Best Best & Krieger News Feedhttp://www.bbklaw.com/?t=39&format=xml&directive=0&stylesheet=rss&records=20&LPA=492Best Best and Krieger is a Full Service Law Firmen-us21 Apr 2014 00:00:00 -0800firmwisehttp://blogs.law.harvard.edu/tech/rssHabitat Conservation Plans: How to Mitigate Endangered Species Impacts on Local Developmenthttp://www.bbklaw.com/?t=40&an=29671&format=xml<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, PartnerConferences & Speaking Engagements19 May 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29671&format=xmlGovernor's Office of Planning & Research Seeks Input to Improve California's Groundwater Managementhttp://www.bbklaw.com/?t=40&an=29713&format=xml<p>The Office of Planning &amp; Research (OPR) is seeking stakeholder input on actions to improve groundwater management in California, consistent with the Governor&rsquo;s January 27 California Water Action Plan. The Plan calls for legislation to provide local and regional agencies with comprehensive authority for groundwater management. It also proposes allowing the state to temporarily assume groundwater management responsibility if local agencies fail to achieve sustainable management. BB&amp;K attorneys attended the first of two OPR sustainable groundwater management workshops last month, and will attend the second workshop on April 16. All written comments are due to OPR by <b>April 25</b>.</p> <p>The state currently has no comprehensive authority for monitoring or regulating groundwater. Generally, control over groundwater has been left to local efforts or the courts. A major Plan objective is to establish a legal framework to expand groundwater storage capacity and improve groundwater management. In connection with that objective, OPR seeks answers to the following questions:</p> <ul> <li>What new or modified statutory authorities do local and regional agencies need to manage groundwater more effectively?</li> <li>What would help local agencies overcome financial barriers for conservation projects and programs?</li> <li>What types of governance structures are most effective for managing groundwater locally, and should these models be encouraged?</li> <li>What role should groundwater management plans (GWMPs) play, and does their content need to change?</li> <li>What specific data and information do local managers need to succeed? What should be done to help them obtain the data?</li> <li>What can be done to help local and regional agencies manage a basin or sub-basin that spans multiple jurisdictions?</li> <li>Are there improvements to the groundwater adjudication process that would make it more useful and cost-effective for local authorities?</li> <li>What incentives could be given to local and regional agencies to improve groundwater management?</li> <li>Should a formal process be in place that connects local groundwater management planning, land use decisions, county general plans, or integrated regional water management plans? If so, what kind of formal process?</li> <li>What metrics can be used to reflect sustainable management?</li> <li>What criteria or conditions should be present in determining whether a local groundwater management authority is unable to effectively manage the resource?</li> <li>What aspects of local groundwater management should be assumed by the State Water Resources Control Board?</li> </ul> <p>On March 24, BB&amp;K attended the first of two OPR sustainable groundwater management workshops facilitated by the California Environmental Protection Agency, the California Department of Food and Agriculture, and the California Natural Resources Agency to discuss the questions above. The workshop solicited ideas and approaches to groundwater management, and provided a broad based discussion regarding (1) the definition of sustainable groundwater management and measures of success, (2) tools, authorities, and incentives to help local agencies manage groundwater, (3) key funding mechanisms, barriers, and solutions, and (4) the state&rsquo;s role in assisting local agencies with groundwater management. Some stakeholders are arguing for fundamental changes in groundwater law that may impose new requirements on both landowners and local agencies.&nbsp;</p> <p>BB&amp;K is advising various private and public entities regarding sustainable groundwater management in California and the implications of these workshops. If you have questions or concerns about how your water rights may be affected or would like to provide input, please contact one of the attorney authors of this legal alert listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=425&amp;format=xml"><font color="#0000ff">Water Rights group</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></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 Alerts09 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29713&format=xmlWaters of the US: EPA Seeks Input to Clarify Scope of Clean Water Acthttp://www.bbklaw.com/?t=40&an=29642&format=xml<p>The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) released a <a href="http://www2.epa.gov/uswaters"><font color="#0000ff">Proposed Rule</font></a> designed to clarify their regulatory jurisdiction under the Clean Water Act. The Proposed Rule will potentially expand EPA and Corps jurisdiction to reach a far greater number of lands, drainage systems and development projects than are currently regulated under the Clean Water Act. Best Best &amp; Krieger is assembling a coalition of local governments and special districts to offer operational insights on the Proposed Rule.</p> <p>The changes to jurisdiction in the Proposed Rule are not benign. An expansion of Clean Water Act jurisdiction means an increased number of projects and activities will be subject to the Clean Water Act&rsquo;s permitting requirements. These permitting requirements apply to discharges of pollutants as well as fill material and potentially impose discharge limitations, mitigation requirements and other limitations where they previously did not apply. Additionally, because Clean Water Act permits are enforceable by members of the public, any person or group who can establish standing can file a lawsuit to enforce the Act. An expansion of Clean Water Act jurisdiction will therefore result in an increased risk of litigation for those who find themselves subject to the Act.</p> <p>In the Proposed Rule, the agencies are seeking comment on how they should evaluate Clean Water Act application to &ldquo;other waters&rdquo; and whether waters in several &ldquo;ecoregions&rdquo; should be evaluated individually or systemically. Comments on the Proposed Rule are due 90 days after it is officially published in the <u>Federal Register</u> and can be filed electronically <a href="http://www.regulations.gov/"><font color="#0000ff">here.</font></a></p> <p><b>Background</b></p> <p>The Clean Water Act grants the EPA and the Corps regulatory authority to protect the quality of &ldquo;the waters of the United States&rdquo; but leaves up to the agencies to define what constitutes &ldquo;the waters of the United States.&rdquo; A decade in the making, the agencies developed the <a href="http://www2.epa.gov/uswaters"><font color="#0000ff">Proposed Rule</font></a> to address regulatory uncertainty that arose from a pair of Supreme Court decisions in 2001 and 2006. In those cases, <i><a href="http://www.law.cornell.edu/supct/html/99-1178.ZS.html"><font color="#0000ff">Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers</font></a></i> and <i><a href="http://www.law.cornell.edu/supct/html/04-1034.ZS.html"><font color="#0000ff">Rapanos v. United States</font></a></i>, the Supreme Court established limits on what the EPA and the Corps can define as &ldquo;waters of the United States.&rdquo;</p> <p>In a 5-4 decision, the Court held in <i><a href="http://www.law.cornell.edu/supct/html/99-1178.ZS.html"><font color="#0000ff">SWANCC</font></a></i> that the Corps&rsquo; use of the long controversial &ldquo;migratory bird rule&rdquo; (that the Clean Water Act covers waters &ldquo;which are, or would be, used as habitat by... migratory birds that cross state lines&rdquo;) adopted by the Corps and the EPA to interpret the reach of their section 404 authority over discharges into &ldquo;isolated waters&rdquo; (including isolated wetlands), exceeded the authority granted by that section. In <i><a href="http://www.law.cornell.edu/supct/html/04-1034.ZS.html"><font color="#0000ff">Rapanos v. United States</font></a></i>, a divided Court could not agree whether the reach of the Clean Water Act extended to non-navigable waters and isolated wetlands. A plurality ruled that non-navigable waters are subject to Clean Water Act regulation only if they exhibit a relatively permanent flow and that wetlands are subject to Clean Water Act regulation only if they have a continuous surface water connection to a relatively permanent water body. The lack of a clear ruling means that regulators and the courts are not divided by a clear and universal policy, with some decisions resting on other court precedent and others relying on the concurring opinion of Justice Anthony Kennedy to set regulatory parameters.