Advanced Zoning & Land Use in California

Transcription

1 Advanced Zoning & Land Use in California Lorman Education Service September 15, 2006 Presented by: Rick Friess, James Pugh, Audrey Huang & Sue Meyer Nossaman Guthner Knox & Elliott LLP

2 Introduction Main Topics Overview and History of Land Use/Planning and Zoning Law - General Plan, Specific Plan, Zoning and Permit Issues. Condemnation and Takings. Subdivision Map Act and Development Agreements. Federal Endangered Species Act and HCPs. California Endangered Species Act and Take Permits. Clean Water Act and Water Quality Issues/Programs. 2

3 Overview of Planning and Zoning Law Local Regional and State government regulation of land development is accomplished through three parallel and interconnected types of control. 1) Planning Controls (e.g. General and Specific Plans) - Planning and Zoning Law. Community planning goals and development polices are determined. 2) Environmental Controls (CEQA) - Public Resource Code and CEQA Guidelines. Environmental review of both planning decisions and development permits to assure long-term environmental protection. 3

4 Overview of Planning and Zoning Law (continued) 3) Subdivision and Permit Controls (Tentative Tract/Parcel Maps, Final Maps, Site Plans, CUPs, etc.) These land use controls operate together as a comprehensive and integrated set of tools. 4

5 Brief History of Planning, Zoning and Subdivision Process in California Prior to the late 1960 s, Land Development was Controlled Primarily by Zoning and the Subdivision Process in California California s original Subdivision Map Act was enacted. Cal. Stats. 1907, C Zoning authorized by the U.S. Supreme Court in: Euclid v. Ambler Realty 272 U.S. 365 (1926) Subdivision Map Act amended to allow local government to require dedicated paved streets, minimal lot sizes, setbacks, utility easements, street and sidewalk widths Subdivision Map Act amended and expressed local regulatory power to control design and improvement. 5

6 Brief History of Planning, Zoning and Subdivision Process in California (continued) Congress enacted the National Environmental Policy Act (NEPA) Assemblyman Jack Knox authored, and the State Legislature enacted, the California Environmental Quality Act (CEQA) State comprehensive Planning & Zoning Law (Gov. Code ) requires community-wide General Plans prior to consideration of zoning and development. Doctrine of general plan consistency applicable to all zoning, subdivision maps and development permits. 6

7 Brief History of Planning, Zoning and Subdivision Process in California (continued) California Supreme Court decided Friends of Mammoth v. Board of Supervisors (1972) 8 C 3d 247 determining that CEQA applies to private land development projects The number of appellate level cases involving land use regulations tripled the entire output of all decisions reported prior to

8 Statutory Framework for Land Use, Zoning, Subdivision and Environmental Review Functions Establishment of local planning agencies and commissions. Government Code et. seq. General Plan and Specific Plans. Government Code et. seq. Zoning Regulations. Government Code et. seq. Development Agreements. Government Code et. seq. Permit Streamlining Act. Government Code et. seq. Subdivision Map Act. Government Code et. seq. California Environmental Quality Act. Public Resources Code et. seq.; California Code of Regs. Title 14 Section (CEQA Guidelines). Ralph A. Brown Act ( Brown Act ). Government Code et. seq. (Also known as the Open Meeting Act). Political Reform Act of 1974 as amended. 8

9 General Plan, Specific Plan and Zoning Police Power Basis for All Land Use Regulations Even though established by Common Law, is set forth in the California Constitution. Confers on cities the power to make and enforce within [its] limits all local police, sanitary and other ordinances and regulations not in conflict with General Laws California Constitution Art XI 7. Cities have broad authority to protect the public health, safety and welfare of its residents. Berman v. Parker, 348 U.S. 246 (1954). 9

10 General Plan, Specific Plan and Zoning State Zoning Laws Pertaining to Adoption of Local Zoning Regulations are Not Grants of Authority but Minimum Standards. A city s or county s power to control its own land use decisions derives from this inherent police power, not from the delegation of authority by the state Devita v. County of Napa, 9 Cal. 4th 763 (1995). 10

