Best Best & Krieger News Feed Best and Krieger is a Full Service Law Firmen-us22 Jul 2014 00:00:00 -0800firmwise Summary of California Water Rights Systems and a Primer for Public Water Agency Directors<p>BB&amp;K attorneys Eric Garner and Jeff Ferre will be presenting at the Water Education Foundation&rsquo;s 2014 Water 101 Workshop. This course offers the opportunity to learn the California water basics and water district board member governance. It is open to anyone interested in learning more about the history of, and the management structure of, water in California, and about the key water issues facing the State &ndash; including the drought, groundwater management and the potential for a 2014 water bond.</p> <p>BB&amp;K Managing Partner Eric Garner will present &ldquo;Summary of California Water Rights Systems&rdquo; on Thursday, Oct. 2 at 10:30 a.m. Eric will discuss:</p> <ul> <li>Riparian Rights</li> <li>Appropriative Rights</li> <li>Groundwater Law and Cases</li> <li>Reasonable and Beneficial Use</li> <li>Public Trust Law and Cases</li> </ul> <p>BB&amp;K Partner Jeff Ferre will present &ldquo;Governance Primer for Water District Directors&rdquo; on Friday, Oct. 3 at 9 a.m. He will speak about:</p> <ul> <li>The Role and Responsibilities of a Water District Director</li> <li>Building an Effective Board</li> <li>The Brown Act &ndash; Basic Requirements</li> <li>The Fair Political Practices Act &ndash; Basic Requirements</li> <li>Conflict of Interest Code</li> <li>Requirements for Ethics Training</li> <li>Avoiding Common Legal and Political Pitfalls for Directors</li> </ul> <p><strong>Audience:<br /> </strong>The course will be especially beneficial to water resource industry staff, engineering and environmental firm personnel, legislators, legislative staff, press, advocates, stakeholders, environmentalists, public interest organizations and water district directors.</p> <p><strong>When:</strong><br /> Thursday, Oct. 2 &ndash; Friday, Oct. 3, 2014</p> <p>Where:<br /> The Cucamonga Valley Water District&rsquo;s Frontier Project in Rancho Cucamonga</p> <p>For more information or to register, please click <a target="_blank" href=""><span style="background-color: #ffffff"><span style="color: #0000ff">here</span></span></a>.</p>Conferences & Speaking Engagements02 Oct 2014 00:00:00 -0800 California Environmental Quality Act<p>BB&amp;K attorneys Michelle Ouellette and Fernando Avila are among the faculty at this day-long seminar on CEQA. As the cornerstone of the state's environmental protection laws, CEQA tends to be a focus for lawsuits challenging the land-use decisions of public agencies. Developing strategies for surviving potential litigation is an important aspect of preparing sound CEQA documents.</p> <p>Attend this seminar and get the tools you need to develop effective CEQA compliance strategies. The essentials of preparing legally defensible CEQA documents and examination of solutions to real projects will be discussed.</p> <p><strong>When:</strong><br /> Friday, Sept. 19, 2014<br /> 9 a.m. &ndash; 4:30 p.m.</p> <p><strong>Where:</strong><br /> Hampton Inn &amp; Suites Riverside/Corona East<br /> 4250 Riverwalk Parkway<br /> Riverside, CA 92505</p> <p>For more information or to register, click <a target="_blank" href=""><u><span style="color: #0000ff">here</span></u></a>.</p>Conferences & Speaking Engagements19 Sep 2014 00:00:00 -0800 Attorneys to Appear on Panels Covering Telecommunications, the Environment, Hot Federal Issues and More<p>Best Best &amp; Krieger is pleased to sponsor and participate in the International Municipal Lawyers Association&rsquo;s 2014 Annual Conference.</p> <p>TELECOMMUNICATION CHALLENGES FACING LOCAL GOVERNMENTS<br /> Sept. 20, 2014<br /> 1 &ndash; 2 p.m.</p> <p style="margin-left: 40px">&quot;How Converging Technologies and Mega-Mergers May Affect Your Community &ndash; A View From Municipal Perspectives&quot;<br /> <strong>BB&amp;K Speaker</strong>: Joseph Van Eaton, Partner<br /> Changes in technology present enormous opportunities for community development and delivering government services more efficiently &ndash; but also pose challenges. This presentation will discuss how localities can use existing laws and pending FCC proceedings to protect their interests.</p> <p style="margin-left: 40px">&quot;An Industry Perspective &ndash; What Do Changes In Technology Mean to Your Community?&quot;<br /> Speaker: Michael Ruger, Executive Director, Government Affairs, Comcast Cable Communications, LLC<br /> <br /> &quot;Wireless Siting &ndash; How Local Control is Faring at the FCC and in the Courts&quot;<br /> <strong>BB&amp;K Speaker</strong>: Matt Schettenhelm, Associate<br /> The FCC is in the midst of a major rulemaking that may redefine local authority over cell tower placement and modification. This presentation will provide an update on the status of the FCC rulemaking, and recent court rulings, and what steps localities can take locally and nationally to protect their interests.</p> <p>STORMWATER: NEW REQUIREMENTS FOR DEVELOPMENT PROJECTS AND EPA&rsquo;S PROPOSED RULE RE-DEFINING &ldquo;WATERS OF THE U.S.&rdquo; WILL HAVE MAJOR COST AND OPERATIONAL IMPACTS FOR MUNICIPALITIES<br /> Sept. 10, 2014<br /> 2 &ndash; 3 p.m.</p> <p style="margin-left: 40px"><strong>BB&amp;K Speakers</strong>: Andre Monette, Associate &amp; John Freshman, Senior Director of Governmental Affairs<br /> Other Presenters: Ryan Baron, Senior Deputy County Counsel, Orange County, California; Marc E. Gori, Assistant County Attorney, Fairfax County, Virginia<br /> Comments on the EPA&rsquo;s Proposed Rule broadly defining &ldquo;Waters of the U.S.&rdquo; under the Clean Water Act are due in October. The controversial proposed changes are important to local government and public agencies because, if adopted, they will greatly expand the jurisdictional reach of the CWA and change how municipal stormwater systems are categorized.</p> <p>STORMWATER MANAGEMENT/MS4 PERMITTING<br /> Sept. 11, 2014<br /> 9:15 &ndash; 10:15 a.m.</p> <p style="margin-left: 40px"><strong>BB&amp;K Speaker</strong>: Gene Tanaka, Partner<br /> Other Presenters: Steve Roy, Larry Coffman and Lee Epstein</p> <p>HOT FEDERAL ISSUES: TAXES, TRANSPORT AND COMMUNITY DEVELOPMENT<br /> Sept. 11, 2014<br /> Noon &ndash; 1 p.m.</p> <p style="margin-left: 40px">A review of critical federal issues that may affect your community&rsquo;s bottom line and economic development plans &ndash;and the opportunities and risks they present to municipalities.</p> <p style="margin-left: 40px"><em>&quot;</em>Update on Congressional Actions Affecting Your Community and Your Budget&quot;<br /> <strong>BB&amp;K Speaker</strong>: Gerard Lederer, Partner<br /> Congress is considering a number of measures &ndash; including some that could block taxation of Internet access, allow taxation of e-commerce and could affect the funds available for transportation projects &mdash; that could significantly affect communities throughout the country. This presentation will provide an update on Congressional actions, including those affecting he Highway Trust Fund, and what those actions mean for communities.</p> <p style="margin-left: 40px">&quot;Rail Transport and Public Safety -&nbsp; Is There a Solution?&quot;<br /> <strong>BB&amp;K Speaker</strong>: Harriet Steiner, Partner<br /> Cities have raised significant concerns regarding the safety of rail freight transiting through their communities. This presentation will focus on the status of federal rules regarding train safety &ndash; and their effectiveness.<br /> <br /> &quot;Speeding Development By Planning for the Endangered Species Act&quot;<br /> <strong>BB&amp;K Speaker</strong>: Michelle Ouellette, Partner<br /> The Endangered Species Act can block development projects or it can be used to help clear the way for future development. This presentation will discuss how communities are working with the ESA to speed development.</p> <p><strong>Where</strong>:<strong><br /> </strong>Baltimore, Maryland</p> <p>To learn more about IMLA&rsquo;s 2014 Annual Conference or to register, please click <a target="_blank" href=""><u><span style="color: #0000ff">here</span></u></a>.</p>Conferences & Speaking Engagements10 Sep 2014 00:00:00 -0800 Water Resources Control Board Adopts Emergency Water Conservation Regulation in Response to Drought<p>The State Water Resources Control Board has adopted an emergency regulation requiring local agencies to restrict potable water use by their customers and prohibiting certain uses of potable water. The regulation is expected to go into effect on August 1 and last for 270 days, unless extended by the SWRCB. The regulation does not apply to water wholesalers or the wholesale operations of combined water retailers/wholesalers.</p> <p>The regulation requires urban water suppliers (suppliers providing water to over 3,000 municipal customers or providing over 3,000 acre-feet per year to municipal customers) to activate their previously adopted, Water Code-compliant Water Shortage Contingency Plans at the stage that imposes mandatory restrictions on outdoor irrigation of ornamental landscapes or turf.</p> <p>As an option, urban water suppliers may develop an alternate plan that does not include mandatory restrictions on outdoor irrigation if allocation-based water rate structures, combined with other measures, achieve a level of conservation that would be greater than the amount of conservation that would be achieved by limiting outdoor irrigation to two days per week. An urban water supplier&rsquo;s alternate plan would be subject to approval by the executive director of SWRCB who would evaluate whether the plan meets the requirements above.&nbsp;</p> <p>All other distributors of public water (whether publically or privately owned and including mutual water companies), along with urban water suppliers that do not have a Water Shortage Contingency Plan or that have been notified by the Department of Water Resources that their plan is not compliant with the Water Code, must limit outdoor irrigation of ornamental landscapes to two days per week or impose other mandatory conservation measures designed to achieve comparable reductions in water use. These agencies have 30 days from the effective date of the regulations (expected to be August 1) to implement their conservation measures.</p> <p>Additionally, urban water suppliers must submit a report to the SWRCB by the 15th of each month comparing the amount of potable water produced in the preceding month to that month in 2013.The initial report must also state the number of people served by the urban water supplier. Beginning October 15, the report must provide an estimate of gallons of water used per person per day by residential customers.</p> <p>The regulation also prohibits individuals from using potable water to wash driveways and sidewalks; water outdoor landscapes that cause excess runoff; wash a car with a hose without a shut-off nozzle; or operate a fountain or other decorative water feature. Excess runoff includes situations where water flows onto adjacent property, non-irrigated areas, private and public walkways, roadways, parking lots, or structures. Violations are punishable by an infraction and up to a $500 fine for each day a violation occurs. Local agencies or the SWRCB may issue infractions and fines at their discretion. It is anticipated that such fines will likely be imposed through the authority and procedures in an urban water supplier&rsquo;s Water Shortage Contingency Plan.</p> <p>The SWRCB regulation can be viewed by clicking <a target="_blank" href=""><u><span style="color: #0000ff">here</span></u></a>.</p> <p>For more information about the emergency drought regulation and how it may affect your agency, please contact one of the attorney authors of this legal alert listed to the right, an attorney in the <a target="_blank" href=";LPA=492&amp;format=xml"><u><span style="color: #0000ff">Environmental Law &amp; Natural Resources</span></u></a> practice group, or your <a target="_blank" href=""><u><span style="color: #0000ff">BB&amp;K attorney</span></u></a>.</p> <i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i>Legal Alerts17 Jul 2014 00:00:00 -0800 Attorney Joseph P. Byrne Re-Appointed to California Water Commission<p><strong>For Immediate Release:</strong> July 15, 2014<br /> <span><strong>Media Contact:</strong>&nbsp;Denise Nix&nbsp;&bull; 213.787.2552 &bull; <a href=""><u><span style="color: #0000ff"></span></u></a></span><br /> <br /> <strong>LOS ANGELES</strong> _ Gov. Jerry Brown has announced the re-appointment of Joseph P. Byrne, who is of counsel in Best Best &amp; Krieger LLP&rsquo;s Los Angeles office, to the California Water Commission. He has served on the Commission since 2010, and as its chair since January 2013.</p> <p>The Commission consists of nine members who are charged with a number of statewide responsibilities related to water. Currently, one of the Commission&rsquo;s most important tasks is preparing for the passage of a state water bond that is expected to contain funding for water storage projects.