</p> <p>It would appear that the <a href="http://www2.epa.gov/uswaters"><font color="#0000ff">Proposed Rule</font></a> is largely guided by Justice Kennedy&rsquo;s concurring opinion and generally relies on his &ldquo;significant nexus&rdquo; test to define which waters are subject to Clean Water Act regulation. According to Justice Kennedy, an intermittent stream or isolated wetland has significant nexus to a navigable waterway if it, either by itself or through connections with other bodies of water, significantly affects the physical, chemical or biological integrity of a downstream navigable waterway.</p> <p>The Proposed Rule specifically defines &ldquo;waters of the United States&rdquo; as:</p> <ul> <li>All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide</li> <li>All interstate waters, including interstate wetlands</li> <li>The territorial seas</li> <li>All impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary</li> <li>All tributaries of traditional navigable water, interstate water, the territorial seas or impoundment</li> <li>All waters, including wetlands, adjacent to traditional navigable water, interstate water, the territorial seas, impoundment or tributary</li> <li>On a case-specific basis, other waters, including wetlands, provided those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas</li> </ul> <p>The Proposed Rule would maintain the following exemptions:</p> <ul> <li>Water treatment systems</li> <li>Prior converted cropland</li> <li>Ditches that are wholly excavated in uplands, drain only uplands and have less than perennial flow</li> <li>Ditches that do not contribute flow to traditional navigable waters, interstate waters, or the territorial seas</li> <li>A wide array of features, such as irrigated farmland, small ornamental waters and water-filled depressions incidental to construction work</li> </ul> <p>In the Proposed Rule, the EPA and the Corps are specifically seeking comment on new definitions for:</p> <ul> <li>Significant nexus</li> <li>Tributary</li> <li>Neighboring waters</li> <li>Floodplains</li> <li>Wetlands</li> </ul> <p>If your agency is interested in joining the coalition to comment on the Proposed Rule and help shape the regulatory process, please contact the attorney author of this legal alert listed at right in the firm&rsquo;s <a href="http://www.bbklaw.com/?t=5&amp;LPA=424&amp;format=xml"><font color="#0000ff">Water Quality practice</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></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 Alerts04 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29642&format=xmlFrom the Soil to the Rooftop: Emerging Trends and Issues Affecting Economic Developmenthttp://www.bbklaw.com/?t=40&an=29534&format=xml<font size="2"> <p>This panel will discuss what environmental practitioners need to know about the new issues, trends, and legal regimes facing economic development in the Post-Redevelopment era, including issues such as: the disposition of property assets held by designated successor agencies; new standards regarding toxics and site contamination, renewable energy and the new energy code; and economic incentives and green credits associated with development.</p> <p><strong>When:<br /> </strong>April 4, 2014<br /> 2:30 p.m. - 3:30 p.m.<br /> <br /> <strong>Location:<br /> </strong>Westin Bonaventure Hotel<br /> 404 South Figueroa Street <br /> Los Angeles, CA 90071<br /> <br /> <strong>BB&amp;K Speaker:<br /> </strong>Seth Merewitz, Partner<br /> <br /> For more information about the symposium, please visit the <span style="color: #0000ff"><a href="http://onlinestore.lacba.org/calendar/#ViewCalendarEvent.cfm?1=1&amp;CalendarEventID=4516">LACBA website</a></span>.</p> </font>Conferences & Speaking Engagements04 Apr 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29534&format=xmlCPUC Issues Decision to Protect Solar Customers for 20 Yearshttp://www.bbklaw.com/?t=40&an=29542&format=xml<p>The California Public Utilities Commission (CPUC) recently ruled to protect all existing solar, biogas and wind customers under their current net-energy metering (NEM) contracts for a 20-year grandfathering period. The 20-year period will be calculated from the date of interconnection and will only be available for NEM customers who take service before the earlier of July 1, 2017 or when their utility reaches an existing statutory cap on eligible renewable projects. After the 20-year grandfathering period and after July 1, 2017 (or when their utility reaches an existing statutory cap on eligible renewable projects), NEM customers will be subject to new NEM rules that will be established by the CPUC in a separate proceeding.</p> <p>Best Best &amp; Krieger represented the Net Energy Metering Public Agency Coalition (NEM-PAC) -- consisting of nine California cities, water districts, school districts and private businesses -- in this proceeding to safeguard public agency investments in renewable energy projects.</p> <p>This decision is significant as it impacts <u>all</u> entities and individuals with rooftop or carport-mounted solar, wind or biogas installations that are net-energy metered, such as big box retailers, companies, schools, cities, special districts, and other customers (including residential). Net-energy metering is an important State program which allows renewable energy customers to receive full retail credit for the excess energy they produce and feed into the grid; allowing them to &ldquo;net&rdquo; out the energy produced versus that which is later consumed. Because of the intermittent and variable nature of solar, net-energy metering is particularly beneficial to solar customers, allowing them to use the utility grid as a &ldquo;battery,&rdquo; rolling their meters backwards during the day and then using the energy credits produced during the day later on at night or during cloudy days. The CPUC was responsible for establishing this grandfathering period under <a href="http://www.bbklaw.com/?t=40&amp;an=25062&amp;format=xml"><font color="#0000ff">Assembly Bill 327</font></a>. (See also <a href="http://www.bbklaw.com/?t=40&amp;an=28947&amp;format=xml"><font color="#0000ff">&ldquo;CPUC Proposes 20-Year Transition Period,&rdquo; 2-25-14</font></a> and <a href="http://www.bbklaw.com/?t=40&amp;an=28290&amp;format=xml"><font color="#0000ff">&ldquo;AB 327 Threatens Existing Solar and Renewable Projects,&rdquo; 2-10-14</font></a>.)</p> <p>The CPUC&rsquo;s decision also permits existing customers to modify or expand their systems by the greater of ten percent of capacity or one kiloWatt without affecting their grandfathering rights. This ensures that existing customers can conduct repairs and minor upgrades on their systems without losing their grandfathering rights.</p> <p>If you have any questions about the grandfathering period and how it may affect your projects, please contact one of the attorney authors of this legal alert listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=479&amp;format=xml"><font color="#0000ff">Renewable Energy group</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></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 Alerts31 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29542&format=xmlSubstantial Rewriting of SMARA Proposed Bill Would Decrease Local Agencies' Rolehttp://www.bbklaw.com/?t=40&an=29419&format=xml<p>Under proposed Senate Bill 1270 (Pavley), the Surface Mining and Reclamation Act (SMARA) would be substantially revised, reducing the role of local agencies in regulating mines in their jurisdictions. Because SB 1270 would also place tighter and more expensive restrictions on the mining industry, the bill may adversely affect local economies that rely on revenues and economic activity created by mining operations. The bill is currently before the Senate Natural Resources and Water Committee. In response to SB 1270, several local agencies have submitted or are in the process of submitting letters of opposition to Senator Pavley&rsquo;s office.</p> <p>SB 1270 would directly affect local agencies by transferring some of their key responsibilities under the SMARA to the Office of Mine Reclamation (which would be renamed the &ldquo;Division of Mines&rdquo;). Specifically, local agencies would no longer be responsible for inspecting mines, as this would be done by the newly-created post of State Mine Inspector. Also, local agencies would no longer set the amount of the financial assurance required for a mine&rsquo;s reclamation, as this would be handled by the Director of the Department of Conservation. Furthermore, the bill would allow third parties to challenge (via the State Mining and Geology Board) the actions of a local agency in approving a reclamation plan, and would remove local agency discretion in issuing notices of violation to mines in their jurisdiction.</p> <p>Local mining operations could also be adversely affected by SB 1270. For instance, the bill would substantially increase annual reporting fees&nbsp;to $1,000 per acre, with no maximum. More importantly, a mine&rsquo;s listing on the AB 3098 list (which is a requirement in order to be able to sell materials to the state, such as concrete or asphalt to CalTrans) can be challenged by the public, which could give opponents of mining a means to economically injure a mine and, indirectly, a local economy.