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 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.
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The Latest from Argentco.com
July 2009
The Rapid Rise of Local Green Building Ordinances--Will they Survive Legal Challenge?
According to the U.S. Department of Energy, carbon dioxide emissions from energy consumption in buildings constituted about one third of this country's total carbon dioxide emissions in 1980. At present, that number is approaching forty percent. Department of Energy, Buildings Energy Data Book 1.4.1 (Sept. 2008). Thus, it is not at all surprising that there is a growing chorus advocating for "green building." The eagerness of local governments to respond by adopting green building ordinances quickly has become a national phenomenon. See, generally, Edna Sussman, "Reshaping Municipal and County Laws to Foster Green Building, Energy Efficiency, and Renewable Energy," 16 N.Y.U. Envtl. L. J. 1 (2008). Building code drafters have been catching up....
July 2009
Conservation and the '20x2020 Plan': A Partial Approach to California's Water Crisis?
California is currently experiencing its third consecutive drought year. The Sierra Nevada snowpack, which provides one-third of the water to California users, as well as annual rainfall levels and the supply of reservoirs are all below drought levels. Groundwater, which can comprise up to 30 percent of water supply, is also below drought levels throughout much of the Central Valley. The continued effect of these drought conditions requires immediate action in order to preserve both the quality and the quantity of water available to agricultural, industrial and municipal water users. In a new comprehensive statewide plan, California proposes urban supply conservation as a critical step to address diminishing water supplies and increasing water demand from population growth. Conservation as used herein is broadly defined as consumer rationing as a result of economic incentives, such as water districts levying conservation water rates, decreased water deliveries from the state and the federal level, and increased allotment of water resources to stressed or endangered species. This article will address the practical meaning and effect of conservation, primarily on municipal users and the water districts which provide water to residential users....
July 2009
Eleventh Circuit Charts a New Course on Water Transfers--What About the Water Transfer Rule?
On June 4, the U.S. Court of Appeals for the Eleventh Circuit issued its long-awaited decision in Friends of the Everglades v. South Florida Water Management District, ___F.3d___, Case No. 07-cv-13829 (11th Cir. June 4, 2009). Now, another long wait begins. In Friends of the Everglades, the Eleventh Circuit reversed a District Court ruling and held that the Clean Water Act (CWA) does not require a water district to secure a National Pollutant Discharge Elimination System (NPDES) permit before pumping polluted runoff water from drainage canals into Lake Okeechobee. In reaching its decision, the court looked to the U.S. Environmental Protection Agency's (EPA) "water transfer rule," a regulation the agency issued in June 2008--years after the litigation began--that specifically excludes inter-basin waterto-water transfers like the pumping activity in question. In the end, the court found that EPA's rule reasonably addresses ambiguity in the CWA and allows the water transfers into Lake Okeechobee to continue without an NPDES permit. But with several lawsuits pending that challenge the water transfer rule itself, the question remains--how long will this last?...
July 2009
Clearing Up Red Tape for Green Projects: California Proposes Streamlined Endangered Species Permitting for Renewable Energy Projects
Renewable energy, a crucial mechanism to reduce greenhouse gas emissions, is very cool and very hot all at the same time. It's cool because by reducing emissions, it contributes to the long-term preservation of environmental resources, including threatened and endangered species. It's hot because construction and operation of renewable energy projects can result in environmental impacts of their own, which has made it an important topic for developers and regulators. Because renewable energy projects occupy a lot of land area, mostly in undeveloped and remote areas, they are also often located in regions that provide habitat for endangered species. For example, many compelling renewable energy projects are proposed within California's desert regions that provide habitat for state or federally protected species, such as the desert tortoise and the Mojave ground squirrel. To be constructed, these projects will need to comply with the California Endangered Species Act (CESA), implemented by the California Department of Fish and Game (DFG), and the federal Endangered Species Act (ESA), implemented by the U.S. Fish and Wildlife Service (FWS). Compliance with these regulatory schemes has created a heavy regulatory burden for certain projects, slowing development timelines and frustrating expectations. How can we avoid obstacles to developing renewable energy projects that result from cumbersome procedures for endangered species permitting?...
July 2009
District Court Denies Motion to Dismiss CERCLA Claims against 'Owner and Operator' where Party Was an Owner Only
The U.S. District Court for the District of Colorado denied plaintiff and cross-defendant La Plata County's motion to dismiss defendant and crosscomplainant Brown Group's counterclaim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because La Plata County was the current owner of the contaminated property even if it did not "operate" the facility....
