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- From Permits to Penalties: A Deep Dive into Coastal Development Law
The California Coastal Act (The Act) is a critical piece of legislation impacting countless developers and homeowners within the coastal zones of California. Understanding the intricacies of The Act is pivotal for anyone engaged in coastal property or development.
In the latest episode of Digging Into Land Use Law, John Erskine and Patrick Richard explore the challenges faced by developers and homeowners under The Act. John and Patrick discuss the permitting process, the broad definition of “development,” enforcement actions with significant penalties and hot-button issues like seawalls. With practical tips on navigating regulations and responding to violations, this episode, part of a new series on The Act, is a must-listen for anyone involved in coastal zone property or development.
- Rewriting the Rules: The Supreme Court's Landmark Decision on Clean Water Act Permits
In this episode of Digging Into Land Use Law, Byron Gee, Willis Hon and Sara Johnson review in detail the recent Supreme Court opinion in City and County of San Francisco vs. EPA and its implications for Clean Water Act permittees. They discuss both the immediate fallout of this recent opinion and what may come next from the Environmental Protection Agency (EPA) in the world of Clean Water Act discharge permits. As EPA and states conform their permitting regimes with this new case, there will almost certainly be significant impacts to the manner in which wastewater and stormwater permittees must comply with the Clean Water Act across the county.
Transcript: Rewriting the Rules - The Supreme Court's Landmark Decision on Clean Water Act Permits
0:00:00.4 Byron Gee: In March 2025, the United States Supreme Court issued a landmark decision in the City and County of San Francisco versus the Environmental Protection Agency. This pivotal ruling struck down the so-called end result requirements commonly imposed by the EPA and Clean Water Act permits, fundamentally reshaping how permits under the National Pollution Discharge Elimination System are administered across the country. With the potential to alter water quality compliance for permit holders nationwide, this decision raises key questions about the future of environmental regulations and the interplay between federal and state oversight. In this episode of Digging Into Land Use Law, we break down the Supreme Court decision, unravel the main issues at stake in the case, and explore the immediate and long-term impacts for stakeholders from individual permit holders to state and federal regulators. If you're navigating Clean Water Act compliance, interested in regulatory shifts, or simply curious about how this ruling will influence water quality standards, this podcast will provide insight and guidance for the road ahead.
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0:01:28.4 Speaker 2: Welcome to Digging Into Land Use Law, Nossaman's podcast covering the development of all things in, on, or above the ground.
0:01:44.5 Byron Gee: I am Byron Gee, a partner in Nossaman's Water Practice Group, and I'm joined today by fellow partners Willis Hon, also in the Water Practice Group, and Sara Johnson in our Environmental and Land Use Practice Group. Let's start by discussing the Supreme Court case. Willis, can you summarize the pivotal issues at stake in the City and County of San Francisco versus EPA case?
0:02:12.5 Willis Hon: Thanks, Byron. Well, so this was a case in which the U.S. Supreme Court decided it in March of 2025, and in that case, they analyzed the permit requirements that the EPA had been routinely using in many of its discharge permits issued under the Clean Water Act. Under that act, dischargers need a permit under the National Pollution Discharge Elimination System, or NPDES program, in order to discharge contaminants into waters of the United States. Then these permits often include specific numeric effluent limitations or may contain narrative limitations, such as having permittees implement certain best practices. The case here dealt with another type of permit requirement commonly known as end result provisions. Specifically, this case involved an action by EPA against the city and county of San Francisco to enforce these end result permit requirements for the city's oceanside combined waste water system. The permit at issue in this case involved the prohibition against discharges that, quote, contribute to a violation of any applicable water quality standard, end quote, for receiving waters, as well as a second prohibition against performing any treatments or making any discharges that, quote, create pollution, contamination, or nuisance as defined by California Water Code Section 13050, end quote.
0:03:37.4 Willis Hon: Now, these limitations, as you see here, don't direct the city to take any specific steps on how to comply, but instead rely on the city to reach the end result being required. So after this lengthy case, the Supreme Court sided with the city holding that the Clean Water Act does not authorize EPA to include such vague end result provisions in its NPDES permits. The majority opinion explained that the enforcement responsibility for determining and implementing steps to achieve water quality standards falls within the EPA's mandate and cannot be shifted onto permittees through general outcome-based language like this. Specifically, the majority opinion found that the Clean Water Act does not authorize EPA to impose requirements that condition the permittees' compliance on whether, you know, the receiving waters meet applicable water quality standards, holding that such end result limitations neither fit the statutory interpretation envisioned by the Clean Water Act, nor was it supported by the legislative history behind the Clean Water Act's adoption in 1972. Since the time of the decision about two months ago now, the case has been remanded down to the Ninth Circuit to figure out how the EPA is going to administer the permit with this new guidance, and that's the big question that a lot of people are trying to figure out right now.
