Despite consecutive seasons of miserable-to-average snowfalls in recent years, California ski resorts are moving ahead with ambitious expansion and development plans. In fact, less snow may simply mean that they’re being more aggressive about offering year-round attractions.  The latest development comes from Squaw Valley. The proposed Village at Squaw Valley would transform the mountain’s currently threadbare base area into a multi-use destination, with a hotel, retail and restaurant complex, 850 residential units, and a “Mountain Adventure Center” with indoor and outdoor recreational activities. Dreamt up and developed in relative haste for the 1960 Winter Olympics, Squaw Valley has never had a town or a base area to match those of rivals like Mammoth Mountain, Heavenly Valley, or Vail. After five years and over 400 community meetings, the Squaw Valley Specific Plan was approved, 4-2, by the Placer County Planning Commission in August. It will soon go before the Placer County Board of Supervisors. It is believed to be the largest project to be proposed in the county in recent memory.  Located just outside the Lake Tahoe Basin, northwest of the lake, the resort sits in an ecologically sensitive — and politically contentious — area (see prior CP&DR coverage ). Environmental groups and other activists pushed to reduce the project’s impacts and increase community benefits.  Before-and-after images of the Village at Squaw Valley.  "Squaw Valley Ski Holdings is prepared to significantly invest in the offering at Squaw Valley to position the resort as a true four-season destination, provide more year-round jobs, on-site affordable workforce housing, tens of millions of dollars in other benefits to our local community, and assist in stabilizing the North Lake Tahoe economy,” said Andy Wirth, president and CEO of Squaw Valley Ski Holdings, LLC, in a statement following the vote.  The plan for the village went through four major iterations, each one smaller than the last. The current version is half the size of the original proposal and, according to the resort, and is now only 38 percent of what is allowable per the Squaw Valley General Plan and Land Use Ordinance, which was adopted in 1983. Of the site’s 93 acres, only 12 will contain buildings. Ninety percent of the development will take place on current parking lots and other non-pristine land. Full build-out is planned to take 25 years.  Beyond the land-use plan, the resort has pledged to institute a range of mitigation measures to ease and offset environmental impacts. The resort will dedicate several million dollars to projects including stream restoration, upgrades to public parks, and support for public transit, plus a one-time $20 million payment to upgrade transit infrastructure. The plan estimates local tax revenues of $22 million annually that the county can allocate for environmental causes and social services.  "You already have a lot of established land uses that are primarily recreation- and-tourism based,” said Fisch. "If there is one specific issue area, that would be…the impacts of visitation because they inform the other impacts." The plan also estimates that by enabling visitors to lodge at the base of the mountain, rather than stay elsewhere and drive to the mountain, up to 2,000 trips per day may be eliminated from local roads on peak days.  Even these assurances do not comfort opponents of the current project. "The (environmental impact report) is simply fatally flawed," Richard Drury, an opponent of the project, told the Reno Gazette-Journal . He reportedly claimed that the plan’s figures on traffic and water availability cherry-picked different years with relatively few visitors and relatively high precipitation. "That is the kind of preposterous analysis that really requires a second look.”  Sierra Watch, a local environmental group, led an aggressive campaign to “keep Squaw true.” Its website contends that the plan includes ten-story buildings and amounts to a "massive and misplaced megaresort.” The plan pledges an average building height of 67 feet, which it says is “comparable” to the height of existing buildings on the site.  Representatives of Sierra Watch did not respond to multiple requests for an interview.  "It is a project that is within the holding capacity of the existing Squaw Valley general plan in that the project proponents are actually seeking to entitle development that would otherwise be permissible,” said Alex Fisch, supervising planner with Placer County Planning Services. “If there is a broad point of consensus among everyone, it's that the resort base does need redevelopment and does need to be made modern…the issue is, is this the right project?" "Their issues range from the character of the plan area to issues pertaining to increases in traffic and corollary effects with greenhouse gases as well as impact to habitat,” said Fisch. He added that the environmental impact report lists ten un-mitigatable impacts.  Contacts & Resources The Village at Squaw Valley  Overview Placer County Planning Department Documents Alex Fisch, Supervising Planner, Placer County Planning Services  AFisch@placer.ca.gov Images courtesy of Squaw Valley Ski Holdings LLC.

A proposed development in Newport Beach that has become a crucible for the California Coastal Commission was overwhelmingly rejected, 9-1, by the commission on Wednesday. With the controversial dismissal of former Executive Director Charles Lester in February, many environmentalists had accused the commission of taking a turn in favor of development and in opposition to serious coastal protection but the commission went in the other direction on Banning Ranch.

In the remand of the so-called “CEQA-In-Reverse” case , the First District Court of Appeal has ruled that the Bay Area Air Quality Management District’s 2010 Toxic Air Contamination thresholds under CEQA “may not be used for the primary purpose envisioned by District, namely, to routinely assess the effect of existing environmental conditions on future users or occupants of a project.” The court found, in essence, that “Source” thresholds were okay, but “Receptor” thresholds were not because CEQA cannot be used to measure the impact of current environmental conditions on a new project. “We agree that conceptually, a proposed project that would itself worsen environmental conditions would be a source – but it would also be a receptor to the extent it brought users or occupants to the site.”  CBIA v. BAAQMD , No. A135335.

In the latest court ruling in one of California’s longest-running land-use disputes, an appellate court has upheld a judgment of almost $3 million against a Sebastapol landowner for breaching his contractor with a development company that has been attempting to develop the landowner’s 21 acres for almost 20 years. Both sides have accused the other of a variety of breaches over the years, all associated with getting permits for the property and its development.

