Environmental Law

Environmental Law Section Update – Vol. XVII, No. 3

Recent Judicial, Legislative And Regulatory Developments

October/November/December 2016 Vol. XVII, No. 3

For a PDF version of this issue, click here.

The Environmental Law Section Update is sponsored by the Environmental Law Section of the State Bar of California and reports on recent California case law of note, as well as significant legislative and regulatory developments. This edition of the Update reports on cases of significance, as well as legislative and regulatory developments from April 1 through December 31, 2016. For legislative developments since that date, the status of a particular bill can be accessed at. The current legislative calendar is also included at the end of the Update and can also be viewed online at:
http://www.calbar.ca.gov/AboutUs/Legislation/SearchforLegislation/BillTrackingSectionsandCommittees.aspx.

Please note that all case law, legislative and regulatory summaries included here are intended to provide the reader with an overview of the subject text; for those items of specific relevance to your practice, the reader is urged to review the subject text in its original and complete form.

Each edition of the Environmental Law Section Update is posted in the “Members Only Area” of the State Bar’s Environmental Law Section website at http://www.calbar.ca.gov/enviro.

Notice of the availability of the Update on the Environmental Law Section website is distributed by electronic mail to all State Bar Environmental Law Section members who have provided the Bar with an e-mail address. If you have not provided the Bar with your email address, you can do so by setting up your State Bar Member Profile. When you set up your Profile, be sure to click on “Change my e-mail list preferences” and check the box for the Environmental Law Section’s e-mail list. If you have already set up your State Bar Profile, but did not check the box for the Environmental Law Section’s e-mail list, you can do so at any time by logging in and clicking on “Change my e-mail list preferences.”

Any opinions expressed in the Update are those of the respective authors, and do not represent necessarily the opinions of the Environmental Law Section, or the State Bar of California. We appreciate your feedback on this publication and its relevance to your practice. Comments may be e-mailed to the Editor at cday-wilson@ci.eureka.ca.gov

I would like to thank Michael Haberkorn, Anthony Todero, Anna Leonenko, Whit Manley, Danielle K. Morone, Mitchell Tsai, Amanda MacGregor Pearson, Joseph Petta, and Amy Hoyt, for their contributions to this issue of the Update. – Cyndy Day-Wilson.

Cyndy Day-Wilson
City Attorney
City of Eureka
Editor, Co-Author
Case Law and Regulatory Update Authors:
Michael Haberkorn
Gatzke Dillon & Ballance LLP
Whitman Manley
Remy, Moose & Manley LLP
Danielle K. Morone
Gatzke Dillon & Ballance LLP
Anthony Todero
Baird Holm LLP
Anna Leonenko
Amy Hoyt
Burke, Williams & Sorenson LLP
Amanda MacGregor Pearson
Downey Brand LLP
Joseph Petta
Shute, Mihaly & Weinberger LLP
Mitchell Tsai
Mitchell Tsai, Attorney at Law

TABLE OF CONTENTS
State of California Summaries
Agency Administration
Air Quality
Attorney’s Fees
California Environmental Quality Act
Climate Change
Coastal Resources
Endangered Species
Energy
Environmental Law
Fees/Taxes
Forest Resources
Hazardous Materials/Wastes
Insurance Coverage
Land Use
Planning and Zoning
Proposition 65
Resource Conservation
Solid Waste
Water Resources
Water Quality
Federal Summaries
Supreme Court
Ninth Circuit Court of Appeals
Other Federal Cases of Interest

STATE OF CALIFORNIA SUMMARIES
AIR QUALITY
Recent Court Rulings
No summaries or updates this quarter.
Regulatory Updates
California Pollution Control Financing Authority Bond Program. In September 2016, the California Pollution Control Financing Authority provided notice of proposed amendments concerning the administration of a bond program relating to small business financing assistance.

Cal. Reg. Notice Register 2016, Vol. No. 40-Z, p. 1751.

Small Off-Road Engines. In September 2016, the Air Resources Board provided notice of a November 17, 2016 public hearing to consider approving proposed amendments to the evaporative requirements for off-road equipment. Cal. Reg. Notice Register 2016, Vol. No. 40-Z, p. 1759.

