Articles Posted in Litigation

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On May 1, 2019, Petitioner San Joaquin Tributaries Authority, a Joint Powers Authority (Petitioner/Authority) filed a petition for writ of mandate in Sacramento County Superior Court against the State Water Resources Control Board (SWRCB).  The Authority includes the City and County of San Francisco as petitioners.  The petition challenges SWRCB’s approval of the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State” (Procedures) on April 2, 2019.

SWRCB released the Procedures in January 2019, shortly after President Trump announced his 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.

The SWRCB’s Procedures are intended to, among other things, codify California’s regulatory authority over the discharge of dredge and fill material into waters being proposed for exclusion from federal regulation through Trump’s proposed definition.  The Procedures also seek to regulate dredge and fill activities within all “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.

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On April 25, 2019, the California Construction and Industrial Materials Association (CalCIMA) filed a petition for writ of mandate and complaint for declaratory and injunctive relief (“Petition”)  in Ventura County Superior Court challenging the County of Ventura’s approval of a proposed “Habitat Connectivity and Wildlife Corridor” Project and its implementing regulations.  The Project was approved by the County Board of Supervisors in March 2019 and is intended to “discourage” development within the Project area.  The County approved the Project without completing environmental review in accordance with the California Environmental Quality Act (CEQA).

The Project is essentially an overlay zone that is several hundred thousand-acres in size and includes thousands of acres of important mineral resource deposits (construction aggregate) that have been previously identified by the California Geological Survey and, in some instances, designated by the State Mining and Geology Board (both of which are separate divisions of the Department of Conservation) as being “regionally significant” in meeting the region’s building material needs. These important mineral deposits are a protected natural resource under CEQA and are necessary for use in future housing projects, road construction and repairs, and public infrastructure projects.

Due to the importance of these mineral resources, the County previously approved a Mineral Resources Protection overlay zone intended to ensure the resources were available for future extraction, and not encumbered by incompatible land uses.  The County also enacted specific “Goals, Policies and Programs” in its General Plan to provide enhanced protection for these mineral resources.

Despite the importance of these mineral resources, the County approved the Project overlay zone without completing any CEQA review.  The County concluded that CEQA compliance was not required because the Project is intended to benefit the environment.  However, notwithstanding these potential benefits, the Project and its implementing regulations will cause significant environmental impacts that require environmental review in accordance with CEQA, including the Project’s effects on future efforts to extract critical mineral resources. Continue reading

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by Kerry Shapiro

As reported earlier this week, the recent Ninth Circuit Court of Appeals decision in Center for Biological Diversity v. Salazar allowed a uranium mine on federal lands in Arizona to re-open after being idled for seventeen years absent any new federal approval or supplemental environmental review. This decision is notable on its own, but carries added significance in California, where it now highlights a potential conflict between federal and state law regarding idle mines and the resumption of mining operations at such mines.

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