11 General Plan, Specific Plan and Zoning The Elasticity of a City s Police Power Can Cover a Wide Range of Municipal Interests. Improved Aesthetics Metromedia, Inc. v. City of San Diego 26 Cal. 3d 848 (1980). Upholding in part city s total ban of offsite advertising. Public Art Fees Ehrlich v. City of Culver City 12 Cal 4th 854 (1996). Local Rent Control Regulations Birkenfeld v. City of Berkeley 17 Cal. 3d 129 (1976). Prohibition of Vacation Rentals for Less Than 30 Consecutive Days Ewing v. City of Carmel-by-the-Sea 234 Cal. App. 3d 1579 (1991). Court held that Carmel s ordinance prohibiting transient commercial use of residential property for remuneration for less than 30 consecutive days was a valid exercise of the City s land use authority under its police power. 11

12 General Plan & Specific Plan General Plan Constitution for Future Community Development. General Plan Adequacy: Mandatory and Optional Elements. Adequacy (Government Code 65300). Requires General Plan to be comprehensive, long-term, internally consistent, complete. Mandatory Elements: 1) Land Use Element (Density standards and building intensity ). 2) Circulation Element (Existing and proposed transportation infrastructure). 3) Housing Element (Goals, policies and objectives for meeting identified housing needs). a) Cities have responsibility to meet RHNA numbers (see Committee for Responsible Planning v. City of Indian Wells 209 Cal. App. 3d 1005 (1989). b) Meet all economic segments of community (Government Code 65583). c) Density bonus law updated effective January 1, 2005 (see Government Code Section 65915). d) Must be updated every 5 years (Government Code 65588). 12

13 General Plan & Specific Plan Mandatory Elements: (continued) 4) Conservation Element (Identification, conservation and use of natural resources). 5) Open Space Element (Preservation of open space). See Government Code 65560(b)(5) added in 2004 requiring preservation of Native American sites. 6) Noise Element (Identify and address noise sources in community). 7) Safety Element (Policies to address seismic, flood, tsunami, fire hazards). 13

14 General Plan & Specific Plan General Plan Requirements/Consistency Analysis. Determine that General Plan elements are current (checklist). General Plan may be amended only 4 times in calendar year (Government Code 65358(b)). Legislative approval adopted by resolution. Specific Plan Vertical and horizontal consistency requirements (Napa Citizens v. Napa County Board of Supervisors). Additional restrictions? Zoning Standards and Overlays/Consistency Required. 14

15 Zoning Defined Zoning is the core of all land use regulation! State Zoning Law found in Government Code et seq. Defined as division of the City into districts and the application of different regulations to each district. Regulates structural and architectural design of structures; and prescribes the land uses for structures in each district. Types of Zoning Control Methods. Height, Bulk & Lot Restrictions. Setback & Parking Requirements. Site Plan Review. Aesthetics & Design Review. Conditional Zoning. 15

16 Zoning Types Floating Zones. Overlay Zones. Historical Preservation Zones. Specific Plan Zones. Planned Unit Development ( PUD ) Zones. Mixed Use Zoning. Remember: Creative zoning can be developed on a per project basis as conditions warrant. 16

17 Zoning Applied Must be consistent with General and Specific Plan (Gov t. Code 65860(a)). Broad deference to City when enacting as reasonably related to general welfare. Growth control zoning (limits dwelling units), City must prove justified. All zoning ordinances subject to initiative and referendum (Arnel Dev. Co. v. City of Costa Mesa). Inclusionary and exclusionary zoning. Amendments are legislative. 17

18 Conditional Use Permits ( CUP ) Authorized by Govt. Code 65901, and local ordinance. Allows desirable, but potentially problematic uses in particular zone on case-by-case basis. Use must be compatible with proposed location. Use must be consistent with General Plan. Rarely issued with restrictions & conditions attached, which must be reasonably related to impacts. 18

