Client Alert

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 Dirt is 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:

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.

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:

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."


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:

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:

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:

The Dirt on Upcoming Events

San Francisco
August 14, 2006
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
ABA Second Annual "Little NEPA" Conference
Michael Zischke, Conference Organizer




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