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2019 Legal Update for the California Construction and Industrial Materials Association

An Overview of CalCIMA’s Current Judicial, Legislative, and Regulatory Activities

by Kerry Shapiro, General Counsel to CalCIMA and Chair of JMBM’s Natural Resources and Mining Group
and
Martin Stratte, Attorney in JMBM’s Government, Land Use, Environment & Energy Group

This article was first published in the Summer 2019 issue of The Conveyor, a publication of the 
California Construction and Industrial Materials Association (CalCIMA), and is published with permission.

2019 has been an active year for CalCIMA, as its members remain busy supplying the materials necessary to build our homes, roads, and critical public infrastructure projects.  To ensure its members may continue to do so successfully, CalCIMA has stepped forward in response to a number of legal, legislative and regulatory developments that threaten to increase the challenges facing its members doing business in California.

Below is an overview, from the perspective of CalCIMA’s legal counsel, of some of CalCIMA’s most important legal activities undertaken in 2019.  They include the following:

  • Ventura County Habitat Connectivity and Wildlife Corridor Litigation
  • John D. Sweeney v. State Water Resources Control Board and San Francisco Regional Water Quality Control Board Amicus Brief
  • Waters of the State Rulemaking Proceedings
  • Pending Amendments to Riverside County Mining Ordinance
  • Point San Pedro Road Coalition v. County of Marin (San Rafael Rock Quarry, Inc.) Amicus Letter of Support
  • Various Legislative Activities

Litigation Challenging Ventura County Habitat Connectivity and Wildlife Corridor

At the top of the list is CalCIMA’s efforts to protect regionally significant mineral resources through proactive litigation.  In March 2019, Ventura County adopted its Habitat Connectivity and Wildlife Corridor Project, which amends its general plan and zoning code and imposes new land use restrictions, including restrictions on land located within 200 feet of “surface water features”.  The reported purpose of the Project is to protect wildlife, namely mountain lions, by restricting land use and development on public and private lands that have been included within the Project’s overlay zone.  In total, the Project includes more than 160,000 acres of land.

The Project also overlaps onto more than 13,000 acres of mineral resources that were previously classified and/or designated by the California Geological Survey (CGS) and State Mining and Geology Board (SMGB), respectively.  Notably, the SMGB designation process was subject to environmental review under the California Environmental Quality Act (CEQA) and therefore, required the preparation of an environmental impact report and related studies.

Despite the Project’s inclusion of 13,000+ acres of classified and/or designated mineral resources, which are a natural resource protected under CEQA (like air, water, and wildlife), the County approved the Project without (i) consulting with either CGS or SMGB in accordance with sections 2762 and 2763 of the Surface Mining and Reclamation Act (SMARA), or (ii) undertaking a CEQA analysis of the Project’s environmental impacts, including the impacts to mineral resources.

In approving the Project without environmental review, the County invoked the class 7 and 8 CEQA exemptions for projects intended to protect natural resources and the environment.  (14 CCR §§ 15307, 15308.)  The County also rejected multiple written requests from CGS to discuss the Project and its potential impacts to important mineral resources prior to approval.

During the public hearing process in early 2019, CalCIMA submitted two detailed comment letters outlining its concerns with the County’s lack of compliance with SMARA and CEQA.  However, the County maintained its position that the Project was exempt from CEQA and that consultation with CGS regarding the potential impacts to the 13,000+ acres of classified and/or designated mineral resources was not required.

CalCIMA subsequently filed a petition for writ of mandate in Ventura County Superior Court challenging the County’s approval of the Project.  The action remains pending.

The outcome of this litigation is important to CalCIMA and its members because, in the County’s view, local agencies can enact sweeping land use overlay zones for the purpose of restricting land use development therein (i.e., for conservation purposes), and without any evaluation of potential impacts to classified and/or designated mineral resources, simply by invoking the class 7 and 8 CEQA exemptions.  However, that approach undermines decades of efforts by the State of California to (i) protect its mineral resources through SMARA, and (ii) require local agencies to consider during the CEQA process how land use planning activities can impact or restrict future access to those resources.

Amicus Brief in John D. Sweeney v. State Water Resources Control Board and San Francisco Regional Water Quality Control Board 

This spring, CalCIMA filed an amicus brief with the First District Court of Appeals to help clarify the definition of “waste” under the Porter-Cologne Act, in a manner that does not include “dirt” or other “earthen materials.”  From 2012-2016, John Sweeney conducted various activities on and around his 39-acre private island located in Suisun Bay, situated in a large wetlands area north of Concord and south of Fairfield.  Mr. Sweeney’s activities included the reconstruction of an earthen levee that was built in the 1920s, when the island was first used as a duck club; however, the island had fallen into a state of disrepair by the 1990s.  The levee deteriorated during that time.

Mr. Sweeney purchased the island with plans to operate a kite surfing business.  He started developing parts of the island, including grading and related earth-moving activities.