0:05:03.3 Sara Johnson: Thanks, Willis, and thanks, Byron. Good to be joining you guys for this discussion. There's a lot of speculation in different directions and stakeholders viewing this opinion from different opportunities. And just looking again at the case, so we have EPA, SCOTUS directing EPA to be more specific about what permit holders can and cannot do, what actions they can take. So EPA needs to propose specific options in those conditions. And EPA also needs to be able to demonstrate that those options have a nexus to water quality. And so several of the companies that I work with, they are offset providers. They sponsor and establish ecological restoration offsets, which essentially, for anyone that's working in the environmental space, are doing something offsite to provide ecological uplift that compensates for or mitigates offsets, permitted actions and impacts elsewhere. But you have a nexus back to the permitted action based on a certain service area. So in the water quality space, that's typically a specific watershed or a HUC within a watershed. And so we're viewing this decision where EPA is needing to come up with a menu of different options that are specific actions a permittee could take.
0:06:33.8 Sara Johnson: And we're seeing water quality offsets as a really attractive option. It allows the permittee to not have to perform actions and minimize pollutants to the maximum degree at their facility, but gives them some flexibility to find a more cost effective option that maybe is even more impactful for the watershed as well by turning to some of these offsite solutions. So we see this as a real opportunity. Of course we'll need EPA to come out with guidance that clearly outlines where trading is an option. And I think several of these companies are hoping that this second Trump administration would be open to that. We saw during the first Trump administration issuance of a water quality trading memo that came out in February 2019. It outlined a bit of a roadmap on actions that EPA could take as well as ways to support the states to embrace water quality trading as a more efficient method to achieve their NPDES targets. And really, besides the memo coming out, we didn't see much action on the part of EPA to implement that or states necessarily reacting to it. And so the second Trump administration presents an opportunity to pick that work back up. And maybe it's the confluence, this decision, that interest from the first administration that results in water quality trading emerging as a real option coming out of the decision. So still though waiting, back to that first question we were talking about, still waiting though for final direction and guidance from EPA. And that's definitely what's going to be needed in the short term here for us to know what to expect and for stakeholders to really understand what this decision means.
0:08:34.3 Willis Hon: I'm totally in agreement. For a lot of the clients that we have that hold these NPDES permits and are trying to figure out what to do next, we've been recommending that they do try to continue to comply with the terms of the existing permit. As you mentioned, there's a lot of uncertainty what's going to happen. But these end result permits are only one set of provisions within the overall permit. There's still the effluent limitations, still the narrative and best practice requirements. And so those are still in place, which is important to keep in mind that we're only talking about one aspect of the NPDES program. In the long term, the permittees might find that as they're renewing these permits or as these are evolving or when EPA can get to them, you might see some more long term changes on how the types of limitations are being placed and what they are. So it might get easier, but it also might be fashioned in a way that makes it harder to comply with or more expensive. So it's really going to be wait and see for the long term.
0:09:42.9 Byron Gee: And a lot of these permits, I mean, when we're talking about industry sector permits, they have to be renewed once every five years. And so I guess EPA can't just sit on their hands or the states can't sit on their hands and just hope that something new comes along. Evidently I think they will have to come up with something fairly quickly if they are to follow their schedule of renewing these permits every five years.
0:10:16.0 Willis Hon: Right. And one of the, you know, one of the arguments made during the case is that, you know, by EPA in the case is that these end result limitations are really necessary because a lot of the times they don't have the science completed to support a specific, a more specific requirement in that context. And so a large part of it is that you need to do the work, put in research, the science to develop and craft limitations that are more specific. And so now that we have this decision, the challenge is really on EPA to now do the science and craft these, which is much easier said than done.
0:10:58.7 Sara Johnson: Yeah, and again, goes back to just some of the challenges they're facing with this reduced workforce, you know, are there other cooperative approaches or partnerships they can pursue to get that data? But definitely need more data to have defensible permit conditions that would replace those end result provisions.
0:11:23.7 Byron Gee: Okay. Thank you. That was very helpful. Let's focus in on maybe some of the broader impacts of this Supreme Court decision. How are different stakeholders viewing the long term impacts of this decision? Sara, that might be one for you to start with.
