Best Best & Krieger News Feed Best and Krieger is a Full Service Law Firmen-us15 Dec 2014 00:00:00 -0800firmwise the FCC's New Wireless Facility Rules Impact California Cities<p>Best Best &amp; Krieger attorney Matthew Schettenhelm will present &ldquo;How the FCC&rsquo;s New Wireless Facility Rules Impact California Cities&rdquo; at the League of California Cities&rsquo; City Attorneys&rsquo; Spring Conference in Monterey, Calif. The presentation will discuss the FCC&rsquo;s new wireless facility rules, how they affect California cities and what California cities can do in response.</p> <p><strong>When</strong><br /> May 6-8, 2015</p> <p><strong>Where</strong><br /> Monterey, Calif.</p> <p>For more information, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a>.</p>Conferences & Speaking Engagements06 May 2015 00:00:00 -0800 and Transit Rights of Way: Understanding the Legal and Practical Issues<p>Avoid and identify pitfalls that can delay or sidetrack right of way acquisition.</p> <p>Acquiring rights of way for roadway and transit projects can be stressful and high stakes. Timely and cost effective project delivery is critical to any roadway or transit project's success. Delay in acquiring just one parcel can have ripple effects that may jeopardize funding and contract deadlines for the entire project. We will include an overview of compliance with federal property acquisition and relocation requirements, environmental regulations and review, legal descriptions, title work, appraisal, and the eminent domain process from the agency board room to the court room as well as teach you the do's and don'ts of right of way acquisition.</p> <p>BB&amp;K partners <b>James B. Gilpin</b> and <b>Kendall H. MacVey</b> will be speaking during this live webinar.</p> <p><b>When</b><br /> Thursday, Jan. 15, 2015<br /> 10 &ndash; 11:30 a.m. PST</p> <p>BB&amp;K guests receive 50 percent off registration.<br /> Register online: <a target="_blank" href=";p=15999"><span style="color: #0000ff">;p=15999</span></a><span style="color: #0000ff"><br /> </span>Call: 866-352-9539<br /> Discount code: T3775205<br /> Priority code: 15999</p>Conferences & Speaking Engagements15 Jan 2015 00:00:00 -0800 of Appeal Upholds Anti-SLAPP Motion to Defeat Federal Claims<p>A government agency can employ an anti-SLAPP motion to win early termination of meritless and vexatious lawsuits brought to chill government action conducted in the &ldquo;public interest,&rdquo; the California Court of Appeal ruled last week. The court upheld the City of Eureka&rsquo;s use of the anti-SLAPP (which stands for &ldquo;strategic lawsuit against public participation&rdquo;) motion finding that the case stemmed from the City&rsquo;s protected code enforcement activities.</p> <p>In <i>Squires v. City of Eureka</i>, landlords sued the city, alleging 10 causes of action including harassment, intentional infliction of emotional distress, municipal liability and supervisor liability, as well as several federal equal protection claims. The landlords owned several properties with persistent code violations. Following prolonged efforts to address the problems through code enforcement, the City attempted to have a receiver appointed. Just prior to the City&rsquo;s filing of the receivership petition, plaintiff&rsquo;s filed the lawsuit, alleging equal protection violations in addition to other causes of action. The City filed an anti-SLAPP motion, which the trial court granted as to seven of the 10 causes of action, allowing discovery on the three federal claims. Following that discovery, the City filed a renewed anti-SLAPP motion, which the trial court granted in an extensive and thorough order, concluding that plaintiffs had not shown a probability of prevailing on any of their remaining claims. The Court of Appeal affirmed that decision.</p> <p>Courts evaluate the use of an anti-SLAPP motion by applying a two-step process: whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity and whether the plaintiffs demonstrated a probability of prevailing on its claims. In <i>Squires</i>, the court and both parties agreed that the City&rsquo;s activity was protected, since it involved code enforcement actions taken by the City. As such, the court focused on the second prong of the test, and determined that the plaintiffs did not establish that they were treated differently than other similarly situated individuals, as is required.</p> <p>An anti-SLAPP motion to dismiss a case may be used by defendant early in litigation to end a SLAPP case and save the defendant from unnecessary costs and the burdens of litigation.</p> <p>This case illustrates the utility of the anti-SLAPP motion to public agencies to obtain dismissal of meritless lawsuits before they become costly diversions. Normally, the anti-SLAPP motion is brought by an individual defendant who is sued to &ldquo;chill the valid exercise of the constitutional rights of freedom of speech and the petition for redress of grievances.&rdquo; Such cases are normally a &ldquo;David vs. Goliath&rdquo; contest, where the defendant is an individual being sued by a well-heeled corporate plaintiff.</p> For more information regarding this case or its implications for your agency, please contact one of the attorney authors of this legal alert listed at the right in the <a target="_blank" href=";LPA=1139&amp;format=xml"><span style="color: #0000ff">Public Policy and Ethics Compliance</span></a> group, our your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>.Legal Alerts15 Dec 2014 00:00:00 -0800 Disclosure Waives Privilege Under Public Records Act<p>If a privileged document is accidentally released to the public during compliance with a Public Records Act request, the privilege is waived and the document becomes a public record accessible to anyone, a California Appellate Court ruled this week. Previously, public agencies argued that inadvertent disclosure of privileged documents under the PRA does not waive the privilege. That argument was supported by case law that protects the privilege for documents inadvertently disclosed during the civil litigation discovery process. However, the precedent-setting appellate opinion, issued Wednesday, drew a clear distinction between the civil litigation discovery process and the PRA.</p> <p><i>In Estuardo &nbsp;Ardon v. City of Los Angeles</i>, the City inadvertently disclosed privileged documents during a production of records in response to a request under the PRA made by an attorney representing Ardon, who sued the City over a telephone users tax.&nbsp;The records disclosed included documents covered by the attorney-client privilege. The City demanded that the attorney return the documents and agree not to rely on them. The attorney refused, contending that the City had waived any claim of privilege by disclosing the records. The trial court agreed with the attorney and the 2nd District Court of Appeal, Division 6 in Ventura, affirmed.</p> <p>Compliance with PRA requests must be carefully conducted and scrutinized, both to ensure complete disclosure, but also to ensure that material covered by legal privileges, is confidential, or is otherwise exempt from disclosure under the Act are not inadvertently disclosed.</p> <p>If you have questions about this opinion or how it will affect your municipality or agency, please contact the attorney author of this legal alert listed at right in the firm&rsquo;s <a target="_blank" href=";LPA=1139&amp;format=xml"><span style="color: #0000ff">Public Policy and Ethics Compliance</span></a> practice group or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span><font color="#0000ff">.</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 Alerts12 Dec 2014 00:00:00 -0800 Attorneys Successfully Defend City Client from Brown Act and Other Claims<p>In <i>Ontario Mountain Village Association et al v. City of Ontario</i>, Best Best &amp; Krieger LLP attorneys Michelle Ouellette, Richard T. Egger and Sarah Owsowitz successfully defended the legality of an ordinance by the City of Ontario that extended by one-year the expiration dates for all development plans, conditional use permits and variance approvals. The extension was challenged in a lawsuit on the alleged grounds that the City violated the Ralph M. Brown Act and the California Environmental Quality Act (CEQA). The plaintiffs also alleged violation of their due process rights.</p> <p>The lawsuit was filed after the City approved extension of the expiration dates in December 2011 &mdash; as it had done several times previously to support development and economic recovery in the City. The plaintiffs claimed the City violated the Brown Act, which guarantees the public&rsquo;s right to attend and participate in meetings of local legislative bodies, and their due process rights by failing to disclose a legal memorandum. They also alleged the City violated CEQA by not substantiating that the ordinance extending the expiration dates was exempt from environmental review, among other claims.</p> <p>As the trial court had done, the 2nd District Court of Appeal, in an opinion issued Dec. 11, sided with BB&amp;K attorneys and rejected all the plaintiffs&rsquo; claims.</p>Client Successes12 Dec 2014 00:00:00 -0800 Elected Policy Briefing<p>Join Best Best &amp; Krieger LLP Partner Matthew &ldquo;Mal&rdquo; Richardson and a host of other public officials at the Association of California Cities Orange County &ldquo;Newly Elected Policy Briefing.&rdquo; The roundtable discussion topics include:</p> <ul> <li>Public Safety</li> <li>Zoning and Land Use</li> <li>Intergovernmental Relationships</li> <li>Budget Management</li> <li>Legislative Engagement</li> <li>The Role of the Policy Maker &ndash; the Role of the Staff</li> </ul> <p>State-mandated training will also be provided, free of charge for ACC-OC members, by BB&amp;K in AB1234 (Ethics) and AB1825 (Sexual Harassment).</p> <p><strong>When</strong><br /> Thursday, Dec. 11, 2014<br /> 9:30 a.m. &ndash; 5 p.m.</p> <p><strong>Where</strong><br /> IRWD Community Meeting Room<br /> 15500 Sand Canyon Ave.<br /> Irvine, CA 92618</p> <p>For more information or to register, <a target="_blank" href=";oseq=&amp;c=&amp;ch="><span style="color: #0000ff">click here</span></a>.</p>Conferences & Speaking Engagements11 Dec 2014 00:00:00 -0800 Partner Kira Klatchko Receives Outstanding Young Lawyer Award<p><b>INDIAN WELLS, Calif.</b>&nbsp;- Kira Klatchko, an appellate attorney in Best Best &amp; Krieger LLP&rsquo;s Indian Wells, Calif. office, received the Outstanding Young Lawyer Award from the Desert Bar Association and the Warren Slaughter-Richard Roemer Inn of Court during the First Annual DBA/Inn of Court Judge and Lawyer Hall of Fame Awards on Tuesday night. The award recognizes an attorney who has practiced for less than 10 years and who has shown &ldquo;sterling character, unquestioned integrity and a dedication to the highest standards of ethics, civility and professionalism,&rdquo; according to the organizations.</p> <p>Klatchko&rsquo;s appellate work takes her to both the state and federal courts on behalf of a variety of clients, including public agencies, businesses and private individuals. She is chair of the firm&rsquo;s Appellate Practice Litigation group, and holds the unique distinction of being an Appellate Law Specialist, certified by the State Bar of California Board of Legal Specialization.</p> <p>She recently earned a high-profile victory in the California Supreme Court on behalf of the City of Inglewood, Calif. She obtained a unanimous opinion that red light camera evidence is not an out-of-court statement constituting hearsay, and may be authenticated like other photographic evidence. The published decision represents the broadest description and clarification regarding photographic evidence since a 1960s case, and is already being cited in a broad range of civil and criminal cases. Also this year, she secured dismissal of all attorneys&rsquo; fee claims and obtained a clarification on the law governing private special education placements on behalf of Upland Unified School District and a special education local plan area.</p> <p>Klatchko is the immediate past chair of the State Bar of California&rsquo;s Standing Committee on Appellate Courts and serves as a volunteer mediator for the 4th District Court of Appeal, in addition to conducting private mediations. She is often called upon to teach, speak and write about appellate practice. She is co-editor of &ldquo;California Civil Appeals and Writs&rdquo; (Matthew Bender 2014), a comprehensive two-volume practice guide for appellate counsel and general litigators.</p> <p>In addition, she is a member of the State Bar of California&rsquo;s Justice Gap Fund Committee, dedicated to supporting free civil legal services for low-income Californians, and serves as chair of the ABA Council of Appellate Lawyers&rsquo; Pro Bono Committee. Klatchko also sits on the board of directors for Angel View, a nonprofit dedicated to serving disabled children and adults in the Inland Empire region of Southern California.</p> <p>Nominations for the Outstanding Young Lawyer Award were solicited from DBA and Inn of Court members, and other members of the legal community with the winner being selected by the Joint DBA/Inn of Court Awards Selection Committee.</p> <p style="text-align: center">###</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><i><a target="_blank" href=""><span><font color="#0000ff"></font></span></a> or follow @BBKlaw on Twitter.</i></p>Press Releases10 Dec 2014 00:00:00 -0800 Webinar: Labor & Employment Update 2014<p><a href=";LPA=491&amp;format=xml" target="_blank"><span style="color: #0000ff">BB&amp;K Labor </span><font color="#0000ff">and Employment</font></a> law attorneys&nbsp;provided a&nbsp;free webinar focusing on new legislation and case law impacting California employers - private and public.</p> <p><strong>What&nbsp;was discussed:</strong></p> <ul type="disc"> <li align="left">New Legislation</li> <li align="left">Wage and Hour Law</li> <li align="left">Discrimination, Harassment and Retaliation</li> <li align="left">Disability and Medical Leaves</li> <li align="left">&quot;Special Topic&quot; - Affordable Care Act - Cadillac Tax</li> <li align="left">Public Agency Case Update</li> </ul> <p><strong>Audience:</strong></p> <ul type="disc"> <li>Human resource professionals at both public agencies and private businesses</li> <li>General and in-house counsel</li> </ul> <p><strong>When:</strong><br /> Wednesday, December 10<br /> 9:30 - 11:30 a.m.&nbsp;PT</p> <p>To view the webinar recording, click <a href="" target="_blank"><u><span style="color: #0000ff">here</span></u></a>.<br /> <br /> <strong>Contact Person:<br /> </strong>Jessy Asfahan, Best Best &amp; Krieger<br /> <a href=""><span style="color: #0000ff"> </span></a><br /> &nbsp;</p>Seminars and Webinars10 Dec 2014 00:00:00 -0800 Assistant<span style="font-size: medium"><span style="font-family: Arial">Dynamic California-based law firm seeks Legislative Assistant for their Washington office. Duties would include legislative and regulatory research, legislative tracking and analysis, Hill visits and other public policy activities.&nbsp; Qualifications include three or four years of experience on Capitol Hill, preferably in the natural resources area, strong writing skills, ability to communicate complex issues clearly and succinctly, in person.&nbsp; Education&mdash;BA at a four year institution, graduate work in public policy a plus.<br /> </span></span> <p><span style="font-size: medium"><span style="font-family: Arial">Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume 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.</span></span></p> <p><a target="_blank" href=";%3db8=8_CG"><span style="font-size: medium"><span style="font-family: Arial"></span></span></a><span style="font-size: medium"><span style="font-family: Arial"><br /> <br /> Please address your cover letter to:</span></span></p> <p><span style="font-size: medium"><span style="font-family: Arial"><strong>Jill N. Willis<br /> </strong><em>Chief Talent Officer<br /> </em>Best Best &amp; Krieger LLP<br /> 300 South Grand Avenue, 25th Floor<br /> Los Angeles, CA 90071<br /> <br /> <em><strong>No phone calls or emails please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></span></span></p>Job Openings at BB&K08 Dec 2014 00:00:00 -0800 Public Utilities Commission to Approve Grant Program to Promote Broadband Internet for Public Housing<p>The California Public Utilities Commission is scheduled to approve the California Advanced Services Fund Public Housing Broadband Grant Guidelines on December 18, which will create a new state grant opportunity to facilitate the installation of on-site broadband internet for public housing units. Up to $20 million will be available for grants and loans to finance&nbsp;projects to connect broadband networks to public housing, and an additional $5 million will be available to support adoption programs, which will provide devices and training to residents of public housing. Eligible applicants include public housing authorities and non-profit public housing owners.</p> <p>The window to apply for the first round of grants is fast approaching: December 18 through mid-January. After that, applications will be accepted on a quarterly basis until they run out of funding or reach December 31, 2016, the deadline for awarding grants.</p> <p>The CPUC will offer an approval process for grant requests up to $75,000 for broadband infrastructure/hardware applications and up to $50,000 for adoption program applications. The grants are intended to provide individual housing units with broadband service for free or a nominal fee of no more than $20 a month.</p> <p>For more information on this CPUC grant opportunity, please contact the attorney authors of this legal alert listed at right, an attorney in the firm&rsquo;s <a target="_blank" href=";LPA=456&amp;format=xml"><span style="color: #0000ff">Telecommunications practice</span></a> or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></a>.</p>Legal Alerts05 Dec 2014 00:00:00 -0800 Quality Litigation Associate - Walnut Creek<p><span style="font-size: medium"><span style="font-family: Arial">We have an immediate opening for an associate with 2-3 years of litigation experience who will be primarily developing an expertise in water quality litigation and the Clean Water Act. The associate will also have the opportunity to work on land use and toxics litigation cases.&nbsp; </span></span></p> <p><span style="font-size: medium"><span style="font-family: Arial">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.</span></span></p> <p><a target="_blank" href=";%3db8=8_CG"></a><br /> <br /> &nbsp;<span style="font-size: medium">Please address your cover letter to:</span></p> <p><span style="font-size: medium"><strong>Jill N. Willis<br /> </strong><em>Chief Talent Officer<br /> </em>Best Best &amp; Krieger LLP<br /> 300 South Grand Avenue, 25th Floor<br /> Los Angeles, CA 90071<br /> <br /> <em><strong>No phone calls or emails please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></span></p>Job Openings at BB&K04 Dec 2014 00:00:00 -0800 and Referendums<p>BB&amp;K Partner Kara Ueda will be among the presenters at the League of California Cities&rsquo; New Law &amp; Elections Seminar<span>, which will be held Dec. 3-5, 2014. She will provide an overview of the initiative process, including the roles of city clerks, city attorneys, city councils and initiative proponents, as well as considerations for potential and actual litigation.</span></p> <p><b>When<br /> </b>Dec. 4, 2014<br /> 1:45-5 p.m.</p> <p><b>Where<br /> </b>Hyatt Regency Monterey</p> <p>For more information or to register for the conference, visit the LCC&rsquo;s City Clerks New Law &amp; Elections Seminar page by <a target="_blank" href=""><span style="color: #0000ff">clicking here</span></a>.</p>Conferences & Speaking Engagements04 Dec 2014 00:00:00 -0800 Signs and How to Hold? Legal and Taxable Consequences<p>Best Best &amp; Krieger Partner Stephen Stwora-Hail is among the presenters at the Sacramento Association of Realtors Commercial Division&rsquo;s &ldquo;Who Signs and How to Hold? Legal and Taxable Consequences.&rdquo;</p> <p><b>When</b><br /> Thursday, Dec. 4, 2014<br /> 11 a.m. &ndash; 1 p.m.</p> <p><b>Where</b><br /> SAR Mack Powell Event Center<br /> 2003 Howe Ave.