19 Conditional Use Permits ( CUP ) (continued) Public hearing and noticing required procedure (check local ordinance). Findings required include: location is advantages for public convenience/welfare; location is in proper relation to adjacent uses; location not materially detrimental to neighborhood; use consistent with elements & objectives of General Plan; and conditions imposed necessary to protect best interests of surrounding property or lessen detrimental effects. 19

20 Conditional Use Permits ( CUP ) (continued) Generally runs with the land and benefits successor property owners. Subject to revocation for violation of conditions (use rises to nuisance level). Substantial evidence standard of review to determine whether the decision resulted from an abuse of discretion. 20

21 Variances Variance is a discretionary zoning exception granted by local agency. Allows development that varies from zoning code. Only granted when Variance requirements satisfied: record supports variance; agency makes required findings: (1) special circumstance making property unique; (2) strict application of zoning code deprives property of special privileges available to others in zoning classification; and agency follows procedure: adequate notice and hearing (Govt Code ); also check local ordinances. Substantial evidence standard of review for challenges to variance. 21

22 Discretionary Approvals For Residential Development Various Planning and Building Approvals. Timely filing. Site Plan Review. Architectural Review Committee. Code Requirements. 22

23 Condemnation Overview 1) Condemnation? Eminent Domain? What is it? 2) Inverse Condemnation and Regulatory Takings. 3) What To Do When The Government Wants to Condemn Some or All of Your Property. 4) The Anderson Initiative, Prop

24 Condemnation/Eminent Domain: What is it? Eminent domain is the power of the sovereign (the State) to take property for public use -- without the owner's consent -- upon paying just compensation. The power of the Legislature to take private property is largely unlimited, and its determination to do so is conclusive, subject only to requirement that the take be: (i) for public use ; and (ii) after just compensation. (Cal. Const., art. I, 19.) The theory is that the sovereign (the State) holds the ultimate and superior title; our Constitution limits that power by requiring the payment of just compensation. 24

25 Just Compensation Just Compensation is defined as fair market value : (Code Civ. Proc., ) (The statutory definition of fair market value is somewhat different than the definition appraisers usually use.) Objective Test: Fair market value is an objective standard; evidence that an owner has a special affection for the property, or that the property possesses unique value to the owner, is not considered. (E.g., it doesn t matter that Farmer Brown s family has owned the property for generations; it is still valued objectively.) 25

26 Condemnation: What If A School District, Caltrans, Or Another Agency Wants A Piece Of Your Property? When Landowners/Developers Face Condemnation: School sites Freeways Other infrastructure (roads, drainage improvements) Non-infrastructure (parks, cemeteries, private universities, environmental preserves) 26

27 What Can Be Done When You re Threatened With Condemnation? Negotiate changes to the condemning agency s project. Fight the condemnation. Manage the project s timing. Maximize your just compensation. 27

28 How To Negotiate Changes To The Project Investigate engineering solutions. Investigate political solutions. Investigate trade-offs. 28

29 How To Fight A Condemnation Fight the project. E.g., attack the adequacy of the environmental processing. Fight the right to take. E.g., challenge the process/compliance with the various procedures. 29

30 How To Manage The Project s Timing 1) Monitor the project. 2) Meetings with the agency. 3) Implicit and explicit Notification of damages caused by delay (potential inverse condemnation claims/pre-condemnation damages). 30

31 Maximizing Compensation Entitlements, entitlements, entitlements. Pre-condemnation planning. The right appraiser. Negotiate with knowledge of condemnation/valuation rules, including severance damages, pre-condemnation damages, and contamination issues. 31

32 The Condemnation Steps and Timing Step a) Pre-Offer (Get local agency on board at least a little) Notice of intent to appraise Meeting with appraiser Timing (in months) 0 Approx. 1 b) Offer (Get local agency more on board) Written offer Negotiation Approx. 2 Approx