In 2016, Mr. Sweeney’s activities caught the attention of the State Water Resources Control Board (SWRCB), the San Francisco Regional Water Quality Control Board (Regional Board), and the San Francisco Bay Conservation and Development Commission (BCDC).  The agencies thereafter initiated separated but coordinated enforcement proceedings that led to the issuance of multiple administrative orders and financial penalties.

On the one hand, the Regional Board issued (i) a cleanup and abatement order (CAO) pursuant to Porter-Cologne section 13304 alleging that Sweeney’s use of dirt to reconstruct the levee constituted an illegal and unpermitted discharge of “waste” (which the Regional Board generally referred to as “fill material”) into “waters of the state”; and (ii) an administrative civil liability order (ACL) in the amount of $2.82 million.  The Regional Board also ordered Sweeney to deconstruct his repairs of the levee.

On the other hand, BCDC issued a civil penalty order (Order) in the amount of $752,000.  Mr. Sweeney appealed the Order to the BCDC, and the CAO and ACL to SWRCB; but, the administrative orders and financial penalties were left in place.  Sweeney subsequently initiated two separate actions challenging the orders in Solano County Superior Court.

After a court trial, Sweeney obtained a judgment reversing the CAO, ACL, and Order.  Notably, the judgment stated that the agencies engaged in a campaign of vindictive prosecution against Sweeney.  The SWRCB and Regional Board appealed the portion of the judgment pertaining to the CAO and ACL, whereas BCDC appealed the portion pertaining to the Order.

With respect to the CAO, the trial court concluded that Sweeney’s placement of dirt within wetlands during the reconstruction of the levee did not constitute a discharge of “waste”.  Rather, the dirt was a “valuable building material” used to reconstruct a levee, not an attempt to “discard” something that was “valueless or useless”.

During the appellate proceedings, CalCIMA applied for leave to file an amicus brief in support of Mr. Sweeney’s reversal of the CAO.  The Court of Appeal granted CalCIMA’s request.

CalCIMA subsequently filed its amicus brief highlighting that Section 13304 and the related sections of Porter-Cologne authorizing the issuance of CAOs does not define “waste” as including dirt or other earthen material such as sand, gravel, and crushed rock.  CalCIMA also explained that the Regional Board’s incorporation of Federal Clean Water Act terminology, such as “fill material” and “pollutants”, into its briefing was misplaced, because those terms are not included within Porter-Cologne.

In summary, CalCIMA explained that earthen materials such as dirt, sand, gravel, and crushed rock are valuable natural resources used to build and reconstruct private and public infrastructure—not “waste”.

Waters of the State Rulemaking Proceedings

In April 2019, the SWRCB adopted the “State Wetland Definition and Procedures for Discharges of Dredge and Fill Material to Waters of the State” (WOTS Rule).  The WOTS Rule is intended to, among other things, codify California’s regulatory authority over the discharge of dredge and fill material into “Waters of the State”, which is broadly defined to include “any surface water or groundwater, including saline waters, within the boundaries of the state.”  This broad definition includes all natural wetlands, modified wetlands, and even some artificial wetlands.

The adoption of the WOTS Rule is a response by the State of California to President Trump’s pending plan to rescind and replace the Obama Administration’s 2015 definition of “Waters of the U.S.”  President Trump’s proposed definition of Waters of the U.S. is more narrow, and would reduce the scope of waters subject to federal regulation under the Clean Water Act, including activities within those waters, such as the discharge of dredge and fill material.  Thus, the WOTS Rule seeks to expand the scope of “Waters of the State” to include those waters being proposed for exclusion from federal regulation through Trump’s proposed definition.

Although the operative version of the WOTS Rule was introduced in January 2019 (and subsequently modified prior to adoption in April 2019), the SWRCB’s efforts to regulate the discharge of dredge and fill material into “Waters of the State” dates back to 2001, when the U.S. Supreme Court issued its decision in Solid Waste Association of Northern Cook Counties v. United States Army Corps of Engineers, 531 U.S. 159 (2001).  There, the Court limited the scope of “navigable waters” subject to regulation as “Waters of the U.S.” in accordance with the Clean Water Act.

CalCIMA has participated in an industry coalition throughout the entirety of this rulemaking process and has submitted or signed onto multiple detailed comment letters throughout the years.  In addition to continuing to participate in coalition efforts, CalCIMA representatives also individually met with SWRCB regulators on multiple occasions to discuss the WOTS Rule after introduction in January 2019.  During that process, CalCIMA obtained revisions to the WOTS Rule in furtherance of its members’ activities and business operations.

The WOTS Rule is pending before the Office of Administrative Law.  However, in May 2019, the San Joaquin Tributaries Authority filed a petition for writ of mandate in Sacramento County Superior Court challenging SWRCB’s approval of the WOTS Rule.  The action raises multiple substantive challenges, including a challenge that SWRCB lacks authority under Porter-Cologne to regulate the discharge of dredge and fill material into “Waters of the State”.  Accordingly, it is unclear whether the WOTS Rule, as drafted, will be implemented.

