|
 Welcome to Argentco.com - your authoritative source for environmental, land use and water law, regulation and policy. Our publications are written and analyzed by top practitioners in their fields, and are designed to provide thorough and timely information that is distilled for quick understanding.Use this site to identify key actions in your area of practice or interest. You can search or browse the Argentco.com Archives by Court, Location or Subject. Paid subscribers have access to full-text articles from the Argentco.com Archive. And both visitors and paid subscribers can register for our free E-mail Alert service which can be customized to cover specific subjects of interest. Our Directory will help you locate attorneys, consultants, associations and governmental agencies dealing with your area of concern.
|
The Latest from Argentco.com
January 2010
Full Steam Ahead for the Umatilla Basin Aquifer Restoration Project
A much-anticipated aquifer recharge project is moving forward in the Umatilla River Basin, a tributary of the Columbia River in north-central Oregon, as local governments, districts and the Confederated Tribes of the Umatilla Indian Reservation (Confederated Tribes) sign on to a key intergovernmental agreement (IGA). The project involves an ambitious plan to recharge distressed aquifers with water from the Columbia River. The primary purpose of the IGA is to create a new intergovernmental entity, pursuant to Oregon law, that will be responsible for project implementation. The parties to the IGA are Umatilla County, Morrow County, Westland Irrigation District, County Line Water Improvement District and the Confederated Tribes. The counties and Westland Irrigation District formally approved the IGA in November and early December, and the remaining parties plan to do the same by the end of the year....
January 2010
New Initiatives for Chesapeake Bay Restoration and Protection--The Government Gets Serious about the Bay
The Chesapeake Bay is an ecosystem in stress. Poor water quality, over-development of surrounding shoreline, disease affecting bay fish and shellfish, overfishing, invasive species, climate change, population increase, hypoxia and contaminants have all contributed to the gradual degradation of the bay. After 25 years of effort and millions of dollars spent by the federal government, states and localities, the bay's health is far from stated recovery goals. The decline of the bay ecosystem affects not only the over 3,600 species of plants and animals that rely on the bay. A less productive bay threatens to still an economic engine that has powered the surrounding states for generations, as well as the cultural identity of the bay's unique cities and towns....
January 2010
The California Air Resources Board Releases Its First Annual GHG Reporting Data and Preliminary Draft Regulation for State Level Cap and Trade Program
The California Air Resources Board was busy in late 2009 in addressing greenhouse gas emissions in the state. In particular, the board released a report of greenhouse gas data for the calendar year 2008 and a preliminary draft regulation for California's proposed state level greenhouse gas (GHG) cap and trade program. In January 2010, the board will start the review process of public comments on its proposals and from it's public workshops. From this point forward, it's expected that California's cap and trade program will develop very quickly....
January 2010
The Boundary of Navigable Waters and Tidelands May Extend behind Lawfully Built Shore Defense Structures as if They Do Not Exist
The ownership and regulation of thousands of miles and acres of shoreline and low-lying lands have been thrown into question by a ruling of the Ninth Circuit Court of Appeals that the mean high water line, the country's principal waterfront boundary, lies not where it actually is on the ground, but rather where it would be if shore defense structures such as levees and seawalls had never been built and water had been allowed to flow freely onto the land. In U.S. v. Milner, ___F.3d___, Case No. 05-35802 (9th Cir. Oct. 9, 2009), the court held several homeowners who had lawfully built seawalls on their properties landward of the mean high water line (MHWL) to be liable for trespass and violation of the Rivers and Harbors Act when, after many years, the tides eroded the intervening beaches and reached their shore defense structures and would have reached further landward had the structures not held them back....