July 2009
U.S. Supreme Court Rejects Joint and Several Liability Where a Reasonable Basis for Apportionment Exists, and Limits Arranger Liability
In an 8-1 decision, the U.S. Supreme Court addressed two issues under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA): (1) Shell's "arranger" liability, and (2) whether liability of the two railroads who owned a portion of the property that was contaminated was properly limited to only nine percent of the total remediation costs. The Supreme Court overruled the lower courts on the issue of Shell's "arranger" liability. Regarding liability, the Court applied the U.S. v. Chem-Dyne Corp. 572 F.Supp. 802 (S.D. Ohio 1983) precedent upholding apportionment when "there is a reasonable basis for determining the contribution of each cause to a single harm." A sufficient basis for apportioning liability existed on the record based on the railroads' length of ownership of the relevant parcel of land, the relationship between the railroads' parcel as compared to the overall contaminated parcel, and the volume of relevant activities on the railroads' land as compared to the volume on the rest of the parcel....
July 2009
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....
July 2009
The All-American Canal Lining Project Draws to a Close
After years of prolonged negotiations about water supplies and funding, as well as litigation, the All-American Canal lining project has finally reached its conclusion. The State of California and the San Diego County Water Authority have jointly funded the concrete lining of the All-American Canal, which will provide approximately 67,700 acre-feet of water per year for thirsty water interests near the border of Mexico. Water officials and representatives officially dedicated the nearly completed final stretch of 23 miles of lined canal in late April....
July 2009
California State Water Resources Control Board Issues Draft Construction General Permit Regulating Storm Water Discharges
On April 22, 2009, the California State Water Resources Control Board (SWRCB) issued a draft general permit for storm water discharges under the Clean Water Act National Pollutant Discharge Elimination System (NPDES) Program. The permit authorizes discharges of storm water associated with construction or demolition activity so long as the dischargers comply with all provisions in the permit. If adopted as proposed, the general permit would apply to all current and future public and private projects that exceed one acre, including linear projects such as pipeline installations....
July 2009
Recent Ruling by the U.S. District Court Provides Clarification on the Federal Government's Ability to Account for Water Designated for Species Protection
In a recent order, the U.S. District Court for the Eastern District of California granted a motion to reconsider an earlier order authorizing the U.S. Department of the Interior to exclude water released for environmental purposes from mandated water flows aimed at doubling salmon populations under the Central Valley Project Improvement Act (CVPIA). While the motion was granted, the previous conclusion was upheld: How water is accounted for under the CVPIA is soundly within the discretion of the agency and will not be disturbed on judicial review. The decision is a reminder that complexities related to the Sacramento-San Joaquin Delta and environmental issues will not end soon....
July 2009
Second District Holds Repeal of Water Code Provisions for Consolidation Did Not Eliminate Mechanism for Consolidation under Cortese-Knox LAFCO Act
The Second District Court of Appeal affirmed the lower court's ruling and concluded that San Bernardino Local Agency Formation Commission (LAFCO) had authority to order consolidation of water districts pursuant to the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (the LAFCO Act) (Cal. Gov't. Code SectionSection 56000 et seq. and 57000 et seq.). Under the LAFCO Act, the court found that the LAFCO had the ability to evaluate San Bernardino Valley Municipal Water District's (SBMWD) application for consolidation with the San Bernardino Water Conservation District (SBWCD)....
July 2009
Eleventh Circuit Confirms 42 U.S.C. Section 1983 Does Not Provide a Right of Action for Violations of the Clean Water Act
The Eleventh Circuit Court of Appeals held that 42 U.S.C. Section 1983 does not provide a right of action for violations of the federal Clean Water Act. The Eleventh Circuit further found that First Amendment claims made by two terminated public works inspectors failed as a matter of law because relevant precedent limits the claims of government employees under the First Amendment to citizen speech on matters of public concern....
July 2009
A Different Kind of Water War: Texas Addresses Invasive Aquatic Plant Species
Mention of Salvinia molesta, hydrilla, even the gentle-sounding water hyacinth, can inspire dread in the hearts of Texas' water suppliers and other environmentalists. These invasive aquatic plant species are spreading at an alarming rate, threatening the water quality and ecosystems of significant Texas waterways and reservoirs and increasing the cost of water supply and treatment....
July 2009
City of Fairbanks Seeks Supreme Court Review of Ninth Circuit's Decision Regarding the 'Finality' of Clean Water Act Jurisdictional Determinations
The City of Fairbanks, Alaska is seeking U.S. Supreme Court review of the Ninth Circuit's decision in Fairbanks N. Star Borough v. U.S. Army Corps of Eng'rs, 543 F.3d 586 (9th Cir. 2008). (See, 10 West. Water L. & Pol'y Rptr 42 (December 2008).)...
July 2009
Forthcoming Arizona DWR Report Will Produce the State's First-Ever 'Subflow' Map
The Arizona Department of Water Resources (ADWR) is poised to release a major report by June 30 that could substantially affect water rights in the San Pedro River watershed--and set precedent for other watersheds throughout Arizona....
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