<br /> Sacramento, CA 95825</p> <p>For more information or to register, call Carol at (916) 437-1208</p>Conferences & Speaking Engagements04 Dec 2014 00:00:00 -0800 Motions in Administrative Hearings<p><b>Overview:</b> The California Supreme Court has ruled that administrative hearing officers have the authority to grant a <i>Pitchess</i> motion for discovery of personnel records in an appeal following termination of a corrections officer. After being terminated for falsifying time records, a Riverside County Sheriff&rsquo;s Department employee filed a motion during the administrative hearing seeking discovery of personnel records to support her claim of disparate treatment. Specifically, the employee claimed other Department employees who also falsified time records were not disciplined as harshly. The Court affirmed the appellate court&rsquo;s ruling that hearing officers have the authority to rule on, and, when necessary, grant <i>Pitchess</i> motions for discovery of personnel records.</p> <p><b>Training Points:</b> This decision confirms that <i>Pitchess </i>motions may be filed, considered and granted in various legal forums, including administrative hearings. This ruling will effect public agencies who conduct disciplinary administrative hearings. Importantly, the Court declined &nbsp;to limit the authority of persons hearing and ruling on <i>Pitchess</i> motions to &ldquo;sworn judicial officers&rdquo; only, but rather extended this authority to &nbsp;hearing officers who conduct administrative hearings. Agencies are encouraged to consult their counsel when a <i>Pitchess </i>motion is filed in the administrative hearing context to determine whether any <i>Pitchess</i> protections apply and, if so, how best to address them in any opposition to the motion and at the administrative &nbsp;hearing.</p> <p><b>Summary Analysis:</b> In <i>Riverside County Sheriff&rsquo;s Department v. Stiglitz</i>, a correctional officer claimed her termination was excessive compared to the discipline imposed on other personnel. To prove this, she requested the disciplinary records of other Department officers who had been investigated for similar misconduct. The hearing officer ordered the Department to produce the requested records for &ldquo;in camera&rdquo; (private) review. The trial court found that only&nbsp;judicial officers had the authority to rule on <i>Pitchess</i> motions. The appellate court disagreed, extending this authority to disciplinary proceedings. The Supreme Court agreed with the appellate court, and found that Evidence Code section 1043 allows parties to file &nbsp;<i>Pitchess</i> motions in civil and criminal cases. The Court relied on Evidence Code section 1043&rsquo;s reference to <i>Pitchess</i> motions being filed in &ldquo;the appropriate court or administrative body,&rdquo; which necessarily includes the administrative hearing in this case. The Court further held that, while <i>Pitchess</i> motions filed in Department of Motor Vehicle hearings cannot further the goals of the Legislature, permitting parties to file <i>Pitchess </i>&nbsp;motions in disciplinary proceedings is appropriate, warranted and fulfills the contemplated purpose of <i>Pitchess</i> motions.</p> <b>Follow-Up Contact:</b>&nbsp; For questions regarding this case or its implications for your public safety department, please contact one of the authors of this bulletin listed at right in the <span style="color: #0000ff"><a target="_blank" href=";LPA=491&amp;format=xml">Labor &amp; Employment</a></span><span> and <a target="_blank" href=";LPA=2532&amp;format=xml"><span style="color: #0000ff">Public Safety</span></a> practices, or your BB&amp;K attorney.</span><span style="font-family: 'Times New Roman','serif'; font-size: 12pt; mso-fareast-font-family: Calibri; mso-fareast-theme-font: minor-latin; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA"><br /> <br /> <span style="font-size: smaller"><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></span></span>Legal Alerts03 Dec 2014 00:00:00 -0800 Monroe Appointed to State Bar Committee<p>The <i>SD Metro</i> reported on Patrick Monroe&rsquo;s appointment to the State Bar of California BusinessLaw Section&rsquo;s Corporations Committee. Patrick is of counsel in the firm&rsquo;s San Diego office.</p> <p>See the story by <a target="_blank" href=""><span style="color: #0000ff">clicking here</span></a> (scroll down).</p>BB&K In The News03 Dec 2014 00:00:00 -0800 of Truth: One State, One Water Future<p>BB&amp;K Partner Eric Garner will be the keynote speaker and Partner Kelly Salt will be a panelist at the Association of California Water Agencies 2014 Fall Conference &amp; Exhibition Dec. 2-5.</p> <p>Kelly will be discussing &quot;Fairness and Equity in Recycled Water Rates&quot; on Wed., Dec. 3, from 2 - 3:15 p.m.</p> <p>Eric will present &quot;Groundwater Legislation: History in the Making or Another Dead End?&quot; at the luncheon on Thurs., Dec. 4, from 11:45 a.m. - 1:15 p.m. Statewide regulation of groundwater is one of the most important &ndash; and controversial &ndash; challenges facing this generation of water managers. That&rsquo;s why the groundwater legislation passed this year is so important, whether you were for it or not. This once-in-a-century statute will change how water is managed in California.</p> For more information or to register, visit the ACWA event page by <a target="_blank" href=""><span style="color: #0000ff">clicking here</span></a>.Conferences & Speaking Engagements02 Dec 2014 00:00:00 -0800 2014 Fall Conference & Exhibition<p>BB&amp;K managing partner <b>Eric Garner</b> will serve as the keynote speaker during the Association of California Water Agencies&rsquo; 2014 Fall Conference. Partner <b>Kelly Salt</b> and Of Counsel<b> Joseph </b><strong>Byrne</strong> will participate on two separate panels discussing recycled water rates and water storage in California.</p> <p><b>BB&amp;K Speakers</b></p> <p>Eric Garner will deliver the keynote address on &ldquo;Groundwater Legislation: History in the Making or Another Dead End?&rdquo; from <b>11:45 a.m. &ndash; 1:15 p.m. on Thursday, Dec. 4</b>. Eric will explore the impact the passing of the historic California groundwater legislation will have on water management and how to put this vital issue into a practical and historical perspective.</p> <p>Kelly Salt will appear as a panelist discussing &ldquo;Fairness and Equity in Recycled Water Rates&rdquo; from <b>2 -3:15 p.m. on Wednesday, Dec. 3</b>. The panel will discuss the various options available for public agencies for developing fair and equitable recycled water rates, and the impacts of Proposition 218 on implementing such rates.</p> <p>Joseph Byrne will sit on the Statewide Issue Forum &ldquo;Making Every Drop Count: The Future of Water Storage in California&rdquo; from <b>3:45 &ndash; 5 p.m. on Wednesday, December 3</b>. The forum will discuss new storage projects and how the state can make sure these projects maximize available resources.</p> <p><b>When:</b><br /> Tuesday, Dec. 2 - Thursday, &nbsp;Dec. 4</p> <p><b>Where: </b><br /> Manchester Grand Hyatt Hotel<br /> 1 Market Place<br /> San Diego, CA 92101</p>Conferences & Speaking Engagements02 Dec 2014 00:00:00 -0800 100 Law Firms with the Most Environmental Partners<p>Best Best &amp; Krieger ranked No. 32 on <i>Law360&rsquo;s</i> list of The 100 Law Firms with the Most Environmental Partners with 15 environmental partners. The list is for U.S.-based firms with partners who practice globally. <br /> <br /> The rankings were determined by the number of partners based on a survey of 300 U.S.-based law firms, including 198 of the largest 200 firms in the country. The partners have to spend at least 75 percent of their time on matters related to environmental law practice.</p> To see the full list on <i>Law360</i>, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a>.BB&K In The News01 Dec 2014 00:00:00 -0800 Courts, The Hill and The FCC - A Year in Review and Setting the Stage for 2015<p>BB&amp;K Partner Gerard Lavery Lederer&nbsp;was on a teleconference panel&nbsp;that spoke&nbsp;about &ldquo;The Courts, The Hill and The FCC &ndash; A Year in Review and Setting the Stage for 2015&rdquo; presented by the National Association of Telecommunications Officers and Advisors.</p> <p><strong>When:</strong><br /> Monday, Dec. 1, 2014</p> <p>For more information, visit the NATOA website events page by <a target="_blank" href=""><span style="color: #0000ff">clicking here.</span></a></p>Conferences & Speaking Engagements01 Dec 2014 00:00:00 -0800, Pendulum, Swing: California's Historic Drought and Unprecedented Responses<p style="text-align: left"><b><u>Introduction</u></b></p> <p style="text-align: left">Most know by now that California is facing one of its driest years in recorded history. Yet droughts are not new to California, and to put things in context we can be thankful that current drought conditions are only as bad as they are.&nbsp;The &ldquo;dustbowl drought&rdquo; of the 1920s and 1930s nearly crippled the state. And even that could have been worse: tree-ring data show that centuries ago California and other western states were gripped by mega-droughts spanning 20 to 50 years.</p> <p style="text-align: left">Water is said to be our most critical natural resource (try going without it for a couple days).&nbsp;Ironically, however, it is something most Californians have taken for granted.&nbsp;But that dynamic is now beginning to change.&nbsp;Water education is catching up and catching on, and the conundrum we face with increasing demand and shrinking supply is practically impossible to ignore.&nbsp;Recent projections show the statewide population growing by almost 10 million over the next 20 years, to a total of 45 million.&nbsp;But the supply curve is going the other way.&nbsp;Over the last 10 years, various legal and regulatory decisions have substantially decreased the amount of water available from the State&rsquo;s largest water supply projects, the State Water Project (SWP), the federal Central Valley Project (CVP), and the Colorado River.</p> <p style="text-align: left">The SWP and CVP combined deliver water to more than 25 million people throughout California and to millions of acres of prime farmland in the Central and San Joaquin Valleys.&nbsp;Both projects require moving water through the Sacramento-San Joaquin Delta (the Delta), which has been subject to an increasing set of operating and delivery restrictions to protect in-Delta water users, water quality, and rare and endangered fish species in the Delta. &nbsp;Recent restrictions have resulted from biological opinions issued under the federal Endangered Species Act by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to protect Delta smelt and anadromous salmon. &nbsp;Delta water supplies are now also the subject of various state and federal court litigation.&nbsp;Supplies from the Colorado River are facing similar pressures. &nbsp;California shares the Colorado River with other states whose reliance on the system has increased as their populations have grown.&nbsp;Whereas California used to rely on &ldquo;surplus&rdquo; water from the Colorado, that surplus is gone, and the state must now live within its annual allotment of 4.4 million acre-feet per year.&nbsp;The Quantification Settlement Agreement (QSA), California&rsquo;s plan for the allocation, transfer, use, and conservation of its share of Colorado River water, was attacked through state and federal litigation for over a decade.&nbsp;Fortunately, the QSA withstood challenge, but the availability and reliability of Colorado River supplies continue to decline as problems relating to climate change, water quality, endangered species, and legal issues become more prevalent.</p> <p style="text-align: left">Add multi-year drought conditions to the equation, and suddenly everyone is talking about water.&nbsp;And for good reason.&nbsp;The winter and spring seasons of 2012-2013 were below normal and many knew &ldquo;things were going to get bad in California&rdquo; if the state did not have good rain and snowfall numbers in late 2013.&nbsp;But the rain and snow did not come.&nbsp;Indeed, the numbers were so dismally low that the California Department of Water Resources (DWR) has declared the 2013-2014 period as the driest year in recorded history.&nbsp;In early 2014, a zero percent allocation was initially declared for the SWP, and the final allocation was bumped to a mere five percent.&nbsp;Vast portions of the CVP will go entirely without deliveries this year.&nbsp;As of early September, Lake Oroville (the largest SWP reservoir) was at 31 percent of capacity and Lake Shasta (the largest CVP reservoir) was at 28 percent of capacity.&nbsp;The San Luis Reservoir, a key south-of-Delta supply and regulating pool for the SWP and CVP, holds only 19 percent of capacity.</p> <p style="text-align: left">Throughout the state, many watersheds and surface water supplies are much drier than normal.&nbsp;Some areas are badly parched and others are literally out of water.&nbsp;In response, the State Water Resources Control Board (State Board) has taken regulatory action to limit diversions from certain river systems.&nbsp;And with less surface water available, many local agencies, businesses, and individuals are ramping up production from already strained or overdrafted groundwater supplies.&nbsp;For those who rely on groundwater, some have reached the bottom of the well, and there is nothing left to pump.&nbsp;This in turn has brought sweeping legislative reform to California&rsquo;s groundwater management laws.&nbsp;In addition, the drought has prompted aggressive state action to promote recycled water use and increase water conservation.</p> <p style="text-align: left">Current drought conditions have brought California to a crossroads.&nbsp;While opinions vary on which way to go, most agree that clear direction is needed. &nbsp;Big steps are being taken already, thrusting key legal and policy issues into the spotlight.</p> <p style="text-align: left"><b><u>The Governor&rsquo;s Declaration and Proclamation of Drought Emergency</u></b></p> <p style="text-align: left">On January 17, 2014, Governor Jerry Brown declared a state of drought emergency (the Declaration) in response to record low water levels in California&rsquo;s rivers and reservoirs and an abnormally low snowpack.&nbsp;The Declaration took several extraordinary steps, including the following:</p> <ul> <li style="text-align: left">Directed local urban water suppliers and municipalities to immediately implement local water shortage contingency plans and update urban and agricultural water management plans;</li> <li style="text-align: left">Required DWR to undertake a statewide water conservation program to encourage Californians to reduce water use by 20 percent;</li> <li style="text-align: left">Directed the State Board to expedite the processing of water transfers to enable the efficient use of water;</li> <li style="text-align: left">Instructed DWR and the State Board to accelerate funding for water supply enhancement projects that are capable of breaking ground this year;</li> <li style="text-align: left">Directed the State Board to place state water right holders on notice that they may be required to cease or reduce water diversions;</li> <li style="text-align: left">Required 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 style="text-align: left">Directed the California Department of Food and Agriculture to connect farmers to state and federal programs for assistance during the drought; and</li> <li style="text-align: left">Required 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 style="text-align: left">The Governor&rsquo;s Declaration also exempted the state from compliance with aspects of water quality plans and the California Environmental Quality Act (CEQA) when undertaking certain actions necessary to make water immediately available during the drought.&nbsp;For example, the Declaration suspends CEQA from applying to the State Board&rsquo;s approval of petitions requesting water transfers and exchanges between users within the SWP and CVP.&nbsp;It also suspends CEQA from applying to State Board decisions to modify reservoir release requirements or diversion limitations in place to implement a water quality control plan.</p> <p style="text-align: left">On April 25, 2014, the Governor issued a Proclamation of a Continued State of Emergency (the Proclamation) due to persisting record-low water conditions and in anticipation of extended dry months throughout the summer.&nbsp;The Proclamation builds upon the January drought Declaration, and strengthens the state&rsquo;s ability to effectively manage water resources while calling on all Californians to redouble their efforts to conserve water.&nbsp;The Proclamation moved beyond the Declaration by further waiving CEQA compliance for certain actions taken by state agencies. Specifically, the Proclamation suspends CEQA to allow the following:</p> <ul> <li style="text-align: left">Processing of DWR and/or State Board requests to transfer water to areas of need;</li> <li style="text-align: left">Implementation of water reduction plans to reduce potable water usage for outdoor irrigation at recreational facilities and large institutional complexes;</li> <li style="text-align: left">Immediate monitoring of endangered species (such as the Sacramento River&rsquo;s winter-run Chinook salmon) by the Department of Fish and Wildlife;</li> <li style="text-align: left">Implementation of projects by DWR to benefit fish and wildlife impacted by the drought, including certain projects in priority watersheds designed to protect threatened and endangered species;</li> <li style="text-align: left">Implementation of pump-back water deliveries by DWR through SWP facilities on behalf of water districts;</li> <li style="text-align: left">Adoption of statewide general waste discharge requirements by the State Board to facilitate the use of recycled water and reduce demand on potable supplies;</li> <li style="text-align: left">Provision of DWR and State Board assistance to public agencies and private water companies to establish temporary water supply connections;</li> <li style="text-align: left">Implementation of an agricultural assistance program by the California Department of Food and Agriculture; and</li> <li style="text-align: left">Adoption of emergency regulations by the State Board relating to water conservation.</li> </ul> <p style="text-align: left">In addition, the Proclamation suspends CEQA for local agency actions necessary to implement measures recommended by the Department of Public Health to abate acute drinking water shortages, subject to certain conditions.&nbsp;The Proclamation also requires the State Board to direct any urban water suppliers that are not already implementing drought response plans to limit outdoor irrigation and other wasteful water practices, and to request an update from urban water suppliers on the effectiveness of their current actions to reduce water usage.</p> <p style="text-align: left"><b><u>The Groundwater Puzzle</u></b></p> <p style="text-align: left">Although California enacted a statewide surface water law in 1914 requiring permits for appropriative surface water diversions and use, the state has never broadly regulated groundwater.&nbsp;This is unusual because nearly all other states have some form of statewide groundwater regulation.&nbsp;The drought has forced many water users to seek alternative supplies, and in many parts of the state this has involved pumping more native groundwater, or using more water previously stored in a regional or local groundwater banking program. &nbsp;Yet increased production from a basin and/or multiple &ldquo;calls&rdquo; from a groundwater bank can lead to rapid groundwater level declines, competing demands for pumping and conveyance capacity, and water quality concerns. &nbsp;These issues, particularly without an enforceable management structure, can spark disputes between and among landowners, water providers, and other public agencies.</p> <p style="text-align: left">Several features of California groundwater law have contributed to the problem.&nbsp;First, landowner based rights to groundwater (overlying rights) are correlative, meaning in theory that each has a shared priority to make reasonable and beneficial use of the safe yield.&nbsp;However, because correlative rights are unquantified and any needed reductions are based on a standard of reasonableness that varies with the facts and circumstances of each basin, they create great uncertainty among landowners as to which pumpers will need to cut back and how much they will need to cut back when supplies are not sufficient to meet the collective demand.&nbsp;Furthermore, the threat of prescription pits overlying rights against non-overlying rights, such as those held by cities and other public water purveyors.