Letter to the Editor regarding “U.S. Roasts to Record Hottest Year by Far”

Reprinted from San Diego Union Tribune Letters to the Editor (1-10-13)

The hot topic

Signs are staring us in our face: Record U.S. heat – 34,008 high [records] compared to 6,664 low records. Record Arctic and Antarctic ice melts. Superstorm Sandy. Freakish, super-destructive tornadoes and prolonged droughts. Greater heat adds moisture to the atmosphere, triggering more extreme weather – predicable consequences of global warming. Worldwide, the warming trend continues but could be worse. The cooling La Nina pattern has compensated for several years, and solar activity has been lower for 30. When the warming El Nino returns, and the sun’s energy output increases, heat records and human misery will skyrocket. Humanity gets burned by inaction. Demand Congress tackle the climate cliff: wean us off fossil fuels fast. Place a fee on polluting carbon so we all share incentive to reduce. Return the fees to our citizens to help the transition. Charge nations without fees a tariff on imports to protect us and encourage replication.  John H. Reaves, San Diego

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“California Case Law Wrapup” presentation to SDCBA on December 13, 2012

Featuring:  John H. Reaves, Esq., and Todd T. Cardiff, Esq.

Presented by the Environmental Law/Land Use and Real Property Law Sections of the SDCBA

This CLE is worth 1.0 GEN

This seminar will feature two active and knowledgeable Section members, John Reaves and Todd Cardiff, presenting the latest trends in environmental law.  Knowing what may affect your clients and your practice is vitally important. Join your colleagues to learn more about what has happened in the environmental law arena this year.

This lunchtime presentation will focus on reviewing the legal developments and case law in environmental law over the last 12 months, and preview emerging issues, trends, and regulatory developments.

In one short session, get up to date on a whole year’s worth of legal developments in the environmental field.  Hear a diversity of perspectives from respected Section members.
https://www.sdcba.org/index.cfm?pg=events&evAction=showDetail&eid=9426&evSubAction=listMonth&calmonth=201212

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Court holds RWQCB issuance of NPDES permit to Poseidon for desalinization plant properly minimizes intake and kill of marine life through a mix of feasible onsite measures and offsite mitigation.

Surfrider Foundation v. California Regional Water Quality Control Board

No. D060382 (2012 DJDAR 16050) (4th Dist., Div. 1) (November 30, 2012)

Surfrider challenged the RWQCB issuance of a NPDES permit to Poseidon to operate a coastal desalinization plant. The State Board affirmed the decision, and the trial court and Court of Appeal also affirmed the decision.

The main focus of Surfrider’s challenge was whether the RWQCB abused its discretion by not following Water Code section13142.5(b), which requires a new coastal power plant or other industrial application using seawater to use the “best available… site, design, technology, and mitigation measures feasible to minimize the intake and mortality of all forms of marine life.” The Court disagreed with Surfrider and held the RWQCB could include mitigation by the creation of off-site restorative wetland measures. The Court held the statute allowed a collective set of measures to comply, including feasible approaches to minimize intake and kill as well as restorative mitigation measures.

Prepared by John Reaves

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City and Regents’ housing project in drought-prone area failed to satisfy CEQA where the project description omitted required LAFCO approval and the alternatives omitted reduced-water considerations.

Habitat and Watershed Caretakers v. City of Santa Cruz

(H037545) 2012 DJDAR 15945 (6th Dist.) (November 27, 2012)

Santa Cruz has struggled to supply adequate amounts of water to its residents during dry years. The city is just starting to consider a desalinization facility.  The Regents of U.C. Santa Cruz proposed housing on campus, which was outside the jurisdiction of the city. The city certified an EIR for a project to amend its sphere of influence (SOI) to include the undeveloped portion of the campus so as to provide water and sewer services.

The legislature has given the power to local agency formation commissions (LAFCO) to decide whether to approve changes to the SOI. Govt. Code section 56428(e). LAFCO also must decide whether a city has the capacity to provide services outside its jurisdiction, and a city must first get approval from LAFCO before providing such services. So, the city’s project here needed approval by LAFCO, and the Regents should have at the same time sought LAFCO approval of its agreement with the city to provide additional housing which required the water and sewer.

