Welcome to the Coleman & Horowitt, LLP Agricultural and Environmental Law Blog. In this blog, we will focus on developments in California Agricultural and Environmental Law.

Nothing in this blog should be construed as legal advice. ch-law.com is a public website, so communications are not privileged. Copyright Coleman & Horowitt, LLP Attorneys at Law (CH Law © 2017. All rights reserved.)

Wednesday, December 26, 2018

Supreme Court Depublishes Prop 65 Cereal Preemption Case

The California Supreme Court in October denied the Petition for Review of the Second District  Court of Appeal's opinion that a  Proposition 65 suit concerning acrylamide in breakfast cereals was preempted by federal law.  Although the trial court  rejected this argument the cereal manufacturers successfully appealed  
to the Court of Appeals. The Court found that  a Prop. 65 cancer warning on whole grain cereal would pose an "obstacle" to Congress' nutrition policies that encourage the consumption of whole grain foods.The Supreme Court denied the Petition to review, however they did grant the request by the California Attorney General and several environmental groups to depublish the lower court decision. Consequently this case cannot be cited as precedent

"The petition for review is denied. The requests for an order directing depublication of the opinion are granted. The Reporter of Decisions is directed not to publish in the Official Appellate Reports the opinion in the above entitled appeal filed July 16, 2018, which appears at 25Cal.App.5th 278. (Cal Const., art. VI, section 14; rule 8.1125(c)(1), Cal. Rules of Court.) Corrigan, J., was absent and did not participate." 

Cal.Supreme Court 10/31/2018.  POST FOODS v. S.C. (SOWINSKI) Division SF Case Number S250937 

Monday, December 24, 2018

Lee N. Smith of Coleman & Horowitt to Participate in Water Quality/Water Law Conference in Sacramento

Lee N. Smith of our office will be participating in a Water Law and
Regulations Conference in Sacramento on January 16, 2019. Mr. Smith will be discussing Water Quality issues in California. His talk will encompass the origins of water quality regulation, the relevant agencies, liability under the Water Code, and touch upon several of the emerging issues including the recent Basin Plan Amendment proposals, the Irrigated Lands Program, and C.V. Salts.

Tuesday, December 11, 2018

Proposed Rule Redefining Wetlands under the Federal Clean Water Act

 On Tuesday December 11, 2018,  the Environmental Protection Agency released the long awaited (promised by President Trump) proposed rule that would reduce the types of areas covered by the wetlands programs under the federal Clean Water Act.

( Pre-publication version of the Federal Register notice, the supporting analyses and fact sheets are available at: https://www.epa.gov/wotus-rule)

The proposed rule from the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers reduces the types of waterways that are covered as compared to the 2015 Obama era rule that was the subject of controversy because of the scope of the reach of jurisdiction. The more restrictive interpretation included in the proposed rule is based on a 2006 opinion by Supreme Court Justice Scalia, in Rapanos v. United States 547 U.S. 715 (2006). who opined that the federal Clean Water Act only applied to relatively permanent waters; while the other areas, should be regulated by states.
Of particular interest is the section that discussed crop land:
   Prior converted cropland.

§  This longstanding exclusion for certain agricultural areas would be continued under the proposal, and the agencies are clarifying that this exclusion would cease to apply when cropland is abandoned (i.e., not used for, or in support of, agricultural purposes in the preceding five years) and has reverted to wetlands.

The proposed rule creates six exclusive categories of areas that fall under federal jurisdiction. This text if from the EPA Fact Sheet:

        o   Traditional navigable waters (TNWs)
§  Under the proposal, traditional navigable waters would be large rivers and lakes, tidal waters, and the territorial seas—such as the Atlantic Ocean, the Mississippi River, the Great Lakes, and tidally influenced waterbodies, including wetlands, along coastlines—used in interstate or foreign commerce. 
o   Tributaries
§  In the agencies’ proposal, tributaries would be rivers and streams that flow to traditional navigable waters—such as Rock Creek, which feeds to the Potomac River in Washington, D.C.
§  Under the proposal, these naturally occurring surface water channels must flow more often than just when it rains—that is, tributaries as proposed must be perennial or intermittent. Ephemeral features would not be tributaries under the proposal.
§  Tributaries can connect to traditional navigable waters directly, through other “waters of the United States,” or through other non-jurisdictional surface waters so long as those waters convey perennial or intermittent flow downstream.
o   Certain ditches
§  A ditch under the proposed rule would be an “artificial channel used to convey water.”
§  Under the proposal, ditches would be jurisdictional where they are traditional navigable waters, such as the Erie Canal, or subject to the ebb and flow of the tide.
§  Ditches may also be jurisdictional where they satisfy conditions of the tributary definition as proposed and either 1) were constructed in a tributary or 2) were built in adjacent wetlands.
o   Certain lakes and ponds
§  Lakes and ponds would be jurisdictional where they are traditional navigable waters, such as the Great Salt Lake in Utah or Lake Champlain along the Vermont-New York border.
§  Lakes and ponds would be jurisdictional where they contribute perennial or intermittent flow to a traditional navigable water either directly, through other “waters of the United States,” or through other non-jurisdictional surface waters so long as those waters convey perennial or intermittent flow downstream, such as Lake Pepin in Minnesota or Lake Travis in Texas.
§  Lakes and ponds would be jurisdictional where they are flooded by a “water of the United States” in a typical year, such as many oxbow lakes.
o   Impoundments
§  Under the proposal, impoundments of “waters of the United States” would be jurisdictional.
o   Adjacent wetlands
§  Under the proposal, wetlands that physically touch other jurisdictional waters would be “adjacent wetlands,” such as Horicon Marsh in Wisconsin.
§  Wetlands with a surface water connection in a typical year that results from 1) inundation from a “water of the United States” to the wetland or 2) perennial or intermittent flow between the wetland and a “water of the United States” would be “adjacent.”
§  Wetlands that are near a jurisdictional water but don’t physically touch that water because they are separated, for example by a berm, levee, or upland, would be adjacent only where they have a surface water connection described in the previous bullet through or over the barrier, including wetlands flooded by jurisdictional waters in a typical year.

·         The proposal also clearly outlines what would not be “waters of the United States,” including:

o   Waters that would not be included in the proposed categories of “waters of the United States” listed above—this would provide clarity that if a water or feature is not identified as jurisdictional in the proposal, it would not be a jurisdictional water under the Clean Water Act.

o   Ephemeral features that contain water only during or in response to rainfall.

o   Groundwater.

o   Ditches that do not meet the proposed conditions necessary to be considered jurisdictional, including most farm and roadside ditches.

o   Prior converted cropland.
§  This longstanding exclusion for certain agricultural areas would be continued under the proposal, and the agencies are clarifying that this exclusion would cease to apply when cropland is abandoned (i.e., not used for, or in support of, agricultural purposes in the preceding five years) and has reverted to wetlands.

o   Stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off.

o   Wastewater recycling structures such as detention, retention and infiltration basins and ponds, and groundwater recharge basins would be excluded where they are constructed in upland.

o   Waste treatment systems.
§  Waste treatment systems have been excluded from the definition of “waters of the United States” since 1979 and would continue to be excluded under this proposal; however, waste treatment systems are being defined for the first time in this proposed rule.
§  A waste treatment system would include all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater or stormwater prior to discharge (or eliminating any such discharge).  

This article is based on preliminary reporting- we will update this report further on this as we  review the related documents that were released. There is a sixty day comment period for the proposed rule.