&nbsp;This fosters a system where there is little information on pumping, it is unclear who has to cut back in a shortage, and thus pumpers have an incentive to keep pumping to protect their rights.&nbsp;Often these conditions can lead to overdraft and the many undesirable effects that result from overdraft.&nbsp;Ultimately, litigation is the only way to sort this out.&nbsp;While groundwater adjudications can have the positive effect of providing certainty and an efficient and effective management structure, they are very expensive and typically take a decade or more to resolve.</p> <p style="text-align: left">In early March 2014, the Governor&rsquo;s Office of Planning &amp; Research (OPR) sought stakeholder input on actions to improve groundwater management in California, consistent with the Governor&rsquo;s January 27 California Water Action Plan (Action Plan). &nbsp;A major objective of the Action Plan is to establish a legal framework to expand groundwater storage capacity and improve groundwater management. &nbsp;The Action Plan calls for state legislation to provide local and regional agencies with comprehensive groundwater management authority, and proposes allowing the state to temporarily assume groundwater management responsibility if local agencies fail to achieve &ldquo;sustainable management.&rdquo;&nbsp;OPR initiated a public process and sought written comments on a wide variety of questions relating to the Action Plan and a new approach for statewide groundwater management.</p> <p style="text-align: left">In March and April, OPR organized sustainable groundwater management workshops in Sacramento, facilitated by the California Environmental Protection Agency, the California Department of Food and Agriculture, and the California Natural Resources Agency.&nbsp;The workshops were attended by a diverse group of water leaders from the legislature, state and local government, agribusiness, water associations, and other interests. The discussions focused on (1) the potential definition of &ldquo;sustainable groundwater management,&rdquo; and how to measure progress and success in that arena; (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.&nbsp;In response to OPR&rsquo;s request for written comments,&nbsp;position papers were submitted by the Association of California Water Agencies, California Water Foundation, National Heritage Institute, Planning and Conservation League, Valley Agricultural Water Coalition, and others.</p> <p style="text-align: left">Soon after the close of the OPR workshop and comment process, on April 30, 2014, DWR released a report concluding that groundwater levels throughout the state had reached all-time historic lows and that many areas lacked adequate groundwater monitoring.&nbsp;The key conclusions of DWR&rsquo;s report were as follows:</p> <p style="text-align: left">1.&nbsp;&nbsp;Groundwater levels throughout the state have reached all-time historic lows.</p> <ul> <li style="text-align: left">Groundwater levels have decreased statewide since spring 2013;</li> <li style="text-align: left">Groundwater levels have decreased even more significantly since spring 2010;</li> <li style="text-align: left">Groundwater levels have dropped most significantly in the San Francisco Bay Hydrologic Region, the South Lahontan and South Coast areas, and the San Joaquin Valley;</li> <li style="text-align: left">Nevada, Placer and El Dorado counties have the greatest concentration of well deepening activity;</li> <li style="text-align: left">Thirty-six alluvial groundwater basins in the state serve as the primary water source for their regions and are most likely to incur drought-related shortages; these basins are in the North Coast, Central Coast, Sacramento River, Tulare Lake, and South Coast regions and serve a total population of about 6.18 million.</li> </ul> <p style="text-align: left">2.&nbsp; Areas throughout the state lack adequate groundwater monitoring.</p> <ul> <li style="text-align: left">Groundwater monitoring is critical for maintaining the health of basins, especially in drought conditions;</li> <li style="text-align: left">Only 169 out of 515 alluvial groundwater basins in the state are fully or partially monitored under the California Statewide Groundwater Elevation Monitoring (CASGEM) program;</li> <li style="text-align: left">Of the 126 high and medium priority groundwater basins, 40 are not monitored under CASGEM;</li> <li style="text-align: left">Some basins are partially monitored but have data gaps;</li> <li style="text-align: left">The lack of monitoring and absence of groundwater management plans subject these basins to increased stress under drought conditions.</li> </ul> <p style="text-align: left">The DWR report analyzed data from the CASGEM program, the Water Data Library, the draft Bulletin 160 California Water Plan Update 2013, and well drillers&rsquo; logs submitted to DWR. &nbsp;The report also notes that DWR is working with NASA and NOAA to evaluate land subsidence and agricultural land fallowing using satellite monitoring.&nbsp;DWR is required to issue a follow-up report by November 30, 2014, which will address areas where the drought has had significant impacts on groundwater resources.</p> <p style="text-align: left"><b><u>California Groundwater Legislation &ndash; Baby Steps to Full Sprint</u></b></p> <p style="text-align: left">As part of the November 2009 extraordinary legislative session, a new water law was enacted (SBX7-6, Water Code 10920 et seq.) which created the California Statewide Groundwater Elevation Monitoring (CASGEM) program.&nbsp;For the first time in state history, SBX7-6 established a requirement for local monitoring agencies to coordinate with DWR to collect and report groundwater elevation data that must be made available to the public.&nbsp;If local agencies do not volunteer or if they otherwise fail to perform the groundwater monitoring functions, DWR is authorized to assume those functions and the local agencies become ineligible for water grants or loans from the state.&nbsp;Many considered SBX7-6 to be the first &ldquo;baby step&rdquo; in what <i>some day</i> might lead to <i>some form</i> of a statewide groundwater management program.&nbsp;Yet few believed the baby would be sprinting like an NFL wide receiver in just a couple of years.</p> <p style="text-align: left">In Spring 2014, around the time OPR was conducting its public workshop and comment process discussed above, two bills swept into the legislative process that proposed to change California groundwater law as we have known it for the last 100 years. &nbsp;Senate Bill 1168 (Pavley; D-Agoura Hills) and Assembly Bill 1739 (Dickinson; D-Sacramento) would require local agencies to develop groundwater sustainability plans and create new enforcement tools for managing groundwater resources.&nbsp;SB 1168 and AB 1739 conveyed the same message:&nbsp;the state&rsquo;s current groundwater management system is broken.</p> <p style="text-align: left">In late August, after various amendments, and a last minute gut-and-amend to Senate Bill 1319 (Pavley, D-Agoura Hills), the Legislature passed SB 1168, AB 1739, and SB 1319 as a package to establish the Sustainable Groundwater Management Act.&nbsp;The legislation was signed by the Governor on September 16, 2014.</p> <p style="text-align: left"><b><u>Summary and Key Components of the Sustainable Groundwater Management Act</u></b></p> <p style="text-align: left">The Sustainable Groundwater Management Act (the Act) declares that groundwater is a critical natural resource for the state and must be sustainably managed.&nbsp;The Act defines &ldquo;sustainable groundwater management&rdquo; as the management and use of groundwater in a manner that can be maintained during a 50-year planning and implementation horizon without causing &ldquo;undesirable results,&rdquo; such as &ldquo;significant and unreasonable&rdquo; lowering of water levels, reduction in storage capacity, seawater intrusion, degraded water quality, land subsidence, or depletions of interconnected surface water.&nbsp;The Act also states that sustainable management best occurs at the local level, but provides authority for state management when local agencies are unwilling or unable to implement the new requirements.&nbsp;For purposes of the Act, groundwater does not include subsurface water that flows in known and definite channels, which in large part is already subject to the permitting jurisdiction of the State Board.</p> <p style="text-align: left"><u>Application</u></p> <p style="text-align: left">The Act requires DWR to categorize each groundwater basin in the state, as identified and defined in DWR&rsquo;s Bulletin 118, as high, medium, low, or very low priority by January 31, 2015.&nbsp;All basins designated as high or medium priority <i>and</i> also designated in Bulletin 118 as being subject to critical conditions of overdraft must be managed under a groundwater sustainability plan or plans in accordance with the Act by January 31, 2020.&nbsp;All basins designated as high or medium priority <i>but not</i> also designated in Bulletin 118 as being subject to critical conditions of overdraft must be managed under the Act by January 31, 2022.&nbsp;Basins designated by DWR as low and very low priority are not subject to the requirements of the Act, but are &ldquo;encouraged&rdquo; to be managed under groundwater sustainability plans.&nbsp;</p> <p style="text-align: left">Certain adjudicated areas, and local agencies that conform to the requirements of those adjudications, are expressly exempt from the Act, subject to ongoing reporting requirements. &nbsp;To the extent authorized under federal or tribal law, the Act applies to Indian tribes and the federal government, but the Act provides that federally reserved water rights to groundwater &ldquo;shall be respected in full.&rdquo;&nbsp;The Act authorizes a groundwater sustainability agency to regulate, limit or suspend groundwater extractions from individual wells, but it does not authorize such agencies to make a binding determination of the water rights of any person or entity.</p> <p style="text-align: left"><u>Establishment of Groundwater Sustainability Agencies</u></p> <p style="text-align: left">The Act authorizes any local agency or a combination of local agencies overlying a basin to become a groundwater sustainability agency for that basin.&nbsp;A local agency is defined as a public agency having water supply, water management or land use responsibilities within the basin.&nbsp;Where a combination of local agencies seeks to form a single groundwater sustainability agency, it must be done pursuant to a joint powers agreement or other legal agreement.&nbsp;A water corporation regulated by the California Public Utilities Commission may participate in a groundwater sustainability agency formed by a combination of local agencies, but the local agencies must agree.&nbsp;For some areas of the state, specific agencies that already have been created by statute to manage groundwater are deemed by the Act to be the exclusive groundwater sustainability agencies within their respective boundaries, although such agencies may opt out of that role by providing notice to DWR.&nbsp;In that case, any other local agency or agencies may notify DWR of an election to be the groundwater sustainability agency in accordance with required procedures.</p> <p style="text-align: left">Any local agency or agencies electing to be a groundwater sustainability agency must first hold a noticed public hearing in the county or counties overlying the basin, and must submit a notice of intent to DWR describing the proposed boundaries of the basin (or portion thereof) that the agency or combination of agencies intends to manage.&nbsp;Within 30 days of electing to be or forming a groundwater sustainability agency, the agency must notify DWR, and provide a list of &ldquo;interested persons&rdquo; and an explanation of how their interests will be considered in the development and implementation of the agency&rsquo;s sustainability plan.&nbsp;Under the Act, interested persons include:&nbsp;agricultural water users; domestic well owners; municipal well owners; public water systems; local land use planning agencies; environmental users of groundwater; users of surface water with a hydrologic connection to groundwater; federal agencies; affected California Native American Tribes; disadvantaged communities; and entities monitoring and reporting groundwater elevations under the CASGEM program.</p> <p style="text-align: left"><u>Basin Coverage Under Groundwater Sustainability Plans</u></p> <p style="text-align: left">The Act identifies a clear legislative intent that the entirety of each high and medium priority groundwater basin must be covered by one or more groundwater sustainability plans. &nbsp;In other words, there can be no &ldquo;dead zones&rdquo; or unmanaged areas.&nbsp;In this regard the Act provides that a basin plan may be: (1) a single plan covering the entire basin developed and implemented by one groundwater sustainability agency; (2) a single plan covering the entire basin developed and implemented by multiple groundwater sustainability agencies; or (3) multiple plans implemented by multiple groundwater sustainability agencies and coordinated pursuant to a single coordination agreement that covers the entire basin.&nbsp;If multiple coordinated plans are prepared to cover a basin, the groundwater sustainability agencies must ensure that the plans utilize the same data and methodologies for developing assumptions regarding groundwater elevations, groundwater extractions, surface water supplies, total water use, changes in groundwater storage, water budget, and sustainable yield.</p> <p style="text-align: left">The Act mandates that in less than three years&mdash;by June 30, 2017&mdash;every portion of a high or medium priority basin must be covered by the boundaries of at least one groundwater sustainability agency.&nbsp;If an area within a basin is not within the management area of a groundwater sustainability agency, the county within which the unmanaged area lies is presumed to be the sustainability agency for that area, unless the county opts out of that role by notifying DWR.&nbsp;If an entire basin is not covered by one or more groundwater sustainable agencies by the June 30, 2017 deadline, groundwater extractions in that area become subject to specific reporting requirements, and the State Board may designate the basin as a &ldquo;probationary basin&rdquo; and step in to adopt an interim plan for the basin.</p> <p style="text-align: left"><u>Contents of Groundwater Sustainability Plans</u></p> <p style="text-align: left">Groundwater sustainability plans must include the following components:</p> <ul> <li style="text-align: left">The physical setting and characteristics of the aquifer system underlying the basin;</li> <li style="text-align: left">Measurable objectives, and interim milestones in five-year increments to achieve the sustainability goal in the basin within 20 years of implementation;</li> <li style="text-align: left">A planning and implementation horizon, defined by the Act as a 50-year time period over which a groundwater sustainability agency determines that plans and measures will be implemented in a basin to ensure it is operated within its sustainable yield;</li> <li style="text-align: left">Components relating to the monitoring and management of groundwater levels; groundwater quality, inelastic land surface subsidence, and changes in surface flow and surface water quality that directly affect groundwater levels or quality or are caused by groundwater extraction in the basin; mitigation of overdraft; how recharge areas contribute to basin replenishment; and surface water supplies used or available for groundwater recharge or in lieu use;</li> <li style="text-align: left">A summary of monitoring sites, type of measurements, and frequency of monitoring various factors;</li> <li style="text-align: left">Monitoring protocols designed to detect changes in groundwater levels, groundwater quality, inelastic surface subsidence, and flow and quality of surface waters that directly affect groundwater levels or quality or are caused by groundwater extractions in the basin; and</li> <li style="text-align: left">A description of how applicable county and city general plans have been considered and a description of the various adopted water resource-related plans and programs within the basin and an assessment of how the groundwater sustainability plan may affect such other plans and programs.</li> </ul> <p style="text-align: left">In addition, groundwater sustainability plans shall include basin-specific measures where appropriate, such as:</p> <ul> <li style="text-align: left">Control of saline water intrusion;</li> <li style="text-align: left">Wellhead protection and recharge areas;</li> <li style="text-align: left">Migration of contaminated groundwater;</li> <li style="text-align: left">Well construction, abandonment and destruction programs and policies;</li> <li style="text-align: left">Activities and opportunities for conjunctive use;</li> <li style="text-align: left">Measures addressing cleanup of groundwater contamination, groundwater recharge, diversions to storage, conservation, water recycling, conveyance, and extraction projects;</li> <li style="text-align: left">Efficient water management practices;</li> <li style="text-align: left">Efforts to develop relationships with state and federal regulatory agencies;</li> <li style="text-align: left">Processes to review land use plans and efforts to coordinate with land use planning agencies to assess activities that potentially create risks to groundwater quality or quantity; and</li> <li style="text-align: left">Impacts to groundwater dependent ecosystems.</li> </ul> <p style="text-align: left"><u>Adoption of Groundwater Sustainability Plans and DWR Review</u></p> <p style="text-align: left">Prior to initiating the development of a groundwater sustainability plan, the sustainability agency or agencies must notify the public, DWR, and any city or county located within the area to be covered by the plan about how interested parties may participate in the plan&rsquo;s development and implementation.&nbsp;The sustainability agency must also encourage the active involvement of diverse social, cultural, and economic communities within the groundwater basin prior to and during the development and implementation of the plan.</p> <p style="text-align: left">A groundwater sustainability plan may only be adopted after a public hearing held at least 90 days after notice was provided to any city or county within the area affected by a groundwater sustainability plan.&nbsp;Upon adoption of a plan, the groundwater sustainability agency must submit the plan to DWR for review.&nbsp;DWR must post the plan on its website and provide a 60-day public comment period.&nbsp;In addition, DWR must evaluate and issue an assessment of the plan within two years of submission and may include corrective actions to any perceived deficiencies in the plan.&nbsp;The Act also allows an adopting agency to file a validation action on its plan 180 days after the plan is adopted.</p> <p style="text-align: left"><u>Alternatives to Groundwater Sustainability Plans</u></p> <p style="text-align: left">The Act provides local agencies with alternatives to preparing a new groundwater sustainability plan, but the options are limited to:</p> <ul> <li style="text-align: left">A groundwater management plan prepared in accordance with Water Code 10750 et seq. (AB 3030) or other law authorizing groundwater management;</li> <li style="text-align: left">Management pursuant to an adjudicated action; or</li> <li style="text-align: left">A professional analysis of basin conditions that shows the basin has operated with sustainable yield for a period of at least 10 years.</li> </ul> <p style="text-align: left">An alternative plan must be submitted to DWR no later than January 1, 2017 for an assessment and evaluation by DWR to determine if the alternative satisfies the objectives of the Act.</p> <p style="text-align: left"><u>Powers of Groundwater Sustainability Agencies</u></p> <p style="text-align: left">Groundwater sustainability agencies that adopt sustainability plans will have broad new powers and authorities.