</p> <p>&ldquo;I am honored that the Governor has selected me to continue to serve on the Commission and I am looking forward to working with my colleagues on statewide water issues, especially at such a critical time for the State during the current drought,&rdquo; Byrne said.</p> <p>Byrne is a member of BB&amp;K&rsquo;s Environmental Law &amp; Natural Resources, Municipal Law, Special Districts and Business Services practice groups. He provides general counsel services to both public and private clients and advises clients on a wide variety of water-related issues, including water rights and water-related agreements.&nbsp;</p> <p>The appointment is subject to confirmation by the Senate.</p> <p><b><i>Best Best &amp; Krieger LLP</i></b><i> is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With 200 attorneys, the law firm has nine offices nationwide, including Los Angeles, Sacramento, San Diego and Washington D.C. For more information, visit </i><i><a target="_blank" href=""><font color="#0000ff"></font></a> or follow @BBKlaw on Twitter.</i></p>Press Releases15 Jul 2014 00:00:00 -0800 Water Resources Control Board to Consider Emergency Water Conservation Regulations in Response to Drought<p>In response to Gov. Jerry Brown&rsquo;s State of Emergency Drought Declaration and Proclamation of a Continued State of Emergency, on July 15 the State Water Resources Control Board will consider adopting emergency water conservation regulations. The proposed regulations would enact restrictions on individuals, urban water suppliers (a supplier providing water for municipal purposes directly or indirectly to more than 3,000 customers or supplying more than 3,000 acre-feet of water annually) and distributors of public water supplies (whether publicly or privately owned and including mutual water companies). Interested parties have&nbsp;until noon on July 14 to submit comments on the proposed regulations to the California Office of Administrative Law. Due to the short timeframe to comment and the ambiguities noted below, BB&amp;K recommends the submission of joint comments by public agencies and other water suppliers.<br /> <br /> As to individuals, the proposed regulations prohibit the application of water to outdoor landscapes in a manner that causes visible runoff, the use of a hose to wash an automobile except where the hose is equipped with a shut-off nozzle, the application of water to hard surfaces including driveways and sidewalks, and the use of potable water in non-recirculating decorative water fountains. Violations would be punishable by a fine of up to $500 for each day in which the violation occurs. However, the proposed regulations do not address how the restrictions would be enforced and who would enforce them.</p> <p>The proposed regulations require all urban water suppliers to implement any applicable stage of their water shortage contingency plan that imposes mandatory restrictions on outdoor irrigation. For urban water suppliers without a water shortage contingency plan or with an insufficient plan, and for all distributors of public water supplies, the proposed regulations require, within 30 days, the implementation of limits on outdoor irrigation by customers to no more than two days per week or other conservation measures to achieve reduction in water consumption from 2013 levels. Although it appears that the limits on &ldquo;outdoor irrigation&rdquo; are not intended to apply to agricultural uses, the proposed regulations are ambiguous because the term &ldquo;outdoor irrigation&rdquo; is not defined.</p> <p>The proposed regulations mandate that each urban water supplier submit a monthly monitoring report by the 15th of each month to the Water Board. The monthly report must state the amount of potable water produced (including treated water) in the preceding month and an estimate of the gallons of water used per person per day. Further, the initial report must state the number of people served by the urban water supplier.</p> <p>For more information about the proposed regulations and how they may affect your agency, please contact one of the attorney authors of this legal alert listed at right in the <a href=";LPA=492&amp;format=xml"><span style="color: #0000ff">Environmental Law &amp; Natural Resources</span></a> practice group, or your <a href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>.<br /> <br /> <i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i></p>Legal Alerts09 Jul 2014 00:00:00 -0800 Powerhouse: Best Best & Krieger<p>By: David McAfee<br /> <br /> Law360, Los Angeles (July 07, 2014, 4:29 PM ET) -- With California facing one of the most severe water shortfalls in the state&rsquo;s history, Gov. Jerry Brown declared a drought state of emergency earlier this year, calling on Californians to conserve water in every way possible. Amid this resource crisis,<a target="_blank" href=""><span style="color: #0000ff">Best Best &amp; Krieger LLP</span></a>, a firm that has been at the forefront of the state&rsquo;s most important water rights cases, has risen to the challenge.</p> <p>With 174 attorneys across eight offices in California, BB&amp;K has become a go-to firm for public agencies on a variety of the state&rsquo;s most important issues, including those related to medical marijuana and the use, rights and quality of water, earning it a place on Law360&rsquo;s list of <a target="_blank" href=""><span style="color: #0000ff">California Powerhouses</span></a>.</p> <p>BB&amp;K managing partner Eric Garner says the firm, which was founded in the 1890s and has worked on a number of the Golden State&rsquo;s highest-profile water rights cases since then, is busier as a result of the state&rsquo;s new drought restrictions. The firm says it has continued to build upon its longstanding water law practice in California, which has expanded to include other practice areas and opened an office in Washington, D.C.</p> <p>BB&amp;K, which almost exclusively represents public agencies and municipalities, has an intimate familiarity with the state&rsquo;s water history and is actively engaged in the future of water management in the state. Garner says the firm is involved with legislation that would authorize the issuance of more than $11 billion in bonds to overhaul California&rsquo;s water system and that it may be the most significant water legislation in the state in a century.</p> <p>&ldquo;We have clients who are very interested in the water bond, which will likely be on the November ballot and contain billions of dollars. It would pay for projects to help California be more water sustainable,&rdquo; Garner told Law360 in an interview. &ldquo;We have clients who are very concerned about making sure that their future water supplies are sustainable, and, of course, there is a legal component to that.&rdquo;</p> <p>In one recent water rights victory for a BB&amp;K client, the city of Santa Maria prevailed after a 16-year dispute when the <a target="_blank" href=""><span style="color: #0000ff">U.S. Supreme Cour</span></a>t said last year that it <a target="_blank" href=""><span style="color: #0000ff">wouldn&rsquo;t review </span></a>a challenge to a groundwater basin plan for the city. A group of farmers sued Santa Maria in 1997, saying they had a prior right to the groundwater in the basin and that the city&rsquo;s ability to pump water should be cut off during shortages.</p> <p>&ldquo;Not surprisingly, this was not acceptable to the city. The only way to resolve the dispute was to bring everyone who pumps from the basin into a lawsuit &mdash; several thousand users,&rdquo; Garner said, noting that there is currently no statewide groundwater regulation but that such legislation is under consideration.</p> <p>&ldquo;Under California law, it&rsquo;s basically pump until a judge orders you not to,&rdquo; Garner said. &ldquo;In its published opinion, the appellate court found that people have at least an equal right to crops in a water shortage, and the court importantly recognized that Santa Maria&rsquo;s historical pumping can continue into the future and be protected during a shortage. Both the California Supreme Court and the U.S. Supreme Court declined to review.&rdquo;</p> <p>Garner said that was the first case in which all elements of &ldquo;prescriptive&rdquo; water rights were fully tried in California.</p> <p>Even more recently, the firm and its municipal clients prevailed when the Orange County Superior Court in April rejected all six challenges to an environmental impact report certified by the Santa Margarita Water District in connection with <a target="_blank" href=""><span style="color: #0000ff">Cadiz Inc.</span></a>&rsquo;s public-private partnership. The <a target="_blank" href=""><span style="color: #0000ff">project</span></a> allows Cadiz to pull an average of 50,000 acre-feet of water per year from Mojave Desert aquifers and pump it through a 43-mile pipeline to different parts of Southern California.</p> <p>The <a target="_blank" href=""><span style="color: #0000ff">Center for Biological Diversity </span></a>and Delaware <a target="_blank" href=""><span style="color: #0000ff">Tetra Technologies Inc.</span></a> sought to overturn decisions by the SMWD and the county of San Bernardino approving a water purchase and sale agreement for the project, according to Michelle Ouellette, a partner in BB&amp;K&rsquo;s Riverside office.</p> <p>&ldquo;The court considered a variety of California Environmental Quality Act claims by the Center for Biological Diversity and Delaware Tetra Technologies, including arguments that the county should have served as lead agency for the project and that the [environmental impact report] did not fully consider and mitigate for the hydrological impacts of the project,&rdquo; Ouellette said of the case, which is being appealed. &ldquo;Ultimately, the court found that the petitioners were not entitled to any relief and, specifically, that the lead agency concerns &lsquo;did not rise to the level of a CEQA violation.&rsquo;&rdquo;</p> <p>BB&amp;K says its environmental law and natural resources group also represents public agencies in handling tough legal issues beyond water rights and conservation. BB&amp;K attorneys provide public, charter and special school districts and offices of education with guidance and oversight in implementing energy efficiency and renewable energy projects, the firm said.</p> <p>The firm says it has also achieved success for clients in cases involving municipal law, labor and employment and telecommunications. BB&amp;K has even helped cities in California navigate the legalities of medical marijuana shops, according to the firm.</p> <p>After California voters passed the 1996 Compassionate Use Act, there was uncertainty as to whether the states, cities and counties could regulate medical marijuana dispensaries, according to Jeffrey V. Dunn, a partner in BB&amp;K&rsquo;s Irvine office. Dunn successfully argued to the California Supreme Court that cities could ban the dispensaries through zoning ordinances.</p> <p>In a highly anticipated and politically charged decision last year, the <a target="_blank" href=""><span style="color: #0000ff">state high court found </span></a>that the city of Riverside had the right to enact a ban despite two California laws legalizing the use of medical marijuana within the state.</p> <p>&ldquo;On behalf of the city of Riverside, I argued that there is no state law preemption or limitation on municipal authority to regulate marijuana dispensaries,&rdquo; Dunn said, noting that the California Supreme Court agreed and opened the doors for cities and counties to regulate dispensaries and collectives.</p> <p>&ldquo;What was at stake was the ability of local municipalities to act in the best interest of their communities to limit or ban businesses that may cause public safety issues,&rdquo; Dunn added. &ldquo;The ruling is likely to have far-reaching benefits for California cities and counties, leaving significant leeway to enact local safety and zoning ordinances in a broad range of areas.&rdquo;</p> <p>BB&amp;K was founded in 1891 by Raymond Best in Riverside, an area then known for its citrus groves, according to Garner. Raymond Best&rsquo;s son Eugene Best joined the firm in 1918 and was made partner in 1925.</p> <p>In 1938, John G. Gabbert joined the firm, which became Best Best &amp; Gabbert a few years later. James Krieger joined the group in 1946, and when a third judgeship was created in the Riverside County Superior Court and was offered to Gabbert, the firm became Best Best &amp; Krieger.</p> <p>&ldquo;Krieger continued to build the water law practice started by Gabbert, and the firm earned statewide accolades for its work, which was carried on in later years by Arthur Littleworth and now myself, among others,&rdquo; Garner said. &ldquo;The firm has expanded to include a variety of practice areas that benefit public agency clients, as well as those in the private sector.