The Dirt -- Summer 2006; Land Use, Environmental, Natural Resources and Consumer Products Law and Regulation
In this issue:
Editor's Letter
Welcome to the inaugural issue of The Dirt – the source for cutting-edge news on land use, environmental, natural resources and consumer products law and regulation.
Delivered right to your e-mail box, The Dirt provides you with real news, real fast, on the legal issues affecting your business now.
The Dirtis a publication of Morrison & Foerster LLP, but it is not a typical law firm newsletter. Instead, The Dirt is designed to provide its readers with practical information they can use based on the unparalleled expertise and personal
insights of Morrison & Foerster’s attorneys. The end product – The Dirt – gives readers an edge in understanding and handling complex issues of construction and development, impact analysis, natural
resources, hazardous waste, water quality and rights, energy, political law, compliance and due diligence, Proposition 65
and the many other concerns that businesses and public agency decision-makers face every day.
This first issue of The Dirt demonstrates this by covering a broad range of cutting-edge issues. Two articles focus on the hot button issue in land use politics: "big box" retail development. Next, we offer an assessment of how a recent court case
could change how regulated businesses and public agencies are able to force California’s Water Boards to weigh economic burdens
and evaluate alternatives. The untapped use of desalination to sate the growing thirst for water supplies is the subject of
our next article, and we then offer developers some hope in getting bonds released early for improvements required for new
subdivisions. We also briefly look at the valuable streamlining tool of consistency determinations under the California Endangered
Species Act. Finally, we provide an update on recent changes to the requirements for hazardous waste reporting – changes designed
to save time and money.
With The Dirt, Morrison & Foerster is continuing its long tradition of providing up-to-date and practical information on legal developments
that affect its clients, and the way they do business. Please enjoy this first issue of The Dirt and let us know what you think.
Sizing Up "Big Box" Development: The Constitutionality of Size-Based Zoning Ordinances
By Bradley Brownlow
The debate over so-called "big box" or "superstore" retail centers has dominated local land use politics in recent years.
The "not in my backyard" opponents of big box development champion land use regulations limiting superstore development, citing
the industry’s high-volume, deep-discount business model as a cause of the perceived demise of Main Street America. Other
communities welcome large retail businesses and have relaxed land use restrictions to attract the sales tax revenues and employment
opportunities such projects offer. Both often advocate special zoning and land use treatment for such stores. However, a
local government’s ability to regulate such large retail development is not unlimited, as California’s Fifth District Court
of Appeal recently concluded in two published cases discussed below.
The full text of this article is available at:
http://www.mofo.com/news/updates/files/update02219.html
Potential for "Urban Decay" Must Be Analyzed Under CEQA
Water contamination and air pollution, now recognized as very real environmental problems, initially were thought to be nothing
more than the exaggerated concerns of overly enthusiastic environmentalists. Similarly, experts are now warning about land
use decisions that may cause a chain reaction of store closures and long-term vacancies, ultimately creating social and economic
impacts that can destroy, or cause severe deterioration in, existing neighborhoods.
The full text of this article is available at:
http://www.mofo.com/news/updates/files/update02220.html
New Roadmap for Challenges to TMDLs and Other Water Quality Plans in California
By Robert L. Falk and Sarah B. Schindler
A recent published case out of California’s Fourth Appellate District is likely to have far-reaching effects on what Regional
Water Boards are required to do to establish total maximum daily loads (TMDLs) and other water quality control plans. The
case, of which the California Supreme Court denied review on April 19, 2006, carries significant implications as to the evidence,
facts and analysis permittees and other interested parties will want to put into the public comment and hearing record in
future proceedings.
The full text of this article is available at:
http://www.mofo.com/news/updates/files/update02221.html
Seawater Desalination: Urban Myth or Urban Supply?
By William M. Sloan
Large-scale seawater desalination in California has almost achieved the status of urban myth. The idea of turning saltwater
into freshwater is not new. Julius Caesar’s men turned the salty Mediterranean into drinking water; Thomas Jefferson promoted
desalination within the fledgling United States Navy; and John F. Kennedy was quoted as saying, "[i]f we could produce fresh
water from salt water at a low cost, that would indeed be a great service to humanity, and would dwarf any other scientific
accomplishment."
The full text of this article is available at:
http://www.mofo.com/news/updates/files/update02222.html
New Law Streamlines Release of Subdivision Bonds
By Michael H. Zischke
A new law, effective January 1, 2006, makes it easier and quicker for many developers to secure the release of bonds used
to guarantee subdivision improvements and the performance of other work.
Assembly Bill 1460, sponsored by Assemblyman Tom Umberg (D-Orange County), amended section 66499.7 of the Subdivision Map
Act to include specific procedures and timelines for agencies to release performance security given by developers for subdivision
improvements. Most notably, the law includes a "partial release" provision, which can be helpful to developers who are paying
the high cost of large bonds over a long period. These provisions do not apply to any warranty security or guarantee.
The full text of this article is available at:
http://www.mofo.com/news/updates/files/update02223.html
Consistency Determinations Under the California Endangered Species Act Streamline Permitting Process
By Chris Carr and Shaye Diveley
Nearly every project in California must be evaluated to see if it will affect any species of fish, wildlife or plants protected
under the Federal Endangered Species Act (FESA) and the California Endangered Species Act (CESA). It is not uncommon for a
species to be listed under both laws, and, in such instances, both need to be satisfied. Applying to both federal and state
agencies for permission to "take" protected species can be a tedious and time-consuming process, often fraught with duplication
and inefficiencies.
The full text of this article is available at:
http://www.mofo.com/news/updates/files/update02225.html
EPA Reduces RCRA Reporting Requirements
By Peter Hsiao and Susan P. Linden
The Environmental Protection Agency (EPA) recently published a new rule to reduce recordkeeping, reporting, and inspection
requirements imposed on businesses, states, and members of the public regulated under federal hazardous waste laws. The new
rule, which became effective May 4, 2006, is intended to reduce the paperwork burden imposed under the Resource Conservation
and Recovery Act (RCRA). Industries affected by the new rule include manufacturing, transportation, waste treatment, utility
and mineral processing operations. EPA estimates the new rule will lead to an annual hour savings of 22,000 to 37,500 hours,
with an annual cost savings ranging from $2 million to $3 million.
The full text of this article is available at:
http://www.mofo.com/news/updates/files/update02226.html
The Dirt on Upcoming Events
San Francisco
August 14, 2006
CLE CEQA Update
Michael Zischke, Presenter
Los Angeles
August 14, 2006
Water Supply Impacts of Development Projects, SB610/221 Developments, Recent CEQA Cases, Best Practices, CLE CEQA Seminar
Clark Morrison, Presenter
San Francisco
September 18, 2006
CEQA Case Law – The Year in Review, CLE CEQA Seminar
Alicia Guerra, Presenter
San Francisco
September 18, 2006
Water Supply Impacts of Development Projects, SB610/221 Developments, Recent CEQA Cases, Best Practices, CLE CEQA Seminar
Clark Morrison, Presenter
San Diego
October 7, 2006
ABASecond Annual "Little NEPA" Conference
Michael Zischke, Conference Organizer