&nbsp;The agencies &ldquo;may do anything necessary or proper&rdquo; to carry out the purposes of the Act, which includes the authority to:</p> <ul> <li style="text-align: left">Adopt rules, regulations, ordinances, and resolutions;</li> <li style="text-align: left">Conduct investigations to determine the need for groundwater management, including investigations of surface waters, groundwater, and surface and groundwater rights, and inspections of property or facilities by consent or through an inspection warrant;</li> <li style="text-align: left">Propose, update, and impose fees, and levy groundwater charges;</li> <li style="text-align: left">Require registration of and impose requirements on wells and other groundwater extraction facilities;</li> <li style="text-align: left">Require water measuring devices (i.e., meters) on all groundwater wells within the agency&rsquo;s boundaries;</li> <li style="text-align: left">Acquire, use, and dispose of real and personal property, such as land, rights-of-way, water rights, structures and infrastructure;</li> <li style="text-align: left">Import surface and/or groundwater into the agency, conserve and store water within or outside the agency, and purchase, transfer, deliver or exchange water or water rights of any type with any person to carry out any purposes of the Act;</li> <li style="text-align: left">Transport, reclaim, purify, desalinate, treat, or otherwise manage and control polluted water, wastewater, or other waters for subsequent use;</li> <li style="text-align: left">Control groundwater extractions by regulating, limiting, or suspending extractions from individual groundwater wells or wells in the aggregate;</li> <li style="text-align: left">Authorize temporary and permanent transfers of groundwater extraction allocations within the agency boundaries; and<br /> Enforce violations of the Act or agency rules, regulations, ordinances or resolutions, including the ability to impose civil penalties and bring legal actions.</li> <li style="text-align: left">The Act also provides groundwater sustainability agencies with broad financial powers.&nbsp;For example, sustainable agencies will be authorized to impose a wide variety of fees covering matters such as: permitting; groundwater extractions; preparation, adoption, and amendment of groundwater sustainability plans; investigations; inspections; compliance; enforcement; program administration; reserves; acquisition of lands or other property, facilities or services; and water supply, production, treatment or distribution.</li> </ul> <p style="text-align: left"><u>State Intervention</u></p> <p style="text-align: left">While the Act clearly acknowledges that sustainable groundwater management occurs best at the local level, if local agencies are either unwilling or unable to implement the new requirements of the Act, the state may step in.&nbsp;To this end, the Act provides the State Board with broad discretion to determine that a high or medium priority basin should be designated as a &ldquo;probationary basin&rdquo; and thereby trigger State Board management authority.&nbsp;When state action is required, the Act provides various mechanisms to return local control whenever feasible.</p> <p style="text-align: left"><u>CEQA Implications</u></p> <p style="text-align: left">The Act provides that the preparation and adoption of groundwater sustainability plans is exempt from CEQA, but any project that would implement actions taken pursuant to an adopted plan are <i>not</i> exempt from CEQA.</p> <p style="text-align: left"><b><u>Issues Unresolved by the New Act</u></b></p> <p style="text-align: left">The Sustainable Groundwater Management Act will influence and affect other areas of California water law and policy.&nbsp;One key area is the legal intersection of water rights, water supply planning, and land use decision making.&nbsp;The drought creates legal, practical, and policy issues for land use planning. With the economy improving and entitlements and permitting on the rise, developers are seeking to demonstrate that they have sufficient water supplies for new construction. &nbsp;Various documents and analyses, prepared under various laws, are used to show water supply sufficiency for new projects. &nbsp;Examples include Urban Water Management Plans, Water Supply Assessments, Written Verifications, and water supply analyses under CEQA&mdash;all of which can be lightning rods for challenges to proposed development. &nbsp;These analyses generally address whether sufficient water supplies will be available to serve the proposed development and other existing and planned future uses over a 20-year projection during normal, single-dry and multiple dry periods, and whether the uses of surface water, groundwater, and other supplies identified to serve a project are likely to have a significant environmental impact on water resources. &nbsp;Drought conditions typically widen the divide between water resources and development, and often complicate a developer&rsquo;s ability to demonstrate water supply sufficiency under applicable legal standards.</p> <p style="text-align: left">The Act seeks to address this relationship.&nbsp;Yet, whether by design or oversight, the Act only scratches the surface of the inevitable overlap of a &ldquo;groundwater sustainability plan,&rdquo; other water supply sufficiency determinations, and the land use decision-making process.</p> <p style="text-align: left">Current general planning laws declare the importance of having close coordination and consultation between water supply agencies and land use approval agencies to ensure proper water supply planning for projects resulting in increased water demands.&nbsp;(Govt. Code &sect; 65352.5(a)-(b).)&nbsp;For the most part, this coordination process is found in the requirement that a city or county, prior to adopting or substantially amending its general plan, must refer the proposed action to the public water system that serves water to customers within the area covered by the proposal.&nbsp;(Govt. Code &sect; 65352(a)(7).)&nbsp;In turn, the public water system is required to submit the current versions of its Urban Water Management Plan (UWMP), Capital Improvement Plan, and other water-related information to the city or county, including:</p> <ul> <li style="text-align: left">A description of the source(s) of the total water supply currently available to the water provider by water right or contract, taking into account historical data concerning wet, normal, and dry runoff years;</li> <li style="text-align: left">A description of the quantities of surface water and groundwater purveyed by the water provider in each of the previous five years;</li> <li style="text-align: left">A description of all proposed additional sources of water for the water provider, including the estimated quantities and dates by which those additional supplies are expected;</li> <li style="text-align: left">A description of the total number of customers currently served by the water provider according to different categories of water users;</li> <li style="text-align: left">A quantification of the water provider&rsquo;s expected reduction in total water demand for each category of water customer associated with future implementation of water use reduction measures identified in the provider&rsquo;s UWMP; and</li> <li style="text-align: left">Any additional information relevant to determining the adequacy of existing and planned future water supplies to meet existing and planned future demands.&nbsp;(Govt. Code &sect; 65352.5(c).)</li> </ul> <p style="text-align: left">A similar requirement is for cities and counties, when adopting or substantially amending a general plan, to use &ldquo;as a source document&rdquo; any UWMP submitted by the public water provider, presumably for purposes of preparing the CEQA analysis related to the proposed land use action.&nbsp;(Govt. Code &sect; 65302.2.)</p> <p style="text-align: left">The Act amends the Government Code to require that cities and counties also consider any groundwater sustainability plan adopted under the Act that applies to the area affected by the city or county general plan.&nbsp;While this appears to be a sensible requirement, the Act does not address several other related issues.</p> <p style="text-align: left">For example, both UWMPs and the new groundwater sustainability plans are required to include detailed information and analyses regarding basin conditions, management efforts, and the sufficiency of groundwater supplies to serve existing and projected demands.&nbsp;However, different standards apply to these different planning documents, and they often will be prepared by different agencies.&nbsp;Despite the potential for inconsistent information, analyses, conclusions, and timing of preparation, the Act does not amend the UWMP Act to require the findings of a groundwater sustainability plan to be included within, relied upon, or accounted for in preparing an UWMP.&nbsp;Similarly, the Act does not require an agency developing a groundwater sustainability plan to consider the groundwater information, analyses or conclusions contained in a duly adopted UWMP.&nbsp;If the information and analyses of a UWMP and a groundwater sustainability plan are not in perfect harmony, the Act does not address whether a city or county must or should choose one over the other in preparing its general plan.&nbsp;The Act does provide that a groundwater sustainability plan does not supersede the land use decision making of a city or county, but it does not provide guidance on how the city weighs the evidentiary strength of both the UWMP and a sustainability plan.&nbsp;Thus, the potential for conflict and difficulties for cities or counties in charting an analytical path are heightened by the new requirements of the Act.</p> <p style="text-align: left">In a similar vein, the Act does not address the relationship between groundwater sustainability plans and project-level water supply sufficiency determinations made by retail water providers under the Water Supply Assessment (WSA) and Written Verification (WV) statutes.&nbsp;The WSA statute (commonly referred to as &ldquo;SB 610&rdquo;) and CEQA require a city or county undertaking CEQA review for certain projects defined by Water Code section 10912 to request a WSA from the public water system that will provide retail water service to the project.&nbsp;(Water Code &sect; 10910(b); Pub. Res. Code &sect; 21151.9.)&nbsp;The following types of projects trigger the need to prepare a WSA:</p> <ol> <li style="text-align: left">A residential development of more than 500 units;</li> <li style="text-align: left">A business/shopping center with more than 1,000 employees or more than 500,000 square feet of floor space;</li> <li style="text-align: left">A commercial office building with more than 1,000 employees or more than 250,000 square feet of floor space;</li> <li style="text-align: left">A hotel/motel with more than 500 rooms;</li> <li style="text-align: left">An industrial/manufacturing/processing plant or industrial park with more than 1,000 employees, encompassing more than 650,000 square feet of floor space, or occupying more than 40 acres of land (provided, until January 1, 2017, a photovoltaic or wind energy generation facility is not a project that requires a WSA if the facility would demand no more than 75 acre-feet of water annually);</li> <li style="text-align: left">A mixed-use development project that includes one or more of the projects specified in subsections (1) through (5) above;</li> <li style="text-align: left">A project that would demand an amount of water equivalent to, or greater than, the amount of water required by a 500 dwelling unit project; or</li> <li style="text-align: left">For a supplier with 5,000 or fewer connection, a project that will increase the number of connections by 10% or more.&nbsp;(Water Code &sect; 10912(a)-(b); State CEQA Guidelines &sect; 15155.)</li> </ol> <p style="text-align: left">Among other requirements, a WSA must provide comprehensive information and analyses regarding groundwater basin conditions, adjudicatory and/or&nbsp;management efforts regarding groundwater resources, and groundwater sufficiency.&nbsp;(Water Code &sect; 10910(f).)&nbsp;Once prepared and adopted by the public water system, the WSA must be provided to the city or county as the CEQA lead agency and included in the CEQA document being prepared for the proposed project.&nbsp;Based on the WSA and other evidence, the city or county must determine whether total projected water supplies, including groundwater, are sufficient to serve the project in addition to existing planned future uses.&nbsp;(Water Code &sect; 10911(b)-(c).)&nbsp;The WSA can also be used to evaluate a project&rsquo;s potential environmental impacts to groundwater resources under applicable CEQA standards.</p> <p style="text-align: left">The WV statute (commonly referred to as &ldquo;SB 221&rdquo;) requires a city or county to condition its approval of a development agreement or tentative map that includes a &ldquo;subdivision&rdquo; (a proposed residential development of more than 500 units) on the requirement that a sufficient water supply will be available to serve the project.&nbsp;(Govt. Code &sect;&sect; 65867.5; 66473.7.)&nbsp;Proof of a sufficient water supply must be based on a WV prepared by the public water system that will provide retail water service to the project.&nbsp;Like WSAs, a WV must provide comprehensive information and analyses regarding groundwater basin conditions, adjudicatory, and/or&nbsp;management efforts regarding groundwater resources, groundwater rights, and groundwater sufficiency.&nbsp;(Govt. Code &sect; 66473.7(c), (h).)&nbsp;Moreover, the WV statutes expressly provide that information and analyses from an UWMP and/or WSA can be used as evidence in support of the WV.&nbsp;(Govt. Code &sect; 66473.7(c).)</p> <p style="text-align: left">However, the Act does not amend the WSA statute, the WV statute, or CEQA to expressly require that the findings of a groundwater sustainability plan be included within, relied upon, or accounted for in preparing a WSA, WV, or water supply analysis under CEQA.&nbsp;Consequently, a number of questions unanswered by the Act arise:&nbsp;Is a WSA, WV, or CEQA analysis that fails to account for the framework and conclusion of a duly adopted groundwater sustainability plan &nbsp;invalid per se?&nbsp;Conversely, is a WSA, WV, or CEQA analysis that incorporates the findings of a groundwater sustainability plan valid per se for purposes of the information and conclusions regarding groundwater management, groundwater sufficiency, and potential groundwater impacts?&nbsp;If the information, analyses, or conclusions of a WSA, WV, or CEQA analysis are inconsistent with those of an adopted groundwater sustainability plan, how will those inconsistencies be resolved?</p> <p style="text-align: left">On this issue, the Act could signal an important shift in the traditional land use decision-making process.&nbsp;When the WSA and WV statutes were adopted in 2001, both included express provisions that gave cities and counties the final say in whether sufficient water supplies exist to serve a proposed project.&nbsp;(See Water Code &sect; 10911(c); Govt. Code &sect; 66473.7(b)(3), (f).)&nbsp;Those provisions were specifically included to ensure that water agencies would not be empowered with a decision that ultimately could determine whether or not a land use decision is approved.</p> <p style="text-align: left">Under the Act, when a city or county proposes to adopt (or substantially amend) its general plan, a groundwater sustainability agency (which could be the local water supply agency) must provide a report on the &ldquo;<i>anticipated effect</i>&rdquo; of the proposed land use action on the groundwater sustainability plan.&nbsp;In preparing a sustainability plan, the Act requires the plan to &ldquo;take into account&rdquo; the most recent planning assumptions stated in local general plans of jurisdictions overlying the basin.&nbsp;But this does not require a sustainability plan to <i>use</i> the same planning assumptions as the general plans, nor does it provide a mechanism to prevent the two documents from repeatedly chasing and potentially working at odds with each other.&nbsp;Thus, the evidentiary effect of the sustainability agency&rsquo;s report and whether the city or county acting as the lead agency under CEQA must or should agree with the findings of the sustainability agency are not&nbsp;resolved by the Act.&nbsp;On the one hand, the Act states that a sustainability plan shall not be interpreted as superseding the land use authority of cities and counties or their general plans.&nbsp;On the other hand, the Act requires the groundwater sustainability agency to report on the anticipated effect of the general plan proposal on the 50-year sustainability plan.&nbsp;Whether groundwater management agencies could seek to use the Act as a trump card or as leverage in certain land use decisions by cities and counties remains to be seen.</p> <p style="text-align: left">The opposite effect is also possible.&nbsp;Assuming a city or county wants to rely upon and incorporate the findings of a groundwater sustainability plan, it must beware the fruit of a poisonous tree.&nbsp;This potential complication has arisen in connection with the relationship between UWMPs and project-specific water supply analyses.&nbsp;On the one hand, WSAs, WVs, and CEQA analyses can be buttressed by the information and conclusions of a current UWMP.&nbsp;On the other hand, if the legal sufficiency of the UWMP has been challenged or if the UWMP is otherwise deficient, subsequent project-specific analyses can get caught in the crossfire.&nbsp;As the Courts of Appeal have noted:</p> <p style="text-align: left">If an UWMP is inadequate the public and the various governmental entities that rely on the UWMP may be seriously misled by it and, if the wrong set of circumstances occur, the consequences to those who relied on the UWMP, as well as those who share a water supply with them, could be severe.&rdquo;&nbsp;(<i>Sonoma County Water Coalition v. Sonoma County Water Agency</i> (2010) 189 Cal.App.4th 33, 61-62; quoting <i>Friends of the Santa Clara River v. Castaic Lake Water Agency</i> (2004) 123 Cal.App.4th 1, 15.)</p> <p style="text-align: left">Groundwater sustainability plans substantially affect a wide variety of stakeholders, and thus may be controversial.&nbsp;If such a plan is legally challenged, it may cloud the record for purposes of preparing UWMPs, WSAs, WVs, and water supply analyses under CEQA that seek to rely on the challenged plan.</p> <p style="text-align: left"><b><u>Drought Response Actions on Surface Water, Reclaimed Water, and Public Conservation</u></b></p> <p style="text-align: left">In addition to the proposals for regulating groundwater, state agencies have been acting in response to the drought on measures to conserve surface water, promote the use of recycled water, and mandate public conservation efforts.</p> <p style="text-align: left"><u>New Curtailment Orders for Surface Water Diversions</u></p> <p style="text-align: left">Drought conditions are also affecting surface water rights in unprecedented ways.&nbsp;In parallel with the Governor&rsquo;s January 2014 Declaration of drought emergency, on January 17, 2014, the State Board announced that it may issue &ldquo;curtailment notices&rdquo; requiring holders of surface water rights to limit or stop diversions under their water rights permits.&nbsp;The announcement advised water rights holders to seek out alternative water supplies, including groundwater, purchased water, and recycled water.&nbsp;The curtailment process is designed to follow California&rsquo;s &ldquo;first in time, first in right&rdquo; surface water right system.&nbsp;Junior water rights holders are generally those with water rights granted after 1914, which is when the state began regulating and permitting surface water diversions on a statewide level.&nbsp;Senior water rights holders are generally those whose surface water rights existed before 1914 and those with riparian rights who own property adjacent to water courses.&nbsp;Under a curtailment notice, junior water rights holders can be ordered to limit or stop diverting water.&nbsp;Curtailment orders also require the completion of a compliance certification form.</p> <p style="text-align: left">On July 2, 2014, the State Board adopted emergency regulations to provide a more streamlined process to curtail surface water diversions to prevent the unreasonable method of diversion or use of water such that appropriate minimum amounts of water are available for (1) senior water right users, (2) public trust needs for state and federally protected fish, and (3) minimum health and safety needs.</p> <p style="text-align: left">As of this writing, the State Board has issued curtailment notices and orders for post-1914 appropriative water rights in the Mill, Deer, and Antelope Creek watersheds, the Scott River Watershed, the Sacramento and San Joaquin River watersheds, the Russian River watershed, and the Eel River watershed.