The U.S. Fish and Wildlife Service found through genetic tests that the rare coastal California gnatcatcher qualifies a valid subspecies of gnatcatcher, therefore is entitled to continued protection under the Endangered Species Act. The finding reinforces protections to the bird’s critical habitat, which had been in dispute based on claims — based on findings in a 2013 article by biologists at the University of Minnesota and the Natural History Museum -- that the bird was not a separate subspecies and, therefore, had population robust enough to warrant protection. The species’ federally designated critical habitat covers 197,000 acres in six Southern California counties. The species was first listed in 1993 and has been the subject of ongoing disputes, including a 2014 lawsuit filed by the Pacific Legal Foundation on behalf of several construction and development groups, which precipitated the recent round of genetic testing. The suit claimed that the gnatcatchers is a single species that ranges from Southern California to the southern tip of Baja California. There are an estimated 2,900 coastal California gnatcatchers left in the U.S. Federal analysis indicate the that listing will cost up to $915 million by 2030 in costs incurred by development restrictions.  1.8 Million Acres of Amphibian Habitat Get Critical Designation The U.S. Fish and Wildlife Service designated 1.8 million acres of public land in the Sierra Nevada mountains as critical habitat for three threatened amphibians: the Yosemite toad, Sierra Nevada yellow-legged frog, and the mountain yellow-legged frog. This decision will impact 16 counties from Lassen in the north to Fresno in the south as all grazing, logging and hydroelectric dam operations must take these amphibians into account. While this designation will not interfere with most extant land uses, it may precipitate changes in the issuance of grazing permits or hydroelectric licenses. Echo Lake in El Dorado County, along with 60 other Sierra Nevada lakes used for recreation, was excluded from the listing. Alameda County Survey Connects Housing Costs, Public Health The Alameda County Public Health Department released results of a survey indicating that the affordable housing crisis was causing a healthcare crisis in the East Bay, primarily Oakland. The survey, conducted by Alameda County and PolicyLink Center for Infrastructure Equity on thousands of low-income, senior and disabled people, showed that many are over-paying and in living in overcrowded, unsafe housing units. These conditions correlate with rising numbers of hospitalizations for hypertension, mental health emergencies, asthma attacks, and numerous other illnesses. Oakland’s working class, primarily Black and Latino, are being pushed into substandard housing. "While the causes and solutions to address the housing crisis are complex, inaction is a prescription for shorter, sicker lives for many of our Alameda County Residents,” wrote Dr. Muntu Davis in a policy brief. Management Plan for San Gabriel Natl. Monument Drafted The U.S. Forest Service released a 195-page draft management plan for the San Gabriel Mountains National Monument, which outlines changes in transportation/access, wilderness zones/protected species, mining, and recreation. The 346,177-acre monument was designated by President Obama in 2014 which means it requires a plan to manage the park that sees 4 million visitors per year. The plan lists many existing conditions of the park, but does not address solutions. Many of the issues that were addressed in the public hearing or the 1,545 comments received were labeled as “desired conditions” and not goals or targets to accomplish. Many in the environmental community praised the effort and said the document tackled many aspects, but lacked a clear plan for implementation. UCLA, Berkeley Launch Online Tool to Map, Understand Displacement UCLA and UC Berkeley announced the launch of a joint program called the Urban Displacement Project which addresses issues such as gentrification and displacement in urban communities. The project includes an interactive mapping tool to “help community leaders better understand the effects of new light-rail and subway projects and related developments- especially on low-income communities.” The tool will be a resource in helping to identify pressures and come up with solutions for gentrification. While many communities are improving transit-oriented development, this type of “upscaling” frequently leads to pricing out lower-income households. While the joint-program is not to ensure neighborhood change does not occur, only that the process is fair and just. The tool allows users to examine neighborhood-level data on racial/ethnic composition, which areas have seen upscaling, gentrification, population density, percentage of people living in poverty, median household income and level of education. Deal Reached on Cap-and-Trade Funds Gov. Jerry Brown and Democratic legislative leaders announced how they will spend the $900 million in revenue from the cap-and-trade program. The legislature approved, 47-26, measures to extend the clean air targets that allow all the climate change policies. The new pot of money will direct hundreds of millions to help disadvantaged communities, curb dangerous super pollutants, and cut petroleum use. For instance, a rebate program to help lower-income Californians buy cleaner cars will receive $80 million as will projects that build green space in urban areas. Additionally $140 million will be available for grants for communities with high rates of pollution. Los Angeles Grandfathers in Hundreds of Accessory Dwelling Units The Los Angeles City Council voted to approve hundreds of “granny flats” or accessory dwelling units (ADUs) that had been in legal limbo for months. These flats were already approved or in the pipeline, but a lawsuit over a discrepancy between the city’s ADU policy and state law threatened the city’s existing ADUs. The grandfathering plan would allow owners that had submitted their plans to the city before the lawsuit to continue. This includes more than 200 units that had gotten building permits but were unable to move forward and get city certificates that allow them to be legally occupied. The City Council has directed city planners to develop stricter rules than the state standards, which would take into account the different neighborhoods. This new fix would allow thousands of new units to be built and ease the city's housing crisis. Part of the discussion centers on the maximum size to allow the granny flats to be constructed. Quick Hits & Updates The Fresno City Council approved a 20-year lease with Outfront Media to place five digital billboards on four city-owned properties along the Fresno freeway. As part of the agreement, Outfront Media will remove the 47 nondigital billboards it owns across town. In San Diego the Citizens’ Plan to finance the new Chargers’ stadium may go to voters in November, but under dispute  is what would constitute voter approval. While those in favor of the plan say a simple majority is required, the City Attorney Jan Goldsmith’s office says the plan constitutes a tax increase and therefore requires a two-thirds of vote. (See prior CP&DR coverage .)  The San Francisco Planning Department along with SFMTA have launched a new website to allow users to design the city’s future subway over the next 50 years. The goal is to understand priorities for the residents of San Francisco. The Subway Vision is one piece of a new effort to create long-range plans for transportation called Connect SF. Orange County judge Theodore R. Howard ruled that the California Coastal Commission cannot prevent the repair and maintenance of a sea wall that protects mobile homes in San Clemente. The Coastal Commission says the rules are in place to protect future shorelines and the image of beaches. Los Angeles Superior Court Judge James Chalfant ruled  that the City of Hermosa Beach may continue enforcing its short-term rental ban.  Construction  has begun on the East Bay’s first bus rapid transit line, which will run 9.5 miles from downtown Oakland to San Leandro. BRT will include 12 curbside stations and 21 center median stations, which will allow them to run every seven minutes during peak hours.  The California Fish and Game Commission voted unanimously to add the the Northern Spotted Owl to the state’s endangered list. Its numbers have been dropping at a rate of 3.8 percent annually. In California, the owl’s habitat is along the coast in the northern part of the state, including the Mendocino Coast, Humboldt, Shasta, Klamath regions and Coastal Redwoods. California Coastal Commission staff have  recommended the proposed Newport Banning Ranch project shrinks significantly to protect wildlife habitat. The 900-home development would be located on an old Orange County oil field near the mouth of the Santa Ana River. The development shrunk to 55 acres after environmental assessment from staff scientists found important habitat for rare plants and animals last fall; the latest recommendation is to cut that down to 20 acres. A new report released from Trip, a nonprofit transportation research group, found that California’s inadequate transportation system costs motorists around $53.6 billion annually in the form of congestion-related delays, crashes and extra costs of operating a vehicle.