33 The Condemnation Steps and Timing (Continued) Step c) Resolution of Necessity and Filing of Litigation Notice of hearing and hearing on Resolution of Necessity Filing and service of complaint d) Possession Order of Immediate Possession Timing (in months) Approx. 4 Approx. 5-6 Approx. 6 33

34 The Condemnation Steps and Timing (Continued) Step e) Litigation Timing Landowner achieves withdrawal of deposit Evaluation conference/trial setting conference Discovery regarding appraisal witnesses Final offer and settlement conference Trial Timing (in months) Approx. 7 Approx. 10 Approx. 11 Approx. 14 Approx

35 Inverse Condemnation Contrasts To Direct Condemnation: Property Owner Sues Government. Can Collect Attorneys Fees If Successful. Otherwise, Rules Are Mostly The Same. Applies To Taking or Damaging Of Property By The Government. Applies To Seizure. Applies To Damage, e.g., Landslides, Flooding, Loss Of Access. Exception: Damage Under Police Power, e.g., To Stop The Spread Of Fire. Pre-Condemnation Delay Or Klopping Damages. 35

36 Regulatory Takings Unreasonable Exercise Of Police Power. Some Tests Of Reasonableness: Promotes A Recognized Governmental Interest. Reasonable Relationship Between The Regulation And The Public Objective. Not An Objective Usually Achieved Through Eminent Domain. Property Owner Should Not Bear Unreasonable Burden That Should Be Shared By Whole Community. Regulation Must Not Preclude All Reasonable Use Of The Land. Regulation Must Be Sufficiently Connected To Public Use To Be Served. 36

37 The Anderson Initiative Proposition 90 Official ballot title: Government Acquisition, Regulation of Private Property. Initiative Constitutional Amendment. This Initiative, known as the Anderson Initiative, deals with the use of eminent domain and regulatory takings and will appear on the November 2006 ballot. 37

38 Three Categories of Provisions Redevelopment oriented provisions. General eminent domain reforms. Regulatory takings reforms. 38

39 Redevelopment Oriented Provisions Restricts use of eminent domain to truly "public" uses and prohibits its use for economic development, for tax revenue enhancement or for benefit of private developers. Exception: To abate nuisances, blight, obscenity, hazardous substances but requires parcel-by-parcel determinations. Prohibits eminent domain unless property will be owned and operated by government agency. Exception: Leases to PUC regulated entities; leases to carry out a "public use" e.g., toll roads. Eminent domain proceedings immediately subject to its provisions if no final adjudication and, if passed, effective immediately. 39

40 General Eminent Domain Reform Property must be continuously used for the stated public purpose. Unpublished eminent domain judicial opinions or orders shall be null and void. Property owner entitled to all government appraisals prior to government s possession of property. Jury now decides issue of public use. Property shall be valued at its highest and best use without considering future dedication requirements. 40

41 General Eminent Domain Reform (continued) Property that is taken for any proprietary governmental purpose may be valued at the use to which the government intends to put the property, if such a use results in a higher value for the land taken. Just compensation is now defined as that sum of money necessary to place the property owner in the same position monetarily, without any governmental offsets, as if the property had never been taken. Fair market value is now defined as the highest price the property would bring on the open market. Litigation costs and expenses now part of just compensation, and property owners shall not be liable to the government for attorney fees or costs in any eminent domain action. 41

42 Regulatory Takings Reforms The scope of damage to private property is expanded to include government actions (excluding those takings to protect public health and safety) that result in substantial economic loss to private property. This includes, but is not limited to, down zoning, elimination of access, and limitations on the use of private air space. 42

43 Other Land Use Considerations Political Due Diligence: Clients Interfacing with Elected Officials. Analysis of decision-making body. Term, pending elections. Stability, relationship with staff. Conflicts of interest issues. Brown Act; ex parte communications pre and postapplications. Legislative approvals. Quasi-judicial/administrative approvals. Political Reform Act; local campaign and gift ordinances. 43