&nbsp;Those who divert water in violation of a curtailment order or beyond their senior legal rights are subject to administrative fines, cease and desist orders, and court action.&nbsp;Under the emergency regulations, the State Board is authorized to impose fines of $1,000 per day per violation, and $2,500 for each acre-foot diverted or used in excess of a valid water right. &nbsp;(See Water Code &sect;&sect; 1052, 1055.)&nbsp;In addition, failure to comply with a cease and desist order is punishable by a fine of $10,000 per day.&nbsp;(See Water Code &sect;&sect; 1831, 1845.)</p> <div style="text-align: left"><u><br clear="all" /> </u></div> <p style="text-align: left"><u>State Board Efforts to Streamline Recycled Water Use Permits</u></p> <p style="text-align: left">On June 3, 2014, as another response to the Governor&rsquo;s Declaration and Proclamation of continued emergency, the State Board adopted a General Order that enables Regional Water Quality Control Boards to streamline the permitting process for recycled water uses.</p> <p style="text-align: left">The General Order establishes standard conditions for certain uses of recycled water which, according to the State Board, relieves producers, distributors, and users of recycled water from the often lengthy permitting and approval process.&nbsp;The General Order applies to most non-potable uses of treated municipal wastewater found in Title 22 of California&rsquo;s Code of Regulations, such as dust control, agricultural irrigation, landscape irrigation, cooling towers, and other industrial processes.&nbsp;The General Order does not provide permitting coverage for groundwater recharge.</p> <p style="text-align: left">All recycled water use under the General Order must be consistent with applicable Salt and Nutrient Management Plans approved by the Regional Boards, and any violations of the General Order are subject to enforcement action.&nbsp;The State Board indicates that recycled water use under the General Order will help the state meet its water recycling goals in the California Water Action Plan.&nbsp;Pursuant to the Governor&rsquo;s emergency drought declarations, adoption of the General Order was exempt from CEQA review.</p> <p style="text-align: left"><u>Emergency Regulations for Statewide Water Conservation</u></p> <p style="text-align: left">On July 15, 2014, the State Board adopted emergency regulations for water conservation regulations.&nbsp;The regulations apply to 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 other distributors of public water that are not defined as urban water suppliers (including publicly and privately owned water suppliers and mutual water companies).</p> <p style="text-align: left">As to individuals, the 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 potable water to 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, although local agencies retain their enforcement discretion in enforcing the regulations.</p> <p style="text-align: left">As to urban water suppliers, the regulations require each supplier to implement all requirements and actions of the stage of its water shortage contingency plan that imposes mandatory restrictions on outdoor irrigation of ornamental landscapes or turf with potable water.&nbsp;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 that achieved by limiting outdoor irrigation to two days per week. &nbsp;For urban water suppliers without a water shortage contingency plan or with an insufficient plan, and for all distributors of public water supplies, the regulations require, within 30 days, the implementation of limits on outdoor irrigation of ornamental landscapes or turf with potable water to no more than two days per week, or other conservation measures to achieve a reduction in water consumption from 2013 levels.</p> <p style="text-align: left">The regulations also require all urban water suppliers to submit a monthly monitoring report to the State Board, indicating the amount of potable water produced (including water provided by a wholesale agency) in the preceding month and an estimate of the gallons of water used per person per day. &nbsp;Further, the initial report must state the number of people served by the urban water supplier.</p> <p style="text-align: left">Depending on local water supply portfolios, the State Board&rsquo;s emergency regulations may require many water providers to declare water shortage emergencies and impose mandatory conservation, rationing or allocation-based water pricing (many already have voluntary measures in place). &nbsp;The authority to impose these restrictions derives from specific provisions of the Water Code, general police powers, and other express powers of special act agencies. &nbsp;Legal challenges may arise as water supply agencies seek to allocate limited supplies and the effects of those efforts begin to manifest.</p> <p style="text-align: left"><b><u>Conclusion</u></b></p> <p style="text-align: left">California&rsquo;s historic drought is eliciting historic and unprecedented responses from the Legislature, the Governor, the State Water Resources Control Board, the courts, and interested parties throughout the state.&nbsp;The drought highlights the reality we face in California, where water demands will continue to increase, while supplies will continue to face both hydrologic and regulatory constraints.&nbsp;This growing tension between demand and supply will bring challenges, opportunities, and a host of consequences.&nbsp;Fasten your seatbelts as California water law speeds into the 21<sup>st</sup> century.</p> <p style="text-align: left; margin: 0in 0in 0pt" class="MsoNormal"><i><font face="Calibri">*This article originally appeared in the Fall 2014 issue of Environmental Law News, a publication of the State Bar of California&rsquo;s Environmental Law Section. Reprinted with permission.</font></i></p> <p style="text-align: left; margin: 0in 0in 0pt" class="MsoNormal"><i><font face="Calibri"><o:p></o:p></font></i></p>BB&K In The News01 Dec 2014 00:00:00 -0800 in Law: What Businesses Need to Know on Antitrust Law<p><strong>BY KEN MacVEY </strong></p> <p>There is a saying among antitrust lawyers: Don&rsquo;t say you &ldquo;won&rdquo; an antitrust lawsuit &mdash; just by being in one means you lost. Business litigation is almost always expensive and challenging. Antitrust litigation can be several times worse.</p> <p>So what is antitrust? And why should all business owners care about it?</p> <p>Antitrust laws are statutes that exist at the federal and state levels. At the federal level, the major antitrust statutes include the Sherman Act, the Clayton Act, the Robinson-Patman Act and the Federal Trade Commission Act (which covers not just antitrust, but also unfair competition and deceptive acts and practices).</p> <p>At the California state level, the major antitrust statutes include the Cartwright Act and the Unfair Competition Law (which also covers unfair and deceptive acts and practices). Generally speaking, the federal statutes concern matters of interstate commerce and the California statutes are more locally oriented.</p> <p>The laws are in place to ensure that consumers get the prices and deals in the market place that only vigorous competition can deliver. In his 1776 classic, &ldquo;The Wealth of Nations,&rdquo; Adam Smith touted how the healthy pursuit of economic self-interest by competing businesses produces the best products at the lowest prices.</p> <p>But he was also familiar with the dark side of the market: &ldquo;People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.&rdquo;</p> <p>The antitrust laws strive to make illegal such &ldquo;contrivances to raise prices.&rdquo; These &ldquo;contrivances&rdquo; can take the form of monopolization (acquiring market power to dominate a relevant geographic and product market); anticompetitive mergers and acquisitions; and agreements and &ldquo;understandings&rdquo; among businesses to restrict prices or product output.</p> <p>Both the federal and state antitrust laws (except for the Federal Trade Commission Act and California&rsquo;s Unfair Competition Law) provide for hefty penalties, fines, damages and attorney fees. Hard-core violations, such as competitors agreeing on prices or territories where they will not compete (called horizontal price fixing and territorial market allocation in antitrust jargon), are felonies under the Sherman Act and the Cartwright Act that can result in prison time.</p> <p>The federal government, the state Attorney General and the local District Attorney can prosecute antitrust violations both civilly and criminally. Businesses and consumers can also sue for antitrust damages, including &ldquo;treble&rdquo; damages, which means for every dollar of actual damages the plaintiff gets three back.</p> <p>Most people think of antitrust as an issue for big corporations. It is true that the Microsofts, Apples and Amazons of the world always have to think about antitrust, especially in this global economy.</p> <p>The European Union can be harsh in antitrust enforcement &ndash; in some respects much more so than U.S. prosecutors. Even China, ostensibly a communist country, has recently adopted antitrust laws. What was originally an American concept has now gone global.</p> <p>But antitrust remains perilously local, particularly for the unsophisticated business owner. For example, a prospective client wanted his business to sue another business for breach of contract based on a document that purported to identify territories where they would not compete against each other. He complained that the other business kept competing in his territory and he wanted to sue for breach of contract. Not only was the contract unenforceable, it was smoking-gun proof of a felony. He walked out of the meeting in disbelief, shaking his head and muttering, &ldquo;this is done all the time.&rdquo;</p> <p>What should business owners do? If they belong to trade associations where competitors meet, they should make sure the association has antitrust compliance guidelines. Refrain from talking to competitors about how they compete. Most importantly, if they learn they are the target of a possible private lawsuit or government antitrust investigation, they need to retain counsel immediately.</p> <p>On the other hand, if a business is the victim of a possible antitrust violation, the owner may wish to consider the full panoply of remedies the antitrust laws offer because they can be formidable.</p> <p><i>*This article first appeared in <a target="_blank" href=""><span style="color: #0000ff">The Press-Enterprise</span></a> on Nov. 30, 2014. Republished with permission.</i></p>BB&K In The News30 Nov 2014 00:00:00 -0800 Water Laws to a World of Water Scarcity<p>Best Best &amp; Krieger Managing Partner Eric Garner was one of the invited speakers to the United Nations Environment for Development 1st International Environment Forum for Basin Organizations in Nairobi, Kenya from Nov. 26&ndash;28, 2014. The Forum&nbsp;brought together key stakeholders in the management of freshwater basins from all around the globe, such as ministers of water and the environment, heads of basin organizations and water directors, heads of national delegations to transboundary basin organizations, UN Agencies and other relevant international organizations, financial institutions, MEA Secretariats, civil society and academia.</p> <p>The primary objective of the Forum was to strengthen basin organizations as key building blocks for environmental governance. Basin Organizations are crucial in supporting the implementation of internationally agreed environmental goals and objectives embedded in many Multilateral Environmental Agreements (MEAs) as well as in national and basin-wide water management schemes.</p> <p>Eric discussed &ldquo;Adapting Water Laws to a World of Water Scarcity&rdquo; during the Laws and Regulations Theme. The discussion focused primarily on a) effective and adaptive legal and institutional frameworks to address the ever increasing challenges and complexities associated with managing water resources, and b) how basin organizations can positively contribute to the implementation of international water law, multilateral environmental agreements and internationally accepted environmental principles.</p> <p>For more information, please <a target="_blank" href=""><span style="color: #0000ff">click here.</span></a></p>Conferences & Speaking Engagements26 Nov 2014 00:00:00 -0800 Law Changes Special District Noticing Requirements for Terminating Service on Delinquent Accounts<p>The noticing requirements special districts must follow to terminate delinquent residential light, heat, water or power service accounts were substantially modified by the passage of omnibus bill AB 2747 by the state Legislature. The changes will take effect on Jan. 1 and impact the notification of actual users of district services where the owner, manager or farm labor employer is the customer of record. They will apply to districts defined as agencies of the state, formed pursuant to general law or special act, for the local performance of governmental or proprietary functions within their boundaries. Cities, counties and school districts will not be affected by this law. In 2010, <a target="_blank" href=";an=1832&amp;format=xml"><span style="color: #0000ff">similar notice requirements were imposed on municipally owned utilities and private corporations by the adoption of SB 120</span></a>, which revised Public Utilities Code section 11501 et seq.</p> <p>Under existing law, districts are required to make every reasonable effort to provide 10 days&rsquo; notice to the &ldquo;actual users&rdquo; at multi-unit residential structures, mobile home parks or farm labor camps that are supplied by individual or master meters prior to terminating service where the owner, manager or farm labor employer is the customer of record and the account is in arrears. The notice must also inform the actual users that they may become district customers if they are willing and able to assume responsibility for subsequent charges. In addition, under the existing law, districts must provide the customers of record with 10 days&rsquo; notice of termination and make good faith efforts to contact an adult residing at the customer&rsquo;s premise or, if such contact is not possible, the district must either mail or post written notice 48 hours prior to the termination.&nbsp;</p> <p>AB 2747, expands the termination notice requirements by requiring that written notice also be provided to actual users in &ldquo;single-family dwellings.&rdquo; In addition, the termination notice to actual users in single-family dwellings, multiunit residential structures, mobile home parks or farm labor camps, must be written in six specifically designated languages: English, Spanish, Chinese, Tagalog, Vietnamese and Korean. Because of the changes, many districts will need to change their notification policies to address the new requirements.</p> <p>If you have questions about the changed noticing requirements and how they will affect your district following Jan. 1, please contact the attorney author of this legal alert listed at right in the firm&rsquo;s <a target="_blank" href=";LPA=487&amp;format=xml"><span style="color: #0000ff">Special Districts</span></a> practice group or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney.</span></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 Alerts24 Nov 2014 00:00:00 -0800 Harassment Prevention Training<p>Employers with 50 or more employees, including temporary workers and independent contractors, are required to provide all supervisory employees two hours of sexual harassment prevention training every two years.</p> <p>The Chamber hosted a sexual harassment prevention training seminar to provide local Riverside business leaders the opportunity to receive this legally required training. Joseph Ortiz, attorney at Best Best &amp; Krieger, facilitated and lead this training seminar. This was an&nbsp;opportunity to fulfill AB 1825 requirements and protect businesses from potential future lawsuits.</p> <p><strong>When</strong><br /> Thursday, Nov. 20, 2014<br /> 10 a.m. &ndash; Noon</p> <p><strong>Where</strong><br /> Chamber Bourns Boardroom<br /> <br /> For more information, <a target="_blank" href=";c=Qx2yj86jNqQg4u8db7fhTHb5NCGkVaPmuUZnP2S4bA796mCc4bj5dQ==&amp;ch=gF3tkPVc9pRDqs32WuF5olVFWdKDnrFxNJhu3ehpQbSX_ueaeLt7gA=="><font color="#0000ff">click here</font></a>.</p>Conferences & Speaking Engagements20 Nov 2014 00:00:00 -0800 Is Now a Crime to Help a Public Official Make a Contract that Holds Personal Financial Interest<p>An amendment to Government Code section 1090 now makes it a felony for any person to aid and abet a government official in violating the conflict of interest provisions of the Code. This amendment, made possible with the passage of SB 952, advances the ability of prosecutors to charge all persons, government officials and others who are knowingly involved in aiding and abetting, or directly participating in the making of a contract in which a government official is financially interested.</p> <p>During the past session, the Legislature passed SB 952, which Gov. Jerry Brown signed into law, amending the powerful and far reaching statute that prohibits a government official from being financially interested in a contract made in the official&rsquo;s capacity, or by the agency of which he or she is a member. Section 1090 provides felony criminal penalties, including state prison sentences, fines and a lifetime ban from holding office. Any contract made in violation of this law is void and the government retains all the benefits of the contract while recovering any payments or consideration provided pursuant to the contract.</p> <p>An earlier appellate decision, <i>D&rsquo;Amato v. Superior Court,</i> had cast some doubt on whether section 1090 criminal liability could be applied to someone other than a government official under an aiding and abetting theory. In <i>D&rsquo;Amato</i>, the Court of Appeal held that the Legislature intended that section 1090&rsquo;s liability extend only to an official having an interest in a contract approved by the body or board upon which he or she sits. This amendment to the statute now supersedes that conclusion.</p> <p>Now with aider and abettor liability explicitly provided for in section 1090, any person who knowingly engages in activity that aids and abets a public official in participating in the making a contract in which the official is financially interested will have shared criminal liability. This will sweep within the statute those who offer inducements or bribes for legislative action, as the inducement or bribe creates a financial interest in the contract for the public official.</p> <p>How might this new law apply in the real world? Imagine this scenario based on an actual case: <i>Hub City Solid Waste Services, Inc. v. City of Compton</i>. In this case, the principal of a company seeking to do business with the city provided campaign contributions and hired members of council members&rsquo; families with the understanding that the council members will vote in favor of a contract with the company. The council members then voted to approve a contract with the company. Under this scenario, not only the council members, but also the company principal, would be criminally liable under Government Code section 1090.</p> <p>The new law takes effect Jan. 1.</p> <p>For more information on this amendment or how it may affect your agency, please contact the attorney author of this legal alert listed at right in the firm&rsquo;s <a target="_blank" href=";LPA=1139&amp;format=xml"><span style="color: #0000ff">Public Policy &amp; Ethics Compliance</span></a> practice group or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></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 Alerts20 Nov 2014 00:00:00 -0800's Not Easy Being (Legally) Green - Understanding Legal and Practical Issues Related to Green Infrastructure<p>Best Best &amp; Krieger LLP Partner Shawn Hagerty was among the speakers at NACWA&rsquo;s three-day National Clean Water Law Seminar. He was on a panel titled &ldquo;It&rsquo;s Not Easy Being (Legally) Green &ndash; Understanding Legal and Practical Issues Related to Green Infrastructure.&rdquo;</p> <p>The use of green infrastructure (GI) has rapidly become a mainstream, acceptable solution by both the municipal utility community and federal/state regulators to achieve &ndash; in conjunction with gray infrastructure &ndash; key CWA requirements. But what about the legal considerations associated with &ldquo;going green?