January 2010
District Court Holds Notices of Violation and Agency Investigations are Insufficient to Trigger Clean Water Act Provisions Barring Citizen Suits
The District Court for the Southern District of Mississippi has reaffirmed that the litigation bar in the citizen suit provision of the Clean Water Act (CWA) is triggered only when the U.S. Environmental Protection Agency (EPA) or a state files a civil or criminal action against the alleged violator in federal or state court, and that action relates to the same violations as those addressed in the citizen suit. Similarly, the litigation bar in a civil penalty provision of the CWA applies only when EPA, the U.S. Army Corps of Engineers (Corps), or a state initiates litigation seeking civil penalties from the alleged violator in federal or state court or when one of those entities issues a final, non-appealable order imposing civil penalties and the defendant has paid those penalties. Either the action or order must also address the same violations targeted in the citizen suit. The court held neither provision bars citizen suits when a regulatory agency is merely investigating alleged violations or has issued a notice of violation (NOV). Accordingly, it dismissed the defendant's converted motion for summary judgment, which argued these provisions barred the plaintiff's citizen suit against it....
January 2010
Nevada Court Overturns Approval for Southern Nevada Water Authority to Pump Groundwater from Three Rural Valleys
The Seventh Judicial District Court of Nevada has struck down the approval of key groundwater-rights applications filed by the Southern Nevada Water Authority, which is under increasing pressure to develop backup supplies for its limited Colorado River allocations. The judge called the approval (which would have allowed pumping of up to 6 billion gallons per year from three rural valleys in northern Nevada) "arbitrary" and "oppressive" because it was not based on evidence that the aquifers could endure that level of pumping. The opinion presents a significant roadblock to Southern Nevada Water Authority's alternative water supply plans....
January 2010
California State Water Resources Control Board Issues New Draft of Water Quality Enforcement Policy
On November 17, 2009, the State Water Resources Control Board (SWRCB) issued a new draft of the Water Quality Enforcement Policy (WQEP), which is a guidance document governing enforcement by the Regional Water Quality Control Boards (RWQCB) and the SWRCB under the Porter-Cologne Water Quality Control Act. The WQEP is formulated to create a transparent and consistent framework for enforcement priorities, assessment of civil penalties after a formal adjudication process and for informal enforcement and compliance assistance....
January 2010
Fifth District Opines that Public Agencies Must Obtain C-57 Water Well Contractor's Licenses
On November 9, 2009, the California Court of Appeal for the Fifth Judicial District entered its decision in California Groundwater Assn. v. Semitropic Water Storage District in which it held that public agencies are not exempt from the requirements of Water Code Section 13750.5. Under this section, the court found that if the public agency "undertakes to dig, bore, or drill a water well, cathodic protection well, groundwater monitoring well, or geothermal heat exchange well, to deepen or reperforate" any such well, or "to abandon or destroy" any such well:...
January 2010
Recent Investigations, Settlements, Penalties and Sanctions
Editor's Notice: Complaints and indictments discussed below are merely allegations unless they are proven in a court of law of competent jurisdiction. All accused are presumed innocent until convicted or judged liable. Most settlements are subject to a 30-day public comment period....
January 2010
Following Jury Verdict on Common Law Counts, District Court Determines the Source of PCE Release and Response Costs under CERCLA
Following a jury verdict in favor of Walnut Creek Manor (WCM) as against Mayhew Center, LLC (Mayhew) on the negligence, ultrahazardous activity, trespass, and nuisance claims, the District Court adjudicated the remaining non-jury statutory claims under the federal Comprehensive Environmental Response, the Compensation and Liability Act (CERCLA) and California Hazardous Substance Account Act (HSAA). These remaining bench issues consist of the source of the release of tetrachoroethylene (PCE), and whether that release caused either party to incur response costs that were necessary and consistent with the National Contingency Plan. Although the jury determined that the source of the PCE released at the WCM property was the Mayhew property, the District Court was not bound by that jury determination. The District Court did independently come to that same conclusion. The District Court held that evidence suggested that PCE contamination existed in far greater concentrations on the Mayhew side of the property line, and gradually moved away from this point of release. However, as no CERCLA cleanup plan had been created, the District Court could not determine the amount of CERCLA response costs. Finally, the District Court rejected Mayhew's contribution claim....