ATTORNEY FEES
Recent Court Rulings
No Summaries or updates this quarter.
Regulatory Updates
No Summaries or updates this quarter.
CEQA
Recent Court Rulings
Third District holds an EIR for an infill project was inadequate because it relied on General
Plan level-of-service standards to conclude the project’s traffic impacts on intersections
within the city core would be insignificant. East Sacramento Partnerships for a Livable City v.
City of Sacramento (2016) 5 Cal.App.5th 281
A developer proposed a 336-unit residential development on an infill site in mid-town
Sacramento. The city certified the EIR and approved the project. Neighbors sued. The trial court
denied the petition. The neighbors appealed.
The neighbors argued the Draft EIR did not identify all the permits the project would need,
citing a development agreement, revised zoning to increase the number of residential units, and a
variance for driveways. The Court disagreed, noting that these approvals were described and
analyzed in the Final EIR; the city provided notice of these approvals; such evolution of the project as it moved through the entitlement process was the norm; and the neighbors failed to show
prejudice with respect to this evolution.
A proposal to develop an additional tunnel to provide expanded access to the site, while
discussed, was not part of the project, and did not need to be included in the project description.
Instead, the city merely approved studying the feasibility of the tunnel. Although the tunnel would
serve the project, the tunnel was not essential, and the project could proceed without it. The city
also approved a half-street closure, in order to divert project traffic onto adjacent streets that were
less congested; this “modest change” did not constitute unlawful piece-meal review. Neither did a
city council motion directing staff to delete a proposed parkway and interchange from the General
Plan.
The neighbors challenged the EIR’s analysis of toxic air contaminants, noting the site’s
proximity to railroad tracks, a freeway and an old landfill. Citing the California Supreme Court’s
decision in California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015)
62 Cal.4th 369, the Court held that CEQA does not require an EIR to analyze the effects of the
existing environment on future residents of the project and concluded that the neighbors failed to
cite substantial evidence that the project would exacerbate health risks.
The neighbors also argued the project was inconsistent with various General Plan policies
pertaining to transportation, the environment, and noise. Those policies, however, had either been
amended such that they no longer applied to the project, or the city had discretion to find the project
consistent with the General Plan as a whole despite tensions with certain policies, or the policies
cited by the neighbors were couched in terms such that strict compliance was not required.
The neighbors argued the EIR’s traffic analysis was inadequate in various respects. The
Court disagreed, with one significant exception. Specifically:
• The city properly relied on Public Resources Code section 21159.28 to streamline its
analysis of the project’s impact on the regional transportation network, including
freeways in the region. The record supported the city’s conclusion that the project was
consistent with SACOG’s MTP/SCS program EIR.
• The city had discretion, pursuant to its guidelines, to focus on the project’s impacts on
intersections, rather than on road segments.
• The re-categorization of a roadway from a “major collector” to a “local collector,” and
the corresponding shift in the applicable level-of-service standard, did not require
recirculation of the Draft EIR because the volume of traffic remained the same.
• A traffic engineer hired by the neighbors claimed the EIR’s traffic study omitted
certain, key road segments, but as noted the city had discretion to focus on intersections,
and in any event the neighbors failed to show prejudice in light of the fact that the
traffic study analyzed intersections on these same roadways.
• The city’s mitigation measures, which called for monitoring and re-timing the signal at
a key intersection and required the developer to pay “fair share” fees for traffic
improvements, were adequate.
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The neighbors challenged the city’s reliance on General Plan traffic policies to establish
thresholds to determine the significance of the project’s traffic impacts. Those policies differed
depending on where in the city the streets were located; those in the downtown/midtown “core”
could tolerate greater congestion (LOS E or F) than those located elsewhere. The EIR concluded
that traffic impacts would not be significant in light of these policies. The Court held that was not
good enough; the EIR had to consider whether traffic impacts would be significant, despite the
project’s consistency with General Plan traffic standards. The traffic study showed traffic would
degrade at certain intersections from LOS E or F, and found that impact to be significant or
insignificant, depending on the location of the intersection. But the “EIR contain[ed] no
explanation why such increases in traffic in the core area are not significant impacts, other than
reliance on the mobility element of the general plan that permits LOS F in the core area during
peak times.” The EIR’s reference to “community values” and to the General Plan did not provide
a sufficient explanation for why the threshold differed. Thus, the EIR did not contain substantial
evidence to support the finding of no significant impacts with respect to certain intersections in
the core area where LOS would degrade to E or F.
First District upholds EIR for Golden State Warriors’ new arena in Mission Bay area of the
city; litigation resolved under “fast track” rules established by Assembly Bill 900 for
environmental leadership projects. Mission Bay Alliance v. Office of Community Investment and
Infrastructure (2016) 6 Cal.App.5th 160
The Golden State Warriors proposed to construct an 18,500-seat capacity arena in the
Mission Bay South area of San Francisco. The Governor certified the arena under AB 900. The
Office of Community Investment and Infrastructure – the successor to the city’s redevelopment
agency – prepared and certified a subsequent EIR. The subsequent EIR tiered off two prior EIRs
prepared in 1990 and 1998 for the Mission Bay South redevelopment plan. These plans called for
the transformation of the neighborhood from a disused industrial area into a medical and research
complex. In November 2015, OCII approved the project. The Mission Bay Alliance – a coalition
seeking to locate the arena elsewhere, rather than amidst the area’s burgeoning hospital and
research facilities (notably, the newly opened UCSF medical center) – sued. The trial court denied
the petition. The alliance appealed.
In a lengthy opinion, the First District affirmed. First, the alliance argued that the city had
improperly “scoped out” certain topics as adequately addressed in the prior EIRs. With respect to
land use impacts, the alliance argued the record contained a “fair argument” that the project would
adversely affect the community character in the vicinity of the arena. The Court held, however,
that the “fair argument” standard did not apply; rather, “[s]ubstantial evidence is the proper
standard where, as here, an agency determines that a project consistent with a prior program EIR
presents no significant, unstudied adverse effect.” OCII had a “reasonable basis” to conclude the
arena would not interfere with other uses in the area. Similarly, the initial study explained why an
area that had been excavated after the 1998 program EIR had been prepared, and subsequently
filled with water, did not contain significant biological resources. The initial study, and responses
to comments in the Final SEIR, also explained why there would be no new significant impacts
with respect to the clean-up of hazardous substances in soil at the site, or to nearby parks.
With respect to transportation, the EIR analyzed traffic and transit impacts under various
scenarios. The analysis took into account implementation of a “Transit Service Plan” (TSP) as a
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component of the project that would be implemented for larger events at the arena. The alliance
argued that this approach ran afoul of the First District’s decision in Lotus v. Department of
Transportation (2014) 223 Cal.App.4th 645, which held that an agency violated CEQA when it
cited project components that served to reduce impacts, and thereby avoided analysis of the
project’s impacts and the identification of mitigation measures. In this case, the Court observed:
“Arguably, some components of the TSP might be characterized as mitigation measures rather
than as part of the project itself. Any mischaracterization is significant, however, only if it
precludes or obfuscates required disclosure of the project’s environmental impacts and analysis of
potential mitigation measures.” In this case, the characterization of the TSP as part of the project,
rather than as a mitigation measure, did not interfere with the identification of the transportation
consequences of the project or the analysis of measures to mitigate those consequences. The SEIR
analyzed the project’s transportation impacts both with and without implementation of the TSP,
and applied the same significance thresholds to both scenarios. Because substantial evidence in
the record showed that adequate funding would be available to implement the TSP, OCII was not
required to consider other funding sources. Moreover, because the accompanying Transportation
Management Plan included specific performance standards, the Warriors might have to provide
additional funding if necessary to meet those standards. Mitigation measures requiring the
Warriors to “work with” regional transit agencies to provide necessary additional service were
similarly adequate, given the city’s track record of working with these transit agencies to expand
service to accommodate regional transit demand from events at nearby AT&T Park and elsewhere
in the city. The record also showed that expanded regional transit service was available from a
variety of sources, including the city’s ½-cent sales tax, fare-box recovery, and disbursements from
the Metropolitan Transportation Commission.
With respect to noise, the SEIR’s significance thresholds focused on the extent to which
the project would cause an incremental increase on noise levels, above existing, ambient noise.
The threshold varied depending on the nature of the noise source (construction, transportation,
crowds, and fixed sources) and existing noise levels (the higher the level of ambient noise, the
lower the threshold). The Court held this approach was within OCII’s discretion. The SEIR also
contained sufficient information on the health effects of noise.
The alliance attacked the SEIR’s analysis of the project’s impact on greenhouse gas
emissions (GHG) and climate change. The SEIR concluded this impact would be less than
significant because the project was consistent with the city’s adopted “GHG Strategy.” According
to the alliance, that was not enough; the SEIR also had to quantify both the project’s GHG
emissions, and the GHG emission reductions that would occur as a result of implementing the
strategy. The Court disagreed, noting that CEQA Guidelines concerning GHG emissions authorize
an agency to “[r]ely on a qualitative analysis or performance based standards.” (CEQA Guidelines,
§ 15064.4, subd. (a).) “Given the nature of greenhouse gas emissions—gases that trap heat in the
atmosphere, contributing to global climate change but with little immediate perceptible effect on
the locale from which they emanate—a project’s compliance with an area-wide greenhouse gas
reduction plan may be more useful in determining the significance of those emissions on a global
scale than quantification of its incremental addition to greenhouse gas emissions.” In Center for
Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, the California
Supreme Court endorsed this approach as a potential pathway to compliance.
8
The Court ruled that the SEIR was not required to study the impact of wind at on-site,
publicly-accessible open space. The SEIR’s inclusion of this information for disclosure purposes
did not mean the impact was cognizable under CEQA.
OCII had discretion to determine the appropriate significance threshold to assess cancer
risks associated with toxic air contaminant emissions. The record included guidance indicating
various thresholds that had been deemed acceptable, and the threshold used in the SEIR was
consistent with this guidance.
On non-CEQA claims, the alliance argued the project exceeded allowable square footage
limits for retail uses. The Court disagreed, insofar as the claim rested on a misinterpretation of the
meaning of “retail” under the operative redevelopment plan. The Court also upheld approval of a
“place of entertainment” permit under the city’s police code, finding that substantial evidence
supported the arena’s compliance with the code’s requirements.
California Supreme Court rules that an agency’s decision to rely on Public Resources Code
section 21166 for a proposal to modify a project for which environmental review was
previously performed is reviewed for substantial evidence, rather than as a question of law;
Court also upholds CEQA Guideline authorizing addenda to negative declarations, finding