44 Other Land Use Considerations Interviewing Past/Proposed Members of Development Team (CEQA, Traffic and Community Relations Consultants). Preparation of Land Use Entitlement Applications. Presentations/Administrative Record. Moratoria (BILD v. Superior Court). Initiatives and Referenda. CC&Rs. Current/pending development impact fees or fee increases. 44

45 Other Land Use Considerations Statutes of Limitation. CEQA. 30 days with posted notice of determination. 35 days with posted notice of exemption. 180 days with no notice of determination posted. Subdivision Map Act, General Plan Amendments, re-zones, development agreements, administrative approvals. 90 days. Williamson Act contracts. 180 days. Federal approvals. 6 years. Annexations. 60 days. 45

46 Subdivision Map Act Certificates of Compliance. Lot Line Adjustments. 46

47 Lot Line Adjustments Exempt from the Map Act Requirements Can only be between 4 or fewer parcels Parcels must be adjoining New parcels must conform to the local general plan, any applicable coastal plan, and zoning and building ordinances. May cities require recording of a drawing or plat showing the lot line adjustment and a certificate of compliance to finalize the lot line adjustment. 47

48 Subdivision Map Act Subdivision Map Process. Types of Subdivision Maps. Tentative, Final Maps (5 or more parcels/lots). Parcel Maps. Validity of Tentative or Final Map; Lifespan of Same (Initial 2 years can be extended up to an additional 12 months). Multiple Final Maps (36 month extensions see Government Code Section ). 48

49 Subdivision Map Act Tentative Subdivision Maps. Extension Issues. Mandatory extensions. Off-site improvements for phased maps: up to 10 year maximum lifespan. Development Agreement may extend map validity. Discretionary extensions: up to 5 additional years. Moratoria and litigation can toll lifespan. 49

50 Required Off-Site Improvements: What To Do When You Don t Own The Land The Subdivision Map Act provides some help with off-site improvements. Government code section mandates that the government assist with acquiring land for required off-site improvements or waive the condition. 50

51 Section The local agency may not postpone or refuse approval of a final map because the subdivider failed to meet a final map condition requiring it to build or install off-site improvements on land in which neither the subdivider nor the local agency has sufficient title or interest. In such cases, the local agency must act within 120 days after the final map is filed either to acquire the property by negotiation or to commence proceedings to acquire the property by condemnation. 51

52 Exception Before approving the final map, the local agency may require the subdivider to enter into an agreement to complete the improvements when the city (eventually) acquires the property. NOTE: Section expressly does not preclude the local agency from requiring the subdivider to pay the cost of acquiring the necessary off-site real property interests. 52

53 How To Use Condemnation 1) Even the threat of condemnation can be powerful in negotiations with property owners. Helps with the I ll-never-sell and the I-Want-8- Times-Its-Value owners. 2) You ll need the government s help. At least superficially in early steps. More so if condemnation proves necessary. 3) Do it right the first time. Engage an appraiser who knows the rules. Give proper notice to the property owners. 53

54 Vested Rights Vested Rights Value of Vested Right Mechanisms. Avco v. Coastal Commission, Late Vesting Rule. Review of existing Development Agreements as buyer s counsel. Statutory Development Agreement. Required contents. Development Plan specificity (Smart v. San Luis Obispo County Board of Supervisors). 54

55 Vested Rights Development Agreements (continued) Overall Validity (fee title vs. equitable ownership). Compliance with Agency s Procedures Resolution. Review by both Legislative Body and Planning Commission. Adoption by Ordinance Required. Execution and Recordation. Subject to Referendum. 55

56 Vested Rights Value of Development Agreement. Time period protection. New fees or regulations not applicable? Negotiated exactions No nexus/gov t Code protection. California Late Vesting Rule: Perform substantial work (foundation and steel in the air); Incur substantial liabilities; and Good faith reliance upon Validly Issued Permit. 56

57 Vested Rights Vesting Tentative Maps Procedures Vesting Tentative Map printed conspicuously on face of Tentative Map or Parcel Map (Government Code Section 66452(c)). Vesting When Application is Complete. Protection against new Impact Fee Program. Can freeze amount of fees at time application is complete. Must be processed by local government. No imposition of additional conditions. Comparison of Development Agreement and Vesting Tentative Map Benefits for Applicants and Agencies. Vesting tentative map vests rules not subsequent approvals. 57