</p> <p>It is early in the legislative year and further amendments may limit the bill&rsquo;s effect on local agencies. BB&amp;K will continue to monitor this bill, and can offer assistance in preparing comment letters to the Legislature regarding SB 1270. For further information, please contact the attorney author of this legal alert listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=420&amp;format=xml"><font color="#0000ff">Environmental Law &amp; Natural Resources</font></a> practice group, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></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 Alerts25 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29419&format=xmlBB&K Attorneys Speaking on Water, CEQA, Habitat Conservation Plans and Other Topicshttp://www.bbklaw.com/?t=40&an=29364&format=xml<span itemprop="postalCode"> <p><font color="#0000ff"><font color="#000000">Several BB&amp;K attorneys will be presenting on a variety of timely environmental law topics at the annual California Association of Environmental Professionals. The conference is attended by environmental-related professionals from throughout California, and will feature more than 35 AICP and MCLE conference sessions, mobile workshops, keynote speakers, and exhibitors.</font><br /> <br /> </font><font color="#000000"><strong>BB&amp;K Speakers:</strong></font></p> <ul> <li><a href="http://www.bbklaw.com/?t=3&amp;A=1650&amp;format=xml"><font color="#0000ff">Michelle Ouellette</font></a> will be holding an interactive &ldquo;Habitat Conservation Plan Jeopardy&rdquo; game the morning of March 24th.</li> <li><a href="http://www.bbklaw.com/?t=3&amp;A=1544&amp;format=xml"><font color="#0000ff">Steve Anderson</font></a> and <a href="http://www.bbklaw.com/?t=3&amp;A=5453&amp;format=xml"><font color="#0000ff">Joseph Byrne</font></a> are presenting &ldquo;Bay-Delta and Water Supply Issues: The Latest&rdquo; the afternoon of March 24th.</li> <li><a href="http://www.bbklaw.com/?t=3&amp;A=1678&amp;format=xml"><font color="#0000ff">Charity Schiller</font></a> and <a href="http://www.bbklaw.com/?t=3&amp;A=1547&amp;format=xml"><font color="#0000ff">Fernando Avila</font></a> are speaking on &ldquo;Preparing CEQA Administrative Records: What to Keep and What to Throw Away&rdquo; the afternoon of March 24th.</li> <li><a href="http://www.bbklaw.com/?t=3&amp;A=4176&amp;format=xml"><font color="#0000ff">Sarah Owsowitz</font></a> is presenting &ldquo;Is There Enough Water? Water Supplies per SB 610 and Beyond&rdquo; also on the afternoon of March 24th.</li> <li><a href="http://www.bbklaw.com/?t=3&amp;A=1570&amp;format=xml"><font color="#0000ff">Melissa Cushman</font></a> and <a href="http://www.bbklaw.com/?t=3&amp;A=5223&amp;format=xml"><font color="#0000ff">Jennifer Kunz</font></a> are participating on a panel entitled &ldquo;Consultants and Attorneys: Two Different Perspectives on CEQA?&rdquo; the morning of March 25th.</li> <li><a href="http://www.bbklaw.com/?t=3&amp;A=1544&amp;format=xml"><font color="#0000ff">Steve Anderson</font></a> is speaking on &ldquo;Mitigating for Species, Water, and Other Natural Resource Impacts: A Holistic Approach&rdquo; on the morning of March 25th.</li> <li><a href="http://www.bbklaw.com/?t=3&amp;A=1842&amp;format=xml"><font color="#0000ff">Alisha Winterswyk</font></a> is presenting &ldquo;CEQA on the Internet: The Lady or the Tiger?&rdquo; on the afternoon of March 25th.</li> </ul> <p style="margin: 0in 0in 0pt" class="MsoBlockText"><o:p></o:p></p> <p><strong>When:<br /> </strong>March 23-26, 2014</p> <p><b>Where:<br /> </b>Waterfront Beach Resort in Huntington Beach <br /> 21100 Pacific Coast Highway<br /> Huntington Beach, CA 92648<br /> <span style="display: none" id="1395425693760S">&nbsp;</span><strong><br /> </strong><span style="display: none" id="1395425706670S">&nbsp;</span>For more information on the conference or to register, please visit <a href="https://www.etouches.com/ehome/76426/156938/?&amp;"><font color="#0000ff">AEP&rsquo;s conference website</font></a>.</p> <p>&nbsp;</p> <p>&nbsp;</p> </span>Conferences & Speaking Engagements24 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29364&format=xmlNinth Circuit Upholds Delta Smelt Biological Opinion Pumping Restrictionshttp://www.bbklaw.com/?t=40&an=29315&format=xml<p>In a reversal potentially impacting the water supply to millions of Californians, the Ninth Circuit Court of Appeals recently upheld a biological opinion issued by the United States Fish and Wildlife Service (FWS) regarding the effect of California State Water Project (SWP) and federal Central Valley Project (CVP) operations on the delta smelt&mdash;a small fish located in the Sacramento-San Joaquin Delta. The Ninth Circuit held the biological opinion valid, largely based on general principles of deference to federal agencies. Although the court stated it was &ldquo;acutely aware of the consequences of this proceeding,&rdquo; its decision is likely to affect the availability of water to hundreds of thousands of acres of farmland and tens of millions of people throughout the state.</p> <p>The Ninth Circuit upheld, however, a determination that the Bureau of Reclamation, as the federal operator of the CVP, failed to perform required analyses of human environmental impacts caused by implementing the biological opinion under the National Environmental Policy Act (NEPA). The court acknowledged that the district court will continue to actively manage Reclamation&rsquo;s deadlines for completing this environmental review process.</p> <p>In December 2008, FWS issued a biological opinion containing restrictions on SWP and CVP pumping in the Delta aimed at protecting the delta smelt. Several challenges were raised against the opinion and in 2010, the district court invalidated the restrictions, stating they were not based on the best available science and other requirements imposed by the Endangered Species Act and other federal laws.</p> <p>In its current decision, the Ninth Circuit reversed, finding the analyses were supported by substantial evidence and were not arbitrary and capricious. The court deferred to FWS&rsquo;s use of data, its setting of flow restrictions and its choice of salinity intrusion restrictions based on measuring locations. The court also deferred to FWS&rsquo;s estimation of the levels of &ldquo;entrainment&rdquo; of delta smelt at the CVP and SWP pumps, as well as the opinion&rsquo;s analyses of indirect effects on food supplies, water contaminants and other biological stressors. The court additionally held that FWS was not required to show whether its restrictions were economically and technologically feasible, within the implementing agencies&rsquo; authority, or consistent with the project&rsquo;s purposes, as noted in the regulatory definition of a valid &ldquo;reasonable and prudent alternative&rdquo; under the Endangered Species Act.&nbsp;</p> <p>The Ninth Circuit rejected arguments that FWS was required to distinguish between nondiscretionary and discretionary actions, or that it was required to perform environmental review of the biological opinion&rsquo;s impacts pursuant to NEPA. However, the court upheld the district court&rsquo;s remand based on the Bureau of Reclamation&rsquo;s failure to comply with NEPA environmental review requirements before implementing the biological opinion.</p> <p>For more information about this decision and its impact on your agency, please contact one of the attorney authors of this legal alert listed at right in the <a href="http://www.bbklaw.com/?t=5&amp;LPA=492&amp;format=xml"><font color="#0000ff">Environmental Law &amp; Natural Resources practice group</font></a>, or your <a href="http://www.bbklaw.com/?p=2099"><font color="#0000ff">BB&amp;K attorney</font></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 Alerts18 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29315&format=xmlAdapting Existing Water Laws to Climate Changehttp://www.bbklaw.com/?t=40&an=28967&format=xmlBy <strong>Eric L. Garner</strong><br /> <br /> <p>Climate change is essentially a water problem. Whether it is drought, flood, changing hydrology or rising sea levels, the impacts of climate change all involve water to some extent. Even those who deny that human activities cause climate change must acknowledge that long-term drought cycles in the past (as evidenced by tree rings and other environmental indicators) and wide variations in hydrology can be expected to recur and may be recurring now. Based on the best evidence currently available, precipitation patterns in the near future are likely to be substantially different than in the recent past.</p> <p>Because of these ongoing changes, the importance of adapting existing legal regimes to changing hydrology cannot be overstated. The competition for water resources is keener now than it has ever been and will only get worse. The list of civilizations that has fallen due to drought is a long one and with more people, essentially no additional water supplies and different precipitation patterns from what occurred when most water laws were created, water users face significant challenges. This article discusses why conflict over water resources is inevitable; the significance of water as a different type of property and common resource; adapting existing laws and institutions to the changing environment, and the role of reasonableness and physical solution.