that the “fair argument” standard, focusing on impacts associated with changes to the
project, applies to challenges to such addenda. Friends of the College of San Mateo Gardens v.
San Mateo County Community College Dist. (2016) 1 Cal.5th 937
In 2006-2007, the San Mateo Community College District (District) adopted a negative
declaration and approved a facilities master plan for the College of San Mateo campus. The plan
called for demolishing certain buildings and renovating others. In 2011, the District approved a
plan to demolish the “Building 20 complex,” which had formerly been slated for renovation, and
to construct a parking lot and install landscaping; other buildings that had previously been planned
for demolition would now be restored instead. The District prepared an addendum to its 2006-
2007 negative declaration. The “Friends” objected, citing the impact of demolishing the Building
20 complex on a garden located there. When the District approved the revisions to the plan, the
Friends sued. The trial court granted the writ. The District appealed. The First District affirmed.
The Supreme Court granted the District’s petition for review.
The District had prepared the addendum based on its view that the proposal to demolish
the Building 20 complex had previously undergone CEQA review. The District had therefore
performed its review in accordance with Public Resources Code section 21166. The Friends argued
that, where an agency performs supplemental review under section 21166, the court must first
decide, as a threshold matter, whether the proposal is a modification of a previously approved
project, or must be analyzed as an entirely new project. In Save Our Neighborhood v. Lishman
(2006) 140 Cal.App.4th 1288, the Third District Court of Appeal had held that this threshold issue
was a question of law, such that the agency’s decision was entitled to no deference. The First
District had followed Save Our Neighborhood’s formulation in concluding the District had
violated CEQA.
The Supreme Court rejected this approach as unworkable. As the Court stated, “[the
Friends’] approach would assign to courts the authority — indeed, the obligation — to determine
whether an agency’s proposal qualifies as a new project, in the absence of any standards to govern
the inquiry. … [¶] … [T]o ask whether proposed agency action constitutes a new project, purely
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in the abstract, misses the reason why the characterization matters in the first place.” Thus, “for
purposes of determining whether an agency may proceed under CEQA’s subsequent review
provisions, the question is not whether an agency’s proposed changes render a project new in an
abstract sense…. [Citation.] Rather, under CEQA, when there is a change in plans, circumstances,
or available information after a project has received initial approval, the agency’s environmental
review obligations ‘turn[] on the value of the new information to the still pending decisionmaking
process.’ [Citation.] If the original environmental document retains some informational value
despite the proposed changes, then the agency proceeds to decide under CEQA’s subsequent
review provisions whether project changes will require major revisions to the original
environmental document because of the involvement of new, previously unconsidered significant
environmental effects.” (Footnotes omitted.)
Whether a previous analysis retains value to consider the impacts of revisions to the project
“is a predominantly factual question.” For this reason, the “substantial evidence” test applies. “We
expect occasions when a court finds no substantial evidence to support an agency’s decision to
proceed under CEQA’s subsequent review provisions will be rare, and rightly so; ‘a court should
tread with extraordinary care’ before reversing an agency’s determination, whether implicit or
explicit, that its initial environmental document retains some relevance to the decisionmaking
process. [Citation.]”
The Friends argued that, in any event, the District had violated CEQA because section
21166 expressly refers only to situations in which the agency had previously certified an
environmental impact report (EIR), rather than (as in this case) adopted a negative declaration.
The Friends thus argued that CEQA Guidelines section 15162 – which extends the rules regarding
supplemental review to negative declarations – was invalid. The Court disagreed, finding that the
Resources Agency acted reasonably in adopting a guidelines imposing some limitations on postapproval
environmental review, even for those projects initially approved via negative declaration.
Whether the previous document was an EIR or a negative declaration has implications for
how the agency applies the rules governing supplemental review; “the substantial evidence
standard prescribed by CEQA Guidelines section 15162 requires an agency to prepare an EIR
whenever there is substantial evidence that the changes to a project for which a negative
declaration was previously approved might have a significant environmental impact not previously
considered in connection with the project as originally approved…. It therefore does not permit
agencies to avoid their obligation to prepare subsequent or supplemental EIRs to address new, and
previously unstudied, potentially significant environmental effects. So understood, CEQA
Guidelines section 15162 constitutes a valid gap-filling measure as applied to projects initially
approved via negative declaration, including the project at issue in this case.”
Finally, the Friends argued that the District could not rely on section 21166 because the
Facilities Master Plan and accompanying negative declaration were akin to a plan or program,
rather than to a specific project. The Court disagreed, noting that the District’s negative declaration
was expressly designed to serve as a project-level analysis, and could not be characterized as a
first-tier document.
The Supreme Court reversed and remanded to the Court of Appeal to consider the merits
of the district’s addendum and approval of the building demolition and parking lot project. The
Court of Appeal had not previously reached the merits because of its conclusion that the District
could not rely on section 21166.
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Fourth District rules that CEQA does not require a city to provide an appeal to the city
council of the planning department’s “substantial conformance review” of modifications to
an approved planned development permit. San Diegans for Open Government v. City of San
Diego (2016) 6 Cal.App.5th 995
In 1997, the city certified a program EIR and approved a high-density, mixed-use retail,
commercial, and industrial business park on 242 acres. In 2000 and 2002, the city prepared,
respectively, an addendum and mitigated negative declaration, and amended the plan to include
1,568 residential units. In 2012, the city approved a planned development permit for several
hundred units, subject to carrying out adopted mitigation measures. In November 2013, the
developer applied to the city to modify the approved design; the changes included a slight increase
in building heights, a shift in the mix of units, and a reduction in parking. Various city departments
performed “substantial conformance review” (SCR) to determine whether the developer’s
proposal was consistent with the city’s approved plans. In January 2014, the planning department
approved the project revisions, subject to appeal to the planning commission. The petitioner
appealed the decision, arguing that the modifications were not minor, and that the SCR process
was inappropriate. Following a hearing, the commission denied the appeal and upheld the
approval. The petitioner appealed the commission’s decision to the city council. The city refused
to process the appeal based on its view that the commission’s action was not appealable. The
petitioner sued. The trial court denied the petition. The petitioner appealed.
According to the Court, “[t]he sole issue on appeal is whether plaintiffs are entitled to an
administrative appeal of the SCR decision to the City Council.” The petitioner argued that Public
Resources Code section 21151, subdivision (c), required such an appeal. That statute states: “If a
nonelected decisionmaking body of a local lead agency certifies an environmental impact report,
approves a negative declaration or mitigated negative declaration, or determines that a project is
not subject to this division, that certification, approval, or determination may be appealed to the
agency’s elected decisionmaking body, if any.” According to the petitioner, because planning staff
and the commission were not elected, the city had to allow an appeal to the council. The Court
disagreed. Staff and the commission did not certify an EIR or approve a negative declaration or
mitigated negative declaration. Nor did they determine that the project is not subject to CEQA.
The city council had already determined that the entire master plan was subject to CEQA. The
SCR decision did not alter that determination. Rather, the SCR process confirmed that the project
remained subject to the city’s previously-adopted mitigation measures. The fact that the SCR
decision involved discretion did not, in of itself, trigger a right to a city council appeal. The
municipal code, which contained a right of appeal paralleling the language of section 21151,
subdivision (c), did not alter that conclusion.
First District upholds decision of San Francisco Municipal Transportation Agency to
approve a contract to complete construction of the “T-Line Loop” – an extension of the City’s
light-rail system through the Dogpatch neighborhood on the City’s southeast waterfront –
because substantial evidence supported Muni’s conclusion that supplemental environmental
review was not required. Committee for Re-Evaluation of the T-Line Loop v. San Francisco
Municipal Transportation Agency (2016) 6 Cal.App.5th 1237
11
In 1998, Muni issued an EIR/EIS covering expansion of the City’s light-rail system. The
analyzed improvements included construction of an “Initial Operating Segment” – an extension of
light rail down Third Street, connecting Mission Bay and Dogpatch with the City’s downtown
transit system. By 2003, Muni had constructed much of this segment, including portions of a loop
track at the end of this extension. Muni did not complete all components of the Third Street Loop,
however, due to budget constraints. Operations commenced in 2007. In 2013, Muni received a
Federal grant to complete the Loop. Muni asked the City’s Planning Department to determine
whether the 1998 EIR still “covered” the Loop, particularly in light of increased development in
Mission Bay, and the proposal to construct an arena for the Golden State Warriors on Third Street.
The Planning Department concluded that supplemental review was not required because the 1998
EIR had anticipated such growth. In 2014, Muni approved a contract to construct the remaining
improvements to complete the Loop. The committee sued. The trial court denied the petition. The
committee appealed.
The Court considered the standard of review applicable to review of Muni’s threshold
decision to rely on the rules governing supplemental environmental review under Public Resources
Code section 21166, rather than treating the proposed contract as a new, stand-alone project. Citing
Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist.
(2016) 1 Cal.5th 937, the Court held that the petitioner had the burden of proof to show that Muni’s
decision to rely on section 21166 was not supported by substantial evidence.
The committee argued the 1998 EIR did not analyze the impacts of the 2014 construction
contract and, therefore, the “fair argument” standard of review applied. The Court disagreed. The
1998 EIR had identified the Loop as part of the “Initial Operating Segment.” These passages, and
other documents in the record, showed that the “Loop” approved in 2014 was the same “Loop”
described and analyzed in the 1998 EIR. Case law applying the “fair argument” standard of review
involved instances in which the prior EIR either did not address the latter activity, or was a
“program EIR” prepared under Public Resources Code section 21094 for which latter, site-specific
review was contemplated. The 1998 EIR, by contrast, was a project-specific EIR, and specifically
considered the impacts of the Loop as part of the project.
The committee argued that, even if the 1998 FEIR mentioned the Loop, its analysis was
insufficiently detailed to pass CEQA muster. The Court rejected this argument as a belated attack
on the 1998 EIR.
Substantial evidence supported Muni’s decision not to prepare a further EIR. Muni had
twice asked the Planning Department whether there were substantial changes to the project, or to
the circumstances surrounding the project, necessitating further analysis. Both times, the Planning
Department confirmed that the project had not changed, and that although surrounding growth had
occurred or been proposed, the underlying EIR had already assumed substantial growth would
occur in the area. A separate analysis prepared by the Federal Transit Administration (“FTA”)
under NEPA provided further support that no new or more severe impacts would occur.
Finally, the committee argued that the City failed to follow required procedures in making
its determination that no further CEQA review was required. The Court was unmoved. CEQA does
not establish a particular procedure that must be followed to make a determination under section

