects on the aquatic environment, individually and cumulatively.  The Corps is soliciting comments until August 1, 2016.
Continue Reading Corps Proposes Renewal of Nationwide Permits

United States Army Corps of Engineers v. Hawkes Co., Inc. (5/31/16, No. 15-290)

In a widely anticipated decision in the wake of the Sackette v. EPA (132 S.Ct. 1367 (2012) decision, the U.S. Supreme Court decided that federal courts can review Army Corps of Engineers’ (“Corps”) determinations that a waterbody is subject to Clean Water Act regulation, resolving a split between the circuits in a victory for land owners.

Continue Reading Jurisdictional Determinations Are Reviewable By The Courts

On January 19, 2016, President Obama vetoed legislation that, if approved, would have nullified the Clean Water Rule. The controversial rule, which redefines which water bodies qualify as “waters of the United States” under the Clean Water Act, was issued by the EPA and U.S. Army Corps of Engineers in June of 2015 and was immediately challenged by several states and private parties. A joint resolution approved by the Senate last November and by the House earlier this month largely along party-line votes, would have disapproved the rule under the Congressional Review Act and prevented the promulgation of a similar rule. But the President vetoed the resolution, meaning the fate of the rule now rests with the courts.
Continue Reading Bill to Nullify Clean Water Rule Vetoed

The Sixth Circuit today stayed the effect of the Environmental Protection Agency’s new “Clean Water Rule” nationwide, while the Court of Appeals considers whether it has original jurisdiction to hear challenges to the regulation or whether those challenges should proceed first in the federal district courts. Among other reasons, the court said staying the Rule would remove uncertainty and confusion by restoring a uniform definition of “waters of the United States” nationwide. Before today, the prior regulatory definition of waters of the United States was in effect in 13 states where the federal district court for North Dakota had enjoined the new Clean Water Rule; the new Rule’s definition applied in the rest of the country.
Continue Reading BREAKING: EPA Water Rule Blocked Nationwide By Sixth Circ.

In Defend Our Waterfront v. California State Lands Commission (Sept. 17, 2015) __Cal.App.4th __, Case Nos. A141696 & A141697, the California Court of Appeal for the First District upheld the trial court’s grant of a petition for writ of mandate challenging a land exchange with the State Lands Commission in connection with the 8 Washington Street development project in San Francisco. The court held that (i) the petitioners were not required to exhaust administrative remedies due to ineffective notice by the State Lands Commission, and (ii) the exchange agreement was not statutorily exempt from the California Environmental Quality Act (“CEQA”).
Continue Reading State Lands Commission Land Exchanges Not Exempt from CEQA Review Absent a Title or Boundary Dispute; Actual Notice Doesn’t Satisfy CEQA Notice Requirements Under Public Resources Code Section 21177(e)