Articles Posted in Natural Resources & Mining

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By Kerry Shapiro and Sarah Taylor

On August 30, 2021, the U.S. District Court for the District of Arizona issued an order in Pasqua Yaqui Tribe, et al. v. U.S. EPA, et al., vacating the Navigable Waters Protection Rule (“NWPR”) and remanding the rule back to the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) for further review. The NWPR was enacted during the Trump administration and represents the EPA’s latest attempt to define the term “waters of the United States” (“WOTUS”). The NWPR represented a categorical approach to Clean Water Act (“CWA”) jurisdiction (i.e. certain water features were categorically excluded from jurisdiction under the CWA, including ephemeral streams), and it significantly narrowed the scope of such jurisdiction. Following the court’s ruling, EPA announced the Agencies would halt implementation of the NWPR and instead interpret WOTUS consistent with the broader jurisdictional scope of the pre-2015 regulatory regime until further notice. The National Stone, Sand, and Gravel Association (“NSSGA”), among several business interests, intervened into the case, arguing that a return to the pre-2015 regulatory regime would increase regulatory uncertainty, including, as discussed below, a likely increase in 404 permitting.

In this case, the plaintiffs alleged that the NWPR exceeds the EPA’s statutory authority and is contrary to the CWA’s text and objectives, which require broad protection of all of the U.S.’s waters, because the NWPR excludes certain waters from the protections required by the CWA. The NWPR can be viewed here. The plaintiffs, several federally recognized Native American tribes, also alleged that the EPA failed: (1) to explain its decision to reverse prior regulations; and (2) to consider important aspects of that prior decision, including the effects on water quality and aquatic ecosystems, the ecological importance of protecting the excluded waters, and the effects of the reversal of prior regulations on the CWA. Plaintiffs moved for summary judgment in the case, and in response the Agencies filed a motion asking for voluntary remand of the NWPR without vacating it. This would have allowed the Agencies under the Biden administration to continue to implement the NWPR as the Agencies simultaneously worked to draft a replacement. Plaintiffs agreed that the NWPR should be remanded, but also argued for vacatur and implementation of the pre-2015 regulatory regime, asserting that intermittent and ephemeral streams in Arizona would otherwise be left unprotected. Continue reading

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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

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. Continue reading

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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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BLM releases maps showing 1.3 million acres of proposed mining withdrawal

On January 13, 2017, the U.S. Bureau of Land Management (“BLM”) released maps showing the areas that BLM, on December 28, 2016, proposed to withdraw from mining. The withdrawal is designed to “protect nationally significant landscapes with outstanding cultural, biological, and scientific values” and is part of the Desert Renewable Energy Conservation Plan (“DRECP”).

What does the proposed withdrawal do?