The status of the California Coastal Commission was everything but clear in January, following a December 30 appellate court ruling that the Commission's composition was unconstitutional. The court ruled that the authority of the Assembly speaker and Senate Rules Committee to appoint eight of twelve commissioners and remove them at will violated the separation of powers doctrine (for details, see , Page 7). Gov. Davis called a special session of the Legislature on January 22 "to keep the California Coastal Commission viable and doing its job." Davis said he was working with state Sen. Sheila Kuehl (D-Santa Monica) and Assemblywoman Hannah Beth Jackson (D-Santa Barbara) and expected to sign legislation by the end January. The bills would give legislative appointees to the Commission fixed terms and would prohibit lawmakers from removing Commissioners at will. The legislation would keep the current system that gives the governor, the Assembly speaker and the Senate Rules Committee four appointees each. Whether such a measure would satisfy the court was unknown. Property rights activists said they would not accept any measure that allows lawmakers to appoint more than a token representative to the Commission. "The Legislature has to get out of the process," said Sacramento attorney Ronald Zumbrun, who brought the case against the Coastal Commission. An injunction preventing the Coastal Commission from considering permits or issuing cease and desist orders was scheduled to take effect January 29. The Third District Court of Appeal rejected Attorney General Bill Lockyer's request for a rehearing, but coastal commissioners said in January they would ask the state Supreme Court to review the decision. In the meantime, the status of the agency as a whole appeared to remain unchanged. In numerous communications, Coastal Commission Executive Director Peter Douglas noted that the appellate court did not strike down the 1976 Coastal Act, which established state oversight of lands and waters in the state coastal zone. CENTRAL VALLEY SMOG and the lack of a plan for clearing the air could prevent construction of a large power plant. California Energy Commission analysts have recommended denial of a permit to build a 1060 megawatt, gas-fired power plant in the Fresno County city of San Joaquin because of air pollution concerns. The denial stems from developer Calpine Corporation's proposed air pollution mitigations. Calpine proposed purchasing emission reduction credits and shutting down or modifying the businesses that have been producing the pollution — a standard mitigation. The San Joaquin Valley Air Pollution District approved Calpine's plan. But the U.S. Environmental Protection Agency (EPA) has determined that because the eight-county district does not have an approved plan for cleaning up the Central Valley's air, the emission credits are unavailable. State Energy Commission analysts sided with the EPA and further found that the emission reduction credits were inadequate even if they were available. FORMER SAN JOAQUIN COUNTY Supervisor Lynn Bedford pleaded not guilty in January to five criminal charges stemming from a proposed power plant at the Port of Stockton. Federal prosecutors allege Bedford and Monte McFall, a former San Joaquin County sheriff's deputy and longtime political operative, colluded to block Calpine from building a power plant in an attempt to clear the way for rival Sunlaw Corporation. Authorities allege Sunlaw promised to pay McFall and his associates $2 million if Sunlaw won the right to build. Bedford was indicted in December, one month after he lost a re-election bid. McFall allegedly told Calpine that unless the company dropped its Port of Stockton plans, he would use his political connections to block the project and he would work to kill a proposed 1,100 megawatt Calpine power plant in Alameda County. Bedford introduced a Board of Supervisors resolution opposing Calpine's Stockton proposal. Both also are accused of lying to FBI agents about their activities. Calpine refused to drop its Port of Stockton proposal, and its project in Alameda County is pending before the California Energy Commission. THE HOUSING INDUSTRY is the largest segment of the California economy, according to a study by the Sacramento Area Commerce and Trade Organization and California State University, Sacramento. The study pegs the direct economic impact of new housing construction at $20.25 billion, which leverages another $19.65 billion in indirect and induced expenditures every year. That equates to about 359,000 jobs. The entire industry of new and existing housing — including construction, financing, sales, furnishing, and operations and maintenance — amounts to $257 billion annually, or 13% of all economic activity in California, the study asserts. The study concludes that the housing industry could do even more, as builders since 1997 have produced only 57% of the 230,000 units that the Department of Housing and Community Development says the state needs annually. The study is available on the California Building Industry Association website: www.cbia.org. THE DAVIS ADMINISTRATION'S first crack at a five-year infrastructure plan was a good start, but the plan had a number of shortcomings, according to a Legislative Analyst's Office (LAO) report. As required by 1999 legislation (AB 1473, Hertzberg), the administration prepared the first of what are supposed to be annual five-year infrastructure plans so that policymakers have a coordinated picture of capital investment needs. The plan, released in mid-2002, outlined $56 billion worth of proposed capital spending, about three-fourths of which was for transportation and K-12 schools. While the plan provided the Legislature with a "big picture" look, the plan did not explain what the priorities were, failed to coordinate among departments, used available funding as a need constraint, omitted maintenance issues, and avoided a number of policy and programmatic questions, according to the LAO's report. "While the plan presents various departmental priorities, it does not place these priorities in the context of the administration's overall, statewide priorities," the LAO stated. "For example, the plan does not state whether the administration's priorities are: the renovation of aging facilities, addressing certain critical deficiencies, the development of new facilities and capacity, or a combination of these. We believe that such a context is needed." The LAO recommended the Legislature establish special policy and budget committees to address capital outlay issues. The LAO report is available at www.lao.ca.gov. A STATE TASK FORCE has recommended a number of changes to the way government agencies and developers address the threat of flooding. Among the recommendations: drawing up floodplain maps based on watersheds, not political boundaries; revising flood maps to take into account current and future development; building at least 1 foot above the National Flood Insurance Program's 100-year floodplain line; better technical assistance from the Department of Water Resources (DWR) to local agencies and practitioners, including new California Environmental Quality Act guidelines; and an advisory committee to perform further review. The California Floodplain Management Task Force, formed by DWR in early 2002, "sought to recommend floodplain management strategies designed to reduce flood losses and maximize the benefits of floodplains. The Task Force found that existing programs are inadequate to accomplish these goals and that time is of the essence," the report states. The 41-member Task Force included representatives of state and local agencies, development interests, environmental groups, agriculture and water users. The report is available at http://fpmtaskforce.water.ca.gov/. THE SANTA ANA Redevelopment Agency should reorganize its housing program to ensure that money reserved for housing is spent on production, a state Department of Housing and Community Development Audit has concluded. The state found that for three fiscal years ending in June 2000, Santa Ana spent only about 16% of its low- and moderate-income housing funds on housing rehabilitation and property acquisition, while 47% went for planning and administration, and 35% paid for street and sidewalk improvements. When city officials protested that those three years were not representative, the state reviewed four more years of records. Auditors found that the city had spent at least two-thirds of housing money for those periods on planning and administration and on off-site improvements. In a written response to the audit, Santa Ana Redevelopment Agency Executive Director John Reekstin called HCD's recommendation "offensive and misdirected." ORANGE COUNTY Planning and Development Services Director Thomas Mathews retired in January amid a financial crisis in his department. County officials earlier announced they would lay off about 20% of the department's employees in January because the agency was accumulating a deficit of at least $500,000 per month (see , January 2003). Newspaper reports in January said that the Board of Supervisors conducted closed-door meetings to question County Executive Officer Michael Schumacher's handling of the Planning Department financial situation. County Auditor David Sundstrom has taken over a Planning Department study of fees to determine if they are covering the county's costs. The fees are already the subject of a builder lawsuit. A LAWSUIT challenging the City of Irvine's environmental review of a 7,743-acre project has been upheld by the Orange County Superior Court. The organization Defend the Bay argued that the city did not adequately study impacts to traffic congestion, water quality, agriculture and other issues. But the court said the city's review was sufficient. The Irvine Company's "Northern Sphere" plan would increase the size and population of the City of Irvine by about one-quarter. A CONTROVERSIAL PARK and retail development in West Covina has been slowed and might need new boundaries because of the discovery of three endangered gnatcatcher birds. In September 2002, the City Council voted 3-2 to approve a golf course, six baseball and softball fields, and 375,000 square feet of retail development on 230 acres near a closed garbage dump. Since then biologists have located the rare birds on the former dump site.