&rdquo; Utilities must evaluate a number of different legal factors when using green infrastructure - especially on private property - such as zoning and land use regulations, easements with private owners, maintenance agreements, and liability concerns. There was also the issue of what happens if the GI doesn&rsquo;t work the way it is supposed to and permit terms are violated.</p> <p><strong>When</strong><br /> Thursday, Nov. 20, 2014<br /> 11 a.m.</p> <p><strong>Where</strong><br /> The Loews Don CeSar Hotel<br /> St. Pete Beach, Florida</p> <p>For more information, <a target="_blank" href=";view=article&amp;id=2023&amp;Itemid=535"><span style="color: #0000ff">click here</span></a>.</p>Conferences & Speaking Engagements20 Nov 2014 00:00:00 -0800 Corridor Market Update<p>Best Best &amp; Krieger LLP Partner Stephen Stwora-Hail presented &ldquo;680 Corridor Market Update&rdquo; at AEI Consultants&rsquo; 680 Exchange Networking Breakfast.</p> <p><strong>When</strong><br /> Wednesday, Nov. 19, 2014<br /> 8:30 &ndash; 10 a.m.</p> <p><strong>Where<br /> </strong>Scott&rsquo;s Seafood Bar &amp; Grill<br /> 1333 North California Blvd.<br /> Walnut Creek, CA 94596</p> <p>For more information, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a>.</p>Conferences & Speaking Engagements19 Nov 2014 00:00:00 -0800 1825 Sexual Harassment Avoidance Training (November 18)<div>California's Fair Employment and Housing Act, pursuant to AB 1825, requires that employers with fifty or more employees in California provide at least two hours of Sexual Harassment Avoidance Training every two years to any employee that has a supervisory role in operations. This presentation was designed to satisfy those requirements.<br /> <br /> Joseph Ortiz presented the training from the Riverside office. All other BB&amp;K offices participated in the training via state-of-the-art video conferencing. The video conference is interactive, allowing attendees to ask questions and participate in other ways.<br /> <br /> <p><strong>What was covered:</strong></p> <ul type="disc"> <li>What constitutes sexual harassment or discrimination in the workplace</li> <li>How to recognize and avoid it</li> <li>What procedures to follow if you witness harassment or are harassed yourself</li> <li>The potential consequences - including personal liability - of sexual harassment</li> </ul> <p><strong><br /> Audience:</strong></p> <ul type="disc"> <li>Supervisors</li> <li>Human Resources Professionals</li> <li>Public Officials</li> <li>Managers &amp; Private Business Professionals with 50 or More Employees</li> </ul> <p><br /> <strong>Registration:<br /> </strong><br /> The training was&nbsp;held via video conference at the following BB&amp;K offices throughout California.</p> <ul> <li><a target="_blank" href=";L=60&amp;format=xml"><span style="color: #0000ff">Indian Wells </span></a></li> <li><a target="_top" href=";L=61&amp;format=xml"><span style="color: #0000ff">Irvine </span></a></li> <li><a target="_top" href=";L=62&amp;format=xml"><span style="color: #0000ff">Los Angeles </span></a></li> <li><a target="_top" href=";L=59&amp;format=xml"><span style="color: #0000ff">Ontario </span></a></li> <li><a target="_blank" href=";L=63&amp;format=xml"><span style="color: #0000ff">Riverside</span></a> &ndash; Joseph Ortiz presented from the Riverside office</li> <li><a target="_blank" href=";L=64&amp;format=xml"><span style="color: #0000ff">Sacramento </span></a></li> <li><a target="_blank" href=";L=65&amp;format=xml"><span style="color: #0000ff">San Diego </span></a></li> <li><a target="_blank" href=";L=66&amp;format=xml"><span style="color: #0000ff">Walnut Creek </span></a></li> </ul> <strong><br /> Cost:</strong><br /> <br /> $75 per person<br /> <br /> <br type="_moz" /> <strong>When: <br /> </strong><br /> Tuesday, November 18<br /> 9 - 11 a.m.</div> <p><strong>BB&amp;K Presenter:<br /> <br /> </strong>Joseph Ortiz, Partner, Labor &amp; Employment Practice Group in Riverside office<br /> <br /> <strong>QUESTIONS:<br /> <br /> </strong>Contact&nbsp;<a href=""><span style="color: #0000ff">Jessy Asfahan</span></a> if you have any questions about this event and/or about BB&amp;K upcoming seminars/events.<br /> <br /> If you are not currently receiving our Legal Alerts and would like to be added to our email distribution list, please visit our <a target="_blank" href=""><span style="color: rgb(0,0,255)">subscription page</span></a>.<br /> &nbsp;</p>Seminars and Webinars18 Nov 2014 00:00:00 -0800 Government, Industry Reps Mull Challenges to Section 6409(a)<p>Local government officials and those in the wireless industry are closely examining challenges to implementing section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, reports <i>Telecommunications Reports Daily</i>. In its coverage of a Nov. 14, 2014 Law Seminars International webinar, in which Best Best &amp; Krieger LLP Partner Gerard Lederer participated, TRD noted that the FCC has ordered that states and localities must act on applications to modify existing wireless tower or base stations within 60 days. If no action is taken during that time, the application is &ldquo;deemed granted.&rdquo; The new law takes effect in less than 90 days.</p> <p>It might be difficult for local governments to comply with the new rules by the given deadline because of the need for new procedures and forms, plus holidays and new officials taking office on Jan. 1.</p> <p>&ldquo;He also said that while the new rules could make &lsquo;things more efficient,&rsquo; he noted that localities are facing reduced resources due to tighter budgets that could make it harder to meet the 90-day timeframe,&rdquo; TRD reported.</p> <p>&ldquo;Mr. Lederer also said it is difficult to educate larger, more sophisticated localities about the new rules as well as smaller jurisdictions that might not even have their own attorneys. &lsquo;One size can never really fit all,&rsquo; he said,&rdquo; TRD said.</p> <p>Local agencies dislike that the wireless industry received what it wanted from the FCC, but still want state legislatures to change laws, Gerard said, according to TRD. &ldquo;People get put off a bit,&rdquo; he said. &ldquo;That will cause difficulty.&rdquo;</p> <p>He also counseled those in the industry to not cite anonymous jurisdictions in their comments. &ldquo;There&rsquo;s nothing that makes us crazier than the anonymous allegation,&rdquo; Gerry said. &ldquo;Name the community. &hellip; Typically on each of these stories, there is another side.&rdquo;</p>BB&K In The News14 Nov 2014 00:00:00 -0800 Estate Law Partner Nancy Park Honored with Champion of Excellence Award by CREW Sacramento<p><b>SACRAMENTO, Calif.</b> - Best Best &amp; Krieger LLP Partner Nancy Park was awarded the Champion of Excellence Award today by the Sacramento chapter of Commercial Real Estate Women. According to CREW, the award honors those individuals who consistently deliver excellence in their personal and professional lives, and whose efforts advance the industry and show support for everything CREW Sacramento stands for.</p> <p>Park&rsquo;s association with CREW is long, and she has received acknowledgment from the organization at both the local and national levels, including the CREW-Sacramento Woman of Impact Award in 2008, the CREW-National Networking Award in 2001 and CREW Member of the Year, also in 2001. For several years, she lead the a joint effort between CREW-Sacramento and the Sacramento Girl Scouts to host a commercial real estate career day for teenage girls.</p> <p>Park represents private and public real estate entities, lenders and borrowers, landlords and tenants, and large and small businesses. Some of her private clients include institutional asset managers, agricultural product processors, ranch owners, manufacturing facilities, developers, movie/television studios, international and regional banks, and nature conservancies. Public clients include cities, special districts, joint powers authorities and hospitals, among others.</p> <p>Last year, she was named among the 2013 Northern California Real Estate Women of Influence by the <i>San Francisco Business Times</i>.</p> <p>&ldquo;Champions of Excellence honorees stand out from the crowd, at any stage in their career. They are passionate about our industry and innovative in their line of work,&rdquo; according to CREW. &ldquo;They inspire others through their leadership and vision. They believe our industry is strengthened when everyone gets a chance to play, and they seek opportunities to bring women and minorities to the table and advance their success.&rdquo;</p> <p>To learn more about CREW, <a target="_blank" href=""><span style="color: #0000ff">click here.</span></a></p> <p align="center">###</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><span style="color: #0000ff"><i><a target="_blank" href=""><span style="color: #0000ff"></span></a></i></span><i><span> or follow @BBKlaw on Twitter.</span></i></p>Press Releases13 Nov 2014 00:00:00 -0800 Redevelopment Law Conflict-of-Interest Rules Apply to Successor Agencies<p>The California Attorney General recently opined that the conflict-of-interest rules under the Community Redevelopment Law will continue to apply despite the dissolution of redevelopment agencies. The rules apply to members of any successor agency governing board and may apply to city officials and employees who are required to participate in the approval of plans and policies for redevelopment project areas. In particular, the Attorney General Kamala Harris took the position that Health &amp; Safety Code section 33130 will continue to prohibit such officers and employees from acquiring property within a redevelopment project area.</p> <p>In 2011, the California Legislature passed ABx1 26, which directed that all redevelopment agencies be dissolved and provided for the creation of successor agencies charged with winding down the affairs of redevelopment agencies. ABx1 26 specifically vested in successor agencies all rights, powers, duties and obligations of redevelopment agencies which were not repealed, restricted or revised. Health and Safety Code section 33130 was not repealed, restricted or revised.</p> <p>In light of the dissolution of redevelopment agencies, however, the duties and obligations which section 33130 imposes are not clear. Section 33130 only applies to the formulation or approval of plans and policies for the redevelopment of project areas, but ABx1 26 bars such activities. Harris takes the position that, even though successor agencies generally may not undertake new obligations, section 33130 will still apply because successor agencies are specifically authorized to begin new redevelopment work in compliance with existing enforceable obligations, to carry out redevelopment work already begun and to approve plans for project areas under limited circumstances.</p> <p>Harris&rsquo; opinion explains that section 33130&rsquo;s prohibition on acquiring property <i>precludes</i> certain officials or employees from acquiring property within a project area, and, therefore, the rule applies even if the official or employee disqualifies himself or herself from participation in discussions involving the project area.</p> <p>There are three key exceptions to section 33130&rsquo;s firm rule. First, an officer or employee may purchase or lease property for personal residential use within the project area, provided that the agency certifies that no improvements or construction will be done on the property or that the improvements or construction are already complete. Second, an officer or employee may lease property for use in his or her principal business if the lease contains market rate terms and cannot be sublet at a higher rate. Third, an official may acquire property to participate as an owner or reenter into business if he or she held a similar interest for three years preceding the selection of the project area. Even if an exception applies, the official or employee must disclose the interest in the official minutes. If the official or employee owns property that was previously acquired, that fact must also be disclosed in the official minutes.</p> <p>Finally, Harris also opined that a board member may resign from the successor agency without resigning from the city council, even if the city council sits as the governing board of the successor agency. However, the opinion only specifically discusses the continuing redevelopment work that a successor agency is required to perform, and does not address any separate and distinct work required to be performed by city officials or employees. The constraints of section 33130 may still apply to a city council member notwithstanding resignation from the successor agency, depending on the city council&rsquo;s role in any ongoing redevelopment activities.</p> <p>For more information on the California Attorney General&rsquo;s opinion and how it may affect your agency, please contact the attorney author of this legal alert listed at right in the firm&rsquo;s <a target="_blank" href=";LPA=489&amp;format=xml"><span style="color: #0000ff">Municipal Law</span></a> practice group, or your <a target="_blank" href=""><span style="color: #0000ff">BB&amp;K attorney</span></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 Alerts13 Nov 2014 00:00:00 -0800 of Wireless Facilities<p>BB&amp;K telecommunications law attorneys <b>Joseph Van Eaton</b> and <b>Gerard Lederer</b>, who is also a co-chair of the program, were among the featured speakers at this two-day conference titled &ldquo;Deployment of Wireless Facilities: Adapting to New Technologies, FCC Rules, State Legislative Developments and a Major Supreme Court Decision.&rdquo;</p> <p>This year has seen explosive mobile industry growth. Smartphones, &quot;apps,&quot; social media and streaming video are all creating unprecedented demand for mobile broadband, both services and infrastructure. This conference addressed the practical, legal, economic and regulatory issues applicable to providers, local governments, building landlords, private property owners and others that arise from this explosion in the growth of mobile wireless services, and the infrastructure that makes these services possible.</p> <p>This advanced conference examined the changing business of mobile and wireless communications services and its impact on the increased demand for, and design of, wireless facilities. Topics discussed included state and federal regulations and statutes that define the rights and responsibilities of mobile service providers, local governments and property owners when it comes to site, and modifying towers and antennas. Panelists discussed deal points associated with the deployment and modification of cell sites, towers, and other facilities' access.</p> <p>The conference was also webcast live.<br /> <br /> <i>BB&amp;K clients and colleagues received $100 off registration.</i></p> <p><b>BB&amp;K Speakers</b><br /> Gerard Lederer<br /> Thursday, Nov. 13, 2014<br /> 8:30 a.m.<br /> &ldquo;Introduction to Day 1: Demand Factors for New Infrastructure and New Regulatory Developments&rdquo;<br /> The big events relating to local permitting of wireless telecommunications facilities and how they fit together: Case law; the FCC &quot;shot clock&quot; ruling and Supreme Court case; Section 6409 (a) of the Middle Class Tax Relief Act and follow-on court decisions.</p> <p>Joseph Van Eaton<br /> Thursday, Nov. 13, 2014<br /> 3:15 p.m.<br /> &ldquo;Other Items on the Changing Federal and State Legal Landscape for Deployment of Wireless Facilities: What Are the New Rules of the Road?&rdquo;<br /> Overview of recent federal court cases including T-Mobile South v. City of Roswell; other litigation developments; FCC regulatory initiatives; local government perspective on the implications.</p> <p>Gerard Lederer<br /> Friday, Nov. 14, 2014<br /> 10:15 a.m.<br /> &ldquo;Carrier Access to Buildings and Other Structures: Best Practices for Negotiating Lease Terms with the Landlord&rdquo;<br /> Carrier and building owner perspectives on getting to yes for wireless facilities leases</p> <p>BB&amp;K also co-sponsored a reception for faculty and attendees on Thursday, Nov. 13, 2014 at 5 p.m.</p> <p><b>Continuing Education Credits</b><br /> Live credits: This program qualified for 10.3 GA CLE credits.</p> <p><b>Location</b><br /> Hilton Garden Inn Atlanta Midtown<br /> 97 10th Street NW<br /> Atlanta, GA 30309</p> <p>For more information, please visit Law Seminars International&rsquo;s event page by clicking <a target="_blank" href=""><span style="color: #0000ff">here</span></a>.</p>Conferences & Speaking Engagements13 Nov 2014 00:00:00 -0800 Works in Conservation: Tools for Rethinking Water, Quantifying Value, and Thriving in our Landscapes<p>Best Best &amp; Krieger is proud to have sponsored and participated in the 69th Annual California Resource Conservation Districts Meeting &amp; Conference. The event was held from Nov. 12 &ndash; 14, 2014 in Ventura, Calif. Highlighting the key conservation issues in Southern California, participants shared ideas on what works in conservation and have the opportunity to advance statewide partnerships.</p> <p><strong>BB&amp;K Speakers</strong></p> <p>Thurs., Nov. 13, 2014<br /> 3 &ndash; 4:15 p.m.<br /> &ldquo;Rethinking Water: Strategies to Build an Equitable, Reliable, and Clean Water Source&rdquo;<br /> <b>Steven Anderson</b> will discuss the recent groundwater legislation.</p> <p>Fri., Nov. 14, 2014<br /> 8:30 &ndash; 9:30 a.m.<br /> &ldquo;Support for New Conservation Properties and Beginning Agricultural Professionals&rdquo;<br /> <b>Steven G. Martin</b> and <b>Ward Simmons</b> will discuss due diligence for conservation properties.</p> <p>Fri., Nov. 14, 2014<br /> 8:30 &ndash; 9:30 a.m.<br /> &ldquo;Creating Healthy CityScapes: Building Partnerships to Address Regional and Specific Urban Conservation Storm Water Management: Working with Cities to Relieve Regulatory Pressure&rdquo;<br /> <b>Shawn Haggerty</b> will discuss municipalities and water quality.</p> <p><strong>Where:</strong><br /> Crowne Plaza Ventura Beach<br /> For more information, please visit the CARCD event page by <a target="_blank" href=""><span style="color: #0000ff">clicking here</span></a>.</p>Conferences & Speaking Engagements13 Nov 2014 00:00:00 -0800 Groundwater Legislation Update: Comments Recommended Regarding Groundwater Basin Prioritization<p>Under the new groundwater legislation, the California Department of Water Resources must establish the initial priority for each groundwater basin in the state no later than Jan. 31. Those basins that are ultimately designated as high or medium priority will be subject to groundwater sustainability plans to be adopted no later than Jan. 31, 2020, in some cases, or Jan. 31, 2022 in others.</p> <p>Preliminary priorities for each groundwater basin, including many sub-basins, have been compiled as part of DWR&rsquo;s California Statewide Groundwater Elevation Monitoring (CASGEM) program. The listing of those preliminary priorities can be found <a target="_blank" href=""><span style="color: #0000ff">here</span></a>. Other information about groundwater basins can be found in DWR&rsquo;s <a target="_blank" href=""><span style="color: #0000ff">Bulletin 118</span></a> (&ldquo;California&rsquo;s Groundwater&rdquo;).</p> <p>There is an expectation that most, if not all, of these preliminary priorities will be adopted officially by DWR early next year, barring information coming to light that challenges those preliminary priorities.</p> <p>If public agencies or others wish to dispute the preliminary high, medium, low or very low priority status of groundwater basins upon which they rely, comment letters should be submitted to DWR as soon as possible. In setting those priorities, DWR will examine not only water levels, water quality, extraction patterns, current demand and other technical information, but also the population overlying the basin, projected growth, irrigated acreage and other information.</p> <p>Agencies may also wish to submit comments to DWR regarding groundwater basin boundaries, particularly if there is scientific dispute about the precise location of such boundaries. Under the new legislation, basin boundaries will be set as identified in DWR <a target="_blank" href=""><span style="color: #0000ff">Bulletin 118</span></a> unless a local agency requests that DWR revise boundaries and submits technical and other information supporting a boundary adjustment.