  1. In particular, no initial study or public hearing is required. Moreover, the FTA had
    circulated its NEPA analysis, and a Board of Supervisors subcommittee had held a hearing; the
    committee had participated in both proceedings.
    12
    Developments in previously reported cases
    Bay Area Clean Environment, Inc. v. Santa Clara County (2016) 2 Cal.App.5th 1197. The Sixth
    District found that the county complied with SMARA and CEQA in approving a reclamation plan
    for an existing quarry. Petition for review denied. Ordered depublished December 14, 2016.
    Coastal Hills Rural Preservation v. County of Sonoma (2016) 2 Cal.App.5th 1234. The First
    District held that the “substantial evidence” test applied to its review of a subsequent mitigated
    negative declaration that supplemented a previously adopted mitigated negative declaration. On
    November 22, 2016, the Supreme Court issued the following memorandum opinion:
    The petition for review is granted. The matter is transferred to the Court of Appeal,
    First Appellate District, Division One, for reconsideration in light of Friends of the
    College of San Mateo Gardens v. San Mateo County Community College District
    et al. (2016) 1 Cal.5th 937, 957-959, footnote 6 [] and [CEQA Guidelines] section
  2. The request for an order directing depublication of the opinion in the above
    entitled appeal is granted.
    On remand, in an unpublished decision, the First District upheld the County’s mitigated negative
    declaration, finding that the record did not contain a “fair argument” that changes to the project
    would cause environmental impacts. (Slip op. dated May 16, 2017)
    Union of Medical Marijuana Patients, Inc. v. City of San Diego (No. S238563). Court of Appeal
    opinion at 4 Cal.App.5th 103. Petitioner for review granted on January 11, 2017:
    (1) Is the enactment of a zoning ordinance categorically a “project” within the meaning of
    the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?
    (2) Is the enactment of a zoning ordinance allowing the operation of medical marijuana
    cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect
    physical change to the environment?
    Regulatory Updates
    No summaries or updates this quarter.
    CLIMATE CHANGE
    Recent Court Rulings
    No summaries or updates this quarter.
    Regulatory Updates
    No summaries or updates this quarter.
    13
    COASTAL RESOURCES
    Recent Court Rulings
    No summaries or updates this quarter.
    Regulatory Updates
    Biofouling Management. In November 2016, the State Lands Commission provided notice of,
    and requested comments on, regulatory amendments concerning the management of biofouling
    from vessels arriving in California ports. A public hearing was held regarding same in January
  3. Cal. Reg. Notice Register 2016, Vol. No. 48-Z, p. 2033.
    Marine Invasive Species Control Fund Fee. In September 2016, the State Lands Commission
    provided notice of proposed amendments to Sections 2270 and 2271 in Article 4.5 of Title 2,
    Division 3, Chapter 1 of the California Code of Regulations. The proposed amendments would
    make regulatory definitions consistent with recent amendments to the Public Resources Code as a
    result of AB 1312 and would increase the fee paid by vessels arriving in California ports, if
    traveling from outside of California. Cal. Reg. Notice Register 2016, Vol. No. 39-Z, p. 1693.
    ENDANGERED SPECIES
    Recent Court Rulings
    In October 2016 the Ninth Circuit Court of Appeals held that a decision to list a species under
    the Endangered Species Act based on projected habitat losses is not necessarily arbitrary
    and capricious. Alaska Oil and Gas Association, et al. v. Pritzker, et al, No. 14-35806 (9th Cir.
    2016)
    The Pacific bearded seal relies on broken Arctic sea ice floes over shallow water for hunting and
    nursing habitat. See ice in the Artic has been, and is expected to continue to be, affected by the
    changing climate. In 2008, the Center for Biological Diversity filed a petition for listing the
    bearded seal under the Endangered Species Act, on the ground the continued impacts to Artic sea
    ice will threaten the habitat and thus the viability of the species. After reviewing several climate
    models to project future changes to sea ice in the Arctic through approximately 2095, the National
    Marine Fisheries Service (NMFS) in December 2012 published a final rule listing the bearded seal
    as threatened under the Endangered Species Act.
    The key issue in the case was whether it is permissible for NMFS to list a species as threatened
    based on projected, rather than actual and current, habitat losses. Opponents of the listing rule
    argued that the listing decision was impermissibly arbitrary and capricious because, among other
    things, the current population of seals is healthy and the projections regarding the effect of climate
    change on sea ice formation and the behavior of the seals were too speculative to support the listing
    decision. The trial court agreed, and granted summary judgment to the Plaintiffs on the basis that
    the listing decision was indeed arbitrary and capricious.
    14
    The court held that on the record before it, the listing decision was not arbitrary or capricious.
    Courts do not require agency decisions to be supported by “ironclad and absolute” evidence, but
    will defer to an agency’s interpretation of scientific data if the agency explains its approach and
    the limitations thereof. Accordingly, the fact that the forecasted climate predictions were
    “volatile” did not necessarily mean that NMFS’s projections were arbitrary. Instead, the court
    found that the projections were “reasonable, scientifically sound, and supported by evidence.”
    That was sufficient to support overturning the trial court.
    Regulatory Updates
    Coast Yellow Leptosiphon. In December 2016, the Fish and Game Commission (Commission)
    accepted for consideration a petition to list the coast yellow leptosiphon as an endangered species.
    Based on the petition and other available information, the Commission provided notice that the
    species is a candidate species. The Department of Fish and Wildlife (Department) shall submit a
    written report within one year indicating whether the petitioned action is warranted. Cal. Reg.
    Notice Register 2016, Vol. No. 52-Z, p. 2197.
    Flat-Tailed Horned Lizard. In November 2016, the Commission provided notice of a hearing to
    consider potentially listing the flat-tailed horned lizard under the California Endangered Species
    Act. Cal. Reg. Notice Register 2016, Vol. No. 47-Z, p. 2021.
    Livermore Tarplant. In November 2016, the Commission provided notice of a finding that the
    petitioned action to add the Livermore tarplant to the list of endangered species is warranted. The
    finding is based on review of the best scientific information available, which provides that the
    Livermore tarplant is in serious danger or threat. Cal. Reg. Notice Register 2016, Vol. No.45-Z,
    p. 1973. In December 2016, the Commission provided notice of, and requested comments on, its
    recommendation to add the Livermore tarplant to the list of endangered species based on the
    following threats: (i) recent and ongoing development and changes in land use, (ii) impacts from
    invasive species, (iii) recreation activities, (iv) herbicide use, and (v) vulnerability of small
    populations. Cal Reg. Notice Register 2016, Vol. No. 52-Z, p. 2177.
    Townsend’s Big-Eared Bat. In October 2016, the Commission provided a notice of findings in
    response to a petition requesting the Townsend’s Big-Eared Bat be added to the list of threatened
    or endangered species. The Commission found that the Townsend’s Big-Eared Bat is not in serious
    danger or threatened, and is not warranted as an endangered species at this time. Cal. Reg. Notice
    Register 2016, Vol. No. 45-Z, p. 1976.
    ENERGY
    Recent Court Rulings
    No summaries or updates this quarter.
    Regulatory Updates
    No summaries or updates this quarter.
    15
    FEES/TAXES
    Recent Court Rulings
    No summaries or updates this quarter.
    Regulatory Updates
    No summaries or updates this quarter.
    FOREST RESOURCES
    Recent Court Rulings
    No summaries or updates this quarter.
    Regulatory Updates
    Safety Element Review, 2017. In October 2016, the Board of Forestry and Fire Protection
    (Board) provided notice of a proposed action to create a procedure to standardize the review of
    safety elements submitted to the Board as required by counties and cities. Currently, there are no
    implementing regulations in place for the program. Cal. Reg. Notice Register 2016, Vol. No. 44-
    Z, p. 1949. In December 2016, the Board gave notice of a decision not to proceed regarding same.
    Cal Reg. Notice Register 2016, Vol. No. 52-Z, p. 2198.
    HAZARDOUS MATERIALS/ WASTE
    Recent Court Rulings
    No summaries or updates this quarter.
    Regulatory Updates
    Copper-Based Antifouling Paint and Coating Products (AFP). In November 2016, the
    Department of Pesticide Regulation provided notice of a proposal to adopt California Code of
    Regulations, Title 3, Section 6190 concerning copper-based AFP. The proposed regulation would
    require registrants of all new copper-based AFP products to submit estimated daily mean copper
    release rate data as a requirement for registration, and establish a maximum allowable copper leach
    rate for recreational vessels. Cal. Reg. Notice Register 2016, Vol. No. 47-Z, p. 2012.
    Pesticides Related to Agricultural Commodities. In September 2016, the Department of
    Pesticide Regulation provided notice of proposed regulations that would require growers to notify
    public K-12 schools, child day care facilities, and county agricultural commissioners when certain
    pesticide applications made for production of an agricultural commodity are made near a school
    site. Cal. Reg. Notice Register 2016, Vol. No. 40-Z, p. 1747.
    Site Cleanup. In November 2016, the Department of Toxic Substance Control announced a public
    workshop to discuss the toxicity criteria required when establishing human risk-based screening
    levels, action levels and remediation goals. The workshop will discuss the addition of a proposed
    16
    chapter to California Code of Regulations, Title 22, Division 4.5, concerning human health toxicity
    criteria for site cleanup prior to the formal rulemaking process. Cal. Reg. Notice Register 2016,
    Vol. No. 46-Z, p.1998.
    INSURANCE COVERAGE
    Recent Court Rulings
    No summaries or updates this quarter.
    Regulatory Updates
    No summaries or updates this quarter.
    LAND USE
    Recent Court Rulings
    No summaries or updates this quarter.
    Regulatory Updates
    Transformative Climate Community Program Funds. In September 2016, the Strategic Growth
    Council provided notice of proposed regulations allocating funding of Transformative Climate
    Community Program funds. The proposed action is the first of several to develop guidelines for
    plan development and implementation of the program. Cal. Reg. Notice Register 2016, Vol. No.
    39-Z, p. 1706.
    PROPOSTITION 65
    Recent Court Rulings
    No summaries or updates this quarter.
    Regulatory Updates
    List of Chemicals Known to the State to Cause Cancer or Reproductive Toxicity. For the
    Office of Environmental Health Hazard Assessment’s (OEHHA) most current list of chemicals
    known to the State to cause cancer or reproductive toxicity, see Cal. Reg. Notice Register 2016,
    Vol. No. 43-Z, p. 1898.
    New Listings. In October 2016, the OEHHA announced that, effective September 30, 2016,
    furfuryl alcohol, was added to the list of chemicals known to the State to cause cancer under the
    authoritative bodies mechanism. Cal. Reg. Notice Register 2016, Vol. No. 42-Z, p. 1852.
    17
    In October 2016, OEHHA also announced that, effective October 21, 2016, pentachlorophenol
    and by-products of its synthesis (complex mixture) was added to the list of chemicals known to the
    State to cause cancer under the authoritative bodies mechanism. Cal. Reg. Notice Register 2016,
    Vol. No. 43-Z, p. 1898.
    Notice of Intent to List. In September 2016, OEHHA provided notice of its intent to list:
  4. Perfluorooctanoic acid and perfluorooctane sulfonate as known to the State to cause
    cancer under the authoritative bodies listing mechanism. Cal. Reg. Notice Register 2016,
    Vol. 38-Z, p. 1678.
  5. Pertuzumab as known to the State to cause reproductive toxicity under the “formally
    required to be labeled or identified” listing mechanism. Cal. Reg. Notice Register 2016,
    Vol. 40-Z, p. 1772.
  6. Vismodegib as known to the State to cause reproductive toxicity (development, female, and
    male endpoints) under the “formally required to be labeled or identified” listing
    mechanism. Cal. Reg. Notice Register 2016, Vol. 40-Z, p. 1774.
    In December 2016, OEHHA provided notice of its intent to list:
  7. Pertuzumab as known to the State to cause reproductive toxicity under the formally
    required to be labeled or identified listing mechanism. Cal. Reg. Notice Register 2016,
    Vol. 49-Z, p. 2091.
  8. Vismodegib as known to the State to cause reproductive toxicity under the formally
    required to be labeled or identified listing mechanism. Cal. Reg. Notice Register 2016,
    Vol. No. 49-Z, p. 2093.
    3.
    Notice to Change the Basis for Listing. In December 2016, OEHHA provided notice of a change
    in the listing mechanism for chloroform based on modifications to certain federal regulations. The
    listing mechanism is being changed from the Labor Code mechanism to the State’s qualified
    experts mechanism. Cal. Reg. Notice Register 2016, Vol. No. 52-Z, p. 2197.
    Safe Use Determinations. In October 2016, OEHHA provided notice of an amendment to Section
    25204(f) in Title 27 of the California Code of Regulations relating to Safe Use Determination
    hearings. The amendment would make the public hearings optional and held only at the request
    of an interested individual during the prescribed time. Cal. Reg. Notice Register 2016, Vol. No.
    42-Z, p. 1848.
    RESOURCE CONSERVATION
    Recent Court Rulings
    No summaries or updates this quarter.
    Regulatory Updates
    Deer Hunting. In December 2016, the Fish and Game Commission (Commission) provided notice
    of proposed amendments to regulations concerning reporting requirements for deer tagging. The
    proposed amendments would: (i) eliminate in-person delivery of completed reports, and (ii) add a
    provision that report cards submitted by mail will be considered not reported if they are not