Apparently emboldened by political success in the mid-term election, the Bush administration has become more aggressive in its efforts to alter strict Clinton-era environmental protection policies. In California, strong state laws — and a political scene still dominated by Democrats — could hold the line on many issues, especially protection of wetlands and endangered species. But on issues in which active federal involvement is crucial, such as water and public lands policy, a major conflict could be arising. Indeed, California is likely to provide a stern test for the Bush administration's stated philosophy of returning power to state and local governments. Although rural counties, landowners, and farmers will no doubt welcome the Bush approach, the state government's strong pro-environment stance could serve as a controversial counterpoint. There is little question that the latest moves leave behind — perhaps permanently — the state-federal cooperation on natural resource issues that has flourished for more than a decade. In fact, many of the state-federal efforts now being rolled back were initiated during the first Bush administration, from 1989 to 1993, when both the president and the governor of California were Republicans. Since the election, the administration has taken several significant steps that indicate a more aggressive approach to environmental policy. Here are a few highlights: • The administration has issued a new rule that essentially turns regulation of isolated wetlands -- including small streams and vernal pools -- over to state governments. This rule interprets a 2001 U.S. Supreme Court wetlands ruling extremely broadly. • The administration has issued a new rule that will make it easier for state and local governments to move forward with claims to take over wilderness roads on national forest and Bureau of Land Management property. This rule could permit San Bernardino County, among others, to take possession of thousands of miles of wilderness roads that provide access to isolated areas. • The Pentagon is moving forward with new plans to ask Congress for relief from environmental laws on military bases. A similar request failed last year, but with an Iraq war in the offing and all of Congress now in Republican hands, a different reception seems likely. • The administration continues to starve Cal-Fed financially, arguing that the massive state-federal effort to restore the ecological health of the San Francisco Bay-Delta region requires federal budget reauthorization. It is difficult to know how much of a target California is in these efforts or whether the administration has a political goal in mind for the state. The conventional wisdom is that California is lost to Republicans, even at the presidential level, for the foreseeable future. And state environmental policy is likely to take up much of the slack. At the same time, however, Californians will likely play an important role in determining how the administration's efforts play out, particularly on water policy. Anne Veneman of Modesto is the secretary of Agriculture. The Interior Department's point person on Cal-Fed is Jason Peltier, who as director of the Central Valley Project Improvement Association was one of the leading opponents of the 1992 legislation that loosened valley farmers' grip on California water. And the wild card — perhaps one the administration wishes it did not have — is Rep. Richard Pombo, a Republican from San Joaquin County who recently leapfrogged over several more senior House members to become chairman of the House Resources Committee. Pombo has been an ardent opponent of environmental protections, especially those regarding endangered species. His hard-edged style is in keeping with the House leadership but does not reflect the Bush approach, which generally masks strident policy action in gentle, or even no, rhetoric. The new wetlands rule, advance notice of which was issued on January 10, provides insight into the administration's approach to interpreting the U.S. Supreme Court's ruling in , 531 U.S. 159 (2001) (see , February 2001). The Supreme Court ruled that the use of an isolated wetland by migratory birds cannot be the sole basis for federal jurisdiction over the wetland. Under the new proposed rule, the Bush administration has instructed field staff from the Army Corps and the Environmental Protection Agency not to assert jurisdiction over wetlands that are either located in a single state or isolated from a navigable waterway. The ruling is likely to have less impact in California than elsewhere because of overlapping regulations. Many wetlands projects are also subject to state regulations, including state endangered species laws. For example, vernal pools — the seasonal puddles located mostly in the Central Valley that have complicated development of many projects, including the new University of California campus in Merced — would still be subject to considerable scrutiny because of the presence of fairy shrimp, a federally listed endangered species. The Pentagon's action could have a more significant effect, given the fact that federal military bases are not subject to state law. Congressional debate last year focused on Camp Pendleton, a Marine training base in southern Orange County that has also served as a key component in the regional efforts to protect the California gnatcatcher and a variety of other endangered birds -- an effort that has taken place mostly under the auspices of the California Endangered Species Act. Most of Pendleton, as well as land at Miramar Marine Corps Air Station in San Diego, could eventually be designated as critical habitat. Under the Pentagon's legislative proposal, military bases would be exempt from critical habitat designation under the Endangered Species Act, provided they are covered by natural resources management plans prepared under the Sikes Act, a separate federal law that permits the Pentagon and the Department of the Interior to work together on such plans. Environmental groups such as the Natural Resources Defense Council claim the Sikes Act's provisions are not stringent enough and will likely oppose the Pentagon's efforts again this year. Then there's Cal-Fed, the ongoing multi-agency effort to improve the San Francisco Bay-Sacramento Delta water system. Dating back to the Wilson-Clinton days, when state and federal resource managers began working cooperatively, Cal-Fed remains an effort of more than 20 different state and federal agencies. However, the Bush Administration has cut Cal-Fed funding from $30 million to $15 million in the current budget year. Despite efforts by both Republican and Democratic members of Congress from California, Congress has not reauthorized the Cal-Fed program. This has led to criticism from groups such as Taxpayers for Common Sense, an advocacy group that has called the Cal-Fed appropriations a pork barrel that needs to be re-examined so that it is "not just a rehash of outdated water storage projects from years past." So most of the Cal-Fed burden will apparently fall on the state, which has authorized a wide variety of Bay Delta-related improvements in recent bond issues, especially Proposition 50, which passed in November and contains more than $300 million for Bay-Delta projects. What remains to be seen is whether the state-level regulatory and spending programs can hold together the efforts that have been undertaken jointly with the federal government during the last decade. From Cal-Fed to Southern California habitat preservation planning, state-federal cooperation lay at the core of many of efforts. With the Bush administration, the Pentagon and perhaps Congress pulling out of the partnership — and the state facing a budget crisis — environmental advocates in Sacramento may not be able to hold the dike.