<br /> <br /> Click <a target="_blank" href="88E17A/assets/files/Documents/BBK-RIV-Garner-ClimateChange-AdaptingWaterLaws-BloombergBNA(OfficialCopy)_2-26-14.pdf">here</a> to read the entire article.</p>BB&K In The News12 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=28967&format=xmlMitigate Early and Often: Four Public Agency Strategies for Streamlining Projectshttp://www.bbklaw.com/?t=40&an=29137&format=xml<p>By Steven M. Anderson and Lucas I. Quass<br /> <br /> Like private development, public projects must frequently obtain and comply with a variety of state and federal regulatory permits. Too often developers, under pressure to complete projects as soon as possible, rush through the regulatory approval process and spend more time, effort and money on environmental mitigation than necessary. Public agencies sometimes fall into the same trap: Moving through the process with an eye on getting a new park, water pipeline or city hall built without an early focus on selecting and designing cost-effective options to mitigate impacts to endangered species, creeks and other natural resources. This lack of focus can haunt a public project when mitigation comes due.<br /> <br /> A shortsighted view of this aspect of the planning process can contribute to increased &ldquo;mitigation ratios,&rdquo; costly mitigation endowments and project delays. However, when public agencies engage in the process early they may be rewarded with more flexible and less costly mitigation. In fact, one of the key agencies that oversees mitigation regulations in California and the rest of the country has recently, for the first time, provided specific public guidance as to how it determines the amount of mitigation it will require and how &ldquo;mitigation ratios&rdquo; are calculated.<br /> <br /> Public agencies are well served to give mitigation obligations the same attention as the project itself. Here are four steps that can help achieve this goal and save your agency and staff some trouble.<br /> <br /> <b>Step 1: Understand Project Impacts.</b>&nbsp;<br /> Become keenly aware of existing conditions on your project site early on. This can be accomplished with the help of staff, public natural resource agencies, consultants or others. A proper baseline analysis of natural resource conditions on site, including vegetation mapping, species surveys and understanding which agencies regulate the area can help explain the resource impacts your project is likely to create.<br /> <br /> Avoid impacts to waterways and other natural resources if you can. A slight reconfiguration of your project, even if inconvenient from a design or engineering perspective, could save significant mitigation dollars in the long run. If project impacts to waters and species cannot be fully avoided, staff and consultants should evaluate mitigation options extensively before permit applications are even submitted to the regulatory agencies.&nbsp;<br /> <br /> <b>Step 2: Know the Agency Requirements.&nbsp;</b><br /> Common regulatory permits include:<br /> <br /> - Federal Clean Water Act &ldquo;Section 404&rdquo; permits regulating the discharge of dredge or fill material (Army Corps of Engineers).</p> <p>- &ldquo;Section 401&rdquo; water quality standards certifications, waste discharge requirements, &ldquo;NPDES&rdquo; or other permits designed to protect water quality (regional water quality control boards).<br /> <br /> - Fish and Game Code &ldquo;Section 1600&rdquo; (streambed alteration) or incidental take permits (state endangered species protection) issued by the California Department of Fish and Wildlife.<br /> <br /> - Biological opinions or incidental take permits to protect federally listed species (United States Fish and Wildlife Service).<br /> <br /> Each of these agency permitting documents generally has different requirements. What they have in common, however, is that permit conditions have typically become more stringent in the last 15 years or so, and continue to become more daunting as time goes on. Common high dollar items may include mitigation performance bonds, establishing buffer zones around the project site, drafting extensive mitigation plans, installing detention basins or other water quality measures, restoring habitat, permanently protecting land on or off site, establishing conservation easements, funding endowments for the long-term management of conserved sites, or purchasing credits in a mitigation bank or in lieu fee program.<br /> <br /> In most cases, the laws that apply will allow a project proponent to undertake its own mitigation, hire an expert such as a resource conservation district, land trust or consultant to assist, or legally transfer the mitigation responsibility to a third party such as a mitigation bank or in lieu fee program. However, there are pros and cons to each of these options, depending upon the circumstances of your project. This is why there is a need to be prepared.<br /> <br /> The regulatory agencies also have differing views on mitigation ratios. An instructive document recently circulated by the South Pacific Division of the Army Corps is the &ldquo;<span>Standard Operating Procedure for Determination of Mitigation Ratios</span><span>. </span>The document reveals a checklist of how mitigation ratios are typically calculated by that agency. Notably, the time lag between when project impacts occur (e.g., at time of site grading) and when replacement habitat is fully functioning (i.e., when restoration &ldquo;success criteria&rdquo; are proposed to be satisfied) can have a significant impact on the mitigation ratio.&nbsp;<br /> <br /> <strong>Step 3: Propose Mitigation.&nbsp;<br /> </strong>In many instances, public agency project proponents will submit permit applications to the regulatory agencies offering either no mitigation at all or unreasonably low mitigation. Whether this negotiation tactic will work can be debated. However, going this route is frequently disadvantageous. Agency project managers review mitigation proposals every day. They have a good idea of what is generally acceptable and what is not. Offering little or no mitigation is viewed by many regulators like denying that your project is affecting natural resources at all. This is not an offer they ordinarily expect or respect. (If your project really has no impacts, you don&rsquo;t need permits to begin with.)&nbsp;Agency project managers are unlikely to buy off on minor or no mitigation without solid baseline information. The agencies may also return permit applications as incomplete or put them on the bottom of the pile of what can already be a long process. Worse, offering no or limited mitigation leaves agency personnel to devise their own mitigation for your project. Generally, it is better to have a hand in your own mitigation requirement than leaving it to a regulator.<br /> <br /> Before proposing mitigation, project proponents should ask themselves: How much mitigation is needed for this project? What type(s) of mitigation will be acceptable? Who should implement the mitigation? Is it more cost effective for the agency to conduct the mitigation itself, or hand it off to a third party? Is the agency prepared to fund an endowment? Is there a way to split any duties associated with installation mitigation or managing it for the long-term? Can I design a mitigation project that will satisfy all of my permit obligations at one site or with a single conservation project? Is there a public relations benefit (or not) for the project proponent to conduct the mitigation itself?&nbsp;<br /> <br /> <b>Step 4: Negotiate.</b>&nbsp;<br /> As long as you are putting forth a reasonable proposal, there is no reason not to negotiate with the agencies. Most importantly, understand all your options before talking with them. Those who are prepared have a distinct advantage over those who are not. And, don&rsquo;t sign your permits without first reading and fully understanding their requirements and conditions. Also, be aware that your own agency&rsquo;s (and even your consultants&rsquo;) reputations may have some bearing on the way your proposals are received by the agency. Remember to take the long-view:&nbsp;this may not be the last time you have to work with the regulatory agency on one of your projects, so don&rsquo;t burn a bridge if you can help it.</p> <p><b>Take Away.&nbsp;</b><br /> Give mitigation requirements the same attention you bestow to the project itself. This approach will allow public agencies to decide on a cost-effective mitigation strategy early in the planning process and avoid unwelcome headaches and delays.</p> <p><em>This article was originally published in PublicCEO on March 4, 2014. Republished with permission.</em></p>BB&K In The News06 Mar 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=29137&format=xmlCourt Tosses Challenge to Approval of Annexation and Change in Sphere of Influencehttp://www.bbklaw.com/?t=40&an=28280&format=xml<p>A California appellate court confirmed that once a Local Agency Formation Commission (LAFCO) approves an annexation or a change in a sphere of influence, a challenge to such approvals under the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (Reorganization Act) or the California Environmental Quality Act (CEQA) must be brought as a reverse validation action that complies with specific notice and publication requirements. The published decision in <i>Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission</i> is a victory for public agencies and project proponents defending legal challenges to LAFCO approvals that do not follow the proper procedures.