    received. Cal. Reg. Notice Register 2016, Vol. No. 52-Z, p.2175.
    18
    In December 2016, the Commission also provided notice of proposed amendments relating to deer
    hunting tags for: (i) the X zones, (ii) additional hunts, and (iii) existing area-specific archery hunts.
    The numbers of tags are provided in ranges and will be finalized once the spring deer herd data is
    collected. In addition, the proposed amendments would make modifications to the hunting season
    dates. Cal Reg. Notice Register 2016, Vol. No. 52-Z, p. 2180.
    Groundfish and Associated Species. In September 2016, the Commission provided notice of
    amendments and additions to certain regulations relating to recreational fishing for federal
    groundfish and associated species for consistency with federal rules for 2017 and 2018. The
    recommendations will subsequently be implemented as federal fishing regulations by the National
    Marine Fisheries Service. Cal. Reg. Notice Register 2016, Vol. No. 38-Z, p. 1672.
    North Coast Marine Protected Areas. In October 2016, the Commission provided notice of
    proposed amendments to Section 632 in Title 14 of the California Code of Regulations relating to
    tribal take in north coast marine protected areas. Specifically, the amendments would: (i) add two
    tribes to the list of tribes exempt from the area and take regulations, and (ii) account for a name
    change. Cal. Reg. Notice Register 2016, Vol. No. 41-Z, p. 1812.
    Take of Game. In September 2016, the Commission provided notice of new proposed regulations
    establishing standards for imposing penalty enhancements for illegal take of game with defined
    characteristics. Specifically, the definitions of “trophy” deer, elk, antelope, bighorn sheep, and
    wild turkey will be adopted to enhance fines and penalties for poaching animals meeting specified
    criteria. Cal. Reg. Notice Register 2016, Vol. No. 40-Z, p. 1765.
    Use of Dogs for Pursuit/Take of Mammals. In November 2016, the Commission provided notice
    of proposed changes to amend Section 265 in Title 14 of the California Code of Regulations,
    prohibiting the use of GPS collars and treeing switches for dogs used in the taking of mammals.
    The proposed amendments are in response to litigation seeking to invalidate the existing
    regulation, which allows for the use of such equipment. Cal. Reg. Notice Register 2016, Vol. No.
    47-Z, p. 2018. In December 2016, the Commission provided a notice of hearing regarding same.
    Cal. Reg. Notice Register 2016, Vol. No. 52-Z, p. 2197.
    Waterfowl. In December 2016, the Commission provided notice of proposed regulations relating
    to waterfowl hunting for the 2017-18 season. The proposed regulations specify: (i) the length of
    the season, (ii) daily duck limits, and (iii) daily bag limit ranges. In addition, the Department of
    Fish and Wildlife recommended several regulatory modifications as required by Federal
    regulations. Cal. Reg. Notice Register 2016, Vol. No. 52-Z, p. 2189.
    SOLID WASTE
    Recent Court Rulings
    No summaries or updates this quarter.
    Regulatory Updates
    No summaries or updates this quarter.
    19
    WATER RESOURCES
    Recent Court Rulings
    No summaries or updates this quarter.
    Regulatory Updates
    WATER QUALITY
    Recent Court Rulings
    Regulatory Updates
    Nitrates in Combination with Amines or Amides. In September 2016, OEHHA provided notice
    of an extended comment period for the hazard identification materials for nitrite in combination
    with amines or amides. The comment period was extended to October 17, 2016. Cal. Reg. Notice
    Register 2016, Vol. No. 39-Z, p. 1716.
    Public Health Goals (PHGs). In September 2016, OEHHA provided a notice of an updated PHG
    for antimony in drinking water. PHGs provide information on the health effects of contaminants
    in water, and are considered by the State Water Resources Control Board in setting drinking water
    standards. As a result of the update, the PHG for antimony has been revised from 20 parts per
    billion (ppb) to 1 ppb. Cal. Reg. Notice Register 2016, Vol. No. 39-Z, p. 1714.
    In September 2016, OEHHA also provided notice of updated PHGs, and a supporting technical
    document, for carbofuran, diquat, endrin, picloram and thiobencarb. The updated PHGs are 0.7
    bbp for carbofuran, 6 ppb for diquat, 0.3 ppb for endrin, 166 ppb for picloram, and 42 ppb for
    thiobencard. Cal. Reg. Notice Register 2016, Vol. No. 39-Z, p. 1715.
    In October 2016, OEHHA provided a notice of initiation of the process to update PHGs for the
    following chemicals: (i) cis-1,2-dichloroethylene; (ii) trans-1,2-dichloroethylene; (iii) hexavalent
    chromium; and (iv) nickel. Cal. Reg. Notice Register 2016, Vol. No. 44-Z, p. 1953.
    In December 2016, OEHHA provided a notice of availability, and requested comments on, a draft
    technical support document for the proposed update of the PHGs for nitrate and nitrite in drinking
    water. OEHHA will submit the draft risk assessment for external scientific peer review following
    the workshop being held regarding same. Cal. Reg. Notice Register 2016, Vol. No. 51-Z, p. 2158.
    Well Stimulation Treatment and Underground Injection Control Class II Regulations. In
    December 2016, the Department of Conservation provided notice of its decision to deny a petition
    requesting amendments to the Division of Oil, Gas, and Geothermal Resources’ well stimulation
    treatment and underground injection control Class II regulations. Cal. Reg. Notice Register 2016,
    Vol. No. 49-Z, p. 2099.
    20
    Federal Summaries
    Supreme Court
    No summaries or updates this quarter.
    Ninth Circuit Court of Appeals
    The Ninth Circuit has held that, where a second NPDES permit supplants a prior permit
    which is the subject of a legal challenge for exceedance of pollution limits, the challenge is
    moot only if permittee shows with “absolute clarity” that it will meet the permit
    requirements. Natural Resources Defense Council v. County of Los Angeles, 840 F.3d 1098
    (9th Cir. 2016).
    In 2008, NRDC filed suit alleging that County stormwater discharges violated its 2001 NPDES
    permit. In 2013, the Ninth Circuit upheld the claim on grounds that pollution levels exceeded the
    permit limits. But in 2012, the County received a new permit with the same baseline limitations as
    the 2001 permit. Where the 2001 permit prohibited any exceedance of water quality standards, the
    2012 permit contained total maximum daily loads (TMDL) for over thirty impaired water bodies,
    with interim requirements to meet the final TMDL deadlines. The 2012 permit also contained a
    “safe harbor” program allowing implementation of and compliance with voluntary watershed
    management programs (WMP) in order to be “deemed compliant” with the baseline limitations
    and interim TDML requirements. “Deemed compliance” began upon notice of the County’s intent
    to implement a WMP, but could be revoked if the County failed to keep up with the programs. The
    County prepared WMPs for all water bodies. In January 2015, the County requested dismissal of
    plaintiffs’ lawsuit on mootness grounds, arguing that the 2012 permit supplanted the 2001 permit
    and thus no relief was available. The district court granted the request in part, on grounds that the
    County was in compliance with the 2012 permit and there was no evidence it would not comply.
    Plaintiffs appealed.
    On appeal, the question was whether the 2012 permit and County’s actions to date thereunder
    rendered NRDC’s challenge moot. The court also addressed a threshold, jurisdictional question,
    whether the district court’s decision effectively denied an injunction such that the Ninth Circuit
    had authority to review the denial as an interlocutory order.
    The Ninth Circuit held that the dismissal of NRDC’s claim was a reviewable interlocutory order
    whose effect was to deny plaintiffs’ request for an injunction. The court also held plaintiffs’ claim
    regarding the 2001 permit was not moot. The relevant inquiry was “whether the 2012 permit
    maintains the receiving water limitations from the 2001 permit such that an injunction could still
    provide effective relief.” The district court erred by assuming that any relaxation of the standards
    in the 2012 permit necessarily mooted the case. The 2012 permit substantially retained the prior
    permit’s baseline limitations, and only excused violations if the County qualified for the safe
    harbor program by keeping up with the WMP deadlines. Thus the County’s compliance with the
    baseline limitations was conditioned on the success of the WMP programs and the County had to
    demonstrate with “absolutely clarity” that violations would not occur. The district court improperly
    21
    placed the burden on NRDC to show the County could not show future compliance with absolute
    clarity, instead of requiring the County to make this showing based on “positive evidence.” Mere
    initiation of the WMP programs was not enough; the County had to actually establish it would
    comply with the programs. Without such showing, the baseline limitations from the 2001 permit
    would still potentially apply and it was therefore not impossible for the district court to award
    injunctive relief to plaintiffs.
    The Ninth Circuit has held that federal and state law preempt a voter-adopted ordinance
    purporting to ban the cultivation and testing of genetically engineered plants. Atay v. County
    of Maui (9th Cir. 2016) 842 F.3d 388
    Voters in the County of Maui voted to adopt an ordinance that banned the cultivation and testing
    of genetically engineered (GE) plants. The purpose of the ordinance was to protect organic and
    non-GE farmers and the environment from contamination and pesticides; preserve the residents’
    right to reject GE agriculture; and protect the County’s vulnerable ecosystems. The district court
    ruled that the ordinance was expressly and impliedly preempted by federal law; impliedly
    preempted by state law; and in excess of the County’s authority under its Charter.
    The issue on appeal was whether state and/or federal law preempted the ordinance banning
    cultivation and testing of GE plants.
    The Ninth Circuit ruled that: (1) the ordinance was expressly preempted by the Plant Protection
    Act, 7 U.S.C. section 7756(b) to the extent that the ordinance banned GE plants that are regulated
    as plant pests by the U.S. Animal and Plant Health Inspection Service (APHIS); (2) the ordinance
    was not impliedly preempted by the Plant Protection Act with respect to GE plants that APHIS has
    deregulated; and (3) the ordinance was impliedly preempted as applied by Hawaii’s
    comprehensive statutory scheme for regulating potentially harmful plants.
    The Ninth Circuit has held that a local ordinance regulating commercial farmers’ use of
    pesticides and cultivation of genetically engineered (GE) plants was impliedly preempted by
    state law. Syngenta Seeds v. County of Kauai (9th Cir. 2016) 842 F.3d 669
    The County of Kauai adopted an ordinance regulating “commercial agricultural entities’” (CAEs)
    use of restricted use pesticides (RUPs). In relevant part, the ordinance required CAEs to: (1)
    comply with notification and disclosure provisions before and after applying RUPs; (2) prepare
    detailed reports regarding the use of the RUPs; and (3) establish “buffer zones” between crops
    treated with RUPs and certain surrounding properties, including schools and waterways. The
    ordinance also required the County to complete an Environmental and Public Health Impact Study
    to address “environmental and public health questions related to large-scale commercial
    agricultural entities utilizing pesticides and genetically modified organisms” and recommend
    possible actions to address such public health impacts.
    The issue on appeal was whether state law preempted the ordinance.
    The Ninth Circuit ruled that the Hawaii Pesticides law preempted the ordinance’s pesticide
    provisions.
    22
    Other Federal Cases of Interest
    The United States Court of Appeals for the First Circuit held that land acquired and developed via
    a Land and Water Conservation Fund Act grant is subject to administrative restrictions in
    perpetuity. Boston Redevelopment Authority v. National Park Service and Sally Jewell, as Secretary for
    the United States Department of the Interior, No. 15-2770 (1st Cir. September 23, 2016).
    In the 1970s, The Boston Redevelopment Authority (“BRA”) acquired title to “Long Wharf,” a piece of
    real estate bordering the Boston Harbor. In 1980, BRA applied for a federal grant via the Land and Water
    Conservation Fund Act (“LWCFA”). LWCFA grants provide financial assistance to state entities for
    acquisition of land and related development for outdoor recreational purposes. As a condition of receiving
    the grant, the landowner may not convert the land to any use other than “outdoor recreation use” without
    approval from the National Park Service (“NPS”). The LWCFA refers to such restricted land as “Section
    6(f) area.” BRA wished to redevelop a portion of the Long Wharf, referred to as the “Pavilion,” for
    commercial purposes. Based upon a 1983 map included within the LWCFA grant materials, NPS initially
    determined the Pavilion was not a part of Long Wharf’s Section 6(f) area, and did not require NPS approval.
    Accordingly, BRA proceeded with the redevelopment. Six years later, NPS discovered a hand-labeled map
    in its files that corresponded with BRA’s grant application. Utilizing the 1980 map, NPS issued a 2014
    final determination that the Pavilion fell within the Section 6(f) area, and denied permission for BRA’s
    redevelopment. NPS asserted the area should remain open to outdoor recreational use. BRA sued NPS in
    the U.S. District Court for the District of Massachusetts. The court granted a motion for summary judgment
    filed by NPS, and BRA appealed to the First Circuit Court of Appeals.
    The Court initially addressed the standard of appellate review. It held that the appropriate standard was
    “arbitrary and capricious” under the Administrative Procedure Act. Its primary analysis focused upon
    whether the 1980 or 1983 map controlled with regard to the Section 6(f) area. The Court found compelling
    the facts that the 1980 map coincided with the timing of BRA’s grant application and BRA sought NPS
    approval as to prior easements encompassing the Pavilion. Additionally, BRA used the terms “Long
    Wharf” and “project site” interchangeably in its grant application, indicating the Section 6(f) area