Planning practitioners who are perplexed about how to handle certain projects in light of a recent court decision regarding the California Environmental Quality Act (CEQA) Guidelines should not feel alone. Planners, environmental consultants and attorneys who spoke with presented a surprising lack of consensus about the effects of the Third District Court of Appeal ruling, which threw out six guidelines addressing cumulative impacts, thresholds of significance, tiering and probable future projects. Indeed, some practitioners conceded that they had received conflicting interpretations from lawyers and colleagues. What is clear is that almost no one has complete confidence about how to address a project's impact on a cumulative condition — an area of CEQA law that has long perplexed practitioners. The Third District ruled that "one molecule" of contribution to a cumulative condition was not enough to trigger an environmental impact report. The court also ruled that a lead agency cannot weigh incremental contributions as a ratio. Instead, the court pointed to an older CEQA Guideline, § 15064 subsection (i)(1). " n assessing whether a cumulative effect requires an EIR, the lead agency shall consider whether the cumulative impact is significant and whether the proposed project's incremental effects are cumulatively considerable," Justice Rodney Davis wrote for the court. "The thing that struck me is that it's not the one-molecule rule," said Charlie Bull, president of RECON, a San Diego-based environmental consulting firm. "But based on what he wrote, it's hard for me to tell what the rule is." Added former Resources Agency counsel Maureen Gorsen, "Absolutely nobody knows what ‘cumulatively considerable' means." In late October, the appellate court invalidated several changes that the state made to the CEQA Guidelines in 1998. The court upheld one guideline addressing cumulative impacts but provided additional direction for interpreting the rule. The court also upheld an infill development exemption that environmentalists had contested (see , December 2002). The decision has become known as the "CBE case" for the lead plaintiff, Oakland-based Citizens for a Better Environment. The decision is final because no one asked the state Supreme Court to review it. The ruling was a victory for environmental groups, which contended the amendments adopted during the final months of the Wilson administration were an attempt to hinder project opponents' ability to fight using CEQA. On the losing end of the CBE case was the building industry, which had taken up defense of the guidelines when the Davis administration and Attorney General Bill Lockyer backed away from the case. Builders said the guideline amendments brought a needed measure of certainty to environmental reviews. Today, about 150 guideline revisions from 1998 stand. But the few guidelines that the court invalidated were generally acknowledged to be the substantial changes. The cumulative impacts portion of the CBE case might be the most important. The court overturned a guideline that allowed planners to determine a project's contribution to a cumulative condition — such as air pollution — was "de minimis" and, therefore, not deserving of further study. The rejected guideline was intended to bridge the gap between "one molecule" of impact, and a "level of considerableness" that would trigger additional environmental review, said Terry Rivasplata, who headed the State Clearinghouse for the Office of Planning & Research (OPR) when the revisions were drafted. The court said the "one molecule rule" was not appropriate, but the court also ruled that comparisons and ratios were not the proper approach either. And the court indicated that the worse the cumulative condition, the more scrutiny a project should receive. "Therein lies the confusion," said Curtis Alling, managing principal of EDAW's Sacramento office. "If you don't do this from a comparative standpoint," said RECON's Bull, "I don't know how you do it." Alling suggested that planners either fully mitigate a project that contributes to a cumulative condition, or demonstrate that the project complies with an adopted plan that addresses the condition. "Maybe there's an encouragement to do broad-scale planning," he said. Rivasplata, now a CEQA compliance specialist for Jones & Stokes in Sacramento, agreed with that approach. If planners can show that a project is covered by an existing plan, program or mitigation fee, they might be able to avoid further study of cumulative impacts, he said. The appellate court did uphold a guideline that allows an agency to determine a project's incremental contribution to a cumulative effect is not significant if the project complies with an approved plan or mitigation program. However, the court ruled, the "fair argument" standard still applies, meaning an EIR would be required if there is substantial evidence a project may have a significant impact. That caveat is important because it reduces the certainty that guideline drafters sought, said Gorsen, the former Resources Agency counsel responsible for the 1998 amendments. The court rejected a guideline that required a finding of no significance if a project's impact fell below an established threshold of significance. But the court did not throw out the concept of thresholds of significance — a concept backed by developers and some planners. "This ruling does not mean environmental standards cannot be used as evidence to support significance determinations," according to an analysis by Morrison & Foerster attorneys Michael Zischke and Alicia Guerra. "It means that the standards cannot be given a presumptive effect that defeats the fair argument standard." The court invalidated a guideline that allowed a lead agency to approve a project without making findings of overriding considerations when the project is covered by a master or program EIR that found significant, unavoidable impacts. The court held that the public agency must adopt overriding findings every time. Many people read this part of the ruling as a requirement to prepare a second-tier EIR for any project covered by a master EIR with overriding considerations. But Alling, legislative director for the Association of Environmental Professionals, pointed out that the court did not explicitly say an EIR is required in such cases. Overriding considerations could be part of a negative declaration, he said, although he also called such an approach "very risky." The court upheld a guideline that provides a CEQA exemption for infill projects of less than five acres in urban areas if the project would not impact traffic, noise, air quality or water quality, and if the project complies with the general plan. While the exemption might appear too narrow to be of much use, some people see its value. "There are projects that get the go-ahead based on this," Rivasplata said. "But they may be small projects like a couple of units on one lot." Gorsen, now with Weston Benshoof, Rochefort, Rubalcava, MacCuish in Los Angeles, said some school projects could fall under this exemption. "So much of what they are doing is meeting class-size reduction mandates," she said. "They are not generating more trips or more students. So really the only impacts are construction impacts." Besides avoiding an EIR process that often lasts two years, school districts that use the exemption can also skip site assessments normally required by the Department of Toxic Substances Control, Gorsen said. The Resources Agency is following the formal administrative rulemaking process to erase the guidelines that the Third District struck. In the meantime, what should an agency that has relied on the now-invalid guidelines do? Rivasplata said that if the review period on an environmental document is complete, the lead agency should keep going. But if the agency can rework the document, it should, he urged. Last year, the Resources Agency and OPR completed a package of proposed guideline changes; however, officials held onto the proposal until the CBE case was decided. "Now that the court has ruled, we can move forward with a package of updates to the guidelines," said Terry Roberts, state clearinghouse director for OPR. Neither Roberts nor Resources Agency officials would say when the proposed revisions would be made public. Contacts: Terry Rivasplata, Jones & Stokes, (916) 737-3000. Curtis Alling, EDAW, (916) 414-5800. Charlie Bull, RECON, (619) 308-9333. Maureen Gorsen, Weston, Benshoof, Rochefort, Rubalcava, MacCuish, (213) 576-1000. Terry Roberts, Governor's Office of Planning and Research, (916) 445-0613.