&rdquo;</p> <p>Garner said BB&amp;K&rsquo;s telecommunications practice and water quality work have already expanded nationwide, and its environmental practice and aspects of its governmental practice are likely to follow suit. But the firm will continue to maintain a focus on California&rsquo;s laws, which Garner called &ldquo;among the most complex in the U.S.&rdquo;</p> <p>&ldquo;Whether that&rsquo;s because the state government has a predilection toward regulation or because of its large population is anyone&rsquo;s guess, but there is no question that the legal issues are very challenging and interesting to work on,&rdquo; Garner said.</p> <p>While many of the matters the firm handles are governed by California law, especially in the areas of energy and natural resources and telecommunications, BBK also works on a number of cases governed by federal law, according to Garner.</p> <p>&ldquo;Even on matters involving California law, because California is frequently at the forefront of legal issues, many of the matters we work on will likely soon be coming to other states,&rdquo; Garner said.</p> <p>Along with BB&amp;K&rsquo;s growth nationwide comes new private clients, but the firm has continued to primarily represent government entities, according to Garner.</p> <p>&ldquo;The majority of BB&amp;K&rsquo;s clients are public agencies, but we also handle a substantial number of matters on behalf of private clients, which includes medium-sized businesses and specialty services for large, private clients,&rdquo; Garner said. &ldquo;The primary difference is that, when you represent a public agency, you are serving the public interest; whereas, often with private clients, the primary goal is monetary. Also, because the work is on behalf of the public, the legal work we do is more open and transparent than work for private clients.&rdquo;</p> <p>Garner added that the great thing about heading BB&amp;K is that its mix of municipal representations and minor private matters makes the firm &ldquo;unique.&rdquo;</p> <p>&ldquo;The large public agency practice means that many of our attorneys get to work in the public interest and on many of the most challenging issues that our society faces today,&rdquo; Garner said. &ldquo;At the same time, because of the resources we have, we are able to affordably give small and medium-sized businesses a range of services that very few law firms can.&rdquo;<br /> <br /> To download a PDF of this article, please click <a href="88E17A/assets/files/Documents/California Powerhouse Best Best Krieger.pdf"><span style="color: #0000ff">here</span></a>.</p> <p><em>This article first appeared on </em><a target="_blank" href=""><em><span style="color: #0000ff"> </span></em></a><em>on July 7, 2014. Reprinted with permission.</em></p> <p style="text-align: center">-30-</p>BB&K In The News07 Jul 2014 00:00:00 -0800 Attorneys Recognized as 2014 Northern California Super Lawyers and Rising Stars<p><b>For Immediate Release</b>: July 4, 2014 <br /> <b>Media Contact</b>: Denise Nix &bull; 213-787-2552 &bull; <span><span><a href=""><u><span style="color: #0000ff"></span></u></a></span></span></p> <p><b>SACRAMENTO, Calif</b> _ Best Best &amp; Krieger LLP congratulates its seven attorneys included in the 2014 Northern California <i>Super Lawyers </i>and <i>Super Lawyers Rising Stars</i> lists. No more than 5 percent of California&rsquo;s attorneys are included in the <i>Super Lawyers</i> lists each year, which is compiled from peer nominations and a research team. To be one of the 2.5 percent of attorneys included on the <i>Rising Stars</i> list, an attorney must either be 40 or younger or in practice for 10 years or less.</p> <p>The BB&amp;K attorneys named to this year&rsquo;s list are:</p> <ul> <li>Sarah Owsowitz, <i>Super Lawyers</i>, Land Use/Zoning, Walnut Creek</li> <li>Sue Schoenig, <i>Super Lawyers</i>, Employment &amp; Labor Law, Sacramento</li> <li>Stacey Sheston, <i>Super Lawyers</i>, Employment &amp; Labor Law, Sacramento</li> <li>Harriet Steiner, <i>Super Lawyers</i>, State, Local &amp; Municipal Law, Sacramento</li> <li>Gene Tanaka, <i>Super Lawyers</i>, Environmental Litigation, Walnut Creek</li> <li>Kara Ueda, <i>Rising Stars</i>, State, Local &amp; Municipal Law, Sacramento</li> <li>Sigrid Asmundson, <i>Rising Stars</i>, State, Local &amp; Municipal Law, Sacramento</li> </ul> <p><i>Super Lawyers</i> is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. For more information, visit <a target="_blank" href=""><u><span style="color: #0000ff"></span></u></a>.</p> <p><b><i>Best Best &amp; Krieger LLP</i></b><i> is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With nearly 200 attorneys, the law firm has nine offices nationwide, including Los Angeles, Sacramento, San Diego and Washington D.C. For more information, visit </i><span style="color: #0000ff"><i><a target="_blank" href=""><u><span style="color: #0000ff"></span></u></a></i></span><i> or follow @BBKlaw on Twitter.</i></p>Press Releases04 Jul 2014 00:00:00 -0800 Due Diligence: How to Protect Your Clients from Liability When Buying Potentially Contaminated Property<p>BB&amp;K Partner Danielle Sakai presented a session at this webinar titled &quot;Environmental Due Diligence: How to Protect Your Clients from Liability When Buying Potentially Contaminated Property.&quot; <br /> <br /> <strong>Description:</strong><br /> <br /> Consider this all-too-familiar scenario: A client buys a piece of property. Initial research seems to indicate that everything is okay with the land, so the client does the deal. Until you discover that it used to be a gas station, a dry cleaners, has a wetlands area, or is home to a rare or protected species.</p> <p>Your client faces delays and huge costs and fees associated with remediation&mdash;if remediation is even still an option.</p> <p><em>Want to avoid this nightmare?</em></p> <p>You have only one opportunity to identify pre-purchase environmental &quot;pitfalls&quot; that could put your clients at serious risk of litigation with the deep pockets of the federal or state government. So how can you avoid potential malpractice claims when that simple land acquisition/development project turns out to be more difficult than you thought and you fail to recommend that your client undertake environmental due diligence?</p> <p>Arm yourself with the latest EDD strategies that can help you identify and address pre-escrow environmental concerns before they become a serious problem.</p> <ul type="disc"> <li>Do you know what a Phase I or Phase II Environmental Assessment entails and what must be included in the reports?</li> <li>Do you know what an &quot;all appropriate inquiry&quot; is, how it should be satisfied, and why it's so important to your client's defense?</li> <li>Do you know all the business types that could raise red flags with any environmental consultant? And how to deal with every one of them?</li> <li>Do you know why your client's proposed property is so cheap?</li> </ul> <p><span>Here's just some of the information the session covered:</span></p> <ul type="disc"> <li>What environmental due diligence is and why doing it right could mean the difference between a smooth acquisition and one that ties you up in litigation for years.</li> <li>The phases of EDD and what's important about each one.</li> <li>How an all appropriate inquiry can protect property buyers from liability even when contamination isn't found during due diligence or is discovered later.</li> <li>The available options when contamination is found on the property.</li> <li>What reports to expect when the process has been completed and what you should do with the results you get.</li> <li>What to look for in an environmental consultant, and why using a good one is key to the process.</li> <li>What EPA changed in its standards of due diligence and how these will impact your practice going forward.</li> </ul> <p>Don't go in unprepared! Environment due diligence is your <u>best</u> defense against additional costs, increased delays, and even possible malpractice claims.<br /> <br /> <strong>When:<br /> </strong>Thursday, June 26, 2014<br /> 2PM EDT, 1PM CDT, 12PM MDT, 11AM PDT<br /> <br /> <strong>BB&amp;K Speaker:<br /> </strong>Danielle Sakai, Partner<br /> <br /> Click <a target="_blank" href=";sid=42294129&amp;m=4791250&amp;u=ARGENT&amp;j=19306414&amp;s="><u><span style="color: #0000ff">HERE</span></u></a> for details.</p>Seminars and Webinars26 Jun 2014 00:00:00 -0800 the State Water Board the Catalyst for Private Investment in Water Infrastructure Development?<p>BB&amp;K attorney Seth Merewitz moderated the panel &ldquo;Is the State Water Board the Catalyst for Private Investment in Water Infrastructure Development?&rdquo; at the Golden State Water Summit. The panel discussed how public and private capital can work together to drive water infrastructure development in the state.</p> <p><strong>When:</strong><br /> Wednesday, June 18, 2014<br /> 2:30 &ndash; 3:15 p.m.</p> <p><strong>Location:<br /> </strong>Hilton Sacramento Arden West<br /> 2200 Harvard St.<br /> Sacramento, CA 95815</p> <p><strong>BB&amp;K Speaker: <br /> </strong>Seth Merewitz</p> <p>For more information or to register, please visit the <a target="_blank" href=";utm_medium=GoldenApr8&amp;utm_campaign=2014Conferences"><u><span style="color: #0000ff">Golden State Water Summit</span></u></a> website.</p>Conferences & Speaking Engagements18 Jun 2014 00:00:00 -0800 Webinar: Coalition Responding to EPA's Proposed CWA Rule and Waters of the U.S. Definition Changes<p><span style="color: #0000ff"><strong><span style="color: #0000ff"><u><br /> </u><a target="_blank" href=""><span style="color: #0000ff">CLICK HERE TO VIEW</span></a></span><a target="_blank" href=""><span style="color: #0000ff">&nbsp;THE RECORDING</span></a></strong></span><br /> <br /> <br /> <strong><span>BB&amp;K's Water Quality and Wastewater practice group members</span></strong> presented a webinar on June 12 about a new coalition being formed to address the Environmental Protection Agency's recently announced proposed rule related to the Clean Water Act and the definition of Waters of the United States. The controversial proposed changes are important to local government and public agencies because, if adopted, they will greatly expand the jurisdictional reach of the CWA and change how municipal stormwater systems are categorized. These changes could ultimately stop, delay or increase the cost of public projects and make managing public infrastructure more difficult. The environmental impacts of stormwater runoff are significant; however it is in the public interest, both environmentally and economically, to manage and regulate these issues as new infrastructure is planned and constructed - not through retroactive regulations and mandates from the federal government.</p> <p>BB&amp;K invited public agencies and local governments to join&nbsp;the webinar to learn more about the proposed changes, discuss the issues and consider joining a coalition to provide a unified voice for public entities in the comment process. The webinar also covered possible legislative activity in response to the proposed rule.</p> <p><span style="color: #003399"><strong>When:</strong></span></p> <p>Thursday, June 12<br /> 1 - 2 p.m. ET<br /> 10 - 11 a.m. PT<br /> <span style="color: #003399"><strong><br /> Audience:</strong></span></p> <ul type="disc"> <li>City&nbsp;Engineers/Public Works Directors&nbsp;</li> <li>Stormwater Personnel&nbsp;</li> <li>City Attorneys</li> <li>City&nbsp;Managers</li> <li>Elected Officials</li> </ul> <p><span style="color: #003399"><strong>Additional Information:</strong></span></p> <ul type="disc"> <li><a target="_blank" href=""><u><span style="color: #0000ff">Proposed Rule</span></u> </a></li> <li><a shape="rect" target="_blank" track="on" linktype="1" href=""><u><span style="color: #0000ff">About the Coalition</span></u></a></li> <li><a shape="rect" target="_blank" track="on" linktype="1" href=""><u><span style="color: #0000ff">BB&amp;K Attorney Testifies to Congressional Subcommittee on Proposed EPA Clean Water Act Rule</span></u></a></li> <li><a shape="rect" target="_blank" track="on" linktype="1" href=""><u><span style="color: #0000ff">EPA Issues Proposed Rule Interpreting Jurisdictional Reach of Clean Water Act</span></u></a></li> <li><a shape="rect" target="_blank" track="on" linktype="1" href=""><u><span style="color: #0000ff">Waters of the US: EPA Seeks Input to Clarify Scope of Clean Water Act</span></u></a>&nbsp; <span style="color: #0000ff"><strong><br /> </strong></span></li> </ul> <p><span style="color: #003399"><strong>Materials:</strong></span></p> <p><u><span style="color: #000000"><a target="_blank" href=""><span style="color: #0000ff">Click HERE to view the slides</span></a></span></u></p> <p><u><span style="color: #000000"><a href=""><span style="color: #0000ff">Click HERE to view the&nbsp;Q&amp;A from the webinar</span></a></span></u><br /> &nbsp;</p>Seminars and Webinars12 Jun 2014 00:00:00 -0800 is the Time to Fix Groundwater Issues<p>By <strong>Eric L. Garner</strong><br /> <br /> Historically, California groundwater law has been simple: pump until a judge orders you not to. Although California passed a statewide surface water law in 1914 that required permitting of nearly all surface water uses, the state has never broadly regulated groundwater. This lack of groundwater pumping regulation is very unusual because nearly all other states have some form of statewide groundwater regulation.