    encompassed all of the Long Wharf, including the Pavilion. The Court held NPS correctly used the 1980
    map and its decision was neither arbitrary nor capricious. As dicta, the Court addressed additional
    arguments raised by BRA. First, BRA alleged the LWCFA grant was only used for planning, which should
    be distinguished from development. The Court held such a distinction was artificial and it would not create
    a loophole allowing one to allocate LWCFA funds toward “planning” to bypass the NPS’s control over
    redevelopment of Section 6(f) areas. Additionally, the Court rejected procedural and substantive due
    process arguments raised by BRA.
    The holding acts as a cautionary tale regarding the use of LWCFA grants. The Court provided that, as part
    of the basis of the bargain in applying for LWCFA grants, the land is subject to Section 6(f) area approval
    in perpetuity.
    Federal Regulatory Updates
    Agency Administration
    Fall 2016 Regulatory Agenda. In December 2016, the U.S. Environmental Protection Agency
    (EPA) provided notice of its semiannual regulatory agenda update. The document contains
    information about: (i) regulation changes since the previous agenda; (ii) retrospective reviews of
    existing regulations; and (iii) review of regulations with small business impacts under Section 610
    of the Regulatory Flexibility Act. 81 Fed. Reg. 94809.
    23
    Air Quality
    Air Pollution Control Cost Manual. In September 2016, the EPA provided notice of, and
    requested comments on, the following updated chapters of the current Air Pollution Control Cost
    Manual: (i) Chapter 2, Cost Estimation: Concepts and Methodology; (ii) Section 3.1, Chapter 1,
    Refrigerated Condensers; and, (iii) Section 3.2, Chapter 2, Incinerators/Oxidizers. 81 Fed. Reg.
    65352.
    Ambient Air Monitoring Reference and Equivalent Methods. In November 2016, the EPA
    provided a notice of designation of one new equivalent method for measuring concentrations of
    nitrogen dioxide (NO2) in the ambient air. 81 Fed. Reg. 85561.
    Applicability Determination Index Data System. In December 2016, the EPA provided a notice
    of availability of applicability determinations, alternative monitoring decisions, and regulatory
    interpretations that the EPA has made under the New Source Performance Standards, National
    Emission Standards for Hazardous Air (NESHAP) and/or the Stratospheric Ozone Protection
    Program. 81 Fed. Reg. 95585.
    California State Motor Vehicle Pollution Control Standards. In November 2016, the EPA
    provided notice of its decision granting the California Air Resources Board’s (CARB) request for
    a waiver of Clean Air Act preemption to enforce amendments to regulations entitled “Malfunction
    and Diagnostic System Requirements – 2004 and Subsequent Model-Year Passenger Cars, Light-
    Duty Trucks and Medium-Duty Vehicles and Engines,” and amendments to CARB’s regulations
    entitled “Enforcement of Malfunction and Diagnostic Systems Requirements for 2004 and
    Subsequent Model-Year Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles and
    Engines.” 81 Fed. Reg. 78143.
    In November 2016, the EPA also provided notice of its decision granting CARB’s request for a
    waiver of Clean Air Act preemption for amendments made in 2013 to its “Malfunction and
    Diagnostic System Requirements for 2010 and Subsequent Model Year Heavy-Duty Engine,” and
    to its “Enforcement of Malfunction and Diagnostic System Requirements for 2010 and Subsequent
    Model-Year Heavy-Duty Engines.” The EPA also confirmed that certain amendments are within
    the scope of the previous waiver. 81 Fed. Reg. 78149.
    In December 2016, the EPA provided a notice of decision granting CARB’s request for a waiver
    of Clean Air Act preemption for its GHG emission regulation for the new 2014 and subsequent
    model year on-road medium- and heavy-duty engines and vehicles adopted in 2011. The
    regulation establishes requirements applicable to new motor vehicles with a gross vehicle weight
    rating exceeding 8,500 pounds and engines that power such motor vehicles with certain exceptions.
    81 Fed. Reg. 95982.
    Clean Air Act Permitting Programs. In October 2016, the EPA provided notice of a final rule
    revising the public notice provisions for the New Source Review (NSR), Title V and Outer
    Continental Shelf (OCS) permit programs of the Clean Air Act. Specifically, the rule replaces the
    requirement for newspaper publication of a public notice of a draft air permit with electronic notice
    (e-notice). 81 Fed. Reg. 71613.
    Control Technique Guidelines for Oil and Natural Gas Industry. In October 2016, the EPA
    provided a notice of availability of a final document titled, “Control Techniques Guidelines for the
    24
    Oil and Natural Gas Industry.” The document provides information to assist in determining
    reasonably available control technology (RACT) for volatile organic compound (VOC) emissions
    from select oil and natural gas industry emission sources. 81 Fed. Reg. 74798.
    Cross-State Air Pollution Rule (CSAPR) Allowances. In November 2016, the EPA provided
    notice of a final rule, and data availability, for emission allowance allocations to certain units under
    the new unit set-aside (NUSA) provisions of the CSAPR federal implementation plans (FIP). The
    final rule provides the second-round of 2016 NUSA allocations of CSAPR oxides of nitrogen
    (NOX) Ozone Season allowances to new units, and allocations to existing units of the
    remaining CSAPR NOX Ozone Season allowances not allocated to new units in either round of the
    2016 NUSA allocation process. 81 Fed. Reg. 80593.
    Events Rule and Guidance. In October 2016, the EPA provided notice of a final rule concerning
    revisions to regulations that govern the exclusion of event-influenced air quality data from certain
    regulatory decisions. In addition, the EPA provided a notice of availability of a document titled:
    “Guidance on the Preparation of Exceptional Events Demonstrations for Wildfire Events that May
    Influence Ozone Concentrations.” 81 Fed. Reg. 68216.
    Federal Implementation Plan. In December 2016, the EPA provided notice of a rule proposing
    a limited FIP to apply to the North Coast Air Quality Management District (AQMD) in California.
    The limited FIP would implement provisions to regulate fine particulate matter (PM2.5) under the
    Clean Air Act Prevention of Significant Deterioration program. This action is a result of North
    Coast AQMD’s failure to comply. 81 Fed. Reg. 93872.
    Formaldehyde Emission Standards for Composite Wood Products. In December 2016, the
    EPA provided notice of a final rule to implement the Formaldehyde Emission Standards for
    Composite Wood Products Act. The purpose of the Act is to reduce emissions, which will reduce
    exposure to formaldehyde and result in benefits from avoided adverse health effects. 81 Fed. Reg.
    89674.
    Mercury and Air Toxics Standards. In October 2016, the EPA provided notice of a 15-day
    comment period extension for the proposed rule titled, “Mercury and Air Toxics Standards
    Completion of Electronic Reporting Requirements.” The extended comment period closes
    November 15, 2016. 81 Fed. Reg. 75365.
    Method 303 Certification Training. In November 2016, the EPA provided notice of a final rule
    revising requirements for Method 303 training courses. Method 303 is an air pollution test method
    used to determine the presence of visible emissions from coke ovens. The revisions add clarifying
    language. 81 Fed Reg. 83701.
    Minor New Source Review Program. In October 2016, the EPA provided notice of a final rule
    concerning general permits pursuant to the Federal Minor NSR Program in Indian country for new
    or modified minor sources in the following categories: concrete batch plants; boilers and
    emergency engines; stationary spark ignition engines; stationary compression ignition engines;
    graphic arts and printing operations; and sawmill facilities. 81 Fed. Reg. 70944.
    25
    National Ambient Air Quality Standards (NAAQS). In September 2016, the EPA provided a
    notice of availability of, and requested comments on, “Policy Assessment for the Review of the
    Primary National Ambient Air Quality Standards for Nitrogen Dioxide – External Review Draft.”
    81 Fed. Reg. 65353.
    In October 2016, the EPA:
  9. Provided notice of a final rule denying a request submitted by California to extend the
    attainment date for the 1997 24-hour and annual PM2.5 NAAQS in the San Joaquin Valley
    Serious PM2.5 nonattainment area. 81 Fed. Reg. 69396.
  10. Provided notice of a proposed rule to determine that the San Joaquin Valley nonattainment
    area failed to attain the 1997 annual and 24-hour PM2.5 NAAQS by the required date. The
    proposed determination is based on monitored air quality from 2013 through 2015. 81 Fed.
    Reg. 69448.
  11. Provided notice of a proposed rule determining that the San Luis Obispo County ozone
    nonattainment area has attained the 2008 ozone NAAQS by the applicable attainment date.
    If the determination is finalized, this area will not be reclassified to a higher ozone
    classification. 81 Fed. Reg. 70382.
  12. Provided notice of a final rule following its review of the NAAQS for lead. The final rule
    retains the current standards without revision. 81 Fed. Reg. 71906.
    In November 2016, the EPA:
  13. Provided notice of a proposed rule classifying nonattainment area thresholds and
    implementation requirements for the 2015 ozone NAAQS. The proposed rule is an update
    to the 2008 ozone NAAQS, and addresses the timing of attainment dates and
    nonattainment area state implementation plan requirements for the 2015 ozone NAAQS.
    81 Fed. Reg. 81276.
  14. Provided notice of a final rule concerning the San Joaquin Valley nonattainment area
    failing to attain the 1997 annual and 24-hour PM2.5 NAAQS by the “serious” area
    attainment date. As a result, the State of California must submit a revision to the California
    SIP. 81 Fed. Reg. 84481.
    In December 2016, the EPA:
  15. Provided a notice of availability of a final document titled, “Integrated Review Plan for the
    National Ambient Air Quality Standards for Particulate Matter.” 81 Fed. Reg. 87933.
  16. Provided a notice of public comment period for the draft document titled, “Second External
    Review Draft Integrated Science Assessment for Sulfur Oxides-Health Criteria.” 81 Fed.
    Reg. 89097.
  17. Provided a notice of determination of attainment by the attainment date for areas currently
    classified as moderate for the 2006 24-hour PM2.5 NAAQS, including: Chico, Imperial
    County, Sacramento, and San Francisco. 81 Fed. Reg. 91088.
  18. Provided notice of a public hearing, and extended comment period, concerning the
    proposed rule titled, “Implementation of the 2015 National Ambient Air Quality Standards
    for Ozone: Nonattainment Area Classifications and State Implementation
    Requirements.” 81 Fed. Reg. 91894.
  19. In December 2016, the EPA also provided notice of a final rule providing the determination
    that the San Luis Obispo ozone nonattainment area in California has attained the 2008
    ozone NAAQS by the applicable attainment date. 81 Fed. Reg. 93620.
  20. Provided notice of a direct final rule determining that the Mariposa County moderate
    nonattainment area has attained the 2008 8-hour ozone NAAQS. The determination
    26
    suspends any unfulfilled obligations to submit revisions to the SIP as long as the area
    continues to meet the standards. 81 Fed. Reg. 93624. The EPA provided notice of a
    proposed rule concerning same. 81 Fed. Reg. 93653.
    7.
    National Emission Standards for Hazardous Air Pollutant (NESHAP) Emissions. In
    September 2016, the EPA provided notice of a proposed rule to amend electronic reporting
    requirements for the NESHAP Coal- and Oil-Fired electricity utility steam generation units (also
    known as the Mercury and Air Toxics Standards). The proposed rule would revise and streamline
    the electronic data reporting requirements and increase data transparency. 81 Fed. Reg. 67062.
    In October 2016, the EPA announced reconsideration of, and requested comments on, five issues
    raised in petitions for the previously finalized amendments to the NESHAP Refinery Maximum
    Achievable Control Technology (MACT) 1 and Refinery MACT 2 regulations and the New Source
    Performance Standard for petroleum refineries. 81 Fed. Reg. 71661. In November 2016, the EPA
    provided notice of a public hearing and extended comment period for same. 81 Fed. Reg. 76550.
    In December 2016, the EPA:
  21. Provided notice of a proposed rule amending the NESHAP for phosphoric acid
    manufacturing and phosphate fertilizer production source categories. The revisions are in
    response to petitions for reconsideration filed regarding same. 81 Fed. Reg. 89026.
  22. Provided a notice of availability of broadly applicable alternative test method approval
    decisions the EPA has made under, and in support of, New Source Performance Standards
    and NESHAP. 81 Fed. Reg. 93682.
  23. Provided notice of a proposed rule amending the NESHAP for Publicly Owned Treatment
    Works (POTW) to address the results of the residual risk and technology review. The
    amendments would include: (i) pretreatment requirements to limit certain emissions; (ii)
    requirements for certain industrial (Group 1) POTW; and (ii) hazardous air pollutants
    emission limits for existing, non-industrial (Group 2) POTW. 81 Fed. Reg. 95352.
  24. Provided notice of a proposed rule amending the NESHAP for the Manufacturing of
    Nutritional Yeast source category. The proposed amendments include: (i) revising the
    fermenter VOC emission limits form, (ii) changing the testing and monitoring
    requirements, and (iii) updating the reporting and recordkeeping requirements. 81 Fed.
    Reg. 95810.
  25. Provided notice of a proposed rule amending the NESHAP for Chemical Recovery
    Combustion Sources at Kraft, Soda, Sulfite and Stand-Alone Semichemical Pulp Mills.
    The proposed amendments include: (i) revising opacity monitoring provisions, (ii) adding
    electrostatic precipitator parameter monitoring provisions, and (iii) requiring periodic
    emissions testing, as well as others. 81 Fed. Reg. 97046.
    6.
    Near Road NO2 Monitoring. In December 2016, the EPA provided notice of a final rule revising
    minimum monitoring requirements for near-road NO2 monitoring by removing the existing
    requirement for certain areas having a population between 500,000 and 1,000,000. 81 Fed. Reg.