58 Vested Rights Development Agreements Does not bind other Governmental Agencies (e.g., school districts, state or federal agencies). Other Provisions. Time period. Product/Phasing. Extraordinary exactions required? Fee protection? New fees? Freeze existing fees? 58

59 Endangered Species, Clean Water and Wetlands 59

60 Endangered Species Act Enacted in Atypical because of its biocentric focus. Provides protection to listed species. Promotes broader programs for conservation. 60

61 Listing There are two mechanisms to list species: either the Service can initiate listing or a member of the public can petition for listing. The statute prescribes enforceable deadlines for making listing decisions. Listing must be based on best scientific and commercial data available. No balancing of costs and benefits to humans occurs during listing. 61

62 Critical Habitat Critical habitat must be designated at the time of listing to the maximum extent prudent and determinable (section 4(a)(3)). Critical habitat is the area occupied by the species along with other areas essential to the conservation of the species. The Service may exclude areas from critical habitat under specified circumstances including when the benefits of exclusion outweigh the benefits of inclusion. 62

63 Habitat Resource Permits HCP or MSHCP Review. Critical Habitat. Section 7 Consultations. 63

64 Take Prohibition The statute prohibits take of species including harassment and habitat destruction (section 9). 64

65 Incidental Take I: Consultation Section 7: Requires federal agencies to consult prior to taking action that could jeopardize species or modify/destroy habitat; authorizes incidental take of species under prescribed circumstances. Triggered by agency action including agency authorization of private action. Includes 135 day timetable with 60 day extension. Output are Biological Opinion and Incidental Take Statement. 65

66 Habitat Resource Permits Action Agency (i.e., Permitting Agency, such as Corps) Makes Initial Determination. Formal v. Informal Consultations with U.S.F.W.S. Formal: 135-day time period, with 60 day extension allowed. Biological Opinion prepared by U.S.F.W.S. No Jeopardy Opinion: action will not jeopardize continued existence of a species or adversely modify its critical habitat. 66

67 Incidental Take II: HCPs Section 10: provides non-federal entities with capability to seek authorization for the incidental take of listed species. Initiated by non-federal party seeking incidental take permit. Does not include timetable for issuance. Must prepare Habitat Conservation Plan. Vary in scope and complexity from large-scale, multiple species HCPs to small-scale, single species HCPs. 67

68 Recovery There is a provision for recovery plans in the statute but no timetable for completing such plans (section 4(f)). Recent court decisions have emphasized the importance of recovery. Gifford Pinchot Task Force v. Fish and Wildlife Service (9th Cir.). National Wildlife Federation v. National Marine Fisheries Service (D. Or.). 68

69 California Endangered Species Act ( CESA ) Patterned on federal ESA listing and take provisions. Scope of take prohibition less certain, potentially narrower. Includes permitting process and consistency determination (Fish and Game Code 2081, ). 69

70 Comparison of Federal and State Endangered Species Acts Federal Take Permit (Section 10 of FESA) needed only for endangered species (via Habitat Conservation Plan) MSHCPs can provide take protection Limited Coverage of Plants (federal nexus required) Habitat modification can be a take with actual occupation (Sweet Home case) All species can be taken with issuance of Section 10 permit State Take Permit (Section 2081 of CESA) needed for endangered and threatened species MSHCPs can provide take protection Covers plants and animals identically Habitat modification not a take (California AG Opinion) Some species can never be taken 70

71 CESA Fully-Protected Species Statutes Provide absolute take prohibition for identified species (Fish and Game Code 3511, 4700, 5050, 5051). No permitting exceptions. Scope of take prohibition uncertain. 71