</p> <p>Until this year it seemed very unlikely Californians would see statewide groundwater regulation in the foreseeable future. However, the severe drought and a growing recognition of the substantial depletion of the state's groundwater resources have combined to move groundwater regulation near the top of the political agenda and this year the Legislature seems poised to enact significant groundwater legislation. It could be the most important piece of water legislation since surface water was regulated 100 years ago.</p> <p>However, it raises the question: Does California need statewide groundwater regulation? To answer this question, it is important to address three issues: the challenges in managing water; whether there is a physical groundwater problem in California; and whether the state's current groundwater law is sufficient to meet these challenges.</p> <p>Water use is difficult to manage because water is a different type of resource. Although water is generally treated as real property, it is substantially different than other types of real property in several ways. One reason is that water is not stationary; it moves, unlike the land beneath your house. Another reason is that because of the hydrologic cycle, water is used over and over, i.e. water used by one will later be used by another. For these two reasons, there are necessarily different restrictions on its use than other types of real property.</p> Finally, and most importantly for this discussion, water is a common pool resource. Access to it is not easily limited. Therefore, it is in an individual's self-interest to pump water instead of conserving it because other users will simply pump that conserved water for their own use, defeating the original pumper's purpose. This 'tragedy of the commons&quot; creates such challenges in managing common pool resources that the 2009 Nobel Prize in economics was awarded for research that included studies of successes and failures in California groundwater basins.<br /> <br /> <em>Click </em><a target="_blank" href=""><u><span style="color: #0000ff"><em>here</em></span></u></a><em> to read the entire article published on June 10, 2014 in the Daily Journal (subscription required). </em>BB&K In The News10 Jun 2014 00:00:00 -0800 in Water Law<p><b>EPA Extends Comment Period on Waters of the U.S.</b></p> <p><b><i>Additional Time to Provide Comments on EPA Rulemaking</i></b></p> <p>The Environmental Protection Agency extended the comment period on the Waters of the United States proposed rule until Oct. 20. The EPA and U.S. Army Corps of Engineers propose to redefine the term &ldquo;Waters of the United States&rdquo; under the Clean Water Act to include waters that are tributary or adjacent to wetlands to any waters used in interstate commerce, to territorial seas and to other water bodies. The proposed redefinition <a target="_blank" href=""><span style="color: #0000ff">expands the jurisdictional reach</span></a> of the Clean Water Act. During the extended time, the agencies will continue to meet with representatives of states and local governments, stakeholders and elected officials.</p> <p>BB&amp;K Response: On Thursday, BB&amp;K will hold a webinar on the proposed rule and its implications for local agencies. BB&amp;K is also assisting a coalition of cities and special districts in preparing comments on the proposed rule. To learn more about the webinar, the proposed rule or the coalition, please <a target="_blank" href=";an=30535&amp;format=xml"><u><span style="color: #0000ff">click here</span></u></a> or contact <a href=""><u><span style="color: #0000ff"></span></u></a> or your <a target="_blank" href=""><u><span style="color: #0000ff">BB&amp;K attorney</span></u></a>.</p> <p><b>President Signs Water Resources Reform and Development Act</b></p> <p><b><i>New $350 Million Water Project Financial Program Authorized </i></b></p> <p>President Obama signed the Water Resources Reform and Development Act (H.R. 3080) today. The Act authorizes the U.S. Army Corps of Engineers navigation and flood control projects and creates the largest financing program for water projects in decades: the five-year, $350 million Water Infrastructure Finance and Innovation Authority (WIFIA). WIFIA is just a part of the larger Act.</p> <p>Through WIFIA, the U.S. Army Corps of Engineers and the EPA will jointly provide long-term, low-interest loans and loan guarantees for large water and wastewater infrastructure projects and activities costing $20 million or more ($5 million for utilities serving 25,000 people or less). WIFIA loans can only be used to fund 49 percent of total project cost and loan recipients cannot use tax-exempt municipal bonds to cover the non-federal share of the project. WIFIA loans can be used to fund planning, design, environmental review, permitting, engineering, property acquisition, environmental mitigation and construction for drinking water, flood control, wastewater, desalination, aquatic ecosystem restoration and other projects. More information about the law may be found in the following links. BB&amp;K will work with its members to ensure they may timely apply for WIFIA funds.</p> <ul> <li><a target="_blank" href=""><u><span style="color: #0000ff">WRRDA 2014 Conference Report Highlights</span></u></a></li> <li><a target="_blank" href=""><u><span style="color: #0000ff">WRRDA 2014 Conference Report Section-By-Section</span></u></a></li> </ul> <p>For more details regarding the Act or the WIFIA program, please contact the authors listed to the right or your <a target="_blank" href=""><u><span style="color: #0000ff">BB&amp;K attorney</span></u></a>.</p> <p><i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i></p>Legal Alerts10 Jun 2014 00:00:00 -0800 Up: Funding California's Water<p>By Gary Pitzer</p> <p>The water people use every day is free. It falls from the sky as rain or snow, free of charge.</p> <p>It is the capture, storage, moving, and treatment of the water that incurs substantial costs. In the middle of a historic drought, California and its water suppliers must seek funding for water storage projects with greater urgency. The demand for action echoes from Washington, D.C. to Sacramento. Paying for it is a bit more complicated.</p> <p>A notable example is the proposed Bay Delta Conservation Plan (BDCP) &ndash; a sprawling, complex and controversial reworking of the state&rsquo;s plumbing system that includes creation of habitat for imperiled Delta species. It features the possible construction of two large tunnels around or under the Delta, at a cost of $25 billion, to be footed by water contractors who serve farmers and urban dwellers across the state.</p> <p>Those contractors have already committed to hundreds of millions of dollars in BDCP planning efforts. They say they are willing to incur the cost to preserve a reliable source of water from the Delta.</p> <p>&hellip;</p> <p>But the need for more money runs into the reality of ratepayer backlash, which manifests as protest votes that sometimes block proposed fees that don&rsquo;t have a direct connection to services rendered.</p> <p>&ldquo;I think rate setting has become more political,&rdquo; said Kelly Salt, an attorney with Best Best &amp; Krieger in San Diego who specializes in public financing. &ldquo;You just have individuals who want to use as much water as they want to and others who are hit extremely hard &hellip; you no longer have lifeline rates for individuals, and that&rsquo;s very troublesome.&rdquo;</p> <p>Click <a target="_blank" href=""><u><span style="color: #0000ff">here</span></u></a> to read more of the May/June issue of <i>Western Water</i> magazine, published by the Water Education Foundation.</p>BB&K In The News05 Jun 2014 00:00:00 -0800 Help Knock Avalon off List of State's Dirtiest Beaches<p>For 12 years straight, the waters off the city of Avalon, on Catalina Island, had the dubious distinction of being among the dirtiest in Southern California.</p> <p>Years of infrastructure neglect frequently caused pollutants to flow into the glittering bay where yachts of Hollywood's elite once bobbed.</p> <p>Last week, Heal the Bay, the environmental nonprofit, announced it had removed Avalon from its list of Southern California's dirtiest beaches. News that the island town had cleaned up its act - literally - was met with much fanfare. But little attention was paid to Scott Campbell and Shawn Hagerty, partners at Best Best &amp; Krieger LLP, who were instrumental in making it happen.</p> <p>The story of how it happened, as with most municipal stories these days, is rooted in Gov. Jerry Brown's controversial 2011 decision to dose all redevelopment agencies. Municipalities throughout the state rushed to spend money on local projects.</p> <p>In the 1990s, the city of Avalon began selling bonds and placing those funds into the city's redevelopment agency, the Avalon Community Improvement Agency. Since then, the agency had been setting aside money for infrastructure improvements that would keep its polluted water from being released into the bay. Officials estimated they needed about S1,5 million to complete the improvements to the city's sewer system. Trouble was, when Brown made his move the redevelopment agency only had about 56 million.</p> <p>That's when Campbell and Hagerty flew into action.</p> <p><i>Click </i><a target="_blank" href=""><u><span style="color: #0000ff"><i>here</i></span></u></a><i> to read the entire article published on June 2, 2014 in the Daily Journal. (subscription required).</i></p>BB&K In The News02 Jun 2014 00:00:00 -0800't No Sunshine for the Common Interest Privilege<p>By <b>Sarah Owsowitz</b></p> <p>Life in the public sector is just that: public. With the California Public Records Act and countless local sunshine ordinances, most public employees are keenly aware that much of what they write &mdash; be it in a report, letter, memo or email &mdash; may be produced to the public. Further, for those public employees involved in litigation challenging the decisions agencies make under the California Environmental Quality Act, the compilation of the administrative record &mdash; the seemingly endless collection of every piece of paper about a project that has made its way into an agency&rsquo;s files &mdash; is sometimes an unwelcome reminder that the somewhat cranky email you sent at 2 a.m. one day last year lamenting the mistakes you discovered in a CEQA document is now going to be Exhibit A in the lawsuit to challenge that CEQA document. Such is life and it is ever thus.</p> <p>But there has always been one place of blessed silence and reserve: the realm of privileged communications with your attorney. The attorney-client privilege allows public employees to have fruitful and honest discussions with their attorneys about CEQA documents, without concern that these communications will be, as they say, used against them in a court of law. One facet of these attorney-client communications is often the discussion of the claims, arguments or information sent to the public attorney by outside attorneys who represent private clients seeking development entitlements. Public attorneys often welcome input from private applicant attorneys and have used the information they receive to assist public agencies in navigating the choppy water of CEQA. Some public attorneys treat the information exchanged between public attorneys and private attorneys about a CEQA review of a project as privileged under the so-called common-interest doctrine. The doctrine holds that there is no waiver of attorney-client privilege when privileged documents are shared with a third party (in this case, the applicant&rsquo;s attorney) whose involvement is, in legal jargon, &ldquo;reasonably necessary to further the purpose&rdquo; of the attorney&rsquo;s work for the public agency.</p> <p>In 2009, this practice was validated by the Court of Appeal in <em>California Oak Foundation v. County of Tehama</em>, which held that counsel for a public agency could share documents with an applicant&rsquo;s counsel without waiving the attorney-client privilege. The <em>California Oak Foundation </em>court held that such documents were not required to be included in the administrative record for a CEQA lawsuit. Specifically, it stated that &ldquo;disclosing advice to a codefendant in the subsequent joint endeavor to defend the EIR in litigation can reasonably be said to constitute &lsquo;involvement of third persons to whom disclosure is reasonably necessary to further the purpose of the [original] legal consultation.