The city acknowledged there would be water shortages on occasion. Petitioners challenged the EIR, saying the city failed to accurately describe the project or to consider limited water alternatives.

The trial court sided with the city, but the Court of Appeal reversed. The Court held the city had to get approval from the local agency formation commission (LAFCO) before it could provide services outside of city boundaries. The EIR inaccurately described the project as the city providing water to the new construction, but the true project was to get the discretionary approval of LAFCO. Further, the EIR should have, but did not, consider potentially feasible alternatives involving reduced development or a limited-water approach. The city improperly did not consider those because it felt those alternatives did not achieve the project goals. Thus, the EIR failed to inform the decision maker of the full ramifications of water shortages.

Prepared by John Reaves

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Court finds zoning administrator’s approval of Wal-Mart Supercenter is a zoning decision subject to 90-day statute of limitation.

Stockton Citizens for Sensible Planning v. City of Stockton

No. C067164 (012 DJDAR 15431)(3rd Dist.)(November 13, 2012)

A citizens group filed an action challenging the city of Stockton’s claim of categorical exemption when approving a Wal-Mart Supercenter. The group filed a claim under CEQA, which the city argued was too late because it was filed more than 35 days after the Notice of Exemption was filed. That matter went up to the Supreme Court, which agreed with the city.

On remand for non-CEQA claims, the group challenged the action of the zoning administrator under the Government Code. The city claimed, again, the group’s claims were barred by failing to comply with the statute of limitations. The trial court and Court of Appeal agreed with the city.

The Court concluded the group’s action was barred because it was filed more than 90 days after the city’s approval of the project, which was in the form of a letter to the real party in interest. Government Code section 65009 requires a challenge to be filed within 90 days. The group contended that section did not apply because that concerns variances and permits issued after a decision by a legislative body. The Court disagreed with the argument because the city’s Community Development Director was exercising the role of city zoning administrator, using powers granted by local ordinance. As such, his actions fell within the scope of the above provision. Similarly, the Court disagreed with the group’s claim that the letter approval (which was allegedly kept secret) failed to comply with administrative procedures because the administrator acted within the scope of authority granted to him. The issuance of the NOE should have, at the very least, put the group on inquiry notice that some action had been taken.

Prepared by John Reaves

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John Reaves will discuss key environmental and land use cases of 2012 at the San Diego County Bar Association on December 13, 2012, at noon.

Presentation will be done with Todd Cardiff before the Environmental Law and Land Use section of the county bar.

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Court finds RWQCB violated law by issuing permit to dairies in Central Valley to dispose of waste to groundwater without first making findings that such discharge complied with the state’s anti-degradation policy.

Associacion de Gente Unida por el Agua v. Central Valley Regional Quality Control Board. No. C066410 (2012 DJDAR 15291) (3rd Dist.) (November 6, 2012)

In 2007, the RWQCB issued for the first time waste discharge requirements for existing dairies in the Central Valley. Although the Order purports to prohibit further degradation of groundwater, which the state’s anti-degradation policy requires, the RWQCB failed to make any findings so as to comply with said policy, which was enacted in 1968. Petitioner challenged the order, which the trial court denied.

The Court of Appeal reversed. First, it found the Order imposed stringent requirements for new and reconstructed waste retention ponds, but did not require existing ponds meet those requirements unless groundwater monitoring demonstrates such ponds are adversely impacting groundwater. The Court noted the Order covered about 1,600 dairies with herds ranging from 30 to 10,000. A single cow produces about 120 pounds of manure and 36.5 pounds of urine daily.

The Order did not require the installation of groundwater monitoring wells unless a domestic or agricultural supply well showed an adverse impact. The Court found that to be an ineffective way to accomplish the timely detection of adverse impacts to groundwater.

To permit discharges into existing “high quality waters,” the RWQCB must make certain findings, including that the activity is 1) consistent with the maximum benefit to the people of the state, 2) will not unreasonably affect beneficial uses, and 3) will not violate water quality standards. It must also require any such discharge to undergo the best practical treatment or control necessary to assure no pollution or nuisance will occur. The RWQCB made none of these findings.