</p> <p>The City of Ceres sought to annex a 960-acre area as part of its West Landing Specific Plan Reorganization. The city certified an Environmental Impact Report and authorized the submission of an application to the Stanislaus County LAFCO for modification of the city&rsquo;s sphere of influence and annexation of the area. Stanislaus County LAFCO approved the proposal. The plaintiff sought a writ of mandate alleging that the LAFCO had violated CEQA and the Reorganization Act, and requested the LAFCO be ordered to set aside and void its approvals.</p> <p>Once an annexation determination is completed, its validity may only be challenged by a validation action as provided for in the Reorganization Act, Government Code section 56103. The public agency may test the legal validity of its acts by filing an <i>in rem</i> validation action within 60 days. If that does not occur, as in this case, then any interested person may file a reverse validation action to challenge the validity of the public agency&rsquo;s acts under the notice procedures in Code of Civil Procedure section 863. Unless a validation action or reverse validation action is filed within this time frame, the approval is deemed valid.</p> <p>Here, the plaintiff failed to timely publish a summons giving notice of the action to persons interested in the matter and to the public agency, and to file proof thereof within 60 days from the filing of the complaint, as required under Code of Civil Procedure section 863. The Court of Appeal agreed with the trial court&rsquo;s finding that the plaintiff did not show &ldquo;good cause for such failure,&rdquo; as provided for in the statute, in response to the plaintiff&rsquo;s claim that its failure was due to inadequate legal research by its attorney. The Court of Appeal therefore affirmed the trial court&rsquo;s decision to dismiss the plaintiff&rsquo;s cause of action under the Reorganization Act.</p> <p>The court also held that Government Code section 56103 applies to CEQA claims seeking to invalidate a LAFCO&rsquo;s approval of an annexation or modification of a sphere of influence, citing the 1980 decision <i>Hills for Everyone v. Local Agency Formation Commission </i>as precedent. Accordingly, the procedures that apply to a reverse validation action also apply to those particular types of CEQA claims against a LAFCO.&nbsp;</p> <p>For more information on how this decision may affect your projects and policy initiatives, or any land use matter, contact one of the attorney authors of this legal alert listed at right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=489&amp;format=xml"><span>Municipal Law</span></a><span> and <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=492&amp;format=xml">Environmental &amp; Natural Resources Law</a> practice groups, the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=460&amp;format=xml">Zoning, Planning and Land Use</a> group, or your <a target="_blank" href="http://www.bbklaw.com/?p=2099">BB&amp;K attorney</a>.</span></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 Alerts06 Feb 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=28280&format=xmlProposition 218 Does Not Require Individual Majority Fee Protest Procedureshttp://www.bbklaw.com/?t=40&an=28276&format=xml<p>A California court of appeal recently held that a public agency is not required to provide individual protest procedures for each customer class when proposing increases to its water service fees. The court based its decision in <i>Morgan v. Imperial Irrigation District</i> on Proposition 218 (California Constitution article XIII D, section 6) and the Proposition 218 Omnibus Implementation Act (Government Code section 53750 <i>et seq</i>.). The court also clarified the standard of review an appellate court should apply in reviewing a trial court&rsquo;s determination of the facts in a case challenging property-related fees and charges.</p> <p>In <i>Morgan</i>, the plaintiffs challenged the district&rsquo;s fees on both procedural and substantive grounds. The district&rsquo;s water rate structure was comprised of different customer classes, with different rates applying to each customer class. Of significance to public agencies is the plaintiff&rsquo;s procedural challenge on the method for calculating a majority protest. The plaintiffs asserted that individual customer classes are entitled to protest rate increases to be imposed on them. The court rejected this claim, finding that to do so would in effect result in a minority of users vetoing an entire rate plan and call into question the proposed rates for the remaining customer classes without regard to the desires of the majority of the customers as a whole. Moreover, the court noted that if one rate class was allowed to object to its portion of the district&rsquo;s rates, the district would have to reduce its services. The lower costs would correspondingly cause the proposed rate increases for the other customer classes to be disproportionate to the cost of service because they were based on the entire system of rates and the cost of service assuming those increased rates.&nbsp;</p> <p>The district engaged a rate consultant to prepare a cost of service study. The study followed commonly accepted professional standards developed by the American Water Works Association (AWWA). The rate structure included a volumetric charge. Among the substantive challenges asserted, the plaintiffs argued that the district&rsquo;s proposed rates were not proportionate to the cost of service because in calculating the volumetric charge the rate consultant had used flawed data. The district presented evidence at trial that district staff estimated the annual amount of water used by certain customers. This data was buttressed by data published by AWWA, water use data for local municipalities and local evapotranspiration rates. The trial court rejected the plaintiff&rsquo;s substantive challenge and found that the cost of service study was very thorough and not defective. Thus, based in part on the district&rsquo;s reliance on the study, the trial court concluded that the district satisfied the substantive requirements of California Constitution article XIII D, section 6(b).</p> <p>On appeal, the plaintiffs argued the applicable standard of review requires the district to prove to the appellate court&rsquo;s satisfaction that the district&rsquo;s rates are constitutional. The court of appeal rejected this argument, noting that the plaintiffs were challenging the sufficiency of the evidence presented at trial. As such, the court must review the trial court&rsquo;s resolution of the factual conflicts under the substantial evidence standard. Under this standard of review, the court explained, its job begins and ends with the determination of whether there is any substantial evidence, contradicted or uncontradicted, that will support the finding of fact by the trial court. Accordingly, the court of appeal is required to accept all evidence that supports the successful party, disregard the contrary evidence and draw all reasonable inferences to uphold the verdict. The court found that the ultimate test is whether it is reasonable for a trier of fact to make the ruling in light of the whole record. If there is substantial evidence infavor of the respondent, no matter how slight it might appear in comparison to the contradictory evidence, the judgment must be upheld.&nbsp;</p> <p>The court of appeal found that the plaintiffs failed to articulate why the evidence was insufficient. Rather, they merely cited to evidence they believed showed the district&rsquo;s data was inadequate. To resolve the plaintiff&rsquo;s challenge to the rates would require the court of appeal to reweigh the evidence and independently resolve issues of disputed facts already decided by the trial court. The court found that this was not its role under the substantial evidence standard of review. Further, the court held that it was satisfied that there was substantial evidence to support the trial court&rsquo;s factual determination that the district complied with the substantive requirements of California Constitution article XIII D, section 6(b) through its reliance on the cost of service study. In addition, the court noted that while the&nbsp;district&rsquo;s water measurement system was not perfect &ldquo;section 6 does not require perfection.&rdquo;</p> <p>If you have any questions about this case or how it may impact your agency, please contact the attorney author of this legal alert listed at right in the firm&rsquo;s <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=497&amp;format=xml">Public Finance practice group</a>, or your <a target="_blank" href="?p=2099">BB&amp;K attorney</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 Alerts05 Feb 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=28276&format=xmlEleven BB&K Attorneys Named 2014 Southern California "Super Lawyers"http://www.bbklaw.com/?t=40&an=27775&format=xml<p>Eleven attorneys at Best Best &amp; Krieger LLP were named as 2014 Southern California Super Lawyers by <i>Super Lawyers Magazine</i>. The selection is significant because only five percent of Southern California lawyers received this honor.