72 CESA (continued) Threatened and Endangered Species Listed by Department of Fish and Game. Take Prohibition. Take Definition: hunt, pursue, capture or kill, or to attempt any of these acts. Habitat modification cannot lead to a Take. Covers Animals and Plants. Section 2081 Take Permits. Consistency Determination: Fish and Game Code Section

73 Clean Water Act ( CWA ) & Water Quality Permitting CWA Amended in 1972 to establish many of the modern regulatory processes. Establishes a prohibition on discharges to waters and a permitting process. 73

74 Water Quality Permitting Clean Water Act Jurisdictional Areas Waters of The United States Navigable Waters, used for interstate or foreign commerce Tributaries of above Wetlands adjacent to jurisdictional waters Wetlands Triad : water, soil and vegetation Bed and bank structure Jurisdiction to Ordinary High Water Mark Limitations: no coverage of isolated waters (SWANCC & Rapanos cases) Fish and Game 1602 Jurisdictional Areas Waters of the State Includes isolated waters Covers streams, rivers and lakes - no wetlands Need for aquatic or riparian environment Jurisdiction to top of bank 74

75 Water Quality Permitting Section 404 Permitting Issues Individual v. Nationwide Permits Temporary Loss and Dredging: no permit required Nationwide Permits have limited applicability: NWP 39 Nationwide Permits not subject to NEPA Regional Water Quality Control Board section 401 certification EPA Veto Need for proper CEQA document for 401 certification No time limit for permit issuance (However, 401 certification waiver) Section 1602 Permitting Issues Streambed Alteration Agreement (SAA) between DFG and applicant Any temporary or permanent alteration requires SAA Draft SAA must be issued within 60 days of complete application Need for proper CEQA document before application can be deemed complete, or before SAA can issue 75

76 NPDES Program I Necessary obtain permit for the addition of pollutants from a point source to waters of the United States (section 402). Program delegated to state authorities in most jurisdictions including California. Implemented by the Regional Boards along with Porter- Cologne in California. 76

77 NPDES Program II General permits and individual permits. Must submit application or notice of intent to Regional Board. Increasingly regulating non-point source discharges, for example, through section 402(p), which extends the CWA to stormwater discharges. 77

78 Key terms Though the Clean Water Act defines key terms addition, pollutant, point source, waters of the United States those terms have been subject of extensive litigation. Pollutant: Miccosukee. Point Source: League of Wilderness Defenders. Waters of the U.S.: SWANCC, Rapanos. 78

79 Porter-Cologne State analog to NPDES program is Porter-Cologne. Porter-Cologne requires the Regional Boards to develop basin plans that address beneficial uses of water to be protected as well as water quality objectives. Porter-Cologne also authorizes the Regional Boards to develop and enforce discharge requirements. 79

80 Dredge and Fill Program I Regulates dredge and fill of navigable waters, their tributaries, and wetlands adjacent thereto (section 404). Wetlands are identified through examination of water, soil, and vegetation. Hydrological connection sufficient to establish jurisdiction, isolated waters are not jurisdictional. 80

81 Dredge and Fill Program II Nationwide and individual permits. Nationwide permits not subject to NEPA. Nationwide permits can trigger ESA section 7 consultation. Regional Board must issue water quality certification under section 401. EPA has veto (section 404(c)). 81

82 Streambed Alternation Agreements California Streambed Alteration Permit Program (Fish and Game Code Section 1602) Covers Waters of the State, i.e., applies to isolated waters. Covers streams, rivers and lakes - no wetlands. Need for aquatic environment. 82

83 Lake and Streambed Alteration Agreements Any action that would divert or obstruct the natural flow of or change the bed, bank, or channel of a river, stream, or lake is subject to the Lake or Streambed Alteration Program. An Agreement from the Department of Fish and Game must be obtained if the agency determines that the action may have substantial adverse effects. 83

84 Contact Rick Friess, James Pugh, Audrey Huang & Sue Meyer Nossaman Guthner Knox & Elliott LLP Von Karman Ave., Suite 1800 Irvine, CA Phone (949) Fax (949) NOSSAMAN.COM 84