&rsquo;&rdquo; In other words, the public attorney and the private attorney share the common goal of preparing a CEQA document that will withstand subsequent legal challenge, and so they can disclose documents to each other without the documents becoming part of the administrative record.</p> <p>The pendulum swung wildly the other way last year in <em>Citizens for Ceres v. Superior Court </em>(<em>City of Ceres</em>), a decision that holds, <em>without exception</em>, that communications between a public agency&rsquo;s attorney and an applicant&rsquo;s attorney before a project is approved can <em>never</em> be subject to common interest privilege, and thus can never be withheld from a CEQA administrative record. The <em>Ceres</em> court opined that &ldquo;[t]here is no point in asking &hellip; whether the applicant and agency have a common interest simply in the development of a legally defensible environmental document. This is because the developer has no interest in the development of an environmental document that does not support the developer&rsquo;s proposal.&rdquo; With this bold pronouncement, the court then reasoned, &ldquo;when environmental review is in progress, the interests of the lead agency and a project applicant are fundamentally divergent.&rdquo; As such, &ldquo;the applicant and agency cannot be considered to be advancing any shared interest when they share legal advice at the preapproval stage.&rdquo;</p> <p>Given the diametrically opposed holdings of <em>Ceres</em> and <em>California Oak Foundation</em>, we now have what we in the legal biz call a &ldquo;split of authority.&rdquo; This creates a pickle for public agencies because it means they can never know in advance whether the court they come before will follow <em>Ceres</em> or <em>California Oak Foundation.</em></p> <p>To date, there has only been one decision that includes a brief discussion of <em>Ceres</em>: <em>Seahaus La Jolla Owners Association v. Superior Court</em>. In a footnote, the <em>Seahaus La Jolla</em> court notes that questions have been raised regarding the legal reasoning in <em>Ceres</em>, stating that the &ldquo;court&rsquo;s application of [the common interest doctrine]&rdquo; has been criticized by commentators.&rdquo; The criticism referred to by the <em>Seahaus La Jolla</em> court is found in Miller &amp; Starr&rsquo;s treatise, &ldquo;California Real Estate,&rdquo; and concerns the <em>Ceres</em> court&rsquo;s assertion that a developer can never have an interest in the development of a legally defensible environmental document, only in one that &ldquo;supports&rdquo; the project under review. Miller &amp; Starr comment: &ldquo;[w]hether the Fifth District&rsquo;s across-the-board view of project developers&rsquo; motives and novel view of EIRs as advocacy &mdash; rather than informational &mdash; documents will be subjected to and survive further legal scrutiny remains to be seen.&rdquo; In other words, other Courts of Appeal have begun to notice that the <em>Ceres</em> court&rsquo;s view of CEQA documents as being something akin to propaganda for a project, rather than an informational document that must accurately disclose the environmental impacts of a project if it is to withstand legal scrutiny, is out of step with CEQA and CEQA case law.</p> <p>But, until such time as, one hopes, other courts more expressly reject the reasoning in <em>Ceres</em>, public agencies may want to assume that any recorded communications between a public attorney and the developer&rsquo;s attorney prior to the issuance of a project approval are public. Or, agencies can decide to continue to rely on the <em>California Oak Foundation</em> decision and assert the common interest doctrine to protect such communications. But, if that decision is challenged, a court could follow <em>Ceres</em> and require the disclosure of these communications. As an alternative to written communications with the developer during the approval process, public agencies (and their attorneys) might wish to consider in-person meetings or telephone calls when communicating issues of high-sensitivity to a developer (and the developer&rsquo;s attorney).</p> <p>Because common interest privilege is just that &mdash; the decision of two parties to announce that they have a common interest to which they wish to extend their individual attorney-client privilege &mdash; the <em>Ceres</em> decision will likely impact only a limited number of public agencies. The status of the law is unchanged for those public agencies that did not, in the past, agree with an applicant to assert to a common interest privilege with regard to pre-approval communications. The split of authority between <em>Ceres</em> and <em>California Oak Foundation</em> means that public agencies that have, in the past, agreed to assert a common interest privilege with regard to pre-approval communications may decide to continue to do so and rely on <em>California Oak Foundation</em> &mdash; especially if the applicant indemnifies the public agency for any legal costs associated with defending that position. This just leaves those public agencies that were never fully comfortable with asserting the common interest privilege and are considering whether or not to announce a specific policy with regard to pre-approval communication with applicants in light <em>Ceres</em>. For those public agencies, discretion may be the better part of valor and they may begin to take the position that the common interest privilege does not attach to pre-approval communications.<br /> <br /> <i>* This article first appeared in <a target="_blank" href=""><u><span style="color: #0000ff"></span></u></a> on June 2, 2014. Republished with permission.</i></p>BB&K In The News02 Jun 2014 00:00:00 -0800 Harmony Under the ESA<p><span style="font-size: medium"><b>The Endangered Species Act and Habitat Conservation Plans</b></span></p> <p>The federal Endangered Species Act of 1973 (ESA) is over 40 years old. During those years, the landscape of endangered species issues and the tools we have to address them have changed considerably. Habitat Conservation Plans (HCP) under the ESA have been used throughout the country for 30 years and have significantly changed the way federal agencies address impacts to endangered species. The ever-changing needs of endangered species, and the laws in place to protect them, affect all aspects of project planning. The history of these laws and the current issues today are key to under-standing when an HCP may benefit your project or plan.</p> <p>THE FEDERAL ENDANGERED SPECIES ACT</p> <p>In 1966, the U.S. Congress passed the Endangered Species Preservation Act, which permitted listing of native animal species as endangered and provided these animals with very limited protections. In 1969 Congress expanded the Endangered Species Preservation Act to include animal species outside the United States, prohibiting their importation and sale.</p> <p>President Nixon declared these efforts to be inadequate and in 1973 Congress drafted the ESA, which Nixon signed into law at the end of that year. Congress ultimately charged the United States Fish and Wildlife Service (FWS) and National Oceanic and Atmospheric Administration (NOAA) Fisheries (formerly known as the National Marine Fisheries Service) with implementation of the ESA. The FWS is responsible for terrestrial and freshwater aquatic species while NOAA Fisheries is responsible for listed marine mammals, <span>certain fish, and other marine resources. At the time, the primary components of the ESA included: (1) listing of species and designation of critical habitat under Sec&shy;tion 4 of the ESA;<sup>1</sup> (2) the &ldquo;take&rdquo; prohibi&shy;tion under Section 9 of the ESA;<sup>2</sup> and (3) federal agency consultation under Section 7 of the ESA.<sup>3</sup> &ldquo;Take&rdquo; has a broad definition under the ESA, namely to &ldquo;harass, harm, pursue, hunt, shoot, wound, kill, trap, cap&shy;ture, or collect, or to attempt to engage in any such conduct.&rdquo;<sup>4</sup></span></p> <p>Any interested party can petition the FWS or NOAA Fisheries to list a species as threatened or endangered, and the feder&shy;al agencies must analyze whether the spe&shy;cies warrants listing. The FWS or NOAA Fisheries may also initiate the listing on its own. A species may be listed as endangered or threatened under the ESA. An endangered species is defined as any species that is in danger of extinction throughout all or a significant portion of its range.<sup>5</sup> A threatened species is any species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.<sup>6</sup> In addition to listing species as threatened or endangered, the FWS or NOAA Fisheries must also list &ldquo;critical habitat&rdquo; for each listed species &ldquo;to the maximum extent prudent and deter-minable.&rdquo;<sup>7</sup> The ESA defines critical habitat as areas essential to the conservation of the species.<sup>8</sup> This is not necessarily the same as habitat occupied by the species, so critical habitat areas can be quite large.</p> <p>Like the Endangered Species Preservation Act, the ESA explicitly protects only animals. However, plants can be listed under the ESA, unlike the Endangered Species Act Preservation Program. The FWS prohibits &ldquo;take&rdquo; of listed plant species on federal land. Moreover, if a project has any federal nexus, such as a federal project, federal funding, or a permit from the federal government, it must comply with Section 7 of the ESA. The federal agency involved must ensure that its action will not jeopardize the continued existence or recovery of listed species (plant or animal) or result in destruction or adverse modification of critical habitat.</p> <p>The first big test of the ESA under Section 7 came in Tennessee Valley Authority v. Hill, commonly known as the &ldquo;Snail Darter Case.&rdquo;<sup>9</sup> This case began with a citizen suit against the government, a procedure permitted under one of the enforcement provisions detailed in the ESA. Construction of the federal Tellico Dam began before Congress adopted the ESA, and the Tennessee Valley Authority and others had already spent more than $100 million on dam construction. The litigants sought and obtained a temporary restraining order because construction and operation of the dam would likely jeopardize the continued existence of the snail darter, a small fish.</p> <p>The U.S. Supreme Court upheld the temporary restraining order, stating that the ESA &ldquo;represent[s] the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.&rdquo;<sup>10</sup> In balancing the economic cost with the protection of the species, the Court held that &ldquo;neither the Endangered Species Act nor Art. III of the Constitution provides federal courts with authority to make such fine utilitarian calculations. On the contrary, the plain language of the Act, buttressed by its legislative history, shows clearly that Congress viewed the value of endangered species as &lsquo;incalculable.&rsquo;&rdquo;<sup>11</sup> This case showed the strength that Congress explicitly gave the ESA.</p> <p>HABITAT CONSERVATION PLANNING</p> <p>When Congress initially passed the ESA, the law strictly prohibited &ldquo;take&rdquo; of listed animal species without a federal nexus. In 1982 Congress amended the ESA to include Section 10(a) which allows for the &ldquo;incidental take&rdquo; of endangered and threatened species of wildlife by non-federal entities. &ldquo;Incidental take&rdquo; is defined as &ldquo;incidental to, and not the purpose of, the carrying out of an otherwise lawful activity,&rdquo; such as urban development.12 Section 10(a) authorizes &ldquo;take&rdquo; if: 1) the &ldquo;take&rdquo; is incidental to the otherwise lawful activity; 2) the &ldquo;take&rdquo; occurred in accordance with an HCP that minimizes and mitigates impacts to the species &ldquo;to the maximum extent practicable&rdquo;; 3) the applicant ensures adequate HCP funding; 4) the &ldquo;taking&rdquo; will not &ldquo;appreciably&rdquo; reduce the likelihood of survival and recovery of the species; and 5) the HCP meets other &ldquo;necessary and appropriate&rdquo; measures.</p> <p>Over the past three decades, the HCP program has evolved as the FWS and NOAA Fisheries interpreted their authority under Section 10(a). In the first decade following the amendment of the ESA to include Section 10(a), HCPs were rare. In 1990 the federal agencies developed draft HCP guidelines, and in 1992 the Clinton administration provided strong support for HCPs. Shortly thereafter, in 1994, the FWS and NOAA Fisheries, which was National Marine Fisheries Service at the time, adopted the &ldquo;No Surprises&rdquo; policy. Under &ldquo;No Surprises,&rdquo; if &ldquo;unforeseen circumstances&rdquo; arise, the FWS and NOAA Fisheries will not require additional land, water, funding, or other conditions beyond the parameters of the existing HCP, assuming that the permittee is implementing the HCP, permit, and other requirements in good faith. After these significant policy changes, HCPs rapidly grew in use.