A divided panel of the Ninth U.S. Circuit Court of Appeals has allowed two water districts and two farmers to sue the federal government for damages caused by changes in the management of the Central Valley Water Project, even though the districts and farmers have not yet experienced an injury. The decision appears to set an important precedent regarding when a party has the legal "standing" to seek compensation for damages. The court ruled that the districts and farmers need not wait until the new water management practices turned their water excessively saline before demanding compensation. "The injury alleged has not yet occurred; it is threatened," Justice Stephen Reinhardt wrote for the court. "Nevertheless, the possibility of injury may be sufficient to confer standing on plaintiffs; threatened injury constitutes ‘injury in fact.'" In 1992, Congress approved the Central Valley Project Improvement Act to address environmental concerns with the huge federal water project. The act required the Bureau of Reclamation to manage Central Valley rivers and streams to increase salmon populations; to dedicate 800,000 acre-feet of water to aid fish, wildlife and habitat restoration; and to develop a program to meet these goals in accordance with State Water Resources Control Board permits. Those permits, among other things, set a standard for salinity at the confluence of the San Joaquin and Stanislaus rivers known as the Vernalis standard. The Bureau then began releasing water for fishery habitat purposes from the New Melones Reservoir into the Stanislaus River during April, May and October — key months for fishery health. The Central Delta Water Agency, the South Delta Water Agency and two farmers within the districts sued the federal government in 1999. District Court Judge Oliver Wanger ruled that the agencies and farmers did not have standing to pursue their claims. But a 2-1 panel of the Ninth Circuit overturned the lower court's decision. The key issue for the Ninth Circuit was whether the water districts and farmers had suffered "injury in fact" because a hypothetical injury is not enough to establish standing. The farmers argued that the Bureau's method of operating New Melones Dam was highly likely to cause water salinity levels that violated the Vernalis standard, thus hampering their ability to grow crops. They pointed to a Bureau modeling study that predicted the new plan would cause the Vernalis standard to be violated at least one month a year in 41% of the subsequent 71 years. They further cited three Clean Water Act cases in which environmentalists were given standing, even though there was only a threat of actual harm to the environment in each case. The cases were Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141 (9th Cir. 2000) (see CP&DR Legal Digest, December 2000); Friends of the Earth v. Gaston Copper Recycling Corp., 204 F3d 149 (4th Cir. 2000); and Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000) (see CP&DR Legal Digest, February 2000). The federal government argued that those cases were inapplicable because they all involved ongoing violations of the Clean Water Act, and they only provided that violation of the statute was sufficient to confer an aggrieved party with standing. The court, however, found the cases on point. "Standing resulted not from the existence of an ongoing statutory violation, but because of the threatened future damage to plaintiff's environmental interests," Reinhardt wrote of the three cases. He then extended that reasoning to this case. " e conclude that the necessary showing for standing purposes is not that the Vernalis standard has already been exceeded or that plaintiffs' crops have already been damaged by excessively saline water, but that plaintiffs face significant risk that the crops that they have planted will not survive as a result of the Bureau's decisions to discharge water from the New Melones Reservoir during April, May and October, rather than when needed to meet the Vernalis standard," Reinhardt wrote. "The threat of injury resulting from the Bureau's employing an operational plan that will likely lead to violations of the Vernalis standard is sufficient to confer standing on plaintiffs." Because the farmers have standing, the agencies — which are charged under state law with protecting a dependable supply of high-quality water — have standing as well, the court ruled. The Ninth Circuit further ruled that the district court was wrong to block the lawsuit on the basis that previous administrative and judicial proceedings had settled the management of New Melones Dam. The Ninth Circuit held that earlier lawsuits did not address the same issue, namely the release of water pursuant to the Bureau's operation plan for environmental purposes. The Ninth Circuit returned the case to the lower court for further proceedings. In a short dissent, Judge Ferdinand Fernandez said the water districts and farmers had not proven the "invasion of legally protected interest" was more than hypothetical. "What is significant here is the fact that the United States has not violated any law, rule, regulation, or contract," Fernandez wrote. "Nor has it threatened that it will do so in the future." The Case: Central Delta Water Agency v. United States, No. 01-16172, 02 C.D.O.S. 10525, 2002 DJDAR 12140. Filed September 26, 2002. Amended October 21, 2002. The Lawyers: For Central Delta: Daniel McDaniel, (209) 465-5883. For the U.S.: David Shilton, Department of Justice, (202) 514-2000.

A collection of San Joaquin Valley water technology companies is attempting to make Fresno the center of the "flow technology" world. Representatives of dozens of companies have been meeting regularly for nearly two years as part of the Water Technology Industry Cluster in hopes of boosting business and improving the San Joaquin Valley's economic status. The cluster and California State University, Fresno, are trying to attract dollars to build a center at the university for research and development, testing, certification, education and marketing. The cluster has also joined with Fresno City College and Reedley College on a work force training program. The effort has grown from a three-year-old study by Collaborative Economics for the Great Valley Center. The Palo Alto-based consultant found a number of indicators of poor economic health in the region. During the 1990s, construction and retail activity driven by rapid population growth was a major component of the regional economy. Yet the study reported that the labor force grew faster than jobs, and per capita income declined by about 5% in constant dollars from 1990 to 1997. The study recommended the region move away from being a low-cost center and join the technology-driven global marketplace. To do this, the study urged the cluster approach, in which businesses in the same field collaborate on many fronts. Consultants identified six "opportunity areas" for potential clusters, all of which they said were "nascent and require significant scale-up to create critical mass." The study's findings and recommendations gave San Joaquin Valley leaders something with which they could work. "The prognosis was the regional economy was only going to get worse," said Ashley Swearengen, executive director of the Central California Futures Institute at CSU Fresno. "We missed the last wave (of prosperity) and every indicator was that we would miss the next wave." With financial assistance from the Irvine Foundation, the cluster that has taken shape is in the field of water technology, which the study called "precision irrigation technology." Fresno State is already home to the Center for Irrigation Technology, and some of the world's leading companies in the area of moving, restricting, filtering and treating water are based in a region that stretches from Kern County to Modesto. Plus, many people see the provision, cleaning, recycling and conservation of water as a growing issue worldwide. The first cluster meeting was in April 2001. "I really thought it was kind of a dumb idea," said Claude Laval, whose company, Claude Laval Corp., makes filtration equipment. "Most of these people had not collaborated with each other. Most of them hated each other." Laval helped get people to attend the first meeting anyway. Since then, Laval has become a cluster co-chair. "It's better than waiting for some automobile manufacturer to build a factory in Fresno," he said. The semi-monthly meetings now draw 60 to 70 people from around the country. Meetings are not all hugs and kisses, but people are talking and finding more common ground than they knew they had. Members now speak of "cross-fertilization." Swearengen, who has helped get the cluster going, saw many "false barriers" because people in similar businesses had not communicated with each other. "The group felt very under-the-radar and very fragmented," she said. Once they started seeing what they had in common, cluster members established three priority areas: Work force preparation, export development and promotion (including joint marketing at trade shows), and one-voice advocacy. Much of the cluster's effort is tied to the proposed water tech center, and not only for improved research and development. Already, trade delegations from around the world visit the San Joaquin Valley because of its reputation for agricultural production, Swearengen said. However, to learn about the latest