The RWQCB tried to justify its Order by pointing out the Order prohibited any further degradation to groundwater. The Court found the Order prohibited degradation of groundwater without requiring the wells to accomplish that goal. The Court reversed the trial court ruling that the RQWCB did not have to comply with the anti-degradation policy because the groundwater had dropped below high quality since the policy went into effect. The Court held the trial court followed the wrong standard and would make the policy inapplicable any time a proposal is made to discharge wastes to waters degraded since 1968. Following the definition of “high quality water” used by the State Board, the Court concluded the RWQCB must compare the baseline water quality that existed in 1968 with the water quality objectives to determine whether existing water quality is to be protected.

The Court noted there was evidence the nitrate levels was better in some areas than the water quality objectives, which meant at least some of the groundwater met the definition of high quality. The water quality objective for nitrates is 10 mg/l, yet in 1986, the concentration was 2.4 mg/l, and some evidence indicated it was even lower in 1968.

Finally, the Court found the RWQCB could not rely upon a general requirement in the Order that the dairies comply with the anti-degradation policy for two reasons. First, the dairies had already caused water quality to degrade and would continue to do so. Second, while the Order only nominally prohibits groundwater degradation, its only provision for detecting that is through monitoring wells, and the record indicated the monitoring requirements were inadequate to detect, much less prevent, degradation.

Prepared by John Reaves

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Court finds RWQCB violated law by issuing permit to dairies in Central Valley to dispose of waste to groundwater without first making findings that such discharge complied with the state’s anti-degradation policy.

Associacion de Gente Unida por el Agua v. Central Valley Regional Quality Control Board. No. C066410 (2012 DJDAR 15291) (3rd Dist.) (November 6, 2012)

In 2007, the RWQCB issued waste discharge requirements for existing dairies in the Central Valley for the first time. Although the Order purports to prohibit further degradation of groundwater, which the state’s anti-degradation policy requires, the RWQCB failed to make any findings so as to comply with said policy, which was enacted in 1968. Petitioner challenged the Order, which the trial court denied.

The Court of Appeal reversed. First, it found the Order imposed stringent requirements for new and reconstructed waste retention ponds, but did not require existing ponds meet those requirements unless groundwater monitoring demonstrates such ponds are adversely impacting groundwater. The Court noted the Order covered about 1,600 dairies with herds ranging from 30 to 10,000. A single cow produces about 120 pounds of manure and 36.5 pounds of urine daily.

The Order did not require the installation of groundwater monitoring wells unless a domestic or agricultural supply well showed an adverse impact. The Court found that to be an ineffective way to accomplish the timely detection of adverse impacts to groundwater.

To permit discharges into existing “high quality waters,” the RWQCB must make certain findings, including that the activity is 1) consistent with the maximum benefit to the people of the state, 2) will not unreasonably affect beneficial uses, and 3) will not violate water quality standards. It must also require any such discharge to undergo the best practical treatment or control necessary to assure no pollution or nuisance will occur. The RWQCB made none of these findings.

The RWQCB tried to justify its Order by pointing out the Order prohibited any further degradation to groundwater. The Court found the Order prohibited degradation of groundwater without requiring the wells to accomplish that goal. The Court reversed the trial court ruling that the RQWCB did not have to comply with the anti-degradation policy because the groundwater had dropped below high quality since the policy went into effect. The Court held the trial court followed the wrong standard and would make the policy inapplicable any time a proposal is made to discharge wastes to waters degraded since 1968. Following the definition of “high quality water” used by the State Board, the Court concluded the RWQCB must compare the baseline water quality that existed in 1968 with the water quality objectives to determine whether existing water quality is to be protected.

The Court noted there was evidence the nitrate levels was better in some areas than the water quality objectives, which meant at least some of the groundwater met the definition of high quality. The water quality objective for nitrates is 10 mg/l, yet in 1986, the concentration was 2.4 mg/l, and some evidence indicated it was even lower in 1968.

