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California Environmental Law & Policy Update
June 30, 2017

Environmental and Policy Focus

EPA moves to repeal its own Obama-era “Waters of the United States” rule

The Hill - Jun 27 The Environmental Protection Agency (EPA) formally proposed Tuesday to repeal the Obama administration’s controversial regulation that extended the reach of the federal government over ponds, headwaters, wetlands, and other water bodies that feed into larger water areas, but whose Clean Water Act jurisdiction had been uncertain due to divisions within the Supreme Court in its rulings on previous cases. Under the proposal from the EPA and the Army Corps of Engineers, federal officials would go back to applying 2008 guidelines when deciding whether a waterway is subject to federal jurisdiction for pollution control purposes. It is the first formal step by the EPA in fulfilling President Trump’s campaign promise to repeal the 2015 “waters of the United States” regulation, which many Republicans and numerous industry groups have long argued would have subject farmers, developers, and others to costly and time-intensive federal permitting for everyday activities like moving soil. The Obama administration said that the drinking water supplies for 117 million Americans rely on protection by the rule, which it had dubbed the Clean Water Rule.

‘Huge milestone’ for Delta tunnels – feds say they won’t push fish over the brink

Sacramento Bee - Jun 26 In a pair of long-awaited decisions, released on Monday, the U.S. Fish & Wildlife Service and the National Marine Fisheries Service said the Delta tunnels, known as California WaterFix, are not likely to jeopardize the continued existence of the Delta smelt, Chinook salmon, steelhead, and other imperiled species that inhabit the waters of the Sacramento-San Joaquin Delta. The lengthy documents, known as biological opinions, represent a pivotal point for the project, which would burrow a pair of 35-mile-long tunnels beneath the Delta in an effort to re-engineer the way water flows through the fragile estuary. The state completed its environmental sign-off in December, and the federal agencies have now completed their reviews for the time being. However, the scrutiny by federal scientists will continue for several more years. The Fish and Wildlife Service said Monday that a subsequent biological opinion is still needed for the lengthy construction process. 

Groups file first legal challenge in Delta tunnels fight

Sacramento Bee - Jun 29 A coalition of environmental and fishing groups on Thursday filed the first of what may be many lawsuits challenging the California WaterFix project tunnels beneath the Sacramento-San Joaquin Delta. The lawsuits, filed in U.S. District Court in San Francisco, come four days after the U.S. Fish and Wildlife Service and the National Marine Fisheries Service released a pair of biological opinions concluding that the tunnels are not likely to jeopardize the continued existence of the Delta smelt, Chinook salmon, steelhead, and other species. The suits, filed by the Golden Gate Salmon Association, the Natural Resources Defense Council, Defenders of Wildlife, and The Bay Institute, ask the court to order the federal agencies to withdraw their opinions, which the groups allege were “arbitrary and capricious.”

California Supreme Court upholds cap-and-trade system

SFGate - Jun 28 California’s cap-and-trade law, which requires companies to buy permits to emit climate-changing greenhouse gases into the air, survived a legal challenge Wednesday when the state Supreme Court turned down an appeal by business groups. The state Chamber of Commerce and allied groups argued that the fees authorized by the 2006 law were actually taxes that required approval by two-thirds of the Legislature. A state appeals court disagreed in April, and its ruling became final Wednesday when the state’s high court denied review of the case. The court’s action gave the first-in-the-nation program a legal respite but did not resolve its political future. Governor Jerry Brown has tried to muster a two-thirds legislative majority to assure cap-and-trade’s continuation beyond 2020 but has encountered resistance from some business-friendly Democrats. Reports that he has been negotiating with oil industry representatives have prompted concern among environmentalists, some of whom consider cap-and-trade’s allowances overly generous.

Mining sand from beaches in mainland U.S. could end with proposed settlement

Los Angeles Times - Jun 27 The California Coastal Commission and an international cement company on Tuesday announced a proposed settlement that would end the mining of coastal sand in Monterey County — the last operation of its type on the mainland U.S. Instead of facing a court battle with the commission over permits, the Mexico-based Cemex company agreed to stop extracting sand from a 400-acre beach site in the city of Marina that has been used for such mining since the early 1900s. The agreement calls for the corporation to stop operations on the beach within three years and sell the coastal site at a reduced price to a nonprofit organization on the condition that the buyer preserve the property in perpetuity and provide public access. If approved by the Coastal Commission at its July 13 meeting, agency officials said the settlement will resolve a dispute over whether Cemex had failed to obtain all the necessary state and local permits to dredge sand from the beach.

Lawsuit filed over San Jose flood control project

San Jose Mercury News - Jun 23 The Santa Clara Valley Water District has filed a lawsuit against state officials, claiming they are threatening the completion of $35 million flood control project at Upper Berryessa Creek between North San Jose and Milpitas. In October, contractors working for the Army Corps of Engineers began construction on a project approved in 2014 by Congress to widen its channel and install other flood protections. But in April, the San Francisco Bay Regional Water Quality Control Board (Regional Board) required the Army Corps and the Santa Clara Valley Water District - the agencies overseeing the project - to restore 15 acres of wetlands or nearly three miles of impacted creeks elsewhere in the South Bay, to offset the harm to the environment from the project. The lawsuit claims the Regional Board violated the California Environmental Quality Act by making changes and new demands after signing off on the water district’s environmental impact report.

California to list herbicide in Roundup under Proposition 65

Reuters - Jun 27 Glyphosate, an herbicide and the active ingredient in Monsanto Co.'s popular Roundup weed killer, will be added to California's list of chemicals known to cause cancer effective July 7, the state's Office of Environmental Health Hazard Assessment (OEHHA) said on Monday. Monsanto vowed to continue its legal fight against the designation, required under a state law known as Proposition 65. Listing glyphosate as a known carcinogen under California's Proposition 65 would require companies selling the chemical in the state to add warning labels to packaging. OEHHA said the designation of glyphosate under Proposition 65 will proceed following an unsuccessful attempt by Monsanto to block the listing in trial court and after requests for stay were denied by a state appellate court and the California Supreme Court. 

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