</p> <p>HCPs can cover one species or hundreds of species. The geographic scope can also vary from a few acres to millions of acres. Each HCP is individually negotiated with local governments, private property owners, other stakeholders, state wildlife agencies, and federal agencies. Therefore, each HCP is unique and can be tailored to the particular needs of a community, municipality, or landowner. For example, not all the species addressed in the HCP need to be listed as threatened or endangered. An HCP can cover species that are rare and could be listed in the future. Prior to adoption of an HCP, the impacts must be analyzed under the National Environmental Policy Act (NEPA) and any state or local environmental laws if a state endangered species permit would be issued or the plan requires approval by a state or local agency. Although HCPs typically are very beneficial to the environment, adoption of an HCP could have unintended consequences on transportation, housing, and other resources that need to be disclosed to the public.</p> <p>An HCP is a major planning effort and can impact all aspects of a community or municipality. Once an HCP is adopted, consistency is key in maintaining the HCP and the permit. If the right hand does not know what the left hand is doing, a city or county department could end up unintentionally violating the terms of the HCP, and all or a portion of the permit for the &ldquo;take&rdquo; could be revoked. Therefore, it is crucial that a municipality&rsquo;s general plan, community plans, transportation element, zoning code, and other overarching planning documents be consistent with the HCP. Decision makers should seriously consider all of the resources its adoption will require.</p> <p>CURRENT ENDANGERED SPECIES ISSUES</p> <p>The existence of endangered and threatened species can have significant impacts on a variety of projects throughout the United States. For example, as demand for energy increases, and new and creative ways to harness natural energy sources are developing, such efforts sometimes clash with the needs of listed species. On the East Coast, for example, environmental groups are expressing concerns that the wind development efforts off the coast of Virginia may &ldquo;take&rdquo; the North Atlantic right whale. Specifically, they claim that noise from the installation of wind energy research platforms in the ocean could stress the whales, which could qualify as a &ldquo;take&rdquo; under the ESA. To protect the whales, federal regulations already require ships 65 feet or longer to travel less than 12 miles per hour in certain locations where whales may be present. This speed restriction alone slows data collection for offshore wind energy generation. Additional regulations may significantly impact the industry.</p> <p>A bird species considered for listing under the ESA, the lesser prairie-chicken, may also impact energy development projects. The lesser prairie-chicken is present in five states: Colorado, Kansas, New Mexico, Texas, and Oklahoma. In many cases, the bird&rsquo;s habitat conflicts with prime locations for wind, solar, and other energy development projects.</p> <p>After years of litigation, the FWS may list two plants found only in Utah and Colorado, Graham beardtongue and White River beardtongue. These desert flowers grow in barren areas that energy interests have identified for hydrocarbon mining. Moreover, the FWS may designate more than 67,000 acres of critical habitat for the species.</p> <p>The FWS may also list another species that would conflict with hydrocarbon mining in Utah, the greater sage-grouse. Unlike the beardtongue plant species, the greater sage-grouse is found in 11 states. But like the beardtongue, its habitat is located over the same area of hydrocarbon resources. In 2010 the FWS found that the greater sage-grouse warranted listing in all 11 states but did not do so due to funding limitations. Currently, the federal agencies propose to list the greater sage-grouse only in California and Nevada as a distinct population segment, which the federal agencies define as a discrete and significant population.</p> <p>The northern long-eared bat is found in 38 states nationwide. However, a fungus called white-nose syndrome is spreading throughout the populations of this species. Currently, this bat has been affected by this fungus in 22 of the 38 states that it occupies, and, in some states, the population has been reduced by 99 percent due to the disease. The problem is particularly acute in Pennsylvania, where a listing of this species could decimate the timber industry&mdash;the FWS may prohibit tree removal from April to November each year to protect the species. As of October 2013, the FWS decided to list the northern long-eared bat as endangered but opened up a comment period to allow for more public input.</p> <p>In Southern California, past residential, commercial, and accompanying infrastructure development has been concentrated near the coastline, leaving most of the remaining intact habitat areas for species in the inland counties. Now that development opportunities on the coast are dwindling, developers have been moving inland and encountering listed species on their project sites. In October 1988, the FWS listed the Stephens&rsquo; kangaroo rat as an endangered species under the ESA. The listing of this species essentially froze new development on more than 22,000 acres throughout western Riverside County in Southern California, where this small mammal resides.</p> <p>WHEN TO CONSIDER AN HCP</p> <p>Above are just a few of the many examples across the country where conflicts with endangered species have slowed or halted development. In many of these instances, the affected interest groups are in the process of negotiating an HCP to allow development to start up again. However, it is often more prudent to develop an HCP and seek a Section 10(a) permit before listed species impact development and economic growth.</p> <p>Planners and local lawmakers should consider developing an HCP when there are listed species, or species that may be listed in the near future, within the municipality that are impeding infrastructure and development. Typically, local governments will wait until there is a conflict between listed species and development to act. A more proactive approach may be warranted, as HCPs can take many years of negotiation to develop and ultimately be permitted. The required NEPA analysis and any state or local environmental documents can require significant funding and can also take years to complete. As discussed above, an HCP could also require updates to a municipality&rsquo;s general plan, community plans, zoning code, and other planning documents to ensure consistent implementation. Given these constraints, it is best to start the HCP process well before a municipality identifies concrete conflicts between major development and infrastructure projects and listed species.</p> <p>HCPs also become an important planning tool when a community has large areas designated as critical habitat, whether the species are present or not. As discussed above, the ESA requires federal agencies in many instances to designate critical habitat for listed species, and those areas can span many acres. The ESA prohibits adverse modification of critical habitat if there is a federal nexus, making it difficult for some municipalities to develop if large swaths of critical habitat have been designated in their communities. HCPs address critical habitat issues by allowing permittees to adversely modify critical habitat as long the HCP mitigates for those impacts. This helps communities plan their own open space areas instead of having the ESA do the planning for them.</p> <p>The first step in developing an HCP is to identify occupied habitat, any critical habitat designated by the agencies, and each species&rsquo; conservation needs. This will help determine where conservation areas may be located and how much will be required. Next, the municipality or other entity should gather together the stakeholder groups and the appropriate federal regulatory agency to discuss the parameters of an HCP. Not all interest groups will support an HCP, and the Section 10(a) process has become controversial with many environmental groups as well as property owner organizations. By obtaining the input of all interested parties up front, HCP proponents can try to address all of their issues early in the process, avoiding costly recirculation of NEPA documents, protracted negotiations over the terms of the HCP, or other stumbling blocks that will delay the process. Development of a good administrative record is also key, especially if litigation is a possibility.</p> <p>The next step is negotiation with the federal agencies. These negotiations may also include the state wildlife agencies if there is also a state endangered species act. Typically, an HCP requires preparation of a plan document, implementing agreement, and environmental review document. All of the terms of these documents are subject to the review of the agencies, including the identification of the proposed conservation areas.</p> <p>Once the agencies and permittees have come to a tentative agreement of the parameters of the HCP, the hard work of drafting the documents for public review begins. Most permittees can expect to hit some roadblocks during this process. Ideas that once seemed feasible to the agencies and municipalities may become impractical once drafted. The key is to be flexible and look for creative solutions so that all the hard work up to that point will be rewarded. After the municipalities adopt the HCP and associated documents, the federal agencies will ultimately issue the Section 10(a) permit, putting the HCP into effect. In some instances, a municipality&rsquo;s general plan, community plans, zoning code, and other planning documents may need to be updated to reflect the terms of the HCP and any identified conservation areas.</p> <p>Every HCP is unique and therefore may require additional work to complete beyond these steps. First and foremost, municipalities and other permittees must plan for the process. If the resources do not currently exist for such an effort, it may not be the right time for an HCP. However, as <span>development increases and conflicts with endangered species also increase, it is im&shy;portant to consider an HCP early. Failure to do so could stifle development and, with it, economic growth just as the economy is starting to recover.</span></p> <p>FINAL THOUGHTS</p> <p>The ESA has been around for over four decades and has become a fixture in our daily lives. The challenges and benefits associated with regional, long-range planning for listed species have become more apparent due to the recent reces&shy;sion, when listed species could make or break a project. HCPs can be a great tool to provide certainty to developers and other economic interests in a community. Moreover, HCPs give local communities control over habitat conservation planning, preventing postage-stamp con&shy;servation areas that may result through traditional implementation of the ESA on a project-by-project basis.</p> <p>ENDNOTES</p> <p><span style="font-size: xx-small">1.&nbsp;&nbsp; 16 U.S.C. &sect; 1533 (2012).</span></p> <p><span style="font-size: xx-small">2.&nbsp;&nbsp; 16 U.S.C. &sect; 1538 (2012).</span></p> <p><span style="font-size: xx-small">3.&nbsp;&nbsp; 16 U.S.C. &sect; 1536 (2012).</span></p> <p><span style="font-size: xx-small">4.&nbsp;&nbsp; 16 U.S.C. &sect; 1532(19) (2012).</span></p> <p><span style="font-size: xx-small">5.&nbsp;&nbsp; 16 U.S.C. &sect; 1532(6) (2012).</span></p> <p><span style="font-size: xx-small">6.&nbsp;&nbsp; 16 U.S.C. &sect; 1532(20) (2012).</span></p> <p><span style="font-size: xx-small">7.&nbsp;&nbsp; 16 U.S.C. &sect; 1533(a)(3)(A) (2012).</span></p> <p><span style="font-size: xx-small">8.&nbsp;&nbsp;&nbsp;16 U.S.C. &sect; 1532(5) (2012).</span></p> <p><span style="font-size: xx-small">9.&nbsp;&nbsp; <em>Tenn. Valley Auth. v. Hill</em>, 437 U.S. 153 (1978).</span></p> <p><span style="font-size: xx-small">10.&nbsp; <i>Id. </i>at 180.</span></p> <p><span style="font-size: xx-small">11.&nbsp; <i>Id</i><i>. </i>at 187.</span></p> <p><span style="font-size: xx-small">12.&nbsp; 16 U.S.C. &sect; 1539(a)(1)(B) (2012).