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WATER AND WETLANDS

Shute, Mihaly & Weinberger LLP works on a wide variety of cases involving water quality, water rights and wetland issues throughout the state. The firm has expertise in the federal Clean Water Act, California Porter-Cologne Water Quality Control Act and regional water quality regulations and standards. The firm works to protect water bodies and wetlands, as well as to support flood control improvements.

• The firm served as counsel to the Sacramento Area Water Forum, which engaged in an innovative effort to solve regional long term water supply challenges through a mediator-led negotiation process. The Water Forum is a stakeholder coalition including the County of Sacramento, the cities within the County, water districts, business, labor, agricultural interests, and environmental groups. On April 24, 2000, Water Forum stakeholders signed a ground-breaking Agreement that will ensure a safe and reliable long term water supply for the region while preserving the fishery, wildlife, recreational and aesthetic values of the Lower American River.
  

• The firm represents the Sacramento Area Flood Control Agency (SAFCA), a joint powers agency including the City of Sacramento, Sacramento County, Sutter County, the American River Flood Control District, and Reclamation District 1000. SAFCA is responsible for planning and implementing flood protection measures in the Sacramento region. The firm has advised SAFCA with regard to such matters as compliance with the California Environmental Quality Act, the National Environmental Policy Act, and the state and federal endangered species acts. The firm assisted SAFCA in obtaining a Clean Water Act section 404 permit for the proposed construction of a $30 million levee improvement project between the Sacramento and American Rivers. The firm regularly counsels SAFCA in its efforts to obtain state and federal support for regional flood protection and related habitat creation and restoration projects. The firm advises SAFCA on local financing devices, such as development fees, assessment districts and other funding mechanisms, to finance flood control programs.

• The firm represents WaterKeepers Northern California and its projects, San Francisco BayKeeper and DeltaKeeper, in citizen suits under the Clean Water Act. For example, the firm successfully represented DeltaKeeper in lawsuit to force the State Water Resources Control Board to adopt statewide sediment quality objectives for enclosed bays and estuaries in California, and to prepare cleanup plans for pesticide-related “toxic hot spots” in the Sacramento-San Joaquin River Delta.

• In San Francisco BayKeeper, Inc. v. Tosco Corporation, 309 F.3d 1153 (9th Cir. 2002), the firm won a key decision upholding the vitality of “citizen enforcement” suits brought against polluting companies under the federal Clean Water Act. The defendants had attempted to evade any liability for their alleged water pollution, arguing that their sale of the subject facility’s assets after BayKeeper filed suit rendered the case moot. The U.S. District Court agreed with Tosco and dismissed the case. The Ninth Circuit unanimously reversed. “Were we to find this case against Tosco moot,” the Ninth Circuit explained, “not only would Tosco be able to escape the consequences of its pollution, but any subsequent owner could continue the illegal pollution, confident in its ability to escape any potential monetary sanctions.”

• The firm assisted the City of Patterson in complying with recent legislation (SB 610 and SB 221) requiring water supply planning for large development projects. The firm guided the City through preparation and approval of several documents required by the statutes – an urban water management plan, water supply assessment, and water supply verification – for a substantial residential and light industrial development project. The firm also assisted the City in integrating the results of this water planning process with the environmental review prepared for the project.

• On behalf of the East Bay Regional Park District, the firm prepared comments on the environmental impact report prepared for the proposed construction of office buildings on an undeveloped bay-front property in Richmond known as the Breuner Marsh. The firm identified inconsistencies between the project and the City’s General and Specific Plan policies regarding trails and allowable land uses. The firm also evaluated a wetland mitigation bank proposed for the site as part of the project, commenting on the cumulative effects of the bank on off-site wetlands, the insufficiency of information regarding how the bank would be operated, and the lack of adequate funding for long-term monitoring and maintenance. The City of Richmond responded by declining to certify the environmental impact report for the project and the project was effectively halted.

• The firm assisted a court-appointed mediator in mediating a dispute between the parties in major litigation involving the Monterey Amendments to the State Water Project contracts. Following the appellate decision in Planning and Conservation League v. Department of Water Resources, 83 Cal Arr.4th 892 (2000) invalidating the EIR prepared for the project, the parties commenced a multi-party mediation process that resulted in a settlement of the litigation. A member of the firm played a major role assisting the parties in reaching agreement on and crafting language to resolve critical legal and substantive issues in the successful mediation.
  

• On behalf of Save San Francisco Bay Association, the firm prepared a handbook for local governments and community groups that addresses local, state and federal wetlands regulations, and provides advice on techniques local governments can utilize to protect wetlands within their jurisdictions.
  

• On behalf of the National Audubon Society and Save San Francisco Bay Association, the firm successfully intervened in a legal action to prevent the fill of wetlands on property adjacent to the San Francisco Bay National Wildlife Refuge. The resulting federal appellate court decision held that artificially created water bodies are not excluded from the Army Corps of Engineers' permitting authority under the Clean Water Act. (Leslie Salt Co. v. United States, 896 F.2d 354 (9th Cir. 1990).)
  

• A firm partner serves as referee to the Los Angeles Superior Court in the Ballona Wetlands dispute in Los Angeles, working with the parties to reach a solution to regulatory problems involving numerous public and private entities.
  

• On behalf of three environmental groups in Marin County, the firm worked with the Bay Area Regional Water Quality Board and local legislators regarding regulation of the West Marin Sanitary Landfill to protect water quality and ensure enforcement of water quality standards.
  

• On behalf of the City of Visalia, the firm successfully challenged the Tulare Irrigation District’s decision to install a cement lining in a nine mile stretch of the District’s Main Intake Canal in Tulare County near Visalia. The firm prevailed on all aspects of its case, which challenged the District’s failure to properly analyze the project’s effects on Valley Oak woodlands and local groundwater resources as required by the California Environmental Quality Act.