</p> <p>Best Best &amp; Krieger attorneys are here to assist with the preparation of comment letters regarding groundwater basin prioritization and boundaries. For further information, please contact the attorney authors of this legal alert listed at right in the <a target="_blank" href=";LPA=492&amp;format=xml"><span style="color: #0000ff">Environmental Law and Natural Resources practice group</span></a> or <a target="_blank" href=""><span style="color: #0000ff">your BB&amp;K attorney</span></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> <b><i>Best Best &amp; Krieger&rsquo;s Water Rights</i></b><i> practice is a nationally recognized force in water law since James Krieger&rsquo;s significant role in implementing the California State Water Project in the 1960s. As general counsel to water providers, BB&amp;K represents dozens of public agencies that serve water to more than 21 million people, in addition to countless developer, agricultural and manufacturing clients. We regularly advise public agency and private clients on all aspects regarding allocation of scarce water supplies.</i>Legal Alerts12 Nov 2014 00:00:00 -0800 Questions after Oral Argument in T-Mobile v. Roswell<p>A local government&rsquo;s decision to deny a cell tower placement application must be &ldquo;in writing and supported by substantial evidence contained in a written record.&rdquo; But what exactly does that mean? The <a target="_blank" href=""><span style="color: #0000ff">U.S. Supreme Court</span></a> focused on that issue at oral argument Monday. The case, <a target="_blank" href=""><span style="color: #0000ff">T-Mobile</span></a> v. Roswell, concerns a city letter stating only that Roswell, Georgia, had denied T-Mobile&rsquo;s application and that the hearing&rsquo;s minutes could be obtained from the city clerk. Is that enough?<br /> <br /> The argument focused on five questions that will play a key role in how the court resolves the case:<br /> <br /> <b><i>1. Does the local government need to articulate any reasons for its denial?</i></b><br /> <br /> The court appeared united in the view that the answer is &ldquo;yes.&rdquo; (Justice Clarence Thomas did not speak, however, per his typical practice.) Justice Elena Kagan noted that the need for reasons necessarily follows from the standard of review: &ldquo;[S]ubstantial evidence requires reasons.&rdquo; The city did not dispute the point.</p> <p>&hellip;</p> <p><i>To read the full article in Law360, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a>.</i></p>BB&K In The News12 Nov 2014 00:00:00 -0800 Legal Secretary - Los Angeles Office<p>Litigation Secretary &ndash; Qualified candidates must have at least 5 years recent California litigation experience, thorough knowledge of Superior and District court rules and procedures, transcription and calendaring. Must be comfortable in fast paced environment, detail oriented, work with little supervision, motivated, professional, reliable, possess excellent typing, grammar and organization skills, proficient in Word, Outlook, iManage.&nbsp;Superior salary/benefits package and excellent work environment.</p> <p>Qualified applicants are invited to apply online by clicking the link below. Applicants must attach a resume 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 href=";%3db8=8_CG"></a><br /> &nbsp;</p> <p>Please address your cover letter to:</p> <p><strong>Debbie Prior</strong></p> <p><em><strong>No phone calls or emails please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></p>Job Openings at BB&K12 Nov 2014 00:00:00 -0800 legal authority for Ebola quarantines<p>In the wake of nurse Kati Hickox's refusal to be quarantined in her Maine home after returning from a trip treating Ebola patients in Sierra Leone, federal, state and local governments are being forced to revisit their procedures for handling individuals traveling into their territories from Ebola stricken areas of the world. New protocols have been developed that attempt to balance public safety, individual civil rights, and political pressures of the time. The hysteria surrounding Ebola and its prevention has also required the reexamination of the authority by which the government may order and enforce the involuntary quarantines of its citizens.</p> <p><b>The Power to Quarantine</b></p> <p>Federal authority to quarantine falls under the commerce clause of U.S. Constitution, which states that Congress shall have the power &quot;[t]o regulate Commerce with foreign Nations, and among the several states.&quot; A state's authority to quarantine individuals derives under their implied police powers - to protect the health, safety and welfare of persons within its border. Numerous cases have affirmed the principle that a state's police power embraces reasonable legislative regulations that protect public health and public safety. See <i>Gibbons v. Ogden</i>, 22 U.S. 1 (1824); <i>Lawton v. Steele</i>, 152 U.S. 133 (1894); <i>Compagnie Francaise de Navigation a Vapeur u. Louisiana State Board</i>, 186 U.S. 380 (1902); <i>Jacobson u. Massachusetts</i>, 197 U.S. it (1905).</p> <p>In California, the state Legislature has passed statutes to assist in the containment of communicable diseases within its borders. For instance, under Health and Safety Code Section 120145, the California Department of Public Health may quarantine persons &quot;whenever in its judgment that action is necessary to protect or preserve the public health.&rdquo; To better reach the four corners of the state, the Legislature provides county health officers the authority to enforce quarantine orders, rules and regulations prescribed by the CDPH. With this authority, CDPH Director Dr. Ron Chapman recently issued an updated Ebola quarantine order for California.</p> <p>&hellip;</p> <p><i>To read the full article in the Daily Journal, which ran Nov. 10, 2014, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a> (subscription required).</i></p>BB&K In The News10 Nov 2014 00:00:00 -0800 School desegregation chronicled in new book<p>In his new book &ldquo;No Easy Way: Integrating Riverside Schools &ndash; A Victory for Community,&rdquo; Best Best &amp; Krieger Partner Arthur L. Littleworth, a former Riverside school board president, discusses how an arson at a segregated school began &ldquo;the week of Hell&rdquo; and led to the eventual voluntary integration of the district&rsquo;s schools.</p> <p>Mr. Littleworth discusses the book and the decision to desegregate in an interview with the <i>Press-Enterprise</i>. The district decided to integrate the schools almost 50 years ago to reduce discrimination and &ldquo;to treat a Riverside community as one people,&rdquo; Mr. Littleworth told the <i>PE</i>. &ldquo;This hopefully remains.&rdquo;</p> <p>On Saturday, Nov. 15 at 1 p.m., Poly High School will be re-dedicating the Littleworth Theater with a timeline mural that includes highlights of Mr. Littleworth&rsquo;s life and the nation&rsquo;s history. All are welcome and Mr. Littleworth will be signing copies of his book, which will be available for purchase.</p> <p>To see the full article in the <i>Press-Enterprise</i>, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a>.</p>BB&K In The News10 Nov 2014 00:00:00 -0800 First Year Law Student Diversity Fellowship/Scholarship Program<p>&nbsp;</p> <p><span style="background-color: #ffff00"><span style="font-size: larger"><strong>NOTE: APPLICATIONS WILL ONLY BE ACCEPTED FROM 12/1/14 TO 1/30/15.</strong></span></span></p> <p>Best Best &amp; Krieger LLP is committed to recruiting, hiring, developing, promoting and retaining attorneys and staff of diverse backgrounds. The value of diversity for our clients comes from the melding of differing experiences, cultures, talents, viewpoints and styles to drive creative and innovative solutions. Our diversity allows us to leverage different perspectives to approach complex legal issues in a way that provides the best outcome for our clients.</p> <p>With these goals in mind, BB&amp;K is pleased to offer our First Year Law Student Diversity Fellowship/Scholarship Program. This Program will provide the recipient with a paid summer associate position in one of our participating offices: Ontario, Riverside, Sacramento or San Diego. To qualify for the $7,500 scholarship, the recipient student must be invited and must return to BB&amp;K the following summer. The $7,500 scholarship will be paid following completion of the student&rsquo;s second summer with the firm.</p> <p>Description. The BB&amp;K First Year Law Student Diversity Fellowship/Scholarship Program is open to all first year law students enrolled and in good standing at an ABA accredited law school. Students with diverse backgrounds who demonstrate the potential to become an outstanding attorney at BB&amp;K are invited to apply. The successful candidate will be selected based on academic, personal and professional achievement.</p> <p>Please <a target="_blank" href=";%3db8=8_CG">Click here</a> to learn more about the program and to apply.</p> <p><strong>NOTE: APPLICATIONS WILL ONLY BE ACCEPTED FROM 12/1/14 TO 1/30/15.</strong></p>Job Openings at BB&K07 Nov 2014 00:00:00 -0800 - Municipal Law - Ontario Office<p>We have an immediate opening for an attorney with a minimum of 4 years of transactional municipal and advisory law experience. Planning degree and/or extensive experience with planning, zoning and land use issues required. &nbsp;Experience attending legislative body meetings and with local tax, assessment and fee/rate setting under Propositions 13, 218 and 26 a plus.</p> <p>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.</p> <p><a target="_blank" href=";%3db8=8_CG"></a><br /> <br /> &nbsp;</p> <p>Please address your cover letter to:</p> <p><strong>Jill N. Willis<br /> </strong><em>Chief Talent Officer<br /> </em>Best Best &amp; Krieger LLP<br /> 300 South Grand Avenue, 25th Floor<br /> Los Angeles, CA 90071<br /> <br /> <em><strong>No phone calls or emails please</strong></em><br /> <br /> <b><i>Best Best &amp; Krieger LLP is an Equal Opportunity Employer.</i></b></p>Job Openings at BB&K07 Nov 2014 00:00:00 -0800 Things that Fuel Negative Police Image Among the Public<p>Maintaining the positive image of the police has always been a challenge since the days of the first known police force dating back to the 1800s. With the advent of social media, this challenge is amplified exponentially. At a moment&rsquo;s notice, the misdeeds of one officer can go viral across the globe without any ability to mitigate or reconcile the damage.</p> <p>Part of this is just the cost of doing business in the digital age, but what about the part of the problem that can be influenced by altering human behavior? What are the most common daily activities that officers do to fuel a negative image?</p> <p>Sir Robert Peel said, &ldquo;Police must secure the willing cooperation of the public in voluntary observance of the law to be able to secure and maintain the respect of the public.&rdquo;</p> <p>As fundamental and elementary as this all sounds, I would suggest that some police leaders in this modern era may have lost sight of these basics.</p> <p>&hellip;</p> <i>To read the full article on, which ran Nov. 6, 2014, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a>.</i>BB&K In The News06 Nov 2014 00:00:00 -0800 Criticize Wireless Infrastructure Order<p>A reporter for <i>Telecommunications Reports</i> was one of the attendees of the Best Best &amp; Krieger webinar &ldquo;New FCC Rules Will Require New Approach to Siting of Wireless Facilities.&rdquo; <a target="_blank" href=";an=34267&amp;format=xml"><span style="color: #0000ff">The free webinar on Nov. 5</span></a> was in response to the FCC&rsquo;s adoption of new rules that require changes in the way local governments respond to applications for siting wireless towers, and for adding antennas to, and modifying, existing structures. The rules could necessitate an immediate review and revision of wireless siting ordinances in many communities, and have important implications for the way states and localities deal with siting of wireless facilities in historic districts and environmentally sensitive areas. The change in the rules may also affect the approach of public agencies, schools, special districts and local governments to leasing of their own property.</p> <p>BB&amp;K Partner Gerard Lavery Lederer told webinar attendees that the FCC could publish the order, adopted last month, in a &ldquo;Federal Register&rdquo; soon. After, parties have 30 days to file a petition for reconsideration and 60 days to file a petition for review in court, the TR reported. The rules take effect 90 days after publication in the Register. Gerard said there is consideration being given to creating working groups of clients to discuss whether to ask the FCC to reconsider portions of the order or file a court challenge.</p> <p>In the meantime, local agencies can begin preparing to implement the new rules, Gerard said. There are time concerns, he noted, especially with the holidays. The TR quoted him as saying, &ldquo;We understand that the timeframes are difficult.&rdquo;</p> <p>Matthew Schettenhelm, a BB&amp;K associate, raised concerns about the &ldquo;deemed granted&rdquo; remedy adopted by the FCC to implement section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, the TR reported. Matthew said a &ldquo;substantial constitutional question&rdquo; is raised by the 60-day requirement states and localities have to act.</p> To view the presentation slides, click <span style="color: #0000ff"><u><a target="_blank" href=""><span style="color: #0000ff">here</span></a></u></span>.<br /> To view the webinar recording, click <a target="_blank" href=""><span style="color: #0000ff">here</span></a>.BB&K In The News05 Nov 2014 00:00:00 -0800 Pass Proposition 1 - Water Supply and Infrastructure Bond: Is Your Agency's Water Project Eligible for Funds?<p>On Tuesday, California voters passed Proposition 1, the Water Quality, Supply, and Infrastructure Improvement Act of 2014, which allocates $7.5 billion for a water quality, supply and infrastructure improvement program to help fund certain water projects.</p> <p>In an effort to address California&rsquo;s dwindling water supplies, the Act makes the following allocations:</p> <ul> <li>$520 million for projects to improve water quality and wastewater treatment, and to provide more reliable safe drinking water;</li> <li>$2.7 billion for water storage projects to be selected by the California Water Commission through a competitive ranking process;</li> <li>$1.495 billion for watershed protection and restoration projects;</li> <li>$900 million for groundwater cleanup and management;</li> <li>$810 million for integrated regional water management, water conservation and stormwater capture;</li> <li>$725 million for water recycling projects and facilities; and</li> <li>$395 million for flood management projects.&nbsp;</li> </ul> <p>In addition to other specific criteria under each project category, projects benefitting disadvantaged communities are given priority for funds under all of the categories.</p> <p>Agencies seeking Proposition 1 funding will need to evaluate how their projects will be prioritized and ranked for eligibility based on the criteria used for each category of funding. &nbsp;Among other criteria, the State will consider the availability of additional federal, local or private funding for eligible projects, and an evaluation of projects&rsquo; technological and economic feasibility. &nbsp;</p> <p>With more than 100 years of experience representing public agencies, and its national reputation on water and environmental issues, BB&amp;K is equipped to assist public agencies in their efforts to receive funding for water projects under the Act. Among other areas, BB&amp;K stands ready to assist in the following:</p> <ul> <li>Helping to determine which of your agency&rsquo;s water quality, supply and/or infrastructure projects may be eligible for funding under the Act, which review criteria will apply and whether the projects may be eligible for priority.</li> <li>Assessing whether a particular project is subject to cost-sharing requirements under the Act, and how the requirements may be satisfied.</li> <li>Ensuring that projects comply with the limitations placed on funds and how funds received under the Act may be used by agencies.</li> <li>Assisting agencies with public consultation, notice, public hearing and other public outreach to comply with all open meeting/public hearing/notice requirements.</li> <li>California Environmental Quality Act, review of approved projects.</li> </ul> <p>For more information about how&nbsp;this bond&nbsp;may affect your agency, please contact one of the attorney authors of this legal alert listed at right in the <a target="_blank" href=";LPA=492&amp;format=xml"><span style="color: #0000ff">Environmental Law &amp; Natural Resources</span></a> or <a target="_blank" href=";LPA=487&amp;format=xml"><span style="color: #0000ff">Special Districts</span></a> practice groups, or <a target="_blank" href=""><span style="color: #0000ff">your BB&amp;K attorney.</span></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 Nov 2014 00:00:00 -0800 FCC Rules Will Require New Approach to Siting of Wireless Facilities<p>The FCC adopted new rules at its Oct. 17 meeting that are likely to require changes in the way local governments respond to applications for siting wireless towers, and for adding antennas to, and modifying, existing structures. The rules could necessitate an immediate review and revision of wireless siting ordinances in many communities, and have important implications for the way states and localities deal with siting of wireless facilities in historic districts and environmentally sensitive areas. The change in the rules may also affect the approach of public agencies, schools, special districts and local governments to leasing of their own property</p> <p>In a free webinar, <a href=";LPA=456&amp;format=xml" target="_blank"><span style="color: #0000ff">BB&amp;K telecommunications</span></a> attorneys and their&nbsp;co-sponsor, the&nbsp;American Planning Association, provided an overview of the new rules, the timetable for responding to them, and the challenges and opportunities facing public bodies as they attempt to protect local interests, while complying with federal requirements governing zoning of wireless facilities.</p> <p><strong>The webinar covered: </strong></p> <ul type="disc"> <li>The FCC's new rules, which are expected to affect both the substance and the process associated with wireless siting</li> <li>The effect of the new rules on contracts for use of publicly owned property</li> <li>The legal issues raised by the rules and what local governments need to do if they wish to challenge, or obtain clarification of, the rules</li> <li>Ways local governments can respond to the rules that provide the maximum protection to the public&nbsp;&nbsp;&nbsp;</li> </ul> <p><strong>Audience:</strong></p> <ul type="disc"> <li>Municipal attorneys responsible for zoning matters or right-of-way</li> <li>Directors of planning/public works</li> <li>Members of zoning boards/elected officials</li> <li>Department heads responsible for leasing public property&nbsp;</li> </ul> <br /> <strong>When</strong>:<br /> Wednesday, Nov. 5<br /> 10 - 11 a.m. PT<br /> 1 - 2 p.m. ET<br /> <br /> <br /> <strong>Materials and Recording</strong>:<br /> To view the presentation slides, click <u><span style="color: #0000ff"><a href="" target="_blank"><u><span style="color: #0000ff">here</span></u></a></span></u>.<br /> To view the webinar recording, click <a href="" target="_blank"><span style="color: rgb(0, 0, 255);"><u>here</u></span></a>.<br /> <br /> <strong>Contact Person:<br /> </strong>Jessy Asfahan,&nbsp;Best Best &amp; Krieger<br /> <a href=""><span style="color: #0000ff">;</span></a><span style="color: #0000ff"><br /> </span><br type="_moz" />Seminars and Webinars05 Nov 2014 00:00:00 -0800 of $7.5B water bond up to voters<p>On Tuesday, California voters will decide whether to adopt Proposition 1. The proposition &shy;called the Water, Quality, Supply and Infrastructure Improvement Act of 2o14 - would make S7.5 billion available for urgently needed for water storage, infrastructure rehabilitation, and other projects, many of which have taken on new importance given current drought conditions. A recent Public Policy Institute of California poll found that 56 percent of potential voters support Prop. 1, while only 32 percent oppose.</p> <p>Prop. 1, if approved, will authorize the state to issue bonds and prepare guidelines regarding the projects that will be eligible for a share of the S7.5 billion. The water bond replaces a previous $7.5 billion water bond proposal that never made it to the ballot.