    96381.
    New Source Performance Standards. In November 2016, the EPA provided notice of a final
    rule updating quality assurance requirements for PM continuous emission monitoring system
    (CEMS) procedures in the New Source Performance Standards. The procedures will be modified
    to allow facilities to extend their PM CEMS correlation regression line to ensure facilities have
    27
    reduced their emissions. 81 Fed. Reg. 83160. The EPA provided notice of a proposed rule
    regarding same. 81 Fed. Reg. 83189.
    Outer Continental Shelf Air Regulations. In December 2016, the EPA provided notice of a
    proposed rule to update portions of the OCS regulations for the Santa Barbara County (Air
    Pollution Control District) APCD and Ventura County APCD designated corresponding onshore
    areas. The rule would regulate emissions from OCS sources in accordance with onshore
    requirements. 81 Fed. Reg. 89418.
    Prevention of Significant Deterioration. In November 2016, the EPA provided notice of a final
    rule amending its federal Prevention of Significant Deterioration regulations. The amendments
    would: (i) remove a date restriction from the permit rescission provision, (ii) add a permit
    rescission provision that applies to major sources in nonattainment areas of Indian county, and (iii)
    provide clarifications and corrections. 81 Fed. Reg. 78043.
    In November 2016, the EPA also provided notice of an extended comment period for a proposed
    rule concerning revisions to the provisions in the prevention of significant deterioration and title
    V permitting regulations applicable to GHGs. The comment period was extended to December
    16, 2016. 81 Fed. Reg. 81711.
    Protection of Stratospheric Ozone. In October 2016, the EPA provided a determination of
    acceptability expanding the list of substitutes pursuant to the EPA’s Significant New Alternatives
    Policy Program. The added acceptable substitutes are for use in the refrigeration and air
    conditioning sector and fire suppression and explosion protection sectors. 81 Fed. Reg. 70029.
    In November 2016, the EPA provided notice of a final rule updating refrigerant management
    requirements and extending them to include non-ozone depleting substitute refrigerants. The
    updates include: (i) strengthened leak repair requirements, (ii) recordkeeping requirements, (iii)
    revisions to the technician certification program, and (iv) clarifying revisions. 81 Fed. Reg. 82272.
    In December 2016, the EPA provided notice of a final rule pursuant to the New Alternatives Policy
    Program including: (i) the level of acceptability for certain substances, (ii) specifics for a propane
    exemption in certain refrigeration end-uses, and (iii) unacceptability determinations for closed cell
    foam products. 81 Fed. Reg. 86778.
    Renewables Enhancement and Growth Support Rule. In November 2016, the EPA provided
    notice of, and requested comments on, its intent to update both its renewable fuels and other fuels
    regulations to reflect changes in the marketplace and to promote the growing use of both ethanol
    fuels (conventional and advanced) and non-ethanol advanced and cellulosic biofuels. 81 Fed. Reg.
  26. In December 2016, the EPA provided notice of an extended comment period for same. 81
    Fed. Reg. 95097.
    Renewable Fuel Standard Program. In December 2016, the EPA provided notice of a final rule
    establishing the annual percentage standards for cellulosic biofuel, biomass-based diesel, advanced
    biofuel, and total renewable fuel that apply to all motor vehicle gasoline and diesel produced or
    imported in 2017. 81 Fed. Reg. 89746.
    State Implementation Plan (SIP). In September 2016, the EPA:
    28
  27. Provided notice of proposed revisions to the South Coast AQMD portion of the California
    SIP. The revisions concern emissions of NOX from ovens, dryers, dehydrators, heaters,
    kilns, calciners, furnaces, crematories, incinerators, heated pots, cookers, roasters,
    smokers, fryers, closed and open heated tanks and evaporators, distillation units, vapor
    incinerators, catalytic or thermal oxidizers, soil and water remediation units, and other
    combustion equipment. 81 Fed. Red. 63732.
  28. Provided notice of a final action to approve revisions to the California Department of
    Pesticide Regulations portion of the California SIP. The revisions concern emissions of
    VOCs from pesticides and would restrict the use of certain nonfumigant pesticide products
    applied to certain crops in the San Joaquin Valley ozone nonattainment area under certain
    conditions. 81 Fed. Reg. 64350.
  29. Provided notice of a proposed rule to approve revisions to the Ventura County APCD
    portion of the California SIP. The proposed revisions would incorporate a Prevention of
    Significant Deterioration (PSD) rule to establish a permit program for pre-construction
    review of certain new and modified major stationary sources in attainment and
    unclassifiable areas. 81 Fed. Reg. 65595.
    4.
    In October 2016, the EPA:
  30. Provided notice of a direct final rule to approve revisions to the Sacramento AQMD and
    the San Diego County APCD portions of the California SIP. The revisions concern
    emissions of VOCs from architectural coatings. 81 Fed. Reg. 68320. The EPA also
    provided notice of a proposed rule regarding same. 81 Fed. Reg. 68379.
  31. Provided notice of a final rule on five permitting rules submitted as a revision to the
    Northern Sonoma County APCD portion of the California SIP. The amended rules govern
    the issuance of permits for stationary sources, including review and permitting of minor
    sources, major sources and major modifications. 81 Fed. Reg. 69390.
  32. Provided notice of a final rule approving a revision to the San Joaquin Valley APCD
    portion of the California SIP. The revision concerns emissions of VOCs, NOX, and PM
    from wood burning devices. 81 Fed. Reg. 69393.
  33. Provided notice of a direct final rule to approve revisions to the Butte County AQMD
    portion of the California SIP concerning emissions of PM from open burning. 81 Fed. Reg.
  34. The EPA provided notice of a proposed rule concerning same. 81 Fed. Reg. 70065.
  35. Provided notice of a direct file rule to approve revisions to the California SIP concerning
    the base year emission inventories for four areas designated as nonattainment areas for the
    2008 ozone NAAQS. The four areas are: (i) Calaveras County; (ii) Chico (Butte County);
    (iii) San Francisco Bay Area; and (iv) eastern San Luis Obispo. 81 Fed. Reg. 71997. The
    EPA provided notice of a proposed rule concerning same. 81 Fed. Reg. 72011.
    6.
    In November 2016, the EPA:
  36. Provided notice of a proposed rule to approve California SIP revisions concerning
    attainment of the 1997 8-hour ozone NAAQS in the Coachella Valley nonattainment area.
    The EPA proposes to find the emissions inventories acceptable and approve the related
    measures, demonstrations and budgets. 81 Fed. Reg. 75764.
  37. Provided notice of a partial approval and partial disapproval of the revisions to the South
    Coast AQMD portion of the California SIP. The revision concerns the demonstration of
    29
    RACT requirements for the 2008 8-hour ozone NAAQS in the South Coast Air Basin and
    Coachella Valley ozone nonattainment areas. 81 Fed. Reg. 76547.
  38. Provided notice of a final rule approving South Coast AQMD Rule 2449, Control of Oxides
    of Nitrogen Emissions from Off-Road Diesel Vehicles, for the California SIP. The rule
    requires certain in-use off-road vehicle fleets to meet more stringent requirements when
    funding is provided by South Coast AQMD in order to achieve additional reductions of
    NOX. 81 Fed. Reg. 83154.
    4.
    In December 2016, the EPA:
  39. Provided notice of a proposed rule concerning revisions to the Yolo-Solano AQMD portion
    of the California SIP. The revision concerns emissions of VOCs and PM from confined
    animal facilities. 81 Fed. Reg. 86662.
  40. Provided notice of a proposed rule approving revisions to the Imperial County APCD
    portion of the California SIP. The revisions concern VOCs and PM from large confined
    animal facilities. 81 Fed. Reg. 89024.
  41. Provided notice of a proposed rule to approve an SIP revision to meet requirements
    applicable to the Owens Valley PM10 nonattainment area. The revision was required as a
    result of the EPA’s 2007 finding that Owens Valley PM10 nonattainment area had failed to
    meet its deadline to meet the PM10 NAAQS. 81 Fed. Reg. 89407.
  42. Provided notice of a proposed rule partially approving and partially disapproving revisions
    to the Antelope Valley AQMD portion of the California SIP. The revisions concern the
    demonstration regarding RACT requirements for the 1997 and 2008 8-hour ozone
    NAAQS. 81 Fed. Reg. 90754.
  43. Provided notice of a proposed rule concerning revisions to the Imperial County APCD
    portion of the California SIP. Specifically, the EPA is proposing to approve two rules and
    partially disapprove one rule that would update and revise the NSR permitting program for
    new and modified sources of air pollution. 81 Fed. Reg. 91895.
  44. Provided notice of a final rule concerning the Butte County AQMD portion of the
    California SIP. Specifically, the EPA is finalizing limited approval and limited disapproval
    of one rule, approval of two permitting rules, and deletion of ten rules from the SIP
    regarding the NSR permitting program for new and modified sources of air pollution. 81
    Fed. Reg. 93820.
  45. Provided notice of a proposed rule concerning revisions to the Mendocino County AQMD
    portion of the California SIP. Specifically, the EPA is proposing a limited disapproval of
    one rule and approval of the remaining three permitting rules regarding the issuance of
    permits for stationary sources, including review and permitting of minor sources, and major
    sources and major modifications under Part C of title I of the Clean Air Act. 81 Fed. Reg.
    95074.
  46. Provided notice of a final rule approving revisions to the South Coast AQMD portion of
    the California SIP. The revisions concern emissions of NOX from ovens, dryers,
    dehydrators, heaters, kilns, calciners, furnaces, crematories, incinerators, heated pots,
    cookers, and other combustion equipment. 81 Fed. Reg. 95472.
  47. Provided notice of a final rule to approve a revision to the Great Basin Unified APCD
    portion of the California SIP. The revision concerns emission of particulate matter at
    Owens Lake. 81 Fed. Reg. 95473.
    30
    Climate Change
    Aircraft Greenhouse Gas (GHG) Emissions. In December 2016, the EPA provided notice of a
    final action denying a petition for reconsideration of the final finding that GHG emissions from
    aircraft cause or contribute to air pollution that may reasonably be anticipated to endanger public
    health and welfare. 81 Fed. Reg. 96413.
    GHG Emissions and Fuel Efficiency Standards. In October 2016, the EPA and National
    Highway Traffic Safety Administration (NHTSA) provided notice of a final rule that establishes a
    comprehensive Phase 2 Heavy-Duty National Program to reduce GHG emissions and fuel
    consumption from new on-road medium- and heavy-duty vehicles and engines. The program
    includes several sets of standards, some of which are exclusive to the EPA program. In addition,
    NHTSA is addressing inconsistencies between the Phase 1 EPA GHG standards and NHTSA fuel
    efficiency standards. 81 Fed. Reg. 73478.
    GHG Reporting Rule. In November 2016, the EPA provided notice of a final rule concerning
    revisions and confidentiality determinations for the petroleum and natural gas systems source
    category of the GHG Reporting Rule. Specifically, the revisions add new monitoring methods and
    emission factors for leaking equipment, and finalize reporting requirements and confidentiality
    determinations for certain data elements. 81 Fed. Reg. 86490.
    In December 2016, the EPA provided notice of a final rule amending specific provisions of the
    GHG Reporting Rule to streamline and improve implementation of the rule, improve the quality
    and consistency of the data collected, and clarify or provide minor updates to certain provisions.
    81 Fed. Reg. 89188.
    Model Year 2022-2025 Light-Duty Vehicle GHG Standards. In December 2016, as part of its
    Midterm Evaluation, the EPA provided a notice of availability of its proposed determination that
    the GHG standards in place for model year 2022-2025 remain appropriate and should be not be
    amended. The determination is based on the Technical Assessment Report, public comments on
    same, and other information. 81 Fed. Reg. 87927.
    Prevention of Significant Deterioration. In October 2016, in response to a U.S. Supreme Court
    decision, the EPA provided notice of revisions to regulations concerning the EPA’s PSD and Title
    V permitting regulations. The amendments would: (i) change several definitions; (ii) revise the
    PSD provisions on GHG Plantwide Applicability Limitations; (iii) revise provisions to ensure that
    neither the PSD nor title V rules require a source to obtain a permit with exceptions; and (iv)
    propose a significant emissions rate for GHGs under the PSD program. 81 Fed. Reg. 68110.
    Endangered Species
    Candidate Notice of Review (CNOR): In December 2016, the U.S. Fish and Wildlife Service
    (USFWS) provided notice of its CNOR. The CNOR summarizes the status and threats the USFWS
    evaluated in order to determine that species qualify as candidates, assign a listing priority number
    (LPN), and whether species should be removed from the list. Specifically, in California: (i) the
    Sierra Nevada red fox is assigned an LPN of 3; (ii) the red-crowned parrot LPN remains at 2; (iii)
    the Bay-Delta distinct population segment of the longfin smelt LPN remains at 3; (iv) the
    Whitebark pine LPN remains at 8; and (v) the delta smelt LPN remains at 2. 81 Fed. Reg. 87246.
    31
    Compensatory Mitigation Policy. In December 2016, the USFWS provided notice of the final
    Endangered Species Act Compensatory Mitigation Policy. The new policy reflects a shift from
    project-by-project to landscape-scale approaches to planning and implementing compensatory
    mitigation. 81 Fed. Reg. 95316.
    Guadalupe Murrelet. In September 2016, the USFWS provided notice of a 12-month petition
    finding for the Guadalupe murrelet. Based on a review of the best available scientific and
    commercial information, the USFWS found that listing the species as endangered, threatened, or