</p> <p>The selected attorneys are:</p> <p><a href="http://www.bbklaw.com/?t=3&amp;A=1551&amp;format=xml" target="_blank"><strong>Bruce W. Beach</strong></a>: Beach practices eminent domain and property litigation. He has worked on projects for road rights-of-way, pipelines, light rail transit corridors, reservoir sites, as well as redevelopment and flood control projects. Beach is a member of the American Board of Trial Advocates, an honor reserved for attorneys who have served as lead counsel in at least 20 cases tried to a jury verdict and who demonstrate integrity and professional achievement. He was selected to Southern California Super Lawyers in the eminent domain law category.</p> <p><a href="http://www.bbklaw.com/?t=3&amp;A=1560&amp;format=xml" target="_blank"><strong>Scott H. Campbell</strong></a>: A municipal lawyer and litigator with extensive trial experience, Campbell represents public entities as both general counsel and public works construction counsel. He has supervised public works projects involving more than $450 million in public funding. He serves as city attorney for Avalon on Catalina Island and as general counsel for the Lake Arrowhead Community Services District. Campbell was selected to Southern California Super Lawyers in the government law category.</p> <p><a href="http://www.bbklaw.com/?t=3&amp;A=1563&amp;format=xml" target="_blank"><strong>Sonia R. Carvalho</strong></a>: Carvalho is a municipal lawyer and co-chair of the firm's Public Policy and Ethics Compliance sub-practice group. She serves as city attorney for the cities of Santa Ana and Claremont. Carvalho&rsquo;s practice focuses on land use, ethics, open government laws and elections law. She was selected to Southern California Super Lawyers in the government law category.</p> <p><a href="http://www.bbklaw.com/?t=3&amp;A=1586&amp;format=xml" target="_blank"><strong>Jeffrey V. Dunn</strong></a>: Dunn represents public agencies in complex litigation matters, with an emphasis on water rights and municipal regulation of marijuana distribution facilities. He was selected last year by <i>The Daily Journal</i> as one of California&rsquo;s Top 20 municipal attorneys and as one of the state&rsquo;s Top 100 attorneys. Dunn was selected to Southern California Super Lawyers in the government law category.</p> <p><a href="http://www.bbklaw.com/?t=3&amp;A=1598&amp;format=xml" target="_blank"><strong>Eric L. Garner</strong></a>: Garner is the managing partner of BB&amp;K, overseeing the firm&rsquo;s nine offices and nearly 200 attorneys. He is one of the leading authorities on water law in California and has litigated cases and negotiated key agreements involving major water bodies across the state. Garner also works with renewable energy firms to obtain water supplies for solar plants in the California desert. He was selected to Southern California Super Lawyers in the environmental law category.</p> <p><a href="http://www.bbklaw.com/?t=3&amp;A=1600&amp;format=xml" target="_blank"><strong>James B. Gilpin</strong></a>: Gilpin practices in civil litigation with an emphasis on real property litigation, including eminent domain, construction and other public works. He has represented clients in all phases of litigation, including writ proceedings, jury and court trials, and appeals. Gilpin was selected to Southern California Super Lawyers in the eminent domain law category.</p> <p><a href="http://www.bbklaw.com/?t=3&amp;A=1606&amp;format=xml" target="_blank"><strong>Shawn D. Hagerty</strong></a>: Hagerty serves as general and special counsel to municipalities throughout California, providing advisory and litigation services in the areas of land use and planning, elections and water quality issues. A member of the firm&rsquo;s executive committee, he serves as city attorney for the City of Santee and as corporate counsel to Civic San Diego. Hagerty was selected to Southern California Super Lawyers in the land use and zoning law category.</p> <p><a href="http://www.bbklaw.com/?t=3&amp;A=1610&amp;format=xml" target="_blank"><strong>Robert J. Hanna</strong></a>: Hanna&rsquo;s practice emphasizes real property, title insurance, business and commercial litigation. He was named by the <i>San Diego Daily Transcript</i> in 2012 as one of San Diego County&rsquo;s top attorneys. Hanna was selected to Southern California Super Lawyers in the real estate law category.</p> <p><a href="http://www.bbklaw.com/?t=3&amp;A=1650&amp;format=xml" target="_blank"><strong>Michelle Ouellette</strong></a>: A legal counselor and litigator, Ouellette is a leading authority on federal and state endangered species laws, the California Environmental Quality Act and the National Environmental Policy Act. She steered two of the nation&rsquo;s largest habitat conservation plans through a maze of environmental requirements, protecting dozens of endangered species while allowing development to move forward. Ouellette was selected to Southern California Super Lawyers in the environmental law category.</p> <p><a href="http://www.bbklaw.com/?t=3&amp;A=1657&amp;format=xml" target="_blank"><strong>Arlene Prater</strong></a>: Prater is managing partner of the firm&rsquo;s San Diego office. She provides advice to public and private employers on personnel and labor matters, and represents them in employment litigation and administrative proceedings. Prater was selected to Southern California Super Lawyers in the employment and labor law category.</p> <p><a href="http://www.bbklaw.com/?t=3&amp;A=1712&amp;format=xml" target="_blank"><strong>Gregory K. Wilkinson</strong></a>: Wilkinson works on key cases in California involving water rights, water quality, endangered species and environmental impact reporting issues. He successfully argued before the U.S. Supreme Court in <i>Bennett v. Spear</i>, 520 U.S. 154 (1997), a case involving endangered species and an irrigation project that straddles the California/Oregon border. He also serves as counsel to the State Water Contractors in litigation and administrative proceedings relating to the San Francisco Bay-Sacramento/San Joaquin Delta Estuary. Wilkinson was selected to Southern California Super Lawyers in the environmental law category.</p> <p><i>About Super Lawyers </i></p> <p><i>Super Lawyers 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 selection process is multi-phased and includes independent research, peer nominations and peer evaluations. In the United States, Super Lawyers Magazine is published in all 50 states and Washington, D.C., reaching more than 13 million readers. Super Lawyers is published by Thomson Reuters.</i></p>BB&K In The News27 Jan 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=27775&format=xmlSpot Zoning Not Always an Abuse of Discretionhttp://www.bbklaw.com/?t=40&an=27722&format=xml<p>The Court of Appeal for the Fourth Appellate District recently ordered publication of the decision in <i>Foothill Communities Coalition v. County of Orange </i>to clarify the law regarding spot zoning in two respects. First, spot zoning may occur whether a small parcel of property is subject to more or less restrictive zoning than the surrounding properties. Secondly, to determine whether impermissible spot zoning has occurred, a court is required to conduct a two-part analysis. After determining that spot zoning has actually occurred, the court must determine whether the record shows the spot zoning is in the public interest.</p> <p>The Roman Catholic Diocese of Orange and Kisco Senior Living, LLC, wanted to build a living community for senior citizens on a parcel of real property owned by the Diocese, which is located in an unincorporated area of Orange County. The County Board of Supervisors created a new zoning definition for senior residential housing and applied it to the project site; found the project was consistent with the County&rsquo;s general plan and the relevant specific plan; and found the project complied with the California Environmental Quality Act. Foothill Communities Coalition, an unincorporated association of grassroots community groups and area homeowners, challenged the County&rsquo;s decisions. The trial court entered judgment in favor of the coalition. The County challenged the trial court&rsquo;s conclusion that the County&rsquo;s acts constituted impermissible spot zoning and the Appellate Court ruled in favor of the County.</p> <p>In this case, applying the required standard of review, which is deferential to the County, the Appellate Court concludes that the Board of Supervisor&rsquo;s findings that the project would be consistent with the County&rsquo;s general plan and with the relevant specific plan were supported by substantial evidence. The creation of the new senior residential housing zone and its application to the project site were not arbitrary or capricious, or lacking in evidentiary support. Although the Board&rsquo;s actions constituted spot zoning, the spot zoning was permissible because the zoning change was in the public interest, based on the County&rsquo;s findings.