</p> <p>If the water bond is adopted, projects that leverage private, federal or local funding, or projects that produce the greatest public benefit, will get funding priority. Projects that employ new or innovative technologies or practices will get special consideration. In addition, substantial bond funding is reserved for disadvantaged communities and economically distressed areas. The water bond may also support projects that lack multiple sources of funding (i.e., those without local matching funding).</p> <p><i>To read the full article in the Daily Journal, which ran Nov. 3, 2014, <a target="_blank" href=""><span style="color: #0000ff">click here</span></a>&nbsp;(subscription required).</i></p>BB&K In The News03 Nov 2014 00:00:00 -0800 in Law: Enjoy the party, but minimize the risks<p>Every year about this time, employers are knee-deep in menus and decorations as they plan holiday events for employees &ndash; ranging from in-the-office celebrations to lavish parties at fancy locations. Inevitably, some things go awry. And, too often, lawsuits follow.</p> <p>Regardless of location or size, here are a few tips to keep in mind so employers can enjoy the holidays but minimize their risks.</p> <p>The first and most obvious: Think carefully about whether or not alcohol should be served, and, if it is going to be served, how to deal with possible consequences. Alcohol lowers inhibitions &ndash; often resulting in sexual harassment complaints against partygoers whose language or physical conduct got out of hand after too much to drink. Consider inviting spouses and significant others &ndash; misbehavior is less likely if someone important is watching!</p> <p>Alcohol can also lead to injuries &ndash; at the party, and, often worse, after the party. Great care must be taken to make sure that no employee leaves a company party while intoxicated and then gets into an automobile accident.</p> <p>Last year, a California Court of Appeal found Marriott International liable when an employee became intoxicated at an annual holiday party and then had an accident after leaving the event when he drove more than 100 mph and collided with another car, killing the other driver. This liability can even extend where, with the employer&rsquo;s knowledge and implied consent, a non-intoxicated employee leaves the company party to go to an &ldquo;after-party&rdquo; where they become intoxicated and have an accident.</p> <p>Because of the possible liability, an employer should consider several steps. Most obviously, don&rsquo;t serve alcohol at all. If alcohol is served, have a professional bartender or server be responsible for providing the alcohol, and make sure they clearly know that they have the right to refuse to serve anyone who appears impaired. While some companies will use drink tickets to try to limit the service of alcohol, it is common for nondrinkers to give their tickets to other employees who do drink.</p> <p>At any party where alcohol will be served, make sure that alternative transportation is available. One method is to ask some employees to serve as designated drivers. Have the volunteers work in pairs, one to drive the impaired employee home, and the other to follow in another car to give the designated driver a ride back.</p> <p>Finally, have a written holiday party policy in place, and make sure that the employees read and sign it in advance. The policy should clearly state that the company wants everyone to enjoy the event, but that there are specific rules that must be followed before, during and after the event &ndash; particularly regarding alcohol.</p> <p>One relatively new holiday party issue concerns the taking of photographs and the use of social media. It has become completely routine for employees to utilize their phones and other devices to photograph and record at holiday parties and to upload their photos and videos to sites such as Facebook and YouTube.</p> <p>Often, in the light of day, what is uploaded is at minimum unflattering and can be damaging to employees and the reputation of the company. (Picture an over-served employee posing in a very unflattering manner right in front of the company logo.) What can (and can&rsquo;t) you do about this?</p> <p>As tempting as it might be, you can&rsquo;t usually ban either the taking of photos or the uploading of them to social media sites. Besides damaging morale, it is possible that you could violate Section 7 of the National Labor Relations Act. In the past, the National Labor Relations Board, which enforces the act, has held that prohibiting photography illegally restricts the right of employees to discuss working conditions.</p> <p>Similarly, you can&rsquo;t discipline employees for posting photos online, even if they put the company in a bad light. You also can&rsquo;t try to delete employee photos from online sites, as that probably violates the Stored Communications Act. You can delete photos and comments from the company website &ndash; but still be careful about having that action also be considered a violation of Section 7 of the NLRA.</p> <p>In these challenging times, having a company holiday party requires thought and planning. Be sure you know and trust the persons who will plan the party, and that they take all risks into consideration.</p> <i>*This article first appeared in <a target="_blank" href=""><span style="color: #0000ff">The Press-Enterprise</span></a> on Nov. 1 , 2014. Republished with permission.</i>BB&K In The News01 Nov 2014 00:00:00 -0800 Action Claims: Gluing Together Systemwide Judicial Relief<p>The award of class action certification is often the gateway for obtaining lifesaving systemwide judicial relief in broken correctional health care systems. It also can be the beginning of a decades-long, burdensome and inefficient route to reform. No matter what your perspective may be, the approval of class certification is a pivotal moment when a few individuals&rsquo; claims are recognized as more than an aggregation of disparate grievances and are instead litigated as a common contention applicable to a broader group, requiring a common remedy.</p> <p>In litigation brought under the Eighth Amendment of the U.S. Constitution, the importance of class action certification can&rsquo;t be overstated because, under the Prison Litigation Reform Act, judicial relief can &ldquo;extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.&rdquo; Naturally, the scope of a remedy tailored for all inmates in a correctional system will be vastly different from a remedy tailored for an individual inmate or a handful of inmates.</p> <p>Recently, in <i>Parsons v. Ryan</i>, an ongoing case brought by Arizona inmates against senior officials in the Arizona Department of Corrections, the ADC officials asserted an argument, as characterized by the U.S. Court of Appeals for the Ninth Circuit, that &ldquo;Eighth Amendment claims can never be brought in the form of a class action.&rdquo; This argument, if successful, would end impact litigation in the prisons as we know it. To understand the issue and the decision reached by the Ninth Circuit, some background about class actions is necessary.</p> <p><b>Requirements for Class Certification</b></p> <p>Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), a party seeking certification of a class or subclass must satisfy four requirements:<br /> &nbsp;</p> <ol> <li>The class must be so numerous that including all individual members as named plaintiffs is impracticable.</li> <li>There must be questions of law or fact common to the class.</li> <li>The claims or defenses of the representative parties must be typical of the claims or defenses of the class.</li> <li>The representative parties must be able to fairly and adequately protect the interests of the class.</li> </ol> <p>These requirements are often referred to, respectively, as &ldquo;numerosity,&rdquo; &ldquo;commonality,&rdquo; &ldquo;typicality&rdquo; and &ldquo;adequacy of representation.&rdquo;</p> <p>The proposed class must also satisfy one of three subsections in Rule 23(b), which defines different types of classes. One of those subsections, Rule 23(b)(2), is typically used for the certification of civil rights actions. It requires that the party opposing the class (e.g., prison officials) acted or refused to act on grounds that apply generally to the class, so that judicial relief is appropriate for the class as a whole.</p> <p>In 2011, the U.S. Supreme Court raised the bar for class certification in the widely publicized case of <i>Wal-Mart Stores, Inc. v. Dukes. In Wal-Mart</i>, the district court certified a class consisting of all of Wal-Mart&rsquo;s 1.5 million female employees in a case claiming discriminatory employment practices. The employees did not allege that Wal-Mart maintained an express policy discriminating against women. Rather, the employees asserted that local managers&rsquo; discretion over pay and promotion was exercised disproportionately in favor of men, and Wal-Mart&rsquo;s failure to limit its managers&rsquo; authority amounted to unlawful discrimination. In support of their claim, the employees presented statistical evidence of pay and promotion disparities, anecdotal evidence of discrimination in numerous cases and expert testimony of a corporate culture making stores vulnerable to gender bias.</p> <p>Despite the evidence presented, the court found the award of class certification unsupported. The court acknowledged a general policy of allowing managerial discretion, which may have resulted in a number of independent discriminatory acts. But the court found that the employees failed to offer significant proof that Wal-Mart operated under a general policy of discrimination. Thus, the employees&rsquo; claims failed to show commonality or &ldquo;some glue holding together&rdquo; the local managers&rsquo; alleged discriminatory decisions. The court explained that to show commonality, plaintiffs must demonstrate that the class members have suffered the same injury&mdash;which means more than just suffering a violation of the same law. Plaintiffs&rsquo; claims must depend on a common contention capable of classwide resolution, which means that &ldquo;determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.&rdquo;</p> <p>In the context of correctional health care litigation, <i>Wal-Mart</i> underscores that inmates cannot obtain class certification merely by showing widespread constitutional violations across the system. Some further commonality between the inmates&rsquo; claims must be shown, which brings us back to <i>Parsons v. Ryan</i>.</p> <p><b>Statewide Policies: The &lsquo;Glue&rsquo; of Commonality</b></p> <p>The inmates in <i>Parsons</i> complained that numerous statewide policies and practices governing health care and conditions in isolation cells exposed them to a substantial risk of harm to which the ADC officials were indifferent. The inmates supported their complaint with detailed factual allegations of statewide policies and practices related to inadequate staffing, delays and denials of medical care, substandard dental care, failures to provide therapies for the mentally ill and detention of inmates in isolation for months or years without outdoor exercise or meaningful interaction with others. The district court granted the inmates motion for class certification, specifying a class of &ldquo;[a]ll prisoners who are now, or will in the future be, subject to the medical, mental health, and dental care policies and procedures of the ADC.&rdquo; It also certified a subclass of &ldquo;[a]ll prisoners who are now, or will in the future be, subjected by the ADC to isolation, defined as confinement in a cell for 22 hours or more each day or confinement in [certain housing unit].&rdquo;</p> <p>The ADC officials appealed from the district court&rsquo;s award of class action certification, principally arguing that the district court erred in concluding that the inmates possessed commonality. Citing the Supreme Court&rsquo;s decision in <i>Wal-Mart</i>, the ADC officials asserted &ldquo;Eighth Amendment health care and conditions-of-confinement claims are inherently case specific and turn on many individual inquiries. That fact is an insurmountable hurdle for a commonality finding because <i>Wal-Mart</i> instructs that dissimilarities between class members &lsquo;impede generation of common answers.&rsquo;&rdquo; Said another way, the ADC officials argued that the inmates failed to satisfy the commonality requirement because a systemic constitutional violation of the sort alleged by the inmates is merely a collection of individual constitutional violations, each of which depends on the particular facts and circumstances of each case.</p> <p>The Ninth Circuit rejected the ADC officials&rsquo; broad attack on inmates&rsquo; ability to bring class actions. It distinguished claims alleging deficient care provided on previous occasions, or to particular inmates, from the kind of claim asserted by the inmates in Parsons, in which the inmates made a future-oriented claim based on systemwide deficiencies. Specifically, the inmates complained that all inmates in ADC custody are exposed to the same injury&mdash;a substantial present and future risk of serious harm&mdash;as a result of ADC policies and practices of statewide application.</p> <p>The court pointed to 10 statewide ADC policies and practices, to which all ADC inmates are exposed, which the court considered the &ldquo;glue&rdquo; holding together the class. All members of the class, as explained by the court, are subject identically to those same policies and practices. Additionally, the constitutionality of each policy and practice (i.e., whether it creates a systemic, substantial risk of harm to which the defendants are deliberately indifferent) &ldquo;can be answered in a single stroke.&rdquo;</p> <p>By way of example, the court discussed the inmates&rsquo; claim that the ADC officials maintain an unconstitutional policy and practice of severe understaffing across all ADC medical facilities. This allegation, according to the court, presented a question of law and fact common to all ADC inmates. Because the inmates alleged that every single inmate is placed at substantial risk of future harm due to the general unavailability of adequate care, the question of whether the ADC&rsquo;s staffing policies pose a risk of serious harm to all ADC prisoners is a common contention answerable as to the entire class at the same time. An inmate-by-inmate inquiry is unnecessary. &ldquo;Either ADC employs enough nurses and doctors to provide adequate care to all of its inmates or it does not ...&rdquo;</p> <p>While the Ninth Circuit&rsquo;s decision affirming the continuing viability of inmate class actions is not precedential throughout the United States, similar post-<i>Wal-Mart</i> decisions have been reached in lower courts in several states. Greater scrutiny of class claims can be expected. But it seems likely that class actions in correctional health care litigation will not come unglued.</p> <p><a href="88E17A/assets/files/Documents/28-4 Goldman.pdf"><span style="color: #0000ff">Click here</span></a> to see a .pdf of the article.</p> <i>Reprinted with permission from the <a target="_blank" href=""><span style="color: #0000ff">Fall 2014 issue of CorrectCare</span></a>, the quarterly magazine of the National Commission on Correctional Health Care. All rights reserved.</i>BB&K In The News31 Oct 2014 00:00:00 -0800 in Drought: Development, Legislation and Litigation<p>BB&amp;K Managing Partner <b>Eric Garner</b>, who was the program chair of the event, and Partners <b>Paeter Garcia</b> and <b>Kelly Salt</b> participated in some of the panel discussions during this day-long seminar. This year is being touted as California&rsquo;s single driest year on record and severe drought conditions have brought the state to a crossroads. Is drought now going to be the new normal in California? This program&nbsp;helped attendees understand the impacts of drought on the competing needs of urban, agricultural and environmental water users. A diverse group of water leaders from state and local government, water associations, the legislature and engineers and attorneys&nbsp;provided their insight on the legal and policy issues facing the state&rsquo;s surface water, groundwater and alternative water supplies.</p> <p><b>BB&amp;K Speakers:</b><br /> <br /> Eric Garner delivered the event&rsquo;s opening introduction and overview at 9 a.m. At 11:30 a.m., he moderated the discussion &ldquo;The Groundwater Conundrum,&rdquo; which explored the following topics:</p> <ul> <li>Groundwater Use in an Arid State (Availability, Rights, Uses, Reserves and Overdraft)</li> <li>Whiskey is for Drinking (Adjudications Past, Present and Future)</li> <li>Common Ground (Groundwater Management Plans; Special Legislation; State Oversight)</li> </ul> <p>Paeter Garcia appeared as a panelist at 3 p.m. for a discussion titled, &ldquo;The Perfect Non-Storm: Permitting Development in Drought Conditions.&rdquo; Topics discussed included:</p> <ul> <li>California Growth and Related Development</li> <li>Tall Task for Water Supply Planning (Urban Water Management Plans; General Plans)</li> <li>Preparing Defensible Water Supply Analyses (Water Supply Assessments; Written Verifications; CEQA Analysis)</li> </ul> <br type="_moz" /> To see Paeter's PowerPoint presentation, <a target="_blank" href="88E17A/assets/files/Documents/Garcia PP.pdf"><span style="color: #0000ff">click here</span></a>. <br /> Watch &ldquo;The Perfect Non-Storm: Permitting Development in Drought Conditions&rdquo; by <a target="_blank" href=""><font color="#0000ff">clicking here</font></a>.<br type="_moz" /> <br /> Kelly Salt participated on a panel at 4 p.m. called, &ldquo;Pricing the Way through a Water Shortage.&rdquo; Issues covered included: <ul> <li>Declaring Water Shortage and Emergency Conditions (Ordinances, Conservation, Rationing)</li> <li>Pricing Structures and Challenges</li> <li>Public Issue with Private Implications</li> </ul> <br /> To see Kelly's PowerPoint presentation, <a target="_blank" href="88E17A/assets/files/Documents/Salt PP.pdf"><span style="color: #0000ff">click here</span></a>.<br type="_moz" /> <p><b>Credits: </b><br /> CA CLE: 6.25 General CLE credits<br /> CDPH: 6.0 contact hours</p> <p><b>Topics Covered: </b></p> <ul> <li>Drought Response</li> <li>Environmental</li> <li>Groundwater Use and Management</li> <li>Stormwater and Greywater</li> <li>Water Purchases and Transfers</li> <li>Water Shortage and Emergency Conditions</li> </ul> <p><b>Who Should Attend:</b></p> <ul> <li>Attorneys/Legal Staff</li> <li>State and Municipal Officials</li> <li>Water Operators</li> <li>Developers/Land Owners</li> <li>Farmers/Ranchers</li> <li>Environmentalists</li> <li>Utility Managers</li> <li>Planners</li> </ul> <p><b>Where: </b><br /> <br /> DoubleTree by Hilton LA Downtown<br /> 120 S. Los Angeles St.<br /> Los Angeles, CA 90012</p> <p>For more information&nbsp; please click <a target="_blank" href=""><u><span style="color: #0000ff">here</span></u></a>.</p>Conferences & Speaking Engagements30 Oct 2014 00:00:00 -0800, Developments, and Best Practices Relevant to Drafting Employment Agreements<p>Joseph T. Ortiz, a Best Best &amp; Krieger partner, wrote a chapter titled &ldquo;Trends, Developments, and Best Practices Relevant to Drafting Employment Agreements&rdquo; for <a target="_blank" href=";ie=UTF8&amp;qid=1414088788&amp;sr=1-1-fkmr0&amp;keywords=aspatore+employment+agreements+2014+ortiz"><font color="#0000ff">&ldquo;Negotiating and Drafting Employment Agreements, 2014: Leading Lawyers on Constructing Effective Employment Contracts (Inside the Minds),&rdquo;</font></a> published by Aspatore. &ldquo;The book provides an authoritative, insider's perspective on developing clear, flexible, and enforceable agreements to protect employers in today's marketplace,&rdquo; according to the publication&rsquo;s description on</p>Publications29 Oct 2014 00:00:00 -0800 Access to Public Rights-of-Way<p>BB&amp;K attorneys Gail Karish and Matthew Schettenhelm&nbsp;presented Lorman Education Services&rsquo; &ldquo;Private Access to Public Rights-of-Way.&rdquo; During this webinar, the audience learned to increase their proficiency in the private use of rights-of-ways and&nbsp;were provided a useful introduction to the challenges facing local governments as more private providers seek to use the public rights-of-way for a variety of purposes. Public officials, private service providers and lawyers benefited from understanding the variety of existing and emerging users and uses, the options available for securing access to public rights-of-way and the duties and liabilities related to their use.</p> <p><b>When</b><br /> Oct. 29, 014<br /> 10 &ndash; 11:30 a.m. (PST)<br /> &nbsp;</p>Conferences & Speaking Engagements29 Oct 2014 00:00:00 -0800