0:11:45.6 Sara Johnson: Yeah, thanks. And I'll caveat this with, this is some speculation. And coming from the perspective of several of the companies that I work with who are in the business of providing ecological offsets, essentially offsets for compliance with Clean Water Act and other state and natural resources laws, and where they have found success is working with permit holders to provide these offsite water quality projects that are still within a certain watershed. They're still within a defined service area. Typically it's a HUC. So there would be a nexus to the facility that's holding the permit. And they're seeing an opportunity with this decision and the Supreme Court's direction to EPA to do their job and to come up with what are the specific permit conditions a permittee has to comply with to show they're meeting the terms of the NPDES program and reducing pollutants overall in the receiving waters. And we're looking at these offsite offsets as a specific action that could be pursued where you can demonstrate, okay, permittee, you've checked the box on your liability. You've pursued a specific permit action. And EPA and the states can say, we're also holding up our obligations under the act because we can demonstrate that these offsets are measurable towards improving water quality by reducing certain nutrients. So we're seeing this as a potential opportunity. You know, offsets would be just one option of many, but we're feeling that they should be one that's really considered as a menu of options to try to achieve compliance. So that's just one perspective. And I'll add that the first Trump administration actually issued a guidance memo in February of 2019 where they really were trying to incentivize and outline actions EPA could take as well as ways to incentivize the states to embrace this water quality trading approach as a way to more efficiently achieve some of these pollutant goals. So there is some precedent from the first Trump administration offering support, and this is just an item, you know, we'd love to see if there was that guidance from EPA in response to the decision.
0:14:28.6 Willis Hon: Yeah, totally agree. One of the other major stakeholders that are impacted by this beyond permit holders, is, as you mentioned, the states. Now, in this specific case between San Francisco and EPA, there's also concurrently oversight from the State Water Resources Control Board that has their own permitting authority that's not only concurrent with that of EPA under the Clean Water Act, but California has its own water quality control laws. And so there's a state regime as well. Now, it's a bit complex to figure out how that's going to be implemented. While the case has come down from the Supreme Court as being remanded to the Ninth Circuit, there's also concurrently a state action challenging similar end result requirements found in the state permit as well, but that case has been on hold until the federal side of the House is resolved at the Ninth Circuit. And so we'll see what happens there. One of the things that we've seen in California from the State Water Resources Control Board is that they've been focusing a lot on these numeric limitations where there's adequate data and support for them. And so in light of this decision, maybe that sort of furthers that shift towards that strategy. One other piece of thing that I'd want to note to take a look at is Senate Bill 601 that's currently in legislature. This is a bill introduced a few weeks ago that would sort of revamp the state authority and approach on clean water quality and sort of fill in the gaps where the federal government has pulled back. And so that bill is currently making its rounds through the different committees in the state Senate and something to keep an eye on.
0:16:25.2 Sara Johnson: Yeah, definitely. I know I've been working with some folks also tracking that bill and understanding the intent where it's trying to fill the gap and further bolster water quality oversight, but I know it also has some concerns just about practical implementation challenges. And so what are the lessons learned from this case that could be avoided by states also trying to work on writing their own water quality permits? And I think one of those big lessons, and you touched on this too, Willis, is there seems to be this shift from the narrative provisions to numeric and having that focus on any water quality trading requirements linking back to numeric limitations. And that's been critical for where we have seen trading flourish as a model, particularly in the Chesapeake Bay. You've seen that success because you have these total maximum daily loads that are based on specific pollutant targets. And so, again, you've got to have through state and federal partnership and EPA staff working together to come up with the data to support that. You also need to have states that are willing to embrace trading. Again, in the Bay area, the state that's been most successful, Virginia, they had a state law that also clearly authorized this trading between point source, so your permit holders, and non-point source offsets and reductions. And so you need a couple different factors to come together, but if you can get those factors to come together, it's a really defensible option for EPA to be able to point their permittee holders towards.
0:18:21.5 Willis Hon: Yeah, so it sounds like there's a number of approaches that EPA and other stakeholders can be taking here. I think the Supreme Court case is really interesting in that it says what EPA cannot do, but it doesn't actually give much hint as to what it should be doing instead. And so with that sort of uncertainty, this is the world we're stepping into now.
0:18:47.3 Sara Johnson: The theme of the moment is that nothing is certain. You can be certain nothing is certain.
0:18:53.5 Byron Gee: And you have to address that uncertainty without any resources, which also complicates Clean Water Act compliance and the shape of permits in the future. Well, those were some very interesting insights. And I want to thank you for sharing your insight with us. And I'd also like to thank our listeners for joining us on this episode of Digging Into Land Use Law. For additional information on this topic or other environmental and land use matters, please visit our website at nossaman.com, N-O-S-S-A-M-A-N.com. And don't forget to subscribe to Digging Into Land Use Law whenever you listen to a podcast so you don't miss an episode. Until next time.
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0:19:55.7 Speaker 2: Digging Into Land Use Law is presented by Nossaman LLP and cannot be copied or rebroadcast without consent. Content reflects the personal views and opinions of the participants. The information provided in this podcast is for informational purposes only, is not intended as legal advice, and does not create an attorney-client relationship. Listeners should not act solely upon this information without seeking professional legal counsel. - Making Conservation a California Way of Life Framework – Details on the Regulations that May Revolutionize the Way Water is Used and Projects are Developed in California
In the latest episode of Digging Into Land Use Law, Lori Anne Dolqueist and Alex Van Roekel discuss in detail the "Making Conservation a California Way of Life Framework" regulations and the impact they may have throughout California. Regulations went into effect at the beginning of 2025 and compliance is required by 2