</span></p> <p><b><br /> <br /> </b><span style="font-size: medium"><b>The Western Riverside County Multiple Species Habitat Conservation Plan: 10 Years Later</b></span></p> <p>Urban development in Southern California over the past few decades has largely concentrated on the coastal areas. In contrast, Riverside County, California&rsquo;s fourth-largest county, which sits inland from the coast and is about the size of New Jersey, has until recently retained much of its rural and agricultural acreage with a significant percentage of its land undeveloped. With so much open space, western Riverside County was among the inland areas of Southern California left with a majority of the remaining intact habitat areas for species, sometimes making it &ldquo;ground zero&rdquo; for a battle between saving habitat for endangered species and building new homes and infrastructure in a fast-growing area. That tug-of-war eventually led to the formation of one of the nation&rsquo;s largest Habitat Conservation Plans (HCPs) covering nearly 150 plants and animals protected by endangered species laws or potentially in danger of becoming listed as endangered or threatened.</p> <p>Western Riverside County experienced the first major impact from an endangered species listing in October 1988, when the United States Fish and Wildlife Service (FWS) listed the Stephens&rsquo; kangaroo rat (SKR) as an endangered species under the federal Endangered Species Act (ESA). Although California already listed the SKR as endangered under the California Endangered Species Act (CESA), the effect of listing under the federal ESA protected the species from any disturbance that would result in &ldquo;take&rdquo; of the species. Under the ESA, &ldquo;take&rdquo; is broadly defined as &ldquo;to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.&rdquo;<sup>1</sup> This new layer of regulation froze new development on more than 22,000 acres throughout western Riverside County, the primary habitat of this small mammal.</p> <p>Moreover, some of this undeveloped land and abutting areas contained other species that are considered to be sensitive or are listed as threatened or endangered under the ESA, CESA, or both. When a project proponent submits an application for land development to a city or county, one thing that must be considered under the ESA, CESA, and the California Environmental Quality Act (CEQA) is whether that action may impact these species. If the proposed action may result in species impacts, a number of steps and approvals under these laws may have to be taken in order to ensure that the project design eliminates or minimizes environmental impacts before development can begin. This can be a very long and costly process, particularly critical given the economic downturn, and has stopped projects mid-development. The ESA has been called the &ldquo;pit bull of environmental regulations&rdquo; for good reason.</p> <p>State and federal agencies required public and private project proponents in impacted portions of western Riverside County to go through the onerous process of obtaining &ldquo;take&rdquo; permits for impacts to the kangaroo rat and other endangered, threatened, and rare species, along with their habitats. This practice of addressing impacts one species at a time caused significant delays in development projects while providing minimal environmental benefits, preserving often unconnected areas of habitat that did not sustain wildlife mobility, genetic flow, or overall ecosystem health.</p> <p>THE STEPHENS&rsquo; KANGAROO RAT HABITAT CONSERVATION PLAN</p> <p>In 1990 the cities in western Riverside County, including Hemet, Lake Elsinore, Moreno Valley, Perris, Riverside, and Temecula, joined with the County of Riverside to form the Riverside County Habitat Conservation Agency (RCHCA), a joint powers agency. The RCHCA was charged with developing an HCP to allow legal &ldquo;take&rdquo; of the SKR, while also acquiring land and managing habitat. Later that year, the California Department of Fish and Game (currently known as California Department of Fish and Wildlife (CDFW)) and FWS approved a short-term HCP to protect the SKR in the interim while the RCHCA developed a plan for a permanent habitat preserve. The short-term HCP defined nine &ldquo;study areas&rdquo; that could be part of a future preserve system. This short-term HCP provided RCHCA members with the ability to &ldquo;take&rdquo; SKR, established a mitigation fee, and resulted in a biological study that gave RCHCA the data to develop the long-term HCP for the SKR.</p> <p>In March 1996, the RCHCA adopted the SKR HCP, which was ultimately approved by the CDFW and the FWS. This long-term HCP covered more than 500,000 acres with 30,000 acres of habitat occupied by the SKR and required the preservation of seven core reserves.</p> <p>THE WESTERN RIVERSIDE COUNTY MULTIPLE SPECIES HABITAT CONSERVATION PLAN</p> <p>As development pressures increased, Riverside County recognized that it needed a more comprehensive and regional planning effort to address not only habitat, but the housing, transportation, and economic needs of existing and future county residents. Other endangered, threatened, and rare species existed in Riverside County and addressing just one species at a time, such as was done in the preparation of the SKR HCP, was untenable. Moreover, comprehensive HCPs were becoming more attractive as the federal agencies adopted regulations to encourage this type of large-scale planning. In 1998 the federal agencies published the &ldquo;No Surprises&rdquo; policy, the key to assuring HCP participants that they would not need to go back to the drawing board if a new species is listed or a species covered by the HCP is not doing as well as anticipated. As long as an HCP is being properly implemented, the &ldquo;No Surprises&rdquo; policy provides that the federal agencies will not require any additional money or lands from the permittees for changed circumstances. Any additional measures needed to respond to the changed circumstances would already have been identified in the HCP. These assurances helped pave the way for more comprehensive HCPs.</p> <p>In 1999 Riverside County and the Riverside County Transportation Commission initiated the Riverside County Integrated Project (RCIP), which envisioned a general plan update, transportation plan, and HCP, all integrated to comprehensively address the future planning, transportation, and conservation needs in the county. As part of the RCIP, Riverside County adopted the 2002 Riverside County General Plan and started the Community and Environmental Transportation Acceptability Process (CETAP) to address transportation, housing and economic needs. The CETAP identified future transportation corridors in the western portion of the county, an essential component of the General Plan&rsquo;s circulation element and highway plan.</p> <p>Seeking to create a &ldquo;win-win&rdquo; situation that would allow development to proceed, including important infrastructure projects, while protecting sensitive species and their habitat, the county, the cities in western Riverside County, other stakeholders, and local and state agencies came together to create the landmark Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP). The county adopted the MSHCP in 2003, the cities followed suit, and the state and federal agencies issued the needed permits in June 2004. That same year, Riverside County and the cities formed the Western Riverside County Regional Conservation Authority (RCA), the joint powers authority in charge of ensuring MSHCP implementation. At that time, the MSHCP was the largest HCP that had ever been approved, both in terms of acreage covered (1.26 million acres or 1,966 square miles) and number of species (146).</p> <p>The MSHCP provides &ldquo;take&rdquo; authorization for 146 species (32 of which are listed under the ESA or CESA). &ldquo;Take&rdquo; authorization means that, in return for compliance with the MSHCP&rsquo;s conservation and monetary requirements, public agencies and private developers can impact these species in the development of projects without having to obtain individual permits from the applicable state and federal agencies. In fact, Riverside County and the participating cities have been given the power to award &ldquo;take&rdquo; authority when issuing certain private land use approvals, placing much more control in the hands of local public agencies.</p> <p>The primary conservation obligation in the MSHCP is the creation of a large reserve that will be managed and maintained in perpetuity for the protection of the species covered by the MSHCP, while at the same time providing open space and certain recreational opportunities for the public. Of the 1.26 million acres covered by the MSHCP in western Riverside County, approximately 500,000 acres will ultimately be part of a conservation area or reserve. Approximately 347,000 acres were already in public ownership or control and the plan participants committed to acquiring or otherwise conserving approximately 153,000 additional acres. Other requirements of the MSHCP include payment of a developer mitigation fee and compliance with certain development guidelines. Therefore, because the MSHCP fulfills certain requirements under the ESA, CESA, CEQA, and other laws for the protection of species, if a project proposed within the MSHCP boundaries complies with the requirements of the plan, it streamlines certain aspects of the regulatory and environmental review processes such that they can be done more cheaply, swiftly, efficiently, and fairly while protecting sensitive species.</p> <p>The plan encountered some stumbling blocks during its creation and at adoption. The process of negotiating, analyzing, and drafting the MSHCP and getting the permits issued took significant time and effort. Getting the stakeholders with widely disparate perspectives, such as agricultural interests, the Building Industry Association, and environmental groups, to agree to certain terms was often a hotly disputed process. Even after the federal agencies adopted the &ldquo;No Surprises&rdquo; policy, giving HCP permittees certainty going forward, it still took six years for the MSHCP to become a reality. Some of the delay could be attributed to coordination between the large number of MSHCP permittees. As would be expected, some cities within the MSHCP had more undisturbed habitat than others. The cities with larger blocks of contiguous habitat expressed concerns that their municipalities would carry more of the habitat conservation burden, to the benefit of other permittees with less habitat. The permittees worked hard with the federal and state agencies to design a conservation area that would promote species recovery while ensuring that all permittees shared responsibility for conservation of lands within their communities.</p> <p>On June 10, 2004, right before the federal and state agencies were scheduled to issue the permits, a court issued an injunction prohibiting the federal agencies from including &ldquo;No Surprises&rdquo; assurances in any new &ldquo;take&rdquo; permits until the federal agencies readopted the permit revocation rule, which described circumstances in which the agencies may revoke &ldquo;take&rdquo; permits.<sup>2</sup> Therefore, the federal agencies issued the permit without the &ldquo;No Surprises&rdquo; language and agreed to reinstate the assurances once the court lifted the injunction. Although the federal agencies did reinstate the &ldquo;No Surprises&rdquo; assurances, the litigation continued until August 2007 and cast some uncertainty on the MSHCP.</p> <p>Several lawsuits were filed immediately after plan approval. However, in all cases, either the suits were dismissed or settlement agreements were quickly reached.</p> <p>The MSHCP is now almost 10 years old and we believe it has had largely beneficial impacts. As of December 2013, the RCA, working with the county, the cities, and other partners, has acquired or otherwise conserved 46,861 acres, nearly 30.6 percent of the approximately 153,000 total additional acres that must be conserved. The MSHCP has sped up the approval process for development projects in the county, especially infrastructure projects such as roads. In most instances, even projects that require additional state and federal environmental permits have been able to obtain these permits more quickly because of the conservation obligations under the MSHCP. However, there are some challenges going forward.</p> <p>FUNDING</p> <p>The RCA is always looking for grant and funding opportunities to purchase the needed acres of additional reserve lands as quickly as possible. RCA received a total of $6.77 million in federal grant money over the last two years. Unfortunately, the recession has hindered implementation of the plan. Much of the funding for land acquisitions comes from developer impact fees. Reduced development has meant fewer fees, although land prices have also dropped. Developer fees are beginning to increase as the economy recovers.