in water technology, those visitors have to go from farm to farm to see individual components. The water tech center would showcase the region's technical and manufacturing capabilities in one place. Fresno State has agreed to donate land for the center, and cluster leaders believe a requested $2 million federal grant will receive approval. If the federal money comes through, it will leverage private sector donations, Swearengen said. In the meantime, the work force program is moving forward. Cluster members agreed they had trouble finding certified welders, CNC machinists and maintenance mechanics. Manufacturing, noted Swearengen, is the heart and sole of the cluster. "This is an area of huge unemployment," said Laval, "but you can't find anybody that you need." The cluster is working with the two community colleges, which already have vocational programs but experience high drop-out rates, said Russ Densmore, a cluster member and vice president of operations for American AVK, which makes valves and fire hydrants. The cluster is setting up internships and work experience programs to encourage students to finish two-year vocational programs and to provide workplace skills. The cluster is focused on growing existing businesses, a strategy recommended in the original Great Valley Center study. Everyone involved agrees that growth will require greater export of products and technology. Some companies already have an international presence – American AVK is owned by a Danish holding company, for example — while others need help making connections overseas. And there is hope that new water tech companies will open in the region, and existing businesses located elsewhere will move to the valley. "We're already beginning to see people moving into this area because they see all of the testing and research facilities in the area," said Laval, who noted two small companies from Montana and Oklahoma have relocated. In the end, what cluster members want to see is more decent-paying jobs available in the region. Past economic development efforts have focused on call centers and logistics, which often pay little above minimum wage, noted Laval, a member of the Fresno Business Council. Certified welders typically command $20 to $25 per hour, he noted. Contacts: Ashley Swearengen, Central California Futures Institute, (559) 278-8433. Claude Laval, Water Technology Industry Cluster, (559) 255-1601. Russ Densmore, American AVK, (559) 452-4300. International Center for Water Technology website: www.icwt.net Economic Future of the San Joaquin Valley study: www.greatvalley.org/nvc/nvc_publications.aspx

The San Diego Redevelopment Agency can use a state law to require the owner of property the agency took by eminent domain to pay for cleanup of soil contamination, a state court has ruled. A unanimous three-judge panel of the Fourth District Court of Appeal, Division One, ruled that the city could recover remediation costs under the Polanco Act (Health & Safety Code § 33459 et seq.). The property owner, the Salvation Army, argued that the city could not recover costs because it did not follow requirements of the federal Superfund law (the Comprehensive Environmental Response, Compensation and Liability Act of 1980, or CERCLA). But the court ruled that the federal law did not prevent the city from recovering costs and that, in any event, the city did comply with the federal law."Contrary to Army's suggestion, the Polanco Act does not limit a redevelopment agency's rights to those available under CERCLA," Presiding Justice Daniel Kremer wrote for the court. The city's attorney, Richard Opper of Foley & Lardner, called the decision a "shot in the arm" for the Polanco Act. "California law has been unclear in its guidance on the market value of condemned, contaminated land," Opper said. "Now, there is approval for using the Polanco Act in coordination with eminent domain." The property in question is in San Diego's East Village Redevelopment District, where the city is constructing a downtown baseball stadium (see CP&DR Places, January 2002). In 1998, the city identified the Salvation Army's parcel as one the city needed to acquire, so the city included it in a phase I environmental site assessment of the area. A consultant identified a possible underground storage tank on the Salvation Army parcel, so the city requested the Salvation Army submit a remediation plan within the Polanco Act's 60-day time limit. The Salvation Army did not respond to the request or to a 30-day extension. In 1999, the county Department of Environmental Health approved the city's master work plan for cleaning up the redevelopment project area. In February 2000, the city filed a lawsuit against the Salvation Army to acquire the property through eminent domain. The following month, the Salvation Army submitted an assessment and remediation work plan to the county. But the city took possession of the parcel, which the Salvation Army did not dispute, in May. After demolishing the structures, the city found evidence of lead-contaminated burn ash. The city prepared a property mitigation plan for review by the county and the Salvation Army, and then did the cleanup work, including excavation and disposal of the contaminated soil. In 2001, the city and the Salvation Army settled on $550,000 – less any amount recoverable under the Polanco Act — as the price for the property and any damages the property owner suffered. San Diego County Superior Court Judge Judith McConnell (since appointed to the Fourth District bench) later concluded that the Salvation Army did not respond to the city's request for submission of a remedial action plan before the statutory deadline. Judge McConnell awarded the city $172,000 in remediation costs, plus attorney's fees and mediation expenses. The Salvation Army appealed. It argued that the Polanco Act's inclusion of CERCLA's "scope and standard of liability for cost recovery" limited the city's recoverable costs to those allowed under CERCLA. The Army further argued that the city did not follow the federal Environmental Protection Agency's implementing regulations for CERCLA (known as the "national contingency plan") because the city did not assess the threat to human health or the environment before proceeding with cleanup. The Salvation Army also argued that the city's disposal of soil was compelled by state waste laws, not because the soil threatened human health and the environment. The appellate court rejected these arguments. Foremost, the court ruled that cost recovery under the Polanco Act is different than under CERCLA. "The Polanco Act involves cleanup of the release of hazardous substances in the context of a redevelopment project," Justice Kremer wrote for the court. "The Polanco Act was enacted to provide a redevelopment agency with the means to require responsible parties to bear the costs of mitigating contamination on property within that agency's redevelopment project area." The Polanco Act's reference to the national contingency plan is intended to provide the city's redevelopment agency "with a basis for evaluating a proposed remedial action plan submitted by a responsible party in response to the agency's 60-day notice," the court ruled. The state law "does not make compliance with any portion of the national contingency plan a precondition for the agency's recovery of costs under Health & Safety Code § 33459.4. Instead, a redevelopment agency's entitlement to cost recovery under the Polanco Act depends upon the redevelopment agency's implementation of a plan approved by the designated regulatory agency overseeing the redevelopment plan." In this case, the county Department of Environmental Health was the designated regulatory agency, and it approved the city's plan. Besides, the court continued, the city did comply with the federal regulations by conducting a remedial investigation and preparing a feasibility study. Meanwhile, the Salvation Army "remained silent" through the whole process, Kremer noted. The city satisfied the conditions necessary for cost recovery under the Polanco Act by submitting a notice to the Salvation Army asking for a remedial action plan. The Salvation Army, meanwhile, submitted a remedial action plan and removed the underground storage tank more than a year after the statutory deadline for responding to the city's notice, Kremer wrote. The court also rejected the Salvation Army's contention that the city was only complying with state waste disposal laws. "Agency's master work plan and its amended property mitigation plan were both designed to protect the health and safety of construction workers and to prepare the property for future use," the court held. Additionally, the court held that the Salvation Army was a "responsible party" subject to liability, even though the city's cleanup occurred after the city took possession of the property. The Salvation Army qualified as the "present owner" because it owned the property when the city filed the eminent domain lawsuit. And, as the present owner, the Salvation Army was liable even if it did not cause the contamination, the court ruled. The Case: Redevelopment Agency of San Diego v. Salvation Army, No. D038835, 02 C.D.O.S. 11137. Filed October 21, 2002. Ordered published November 14, 2002. The Lawyers: For the city: Richard G. Opper, Foley & Lardner, (619) 234-6655. For Salvation Army: H. Douglas Galt, Woolls & Peer, (213) 629-8792.