</p> <p>For more information on how this decision may affect your projects, or any land use matter, contact one of the attorney authors of this legal alert listed at right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=489&amp;format=xml">Municipal</a> and <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=460&amp;format=xml">Land Use</a> groups, or your <a target="_blank" href="?p=2099">BB&amp;K attorney</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 Alerts22 Jan 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=27722&format=xmlBest Best & Krieger Launches BBKnowledgehttp://www.bbklaw.com/?t=40&an=27723&format=xml<p><strong>For Immediate Release:</strong> Jan. 22, 2014<br /> <strong>Media Contacts:</strong>&nbsp;<br /> Jennifer Bowles &bull; 951.826.8480 &bull; <a href="mailto:jennifer.bowles@bbklaw.com">jennifer.bowles@bbklaw.com</a><br /> Teresa Warren &bull; 619.582.5750 &bull; twarren@tw2marketing.com</p> <p><br /> <strong>RIVERSIDE, Calif.</strong> &ndash; The law firm of Best Best &amp; Krieger LLP&nbsp;has launched <a href="http://www.bbknowledge.com/" target="_blank">BBKnowledge</a>, an online microsite that provides information and perspective on the challenges facing public agencies in California and across the nation.<br /> <br /> Leveraging off of BB&amp;K&rsquo;s public agency law experience of more than 100 years, BBKnowledge is a repository of articles, blogs, white papers, videos, presentations and links to other resources focusing on information and updates for public agency management and other stakeholders. BB&amp;K attorneys provide commentary and perspectives on recent legal and regulatory developments, and how public agency leaders can more effectively run their organizations.<br /> <br /> &ldquo;This thought leadership site is uniquely designed to connect public leaders with our attorneys who are deeply involved in the many issues that affect their agencies,&rdquo; said <a href="http://www.bbklaw.com/?t=3&amp;A=1598&amp;format=xml" target="_blank">Eric Garner</a>, BB&amp;K managing partner. &ldquo;We encourage BBKnowledge users to share their thoughts and solutions by providing feedback on our perspectives articles and blog posts. We also plan to have short surveys and other interactive tools.&rdquo;<br /> <br /> BBKnowledge&rsquo;s in-depth resources include blogs, articles, white papers and commentaries by BB&amp;K attorneys on emerging issues, news articles from a variety of third-party publications, educational video presentations, a Twitter feed with recent tweets and links to other sources, including government websites and related organizations. In particular, the new site will focus on key areas including:</p> <ul type="disc"> <li><strong>California Public Utilities Commission (CPUC)</strong></li> <li><strong>Economic Development</strong></li> <li><strong>Environmental Law</strong></li> <li><strong>Ethics</strong></li> <li><strong>Land Use</strong></li> <li><strong>Pensions &amp; Benefits</strong></li> <li><strong>Public Finance</strong></li> <li><strong>Public Safety</strong></li> <li><strong>Renewable Energy</strong></li> <li><strong>Telecommunications Law</strong></li> </ul> <p>Users of BBKnowledge can subscribe to email or RSS updates.</p> <p>BBKnowledge is found at <font color="#0000ff"><a href="http://www.bbknowledge.com" target="_blank">www.BBKnowledge.com</a></font>. The <font color="#0000ff"><a href="http://www.bbknowledge.com/about" target="_blank">&lsquo;about&rsquo; page</a> </font>provides an overview of all of the information the microsite has to offer.</p>Press Releases22 Jan 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=27723&format=xmlCalifornia Governor Declares Drought State of Emergencyhttp://www.bbklaw.com/?t=40&an=27710&format=xml<p>Governor Jerry Brown last week issued a drought state of emergency declaration in response to record-low water levels in California&rsquo;s rivers and reservoirs as well as an abnormally low snowpack. The declaration, issued Friday, puts into motion a variety of important policy and procedural directives that are key to implementing California&rsquo;s management of the driest year the state has seen since the keeping of records began in the 19th century.</p> <p>The declaration calls on public agencies that manage or deliver water to implement a variety of measures. It also exempts the state from compliance with aspects of water quality plans and the California Environmental Quality Act (CEQA), the state&rsquo;s primary environmental protection law, when undertaking certain actions necessary to make water immediately available during the drought.</p> <p>In the declaration, the governor:</p> <ul> <li>Calls upon local urban water suppliers and municipalities to immediately implement local water shortage contingency plans and update urban and agricultural water management plans.</li> <li>Requires the California Department of Water Resources (DWR) to undertake a statewide water conservation program to encourage Californians to reduce water use by 20 percent.</li> <li>Directs the State Water Resources Control Board (Water Board) to expedite the processing of water transfers to enable the efficient use of water.</li> <li>Instructs DWR and the Water Board to accelerate funding for water supply enhancement projects that are capable of breaking ground this year.</li> <li>Directs the Water Board to place State water right holders on notice that they may be required to cease or reduce water diversions.</li> <li>Requires DWR to evaluate changing groundwater levels, land subsidence and agricultural land fallowing as the drought persists and to provide a public update by April 30, 2014, to identify groundwater basins with water shortages.</li> <li>Directs the California Department of Food and Agriculture to connect farmers to state and federal programs for assistance during the drought. &nbsp;</li> <li>Requires the Governor&rsquo;s Drought Task Force to develop a plan to provide emergency food, financial assistance and unemployment services in communities expected to suffer high levels of unemployment as a result of the drought.</li> </ul> <p>With respect to CEQA, the governor has suspended the law from applying to the Water Board&rsquo;s approval of petitions requesting water transfers and exchanges between users within the State Water Project and Federal Central Valley Project. The declaration also suspends CEQA from applying to Water Board decisions to modify reservoir releases requirements or diversion limitations that were established to implement a water quality control plan.</p> <p>For more information on how the governor&rsquo;s declaration my affect your agency, please contact one of the attorney authors of this legal alert listed at right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=492&amp;format=xml">Environmental Law &amp; Natural Resources practice group</a>, or your <a target="_blank" href="?p=2099">BB&amp;K attorney</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 Alerts21 Jan 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=27710&format=xmlIgnoring Environmental Due Diligence Could Be Costlyhttp://www.bbklaw.com/?t=40&an=27522&format=xml<p>By <strong>Danielle G. Sakai</strong><br /> <br /> We have all heard the saying &ldquo;ignorance is bliss,&rdquo; but in the area of real property acquisition, the more important idiom is &ldquo;what you don&rsquo;t know can kill you.&rdquo; That may be a bit dramatic, but what you don&rsquo;t know about a property&rsquo;s condition could certainly cost the acquiring special district a lot of taxpayer money &ndash; money that would be better spent fulfilling the agency&rsquo;s statutory purpose, rather than cleaning up someone else&rsquo;s toxic mess.<br /> <br /> To read the entire article, click <a href="88E17A/assets/files/Documents/BBK-RIV-Sakai-EnvironmentalDueDiligence-SpecialDistrictsMagazine-Nov-Dec.2013.pdf" target="_blank">here</a>.<br /> <br /> *&nbsp;<em>This article was originally published in California Special District magazine, Volume 8, Issue 6, Nov - Dec 2013. The magazine is published by the California Special Districts Association. Republished here with permission from the association.</em></p>BB&K In The News08 Jan 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=27522&format=xmlBB&K Promotes Nine Attorneys in California and Washington D.C. to Partnerhttp://www.bbklaw.com/?t=40&an=27513&format=xml<p><strong>For Immediate Release:</strong> Jan. 7, 2014<br /> <strong><span>Media Contact:</span></strong><span> Jennifer Bowles &bull; 951.826.8480 &bull; <a href="mailto:jennifer.bowles@BBKlaw.com"><font color="#0000ff">jennifer.bowles@BBKlaw.com</font></a></span><br /> <strong><br /> RIVERSIDE, Calif.</strong> _ Best Best &amp; Krieger LLP promoted nine attorneys to partner for 2014, the law firm announced today.<br /> <br /> &ldquo;It is gratifying to promote so many well-deserving attorneys who will become a key part of the law firm&rsquo;s future,&rdquo; said Eric Garner, BB&amp;K&rsquo;s managing partner<br /> <br /> The new partners are based in Irvine, Los Angeles, Riverside, Sacramento, San Diego and Washington, D.C., and focus on a wide range of legal fields including environmental, municipal, business, employee benefits and telecommunications law. The attorneys were previously associates or of counsel attorneys.