January 2010
Opposition to the U.S. Bureau of Reclamation's '2-Gates Project' Ramps Up
Southern Delta residents have recently become more vocal in their opposition to a proposed project that would modify Central Valley Project and State Water Project operations in their communities. The U.S. Bureau of Reclamation (Bureau), in conjunction with two Southern California water agencies, have proposed the 2-Gates Fish Protection Demonstration Project to improve ecosystem conditions for threatened Delta smelt while increasing water exports. Opponents assert that the less-publicized consequence of the proposed project would be the destruction of the Southern Delta residents' current way of life....
January 2010
Tenth Circuit Finds Union Pacific's CERCLA Contribution Right Is Sufficient for Intervention
The United States and the State of Oklahoma (federal and state governments) sued Union Pacific under the Comprehensive Environmental Response, Compensation and Liability Act's (CERCLA) damage provisions seeking to hold it jointly and severally responsible for the federal and state governments' entire non-reimbursed cleanup costs and natural resources damages related to the Double Eagle Superfund Site (Double Eagle Site). While this action was pending, the federal and state governments sued some 44 potentially responsible parties (PRPs) for the entire cleanup costs and natural resources damages at the Double Eagle Site. Although the federal and state governments' limitations period on this suit had expired, the federal and state governments lodged a consent decree memorializing a settlement agreement with the 44 PRPs under which they would enjoy immunity from contribution actions or claims for the Double Eagle Site, in exchange for their collective payment of some $6.5 million. Union Pacific sought to intervene in this action alleging statutory contribution rights under CERCLA Section 113(f) and (i) against the settling parties....
January 2010
District Court Holds U.S. Bureau of Reclamation Required to Perform NEPA Review for Implementation of Delta Smelt Biological Opinion
On November 13, 2009, Judge Oliver Wanger of the U.S. District Court for the Eastern District of California ruled on the cross-motions for summary judgment in the Delta Smelt Consolidated Cases arising out of the December 15, 2008 biological opinion (BiOp). The U.S. Fish and Wildlife Service prepared the 2008 BiOp pursuant to the federal Endangered Species Act (ESA) in order to address the impacts on the endangered Delta smelt of the plan for continued, coordinated operations of the Central Valley Project (CVP) and State Water Project (SWP). The court ruled that the plaintiffs were entitled to summary judgment on their claims under the National Environmental Policy Act (NEPA) against the U.S. Bureau of Reclamation (Bureau) because the Bureau violated NEPA by failing to perform any environmental review prior to provisionally adopting and implementing the 2008 BiOp....
January 2010
Colorado Supreme Court Holds Claimed Conditional Appropriations by Governmental Water Suppliers Lacked Sufficient Evidence
In this case, the Colorado Supreme Court reversed a conditional water right decree issued by the Division No. 7 Water Court and remanded the case for further proceedings. We first reported on this case in the article, "Colorado Supreme Court Refines 'Great and Growing Cities' Doctrine for Municipal Water Providers Seeking to Meet Future Water Demands." 12 West. Water L. & Pol'y Rptr. 89 (Jan. 2008). The decision in the instant case and this article further highlight the legal elements a governmental water agency must demonstrate to obtain a conditional water right....
January 2010
2009 Year-End Review of Select Land Use Legislation
The 2008-2009 Legislative Session has now come to a close and a number of bills related to land use have been signed into law or vetoed by Governor Arnold Schwarzenegger. The following list of bills reflects each bill that the California Land Use Law & Policy Reporter has been tracking over the course of this year. As indicated, some of the bills, for one reason or another, never even made it to the governor's desk. Nonetheless, for purposes of providing our readers with a comprehensive breakdown we continue to present those bills here. In addition, some of these "stuck" bills have either been converted to two-year bills or will resurface in a "new and improved" form....
|