WASHINGTON _ A deadlocked U.S. Supreme Court has upheld a $500,000 fine against a California developer for "deep ripping" about two acres of wetlands on a Central Valley ranch while converting pasture to vineyards and orchards. The justices divided 4-4 in an appeal by Angelo Tsakopoulos seeking to set aside penalties levied by the U.S. Army Corps of Engineers for violating provisions of the Clean Water Act that require a permit before filling or dredging waterways. Tsakopoulos, a prominent Sacramento-area housing and commercial developer, drew the fines for deep plowing wetlands that lay on parts of the 8,400-acre Borden Ranch about 30 south of Sacramento that he bought in 1993. The Corps of Engineers said the deep ripping — a process also called deep ripping, which involves heavy bulldozers dragging five-foot-long plow shanks through the soil — filled the wetlands with dirt, rock, and sand churned up from the densely packed "claypan" below the layer of arable soil. The high court's tie vote, announced in a one-sentence, unsigned opinion, resulted from the decision by Justice Anthony M. Kennedy to recuse himself from the case because of his acquaintanceship with Tsakopoulos and his family. The court does not announce individual votes in tie cases, but lawyers and observers surmised from questioning and past cases that the justices divided along conservative-liberal lines. The split has the effect of affirming a decision by the Ninth U.S. Circuit Court of Appeals upholding the fines (see , October 2001). Tsakopoulos and an array of industry groups had warned that the ruling went beyond the Corps of Engineers' statutory authority and could hurt farmers, ranchers, developers, mining companies, and road builders. Environmental groups said they were pleased with the high court's action even though the government's power to regulate deep ripping remains unresolved. "So far, so good," said John Echeverria, a professor and director of Georgetown University Law Center's Environmental Law Institute. "The Ninth Circuit ruling is upheld, the precedent remains in effect, and the battle is deferred to another case in which Justice Kennedy doesn't know one of the parties." "We're delighted," said Howard Fox, managing attorney with the environmental law firm Earthjustice. "There were a lot of industries in the Supreme Court asking for major loopholes in the Clean Water Act. We're already losing tens of thousands of acres of wetlands, and to have weakened the law further would have made that situation even worse." For their part, industry groups said they remain hopeful that the court will back their position in a future case. "We're disappointed that they didn't see things our way, but we were encouraged that they took the case," said Rick Krause, regulatory counsel with the American Farm Bureau Federation, which filed a brief supporting Tsakopoulos. "We think that that might mean they had a little bit of difficulty with the Ninth Circuit reasoning, and we're hopeful that after an appropriate case arises in the future that they'll take it and that all nine justices will be able to vote on it so that they will have a clear direction." In a prepared statement, National Association of Home Builders President Gary Garczynski attempted to find a positive outcome. "The speed and brevity of the high court's decision — a 4-4 split ruling delivered less than one week after oral arguments were heard, without Justice Kennedy's participation, with little precedential value and with no legal analysis — raises more questions than it answers," Garczynski said. "We are by no means discouraged by this split ruling." The deadlock was announced December 16, only six days after oral arguments at the high court. The justices' questions from the bench had indicated a possible division along ideological lines — leading lawyers on either side of the case to forecast a tie vote. In addition, the court had split 5-4 along ideological lines in its most recent wetlands regulation case just last year. In that case, , 121 S. Ct. 675 (see , February 2001), the court ruled that the federal government has no authority to regulate isolated ponds or wetlands. Kennedy joined the court's other four conservatives in the majority, while the four members of the court's liberal wing were in dissent. The legal question in Tsakopoulos's case turned on provisions of the Clean Water Act that require a permit from the Corps of Engineers for "any addition of any pollutant to any navigable waters from any point source." In urging the justices to strike down the fines against Tsakopoulos, Chicago attorney Timothy Bishop contended that deep plowing did not meet that statutory definition. "Deep plowing of that sort doesn't add fill or dredge material, and it doesn't involve a point source," Bishop argued. "We don't think it's permissible to protect wetlands by disregarding the words of the statute," he added. In turn, Assistant U.S. Solicitor General Jeffrey Minear argued that Congress used broad language to apply to "any unauthorized addition of a pollutant" to protected waters. "The most common form of dredging is moving material from one point of a body of water to another," Minear said. "Turning over material in place," he added, "does environmental harm." Krause, the farm bureau lawyer, said the group was most concerned with the possibility that the Corps of Engineers would claim authority to regulate any form of plowing despite an exemption in the law for "normal farming activities." In its brief, the government said the exemption did not apply because the deep plowing was intended to change the use of the land and had the effect of transforming the wetland areas to dry land. The home builders' association had been hoping for a ruling in Tsakopoulos's favor for use in a pending challenge to a general regulation issued by the Corps affecting builders. In that case, , NAHB is carrying on a 12-year-fight against the Corps' authority to regulate land clearing if it involves "incidental fallback" of soil into wetlands or other waterways. NAHB asked that the case — pending in federal district court in Washington — be put on hold pending the high court's decision in the Borden Ranch case. Bishop — who represented the Cook County solid waste agency before the Supreme Court — said he thought Kennedy's absence in the Tsakopoulos case had cost the landowner a victory. "Had Justice Kennedy been able to participate in this case, we quite likely would have won it," Bishop told the Associated Press. Echeverria called Bishop's assessment "a plausible guess," but "premature." "Kennedy is a swing vote in a variety of environmental cases," Echeverria said. "He just hasn't been heard from." The case: , No. 01-1243. Filed December 16, 2002. The attorneys: For Borden Ranch: Timothy S. Bishop, Mayer, Brown, Rowe & Maw, (312) 782-0600. For Corps of Engineers: Jeffrey P. Minear, Assistant U.S. solicitor general, (202) 514-2203.