</p> <p>As state and federal funding sources have diminished, one of the greatest concerns has been obtaining necessary funding from the state and federal governments. As part of the MSHCP negotiations, the state and federal governments agreed to conserve 56,000 acres of the 153,000 additional acres needed for the reserve. This state and federal contribution is a vital part of the MSHCP. As the plan says, &ldquo;The single most important element to the success of the MSHCP is the timely acquisition of lands needed to assemble the Additional Reserve Lands.&rdquo;<sup>3</sup></p> <p>Section 6 of the ESA developed the Cooperative Endangered Species Conservation Fund, which provides funding for species and habitat conservation actions on non-federal lands. In order to receive grant funding, the grant applicant must provide a minimum of 25 percent matching funds. Although ESA Section 6 funding was available in the early years of the MSHCP&rsquo;s implementation, the Department of the Interior changed its policy at one point to forbid the use of Section 6 funding as a &ldquo;match&rdquo; with the MSHCP Local Development Mitigation Fees. Recently, the RCA was able to negotiate the use of limited Section 6 funds again. Successfully applying for and obtaining these funds continues to be a labor-intensive process. For the state&rsquo;s part, prior to the issuance of the permit, it contributed $12 million toward acquisition of a large parcel in the county&rsquo;s badlands called the Potrero property, part of the 347,000 acres under public control.</p> <p>RESERVE DESIGN</p> <p>The MSHCP relies on general principles of &ldquo;landscape-level&rdquo; planning in the design of the reserve that forms its primary conservation commitment. These reserve design tenets provided a blueprint for the conservation planning process. These tenets are to: (1) conserve focus species and their habitats throughout the plan area; (2) conserve large habitat blocks; (3) conserve habitat diversity; (4) keep reserves contiguous and connected; and (5) protect the reserve from encroachment and invasion by non-native species. Although this landscape-level planning, which provides contiguous habitat for species, is the best way to ensure species conservation, coordination with all the players in such a large area is always a challenge.</p> <p>CLIMATE CHANGE</p> <p>One of the presumed benefits of HCPs is to reduce the effects of climate change on both humans and species. Although it remains difficult to tell if the MSHCP has had this effect, the RCA believes the greatest defense against the effects of climate change is to assemble the MSHCP reserve as soon as possible. As noted above, to date RCA has acquired approximately 46,861 acres of its portion of the 153,000-acre acquisition goal to complete the approximately 500,000-acre MSHCP reserve.</p> <p>COLLABORATION WITH STAKEHOLDERS AND THE REGULATORY AGENCIES</p> <p>The RCA meets monthly with the FWS, CDFW, and other regulatory agencies. These collaboration meetings have been vital to the implementation of the MSHCP. In addition, the RCA has met with stakeholders through committee meetings. The RCA chair appoints the Stakeholder Committee, which is made up of property owners, groups represent&shy;ing environmental interests, and the building industry within the area affected by the MSHCP. Although coordination of all the different interests is challeng&shy;ing, the RCA hopes to maintain this level of collaboration moving forward.</p> <p>FINAL THOUGHTS</p> <p>The MSHCP is one of the nation&rsquo;s most ambitious environmental protection ef&shy;forts. Despite certain difficulties that have arisen in plan implementation, this significant effort to set aside habitat and protect species and open space will promote economic recovery, allowing development and infrastructure necessary for the resurgence of a healthy county economy while at the same time protect&shy;ing the county&rsquo;s quality of life. Luckily, additional development helps to fund habitat acquisition, and, as the pace of development recovers, the remaining preserve acreage should more rapidly be acquired to mitigate impacts and offset the potential effects of climate change.</p> <p>ENDNOTES</p> <p><span style="font-size: xx-small">1.&nbsp;&nbsp; 16 U.S.C. &sect; 1532(19) (2012).</span></p> <p><span style="font-size: xx-small">2.&nbsp;&nbsp; <em>Spirit of the Sage Council v. Norton</em>, 294 F. Supp.2d 67, 91 (D.D.C. 2003), order amended, 2004 Wl 1326279 (D.D.C. June 10, 2004).</span></p> <p><span style="font-size: xx-small">3.&nbsp;&nbsp; West Riverside County Multiple Species Conservation Plan, &sect; 8.3.1 (2004).<br /> <br /> <br /> <em><font size="2">This is an Accepted Manuscript of an article published in Planning &amp; Environmental Law on June 1, 2014, available online at </font></em><a target="_blank" href=""><em><font color="#0000ff" size="2"></font></em></a></span></p>BB&K In The News01 Jun 2014 00:00:00 -0800 Appellate Court Upholds Environmental Review of Colorado River Water Delivery Agreement<p>The U.S. Court of Appeals for the Ninth Circuit has issued its decision on the federal case challenging environmental review performed under the National Environmental Policy Act and the Clean Air Act for the Colorado River Water Delivery Agreement which is also referred to as the &ldquo;Federal Quantification Settlement Agreement.&rdquo; The CRWDA, state QSA and related agreements were approved in 2003, settling disputes regarding certain rights to, and use of, Colorado River water in California. It also allowed for a major water transfer from Imperial Irrigation District to San Diego County Water Authority, Coachella Valley Water District and Metropolitan Water District of Southern California.</p> <p>This most recent decision, handed down this week, follows the April 2012 decision of a federal district court, which determined that plaintiffs Imperial County and the Imperial County Air Pollution Control District lacked standing to bring a NEPA or CAA action, and, even if the plaintiffs did have standing, that no NEPA violation occurred. The district court did not rule on the merits of the CAA claim. The Ninth Circuit disagreed with the district court and determined that the plaintiffs did, in fact, have standing. However, the appellate court otherwise affirmed the district court, agreeing that no violation of NEPA had occurred and upholding the Implementation Agreement Environmental Impact Statement. While the district court had not ruled on the issue, the Ninth Circuit examined the record and affirmatively determined that no CAA violation had occurred.</p> <p>The CRWDA is the federal agreement that implements the QSA, the latter of which provides for the large-scale water transfers from IID to SDCWA, CVWD, and/or Metropolitan. The IA EIS analyzed the environmental impacts of changing the point of delivery of Colorado River water for that water transfer. The Ninth Circuit specifically determined that the IA EIS adequately discussed, among other issues, mitigation measures for the potential air quality and other environmental impacts that could directly or indirectly result from the CRWDA. Further, the EIS took the required &ldquo;hard look&rdquo; at CRWDA&rsquo;s impacts on air quality and sufficiently responded to related comments and concerns. The court also denied the plaintiffs&rsquo; arguments that more project alternatives should have been considered and found that the conclusion that the CRWDA would not induce growth in Southern California was supported by record evidence. Lastly, the Ninth Circuit determined that the decision not to prepare a full-scale determination concerning conformity with the CAA was supported by the record because the CRWDA would not directly or indirectly increase emissions.</p> <p>Best Best &amp; Krieger LLP attorneys were part of the legal team that secured this decision on behalf of the Coachella Valley Water District.</p> <p>If you have any questions about this case or how it might impact your agency, please contact one of the attorney authors of this legal alert listed at right in the firm&rsquo;s <a target="_blank" href=";LPA=492&amp;format=xml"><u><span style="color: #0000ff">Environmental Law &amp; Natural Resources</span></u></a> practice group, or your <a target="_blank" href=""><u><span style="color: #0000ff">BB&amp;K attorney</span></u></a>.</p> <p><i>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</i></p>Legal Alerts19 May 2014 00:00:00 -0800 Conservation Plans: How to Mitigate Endangered Species Impacts on Local Development<strong><br /> When:<br /> </strong>Monday, May 19, 2014<br /> <br /> <strong>Location:<br /> </strong>Hilton Anchorage<br /> 500 West Third Avenue<br /> Anchorage, Alaska<br /> <br /> <strong>BB&amp;K Speaker:<br /> </strong>Michelle Ouellette, Partner<br /> <br /> Click <a target="_blank" href=" - WS II-Land Use.mp3"><u><span style="color: #0000ff">HERE</span></u></a> to listen to the recording of the panel session.Conferences & Speaking Engagements19 May 2014 00:00:00 -0800 Attorney Testifies to Congressional Subcommittee on Proposed EPA Clean Water Act Rule<p>In response to the Environmental Protection Agency&rsquo;s recently announced proposed rule related to the Clean Water Act and the definition of &ldquo;Waters of the United States,&rdquo; Best Best &amp; Krieger LLP Attorney Andre Monette was asked to testify before a senate subcommittee. The hearing, titled &ldquo;Solving the Problem of Polluted Transportation Infrastructure Stormwater Runoff,&rdquo; was conducted on May 13 by the Senate Committee on Environment and Public Works&rsquo; Subcommittee on Water and Wildlife. Andre&rsquo;s written testimony is available in its entirety <a target="_blank" href=";FileStore_id=c1e9a862-5d18-47b6-9626-ac2ef98ac91b"><u><span style="color: #0000ff">here</span></u></a>.<br /> <br /> The hearing is important to local governments and public agencies because the EPA&rsquo;s <a target="_blank" href=""><u><span style="color: #0000ff">proposed rule</span></u></a>, if adopted, will greatly expand the jurisdictional reach of the Clean Water Act. While the EPA claims the rule will not broaden coverage of the Clean Water Act, or protect and expand jurisdiction, witnesses in the hearing made it clear that the EPA has a history of overreaching and tying up the limited funds and resources of local governments.<br /> <br /> It is true that construction of roads and other infrastructure creates impervious surfaces that contribute to stormwater runoff, but Congress has already created guidelines for the EPA and other federal agencies to abide by. A one-size-fits-all approach, controlled at the federal level, neglects states&rsquo; and local governments&rsquo; ability to regulate on a case-by-case, site-by-site basis. Andre and other witnesses urged the Subcommittee to consider that management practices need to conform to the unique hydrological variations across the country, which are best administered at the state and local level.<br /> <br /> A significant topic at the hearing was municipal stormwater systems, which may be categorized as Waters of the United States if the EPA&rsquo;s rule is adopted. This would force these systems to adhere to fishing and swimming compliance standards, which Sen. Deb Fischer (R-Nebraska) quickly dismissed as nonsensical.<br /> <br /> The environmental impacts of stormwater runoff are significant; however it is in the public interest, both environmentally and economically, to manage and regulate these issues as new infrastructure is planned and constructed &mdash; not through retroactive regulations and mandates from the federal government. The Obama Administration&rsquo;s recent reauthorization of the Federal Surface Transportation Law, appropriating more than $300 billion in transportation and infrastructure funding, will certainly continue to fuel this debate. Witnesses testifying before the Subcommittee reiterated that cooperative federalist regulations will best serve the interests of both the environment and economy of localities across the nation.<br /> <br /> Additional Reading:<br /> <br /> <a target="_blank" href=";an=29866&amp;format=xml"><u><span style="color: #0000ff">EPA Issues Proposed Rule Interpreting Jurisdictional Reach of Clean Water Act</span></u></a><br /> <br /> <a target="_blank" href=";an=29642&amp;format=xml"><u><span style="color: #0000ff">Waters of the US: EPA Seeks Input to Clarify Scope of Clean Water Act</span></u></a><br /> <br /> For more information on how the proposed EPA rule may impact your agency, please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href=";LPA=492&amp;format=xml"><u><span style="color: #0000ff">Environmental Law &amp; Natural Resources</span></u></a> practice group, or your <a target="_blank" href=""><u><span style="color: #0000ff">BB&amp;K attorney</span></u></a>.<br /> <br /> <em>Disclaimer: BB&amp;K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqu&eacute;.</em></p>Legal Alerts16 May 2014 00:00:00 -0800