Pending Amendments to Riverside County Mining Ordinance

For several years, Riverside County has explored potential amendments to Ordinance No. 555, which implements SMARA at the County-level.  As the first local ordinance to incorporate the sweeping changes to SMARA in AB 1142 and SB 209, CalCIMA has been closely watching and participating throughout the Ordinance 555 amendment process.  The County has welcomed and fully considered input by CalCIMA, and worked productively towards an amendment that would streamline and improve the permitting of surface mining activities in the County, in a manner consistent with the changes in state law.

In September 2018, the County appeared ready to approve an amendment to Ordinance 555 and set the amendment for consideration by the Board of Supervisors.  However, the County subsequently announced an intent to consider further amendments to the Ordinance.  CalCIMA continues to meet regularly with County staff to discuss the status of further amendments, which remain pending.

Amicus Support in Point San Pedro Road Coalition v. County of Marin (San Rafael Rock Quarry, Inc.)

CalCIMA filed an amicus letter with the California Supreme Court supporting a request to review a published opinion that could affect importation of  recycled material in connection with nonconforming uses to operate asphalt or other manufacturing plants.  In April 2019, the California Court of Appeal filed a published opinion in Point San Pedro Road Coalition v. County of Marin, concluding that the importation of asphaltic grindings to the San Rafael Rock Quarry would constitute an impermissible expansion of the operator’s nonconforming use.  The operator’s existing nonconforming use includes authorization to conduct onsite asphalt processing activities.

Opponents of the quarry (neighbors) opposed Marin County’s approval of a mining permit amendment authorizing the importation of asphaltic grindings to the quarry; the permit amendment allowed for the grindings to be incorporated (i.e., recycled) into the quarry’s asphalt production operation.

However, the trial court concluded that the inclusion of asphaltic grindings into the asphalt production process would reduce the amount of mined material (which was mined onsite from the adjacent quarry) necessary to produce asphalt, thereby allowing the quarry’s nonconforming use to continue for a longer period of time.  The judgment was affirmed on appeal.  And although the judgment was initially filed as an unpublished opinion, it was subsequently filed for publication (33 Cal.App.5th 1074).

The San Rafael Rock Quarry, Inc. subsequently filed a petition for review with the California Supreme Court, notwithstanding the high threshold for the Court to grant review (less than 10% granted review).  CalCIMA submitted an amicus letter in support of the operator’s request.  In the letter, CalCIMA expressed its concerns regarding the potential implications that the opinion may have on efforts to reduce waste being diverted to landfills by recycling and reusing waste products (e.g., used asphalt removed during roadway projects) in the production of asphalt and concrete.  Unfortunately, the San Rafael Rock Quarry, Inc.’s petition for review was denied.

Various Legislative Activities

Over the past 10 years CalCIMA has continually worked on a wide-variety of legislative efforts intended to advance the interests of its members.  2019 has been no exception, as CalCIMA has worked with multiple legislators to provide input into pending issues affecting its members and potential legislation related thereto.  In addition, CalCIMA also monitors pending legislation and, when necessary, contacts the legislator proposing the legislation to discuss CalCIMA’s concerns and potential amendments to alleviate or remove those concerns.  When appropriate, CalCIMA coordinates such efforts with other stakeholders such as CalChamber, etc.

Moving Forward

Regulatory and other legal hurdles facing construction materials companies doing business in California continue to increase and expand.  In this environment, it is imperative CalCIMA continues working with legislators and state and local agencies, and where necessary, seek recourse in the judicial system, to ensure that mineral resources are protected and reserved for future access, and efficiently developed and brought to the marketplace.

Kerry Shapiro
Kerry Shapiro chairs the Natural Resources & Mining Practice Group at Jeffer Mangels Butler & Mitchell LLP. He has represented the mining, construction and building materials industries on mineral extraction and land development projects for more than 25 years. Kerry also serves as General Counsel to the California Construction and Industrial Materials Association (CalCIMA). Contact Kerry Shapiro at kshapiro@jmbm.com.

Martin Stratte
Martin Stratte is a land use and environmental attorney at Jeffer Mangels Butler & Mitchell LLP. He assists with the entitlement of complex projects throughout California in accordance with CEQA, NEPA, and California’s greenhouse gas emission and climate change regulations. He also represents clients in related litigation. Contact Martin Stratte at MStratte@jmbm.com.

JMBM’s Natural Resources & Mining Practice Group
Jeffer Mangels Butler & Mitchell LLP has one of California’s leading natural resources and mining practice groups. The group is comprised of lawyers with over 25 years of practice in law firms, government, and consulting, and provides companies and trade associations with unparalleled counseling, compliance, and litigation services in nearly every area of federal and California natural resources and mining law.