<br /> <br /> In all, BB&amp;K has nearly 200 attorneys based at nine offices in California and Washington, D.C., who work with public agencies and private clients.<br /> <br /> In <b>Riverside,</b> the new partners are:<br /> <br /> <b>Isabel C. Safie,</b> who is a member of the employee benefits practice group and whose primary focus is advising clients in the public and private sectors on issues relating to employee benefits, such as health care, pensions and other post-employment benefits. She works closely with public agency employers to identify their ability to modify or reduce pension and retiree health benefits under California&rsquo;s &ldquo;vested rights&rdquo; doctrine. Fluent in Spanish, she received her law degree from the University of California, Los Angeles in 2005 and joined BB&amp;K that same year.<br /> <br /> <b>James R. Harper</b>, who practices general business and real estate law, including mergers, acquisitions, sales, business entity structuring, succession planning, and real estate sales, acquisitions, joint ventures, leasing and financing. A member of the firm&rsquo;s business services practice group, he is chair of the Riverside Investor&rsquo;s Business Daily Meetup Group. He received his law degree from the University of the Pacific, McGeorge School of Law in 1986. In 2010, Harper re-joined BB&amp;K where he had worked for four years during the early 1990s.<br /> <br /> <b>Scott W. Ditfurth</b>, whose practice focuses on civil litigation with an emphasis on construction, contract and real property issues for private-sector and public agency clients. A member of the firm&rsquo;s business services practice group, Ditfurth works on contract claims, business disputes and torts, mechanics&rsquo; lien claims, bond and surety claims as well as real property disputes and inverse condemnation. He serves on the board of directors for the Mary S. Roberts Pet Adoption Center in Riverside, and is vice chair of Keep Riverside Clean and Beautiful. He joined BB&amp;K in 2008, and received his law degree from Whittier School of Law in 2005.<br /> <br /> In <b>Irvine</b>, the new partners are:<br /> <b><br /> Matthew E. &ldquo;Mal&rdquo; Richardson</b>, who serves as city attorney of Stanton and as assistant city attorney of Lake Forest and Claremont where he oversees their planning and land use issues. Richardson&rsquo;s practice focuses on complex land use issues and governance matters such as the Brown Act and ethics laws. Richardson joined BB&amp;K in 2008, and received his law degree from the University of California, Los Angeles in 2005.<br /> <br /> <b>Alisha M. Winterswyk</b>, whose practice centers on advising public agency and private-sector clients on an array of state and federal environmental laws, including the California Environmental Quality Act and the National Environmental Policy Act. A member of the firm&rsquo;s environmental law and natural resources practice group, Winterswyk is president of the Orange County Association of Environmental Professionals. She joined BB&amp;K in 2010, and obtained her law degree in 2005 from Whittier Law School. <br /> <br /> In <b>Los Angeles, </b>the new partner is:<br /> <b><br /> Christopher Pisano</b>, a litigator who represents public agencies and private corporations in a variety of issues, including land use, eminent domain, property valuation, water rights, construction and general business disputes. He joined BB&amp;K in 2005, and received his law degree from the University of Southern California in 1997.<br /> <br /> In <b>Sacramento, </b>the new partner is:<br /> <b><br /> Nancy Park</b>, who focuses on real estate transactions, finance and business contracts for clients in the public and private sectors. She also handles agricultural transactions, business formations and corporate matters, loans, acquisitions and dispositions. She joined BB&amp;K in 2011 after serving as chief executive officer of the Evergreen Co., a Northern California developer of retail and office projects. She received her law degree from the University of the Pacific, McGeorge School of Law in 1997.<br /> <br /> In <b>San Diego</b>, the new partner is:<br /> <b><br /> T. Brooke Miller,</b> a member of the firm&rsquo;s municipal law and special districts practice groups who serves as an assistant city attorney of Santee and as general counsel to the Ramona Municipal Water District. She regularly advises clients on a broad range of governance issues, including the Brown Act, the Public Records Act, the Political Reform Act and other government ethics laws. She joined BB&amp;K in 2005, and received her law degree that same year from the University of Notre Dame.<br /> <br /> In <b>Washington D.C., </b>the new partner is:<br /> <br /> <b>Gerard Lavery Lederer</b>, a member of the firm&rsquo;s municipal law practice group who focuses on telecommunications law and government relations services. He serves as federal counsel to several cities and national organizations including TeleCommUnity, a collection of local governments dedicated to ensuring respect for local rights in federal legislative issues. Lederer joined BB&amp;K in 2011, having served as general counsel of the United States Conference of Mayors and executive director of the Building Owners and Managers Association, International. He received his law degree in 1983 from Temple University School of Law in Philadelphia.<br /> &nbsp;</p>Press Releases07 Jan 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=27513&format=xmlOffice of Planning and Research Seeks Input on Proposed Changes to State CEQA Guidelineshttp://www.bbklaw.com/?t=40&an=27479&format=xml<p align="left">The Governor&rsquo;s Office of Planning and Research (OPR) recently released a preliminary list of topics and possible changes for inclusion in the 2014 update to the State CEQA Guidelines. The topics being considered can be found on <a target="_blank" href="http://www.opr.ca.gov/s_ceqaguidelines.php">OPR&rsquo;s website</a>.</p> <p align="left">Specifically, OPR is seeking the following input: &ldquo;1. Are these topics appropriate for the CEQA Guidelines Update? 2. Are there any important topics that we missed and that should be addressed? 3. If you have not already provided specific suggested language, do you have any that we should consider?&rdquo;</p> <p align="left">A few topics of potential interest include:</p> <ul> <li>alternative methods to the Level of Service standard for determining a project&rsquo;s traffic impacts,</li> <li>clarification concerning designation of a lead agency by agreement,</li> <li>explanation for applying regulatory standards to determine the significance of an impact,</li> <li>clarification of requirements regarding findings on project alternatives and feasibility, and</li> <li>guidance for determining whether a project is &ldquo;within the scope&rdquo; of a program EIR.</li> </ul> <p align="left">Should your agency wish to submit input to OPR on the proposed updates to the State CEQA Guidelines, send comments by 5:00 p.m. on February 14 either electronically to CEQA.Guidelines@ceres.ca.gov, or by mail or hand delivery to:</p> <p align="left">Christopher Calfee, Senior Counsel<br /> Governor&rsquo;s Office of Planning and Research<br /> 1400 Tenth Street<br /> Sacramento, California 95814</p> <p align="left">If your agency would like assistance preparing and/or submitting comments to OPR, please contact one of the attorney authors of this legal alert listed at right in the <a target="_blank" href="http://www.bbklaw.com/?t=5&amp;LPA=492&amp;format=xml">Environmental Law &amp; Natural Resources</a> practice group, or your <a target="_blank" href="?p=2099">BB&amp;K attorney</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 Alerts03 Jan 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=27479&format=xmlAttorney - Environmental Law & Natural Resources - Riverside, Irvine or LAhttp://www.bbklaw.com/?t=40&an=7930&format=xml<p>Our Environmental &amp; Natural Resources Group has an immediate opening for an associate with a minimum of 4 years of CEQA experience (both transactional and litigation), as well as land use experience. A planning background is ideal.&nbsp; The attorney can be based in our Riverside, Irvine or Los Angeles office; however, he/she must be willing to work out of our Riverside office regularly and as needed.<br /> <br /> Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume, transcript and cover letter to be considered for employment. This self-apply feature is compatible with Internet Explorer 6, 7, 8 &amp; 9, Mozilla Firefox for Windows, or Safari for Macintosh.<br /> <br /> <a target="_blank" href="https://lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx?%40Pl3%3cKWEX%40=2%3e4&amp;%3db8=8_CG">lawcruit.micronapps.com/sup/lc_supp_jobpost.aspx</a></p> <p>Please address your cover letter to:<br /> <br /> <strong><span>Jill N. Willis<br /> </span></strong><span><em>Chief Talent Officer<br /> </em>Best Best &amp; Krieger LLP<br /> 300 South Grand Avenue, 25th Floor<br /> Los Angeles, CA 90071<br /> </span><em><span><br /> </span><strong><span><em><strong>No phone calls please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></span></strong></em></p>Job Openings at BB&K01 Jan 2014 00:00:00 -0800http://www.bbklaw.com/?t=40&an=7930&format=xml