The Court found the RWQCB could not rely upon a general requirement in the Order that the dairies comply with the anti-degradation policy for two reasons. First, the dairies had already caused water quality to degrade and would continue to do so. Second, while the Order only nominally prohibits groundwater degradation, its only provision for detecting that was through monitoring wells, and the record indicated the monitoring requirements were inadequate to detect, much less prevent, degradation. Existing monitoring wells were upgradient, multi-level, supply wells which would not reflect an accurate or timely picture of the groundwater under the dairies. Absent were proper monitoring wells downgradient of the potential problems areas. Therefore, the Court concluded the Order permitted ongoing groundwater degradation.

The Order acknowledged degraded groundwater conditions exist even under dairies that were believed to have good waste management and land application practices. The Court observed how the Order required more stringent requirements for new and reconstructed ponds, but not for existing ponds. The Court was bothered at the circularity of the Order by permitting existing ponds to continue as is unless and until groundwater was shown to be adversely affected. The Court found the Order failed to prescribe required best control technology for existing ponds.

The RWQCB might have been able to adopt portions of the ruling consistent with the state’s anti-degradation policy had it made factual findings consistent with state requirements, but it failed to do so here.

Prepared by John Reaves

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Court rules city’s adoption of a project proposed in an initiative (without an election) was a discretionary act requiring CEQA compliance.

Tuolumne Jobs & Small Business Alliance v. Superior Court

No. F063849 (5th Dist.) (2012 DJDAR 15078)(October 30, 2012)

Wal-Mart sought to expand its store into a Supercenter and submitted an application to the city of Sonora for approval. The city prepared an EIR. Before considering the project for approval, an initiative was circulated that would, if approved, allow construction of the Supercenter. The city postponed voting whether to certify the EIR in order to consider the initiative, which had been signed by 15% of the city residents. A project is exempt from CEQA when it is approved by an initiative. The city later held a hearing on the initiative. In the end, however, the city simply decided to adopt an ordinance approving the Supercenter rather than submit the initiative to a vote.

The trial court ruled in favor of the city’s action, but the Court of Appeal reversed. The Court held that by adopting the initiative through city action, rather than submitting to a citywide election, the city’s action was discretionary and not exempt from CEQA.

Prepared by John Reaves

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Neighbor gets whacked for rogue tree trimmer.

Rony v. Costa

No. A128836 (1st Dist., Div. 1)

2012 DJDAR 14945

October 26, 2012

Defendant neighbor never saw it coming. He hired someone to trim some overhanging growth from a neighbor’s yard to create space for smoke and heat to emanate from a grill he installed in his yard. Instead, the helper went into plaintiff’s yard, up into the tree with a chainsaw, and went to town. The plaintiff neighbor sued, claiming the cuts had harmed the old cypress tree and its aesthetics, removed shade, possibly made it a hazard that could fall, and made the tree less of a prominent feature in her yard.  She sought costs to replace the tree with a comparable old cypress, among other damages. The trial and appellate court found in plaintiff’s favor.

The Court of Appeal noted damages for tortious injury to property are measured by standard tort damages under Civil Code section 3333 (compensation for all detriment proximately caused).  That can be the lesser of diminution in value or costs to repair. Restoration can only exceed diminution in value if there are personal reasons (which typically applies to loss of a personal residence). The Court also noted compensation could be attributed to loss of aesthetics and functionality. Because the tree trimmer had gone onto plaintiff’s property to cut extensively, and had misshapened the tree, the Court found substantial evidence to support the award.

The Court, however, reversed the attorney fee award based on Code of Civil Procedure section 1029.8, because that section only applies if the defendant performed a service without a required license, and, here, the defendant was the neighbor, not the unlicensed tree trimmer. In the end, the Court approved damages of $22,530 for the tree, which was doubled to $45,060 under Civil Code section 3346 (which allows enhanced damages for wrongful injuries to trees). When mixed with costs and attorneys fees to go through an appeal, the tree trimming ended up being an extremely expensive mistake for defendant neighbor.

Prepared by John Reaves

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