    maintaining it as a candidate species is not warranted at this time; and, the species is being removed
    from the candidate list. 81 Fed. Reg. 64843.
    North American Wolverine. In October 2016, the USFWS provided notice that it is reopening
    the comment period on its February 4, 2013 proposed rule to list the distinct population segment
    of the North American wolverine as threatened as a result of a District Court action. USFWS will
    initiate a new status review and requests new information to inform the status review. 81 Fed.
    Reg. 71670.
    Petition Regulations. In September 2016, the USFWS provided notice of a final rule amending
    the regulations for petitions to improve the content and specificity of petitions, and to enhance the
    efficiency and effectiveness of the petition process to support species conservation. The revisions
    clarify and enhance the procedures by which the USFWS and National Marine Fisheries Service
    evaluate petitions. 81 Fed. Reg. 66461.
    Scripps Murrelet. In September 2016, the USFWS provided notice of a 12-month petition
    finding for the Scripps murrelet. Based on a review of the best available scientific and commercial
    information, the USFWS found that listing the species as endangered, threatened, or maintaining
    it as a candidate species is not warranted at this time; and, the species is being removed from the
    candidate list. 81 Fed. Reg. 64843.
    Hazardous Materials/Wastes
    Chemical Data Reporting. In September 2016, the EPA provided notice of a final rule extending
    the submission deadline for 2016 chemical data reporting reports from September 30 to October
    31, 2016. The Chemical Data Reporting regulation requires manufacturers of certain chemical
    substances to report current data on the manufacturing, processing, and use of the chemical
    substances. 81 Fed. Reg. 65924.
    Hazardous Waste Compliance Docket. In October 2016, the EPA provided notice of the thirtieth
    update of the Federal Agency Hazardous Waste Compliance Docket. The docket contains reported
    information that is used to identify Federal facilities that potentially pose a threat to public health
    or welfare and the environment. This update includes 13 additions, 28 corrections, and 21
    deletions. 81 Fed. Reg. 73096.
    Hazardous Waste Export-Import. In November 2016, the EPA provided notice of a final rule
    amending regulations regarding the export and import of hazardous wastes from the United States.
    The revisions are being made to provide greater protection to human health and the environment,
    enable electronic submittal of documents, and enable electronic consent for certain export
    32
    shipments. 81 Fed. Reg. 85696. The EPA provided notice of a proposed rule regarding same. 81
    Fed. Reg. 85459.
    Hazardous Waste Generator Improvements. In November 2016, the EPA provided notice of a
    final rule concerning revisions to the Resource Conservation and Recovery Act’s hazardous waste
    generator regulatory program. The revisions include, among others: (i) reorganization; (ii)
    providing a better understanding of the program; and (iii) addressing gaps to strengthen
    environmental protection. 81 Fed. Reg. 85732.
    National Discharge Standards for Vessels of the Armed Forces. In October 2016, the EPA and
    Department of Defense provided notice of a proposed rule concerning discharge performance
    standards for vessels of the Armed Forces. The proposed discharge performance standards would:
    (i) reduce adverse environmental impacts; (ii) improve vessel pollution control devices; and (iii)
    advance the development of environmentally sound vessels of the Armed Forces. 81 Fed. Reg.
    69753.
    National Pollutant Discharge Elimination System (NPDES). In November 2016, the EPA
    provided a notice of issuance of the 2016 NPDES pesticide general permit, effective October 31,
  48. The permit authorizes certain point source discharges from the application of pesticides to
    waters of the United States in accordance with the terms and conditions. 81 Fed. Reg. 75816.
    In December 2016, the EPA provided notice of a final rule revising the regulations governing
    regulated small municipal storm sewer system (MS4) permits in response to a remand from the
    U.S. Court of Appeals for the Ninth Circuit. The final rule establishes two alternative approaches
    a permitting authority can use to issue NPDES general permits for small MS4s while meeting the
    requirements of the court remand. 81 Fed. Reg. 89320.
    Non-Hazardous Secondary Materials. In November 2016, the EPA provided notice of proposed
    amendments to the Non-Hazardous Secondary Materials rule which establishes standards and
    procedures for identifying whether non-hazardous secondary materials are solid wastes when used
    as fuels or ingredients in combustion units. The amendment would add three materials to the list
    of categorical non-waste fuels. 81 Fed. Reg. 75781.
    Toxic Chemical Release Reporting. In November 2016, the EPA provided notice of, and
    requested comments on, a proposed rule to add nonylphenol ethoxylates category to the list of
    toxic chemicals subject to reporting under certain sections of the Emergency Planning and
    Community Right-to-Know Act and Pollution Prevention Act. 81 Fed. Reg. 80624.
    In November 2016, the EPA also provided notice of a final rule adding hexabromocyclododecane
    category to the list of toxic chemicals subject to reporting under certain sections of the Emergency
    Planning and Community Right-to-Know Act and Pollution Prevention Act. 81 Fed. Reg. 85440.
    Trichloroethylene. In December 2016, the EPA provided notice of a proposed rule concerning
    trichloroethylene. Specifically, to prohibit the manufacture, processing and distribution in
    commerce for certain uses, to prohibit commercial use for certain use, require downstream
    notification of the prohibition, and require limited recordkeeping. 81 Fed. Reg. 91592.
    33
    Resource Conservation
    Candidate Conservation Agreements with Assurances. In December 2016, the USFWS
    provided notice of a final rule revising regulations concerning the enhancement of survival permits
    associated with Candidate Conservation Agreements with Assurances. Specifically, the term “net
    conservation benefit” was added, and the term “other necessary properties” was deleted. 81 Fed.
    Reg. 95053. The USFWS and National Marine Fisheries Service provided notice of its revised
    policy regarding same. 81 Fed. Reg. 95164.
    Eagle Permits. In December 2016, the USFWS provided notice of a final rule revising the
    regulations for eagle nonpurposeful take permits and eagle nest take permits. Specifically, the
    revisions include changes to permit issuance criteria and duration, definitions, compensatory
    mitigation standards, criteria for eagle nest removal permits, permit application requirements and
    fees. 81 Fed. Reg. 91494.
    Habitat Conservation Planning Handbook. In December 2016, the USFWS provided a notice
    of availability of the final revised Habitat Conservation Planning Handbook. The revised
    Handbook will instruct USFWS on assisting applicants to develop Habitat Conservation Plans in
    an efficient and effective manner, while ensuring adequate conservation of listed species. 81 Fed.
    Reg. 93702.
    Hunting and Sport Fishing. In October 2016, the USFWS provided notice of a final rule to: (i)
    add 1 national wildlife refuge (NWR) to the list of areas open for hunting; (ii) increase the hunting
    activities available at 12 NWRs; (iii) open 1 NWR to fishing; and (iv) add pertinent refuge-specific
    regulations for other NWRs that pertain to migratory game bird hunting and sport fishing for the
    2016-2017 season. 81 Fed. Reg. 68874.
    Mitigation Policy. In November 2016, the USFWS provided notice of final revisions to its
    Mitigation Policy, a guide for recommendations on mitigating adverse impacts of land and water
    development on fish, wildlife, plants and their habitats. The revisions are based on changes in
    conservation challenges and practices since the policy was first created. 81 Fed. Reg. 83340.
    Paleontological Resources Preservation. In December 2016, the USFWS provided notice of a
    proposed rule to promulgate regulations under the Paleontological Resources Preservation Act.
    The proposed regulations would preserve, manage, and protect paleontological resources and
    ensure the federally owned resources are available for current and future generations. 81 Fed. Reg.
    88173.
    Sea Otter Stock. In December 2016, the USFWS provided a notice of availability, and requested
    comments on, its draft revised marine mammal stock assessment report for the southern California
    sea otter stock. 81 Fed. Reg. 87951.
    Solid Waste
    Streamlined Approval Process for Non-Regulatory Methods in SW-846. In September 2016,
    the EPA provided notice of a streamlined approval process for non-regulatory methods in the “Test
    Methods for Evaluating Solid Waste, Physical/Chemical Methods” manual, known as SW-846.
    34
    The new process will use website postings and e-mail lists, in lieu of Federal Register publication,
    for notification of methods being released for public comment. 81 Fed. Reg. 66272.
    Water Quality
    Drinking Water Contaminant Candidate List. In November 2016, the EPA provided notice of
    a final list of contaminants that are known or anticipated to occur in public water systems and may
    require regulation under the Safe Drinking Water Act. The list includes 97 chemicals, or chemical
    groups, and 12 microbial contaminants. 81 Fed. Reg. 81099.
    Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source
    Category. In September 2016, the EPA provided notice of a direct final rule extending the
    implementation date, to November 29, 2016, for establishment of pretreatment standards under the
    Clean Water Act for discharges of pollutants into publicly owned treatment works from onshore
    unconventional oil and gas extraction facilities. 81 Fed. Reg. 67191. The EPA provided notice of
    a proposed rule regarding same. 81 Fed. Reg. 67266. In November 2016, the EPA withdrew the
    direct final rule due to adverse comments. 81 Fed. Reg. 85445. In December 2016, the EPA
    provided notice of a final rule extending the implementation deadline. 81 Fed. Reg. 88126.
    Federal Baseline Standards for Indian Reservations. In September 2016, the EPA provided
    advance notice of proposed rulemaking considering establishment of federal baseline water quality
    standards for certain Indian reservation waters. The EPA requested comments on whether such
    standards should be established and, if so, what they should be and how they should be
    implemented. 81 Fed. Reg. 66900.
    Human Health Recreational Ambient Water Quality Criteria. In December 2016, the EPA
    provided a notice of availability of, and requested comments on, the draft “Human Health
    Recreational Ambient Water Quality Criteria and/or Swimming Advisories for Microcystins and
    Cylindrospermopsin-2016.” 81 Fed. Reg. 91929.
    Hydraulic Fracturing for Oil and Gas. In December 2016, the EPA provided a notice of
    availability of a final report titled, “Hydraulic Fracturing for Oil and Gas: Impacts from the
    Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States.” The final
    report provides a review of available scientific information concerning the relationship between
    hydraulic fracturing activities and drinking water resources in the United States. 81 Fed. Reg.
    95135.
    Perchlorate. In September 2016, the EPA provided notice of, and requested comments on,
    materials that will undergo expert peer review in support of the EPA’s Safe Drinking Water Action
    decision making on perchlorate. 81 Fed. Reg. 67350. In October 2016, the EPA provided notice
    of an extended comment period, to November 26, 2016, for same. 81 Fed. Reg. 73397.
    Section 303(d) of the Clean Water Act. In September 2016, the EPA provided notice of a final
    rule to establish regulatory procedures for eligible tribes to obtain treatment in a similar manner as
    states (TAS) for Clean Water Act Section 303(d) Impaired Water Listing and total maximum daily
    loads (TMDLs) Program which enables eligible tribes to obtain authority to identify impaired
    waters on their reservations and to establish TMDLs. 81 Fed. Reg. 65901.
    35
    Unregulated Contaminant Monitoring Rule. In December 2016, the EPA provided notice of a
    final rule and public meeting concerning the requirement for public water systems to collect
    occurrence data from contaminants that may be present in drinking water but are not yet subject
    to the EPA’s drinking water standards. 81 Fed. Reg. 92666.
    Water Resources
    Field-Based Methods for Developing Aquatic Life Criteria for Specific Conductivity. In
    December 2016, the EPA provided a notice of availability for its Draft Field-Based Methods for
    Developing Aquatic Life Criteria for Specific Conductivity. Once finalized, the methods can be
    used to develop field-based conductivity criteria for flowing waters. 81 Fed. Reg. 94370.
    National Lakes Assessment 2012. In December 2016, the EPA provided a notice of availability
    of its final report on the National Lakes Assessment 2012. The report describes the results of a
    survey that was conducted in 2012 and includes information on how the survey was implemented,
    what the findings are on a national scale, and future actions and challenges. 81 Fed. Reg. 88681.
    Protecting Aquatic Life from Effects of Hydrologic Alteration. In December 2016, the EPA
    and United States Geological Survey provided a notice of availability of a technical report titled,
    “EPA-USGS Technical Report: Protecting Aquatic Life from Effects of Hydrologic
    Alteration.” The report provides technical information for those interested in developing narrative
    or numeric targets for flow regime components that are protective of aquatic life. 81 Fed. Reg.
    93681.
    Water Infrastructure Projects. In December 2016, the EPA provided notice of, and requested
    comments on, an interim final rule to implement a new program referred to as the Water
    Infrastructure Finance and Innovation Act (WIFIA) of 2014. The program allows the EPA to
    provide secured loans, and loan guarantees, to eligible water infrastructure projects. 81 Fed. Reg.
    91822.
    In December 2016, the EPA also provided notice of, and requested comments on, a proposed rule
    to charge fees under WIFIA to recover EPA’s costs of providing credit assistance and the costs of
    retaining expert firms. 81 Fed. Reg. 91890.

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