March 2012 Archives

Renewable Energy Update: Two New Nationwide Permits for Dredge and Fill Activities Under Section 404 of the Clean Water Act Now Effective for Renewable Energy Projects

March 22, 2012

by Scott Castro

On March 19, 2012, two new and 48 reissued Nationwide Permits (NWPs) for certain dredge and fill activities requiring authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act took effect. Nationwide Permits are issued by the Corps under Section 404(e) to provide a streamlined authorization process for dredge and fill activities having minimal adverse effects on the aquatic environment. Every five years, the Army Corps of Engineers issues revised and/or new Nationwide Permits. The last permits were issued in 2007, and expired on March 18, 2012. The two new NWPs affect renewable energy facilities, and projects qualifying for these Nationwide Permits should benefit from significant reductions in the time, effort and money necessary to obtain a Section 404 permit.

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Mining Law Update: Army Corps Revised Nationwide Permits Affecting Mining Operations Now Effective

March 21, 2012

by Scott Castro

On March 19, 2012, two new and 48 reissued Nationwide Permits (NWPs) for certain dredge and fill activities requiring authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act took effect. Nationwide Permits are issued by the Corps under Section 404(e) to provide a streamlined authorization process for dredge and fill activities having minimal adverse effects on the aquatic environment. Every five years, the Army Corps of Engineers issues revised and/or new Nationwide Permits. The last permits were issued in 2007, and expired on March 18, 2012. The current NWPs will expire on March 18, 2017.

Two NWPs are specific to the mining industry: (1) NWP 21, specific to surface coal mining activities; and (2) NWP 44, applying to "mining activities" in general.

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Renewable Energy Update: Proposed Regulatory Changes For Tribal Leases Provide Promise for Solar and Wind Projects

March 19, 2012

by Scott Castro

While there has been strong interest among the tribes to develop renewable energy projects on their lands, antiquated leasing rules have long served as a bar to such efforts. However, on November 28, 2011, the Department of Interior (DOI) announced a proposed rule revising the federal surface leasing regulations for American Indian lands that could dramatically reduce the timeline for solar and wind lease approvals on Indian land. If the proposed rule is adopted, it may help to stimulate investment in solar and wind projects on Indian lands by fast-tracking and streamlining agency review and approval of proposed solar and wind leases. Solar and wind companies would be well-served to understand the full scope of the proposed rule, and to evaluate -- or re-evaluate -- potential leasing opportunities on tribal lands, particularly given that DOI, acting as trustee, is charged with managing approximately 56 million surface acres of tribal lands.

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Following up on Avenida San Juan Partnership v. City of San Clemente: Judges' reluctance to issue a writ prior to final judgment demonstrates need for clarification of Palma footnote

March 8, 2012

By Matthew Hinks

In an earlier article on the California Land Use Blog, I wrote about the recent decision in Avenida San Juan Partnership v. City of San Clemente, 201 Cal.App.4th 1256 (2011), in which the court of appeal affirmed in large part a verdict in favor of a developer granting a writ of mandate and awarding damages as a result of a finding of a partial regulatory taking given what the court viewed as the "spot-zoning" of plaintiff's property. I noted there that the trial court conducted its proceedings in two phases: the writ of mandate phase and the damages trial on the inverse condemnation claim. I also noted that the trial court issued the writ of mandate while the damages claim remained pending and before a final judgment was entered.


Though the Avenida San Juan Partnership court did not discuss this aspect of the case, I mentioned that trial courts are often reluctant to issue writs of mandate before a final judgment is entered. This can have a dramatic impact on a developer's case against a local agency or city.

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Heads Up Property Owners and Developers! Local challenges implicating Subdivision Map Act may impose 90-day statute of limitations - Aiuto v. City and County of San Francisco

March 7, 2012

By Matthew Hinks

In most instances, causes of action for inverse condemnation and regulatory takings in California are governed by the 5-year statute of limitations of Civil Procedure Code §§ 318 and 319. Preemption claims are governed by the 3-year statute of limitations of Civil Procedure Code § 338(a). Section 1983 claims in California state courts are governed by the 2-year personal injury statute of limitations of Code of Civil Procedure § 335.1. However, according to the court in Aiuto v. City and County of San Francisco, 201 Cal. App. 4th 1347 (2011), where such claims are brought in connection with a facial challenge to a local ordinance or administrative action enacted or taken pursuant to the Subdivision Map Act, the 90-day statute of limitations of Government Code § 66499.37 applies.

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Spot-Zoning and Regulatory Takings: Developer Succeeds in California Court of Appeal - Avenida San Juan Partnership v. City of San Clemente

March 7, 2012

by Matthew Hinks

Court judgments finding a regulatory taking are relatively rare. So too are decisions upholding the oft-heard complaint of "spot zoning". In the recent case of Avenida San Juan Partnership v. City of San Clemente, 201 Cal.App.4th 1256 (2011), the court (and the plaintiff) hit the daily double.

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The Williamson Act: A Growing Obstacle for Solar and Wind Development In California

March 5, 2012

by Jon Welner

California's rural landscapes are some of the most productive farmlands in the world. However, some of the qualities that make these lands suitable for farming--sunshine and wide open spaces--also make them attractive for another kind of "farming": solar and wind farms. In recent years, the conflict between farming and renewable energy production has grown more pronounced in California. Central to this conflict is the California Land Conservation Act of 1965, generally known as the Williamson Act (Gov't Code §§ 51200-51297.4).

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