On November 24, 2015, the Office of Environmental Health Hazard Assessment (“OEHHA”) issued proposed revisions to its January 15, 2015 draft Prop. 65 warning regulations. 27 CCR §§25600 et seq. The full text of the new draft regulations was published by the Office of Administrative Law on November 27. OEHHA’s November draft proposes several changes to the January version, two of which stand out as significant. 1. Out With The “Dirty Dozen” Existing...

On October 9, 2015 Governor Jerry Brown signed into law two bills aimed at making groundwater disputes easier and faster to resolve in court. The new laws—companion bills AB 1390 (Alejo) and SB 226 (Pavley)—streamline California’s onerous groundwater adjudication process, which can drag on for decades. Such adjudications comprehensively establish groundwater right allocations for all users in a covered groundwater basin and, up to now, have been governed by common law...

Last week, the California Legislature sent two important bills on groundwater to Governor Jerry Brown for signature. The bills promise to revamp California’s complicated, lengthy, and arduous judicial process for adjudicating rights to groundwater, and to make the adjudication process comport with 2014’s pathbreaking law governing California groundwater. But as the new laws would speed the judicial process to comprehensively establish all groundwater rights in particular basins, the...

On Wednesday, July 1, the California State Water Resources Control Board (SWRCB) announced it would extend the deadline for enrolling under the new Industrial General Permit (IGP) for Storm Water Discharges (Permit No. 2014-0057-DWQ) until close of business on Friday, August 14, 2015. The SWRCB also pushed back the deadline for submittal of 2014-15 annual storm water reports under the now-expired 1997 IGP (Permit No. 97-03-DWQ) to August 14. The SWRCB blamed “ongoing technical...

Building on a 2012 U.S. Supreme Court decision, the Eighth Circuit ruled on April 10th that Clean Water Act jurisdictional determinations made by the U.S. Army Corps of Engineers can be challenged in a “pre-enforcement” context. Hawkes Co., Inc. v. U.S. Army Corps of Engineers, No. 13-3067, __ F.3d __, (8th Cir. April 10, 2015). The decision will provide project developers and landowners with a powerful tool for ensuring that regulators do not intrude on projects over which they...

In AmeriPride Services Inc. v. Texas Eastern Overseas Inc., the Ninth Circuit examined several issues under CERCLA, some of which were issues of first impression in the Circuit, including: whether a district court must apply a specific method of allocating the set-off for settlements between private CERCLA parties, whether a party’s right to seek contribution for costs paid in third-party settlements requires an independent analysis of whether the settlement costs were...

On Monday, January 12, 2015, the U.S. Supreme Court denied two petitions seeking review of a Ninth Circuit decision upholding limits on water diversions from the Sacramento-San Joaquin Delta to protect the endangered Delta smelt. Several petitioners, including Westlands Water District, the Metropolitan Water District of Southern California, and other agricultural interests and water utilities, had sought review of a March 2014 Ninth Circuit decision that upheld the “reasonable and...

In Van Horn v. Department of Toxic Substances Control (“DTSC”), a California Court of Appeal found that DTSC’s procedure for imposing liens on property under the California “Superfund” law violates due process of law. Specifically, the court noted that DTSC’s procedure fails to allow an affected landowner to dispute the amount of a lien, the extent of property burdened by the lien, and the characterization of the landowner as a responsible party. Applying a seminal...

In a ruling that, if upheld and followed, would significantly limit the reach of federal environmental regulation, a Utah federal judge determined that regulation of a purely intrastate species listed as threatened under the Endangered Species Act is unconstitutional because it is beyond the scope of the Commerce Clause and the Necessary and Proper Clause. People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Serv., No. 2:13-cv-00278-DB (D. Utah Nov. 4, 2014)...

Last Friday, the California Legislature passed three bills that provide for the regulation of groundwater for the first time in the state’s history. Once signed by Gov. Jerry Brown, the bills—currently known as AB 1739 (Dickinson), SB 1168 (Pavley), and SB 1319 (Pavley)—will collectively constitute the Sustainable Groundwater Management Act (the “Act”). The Act will establish as state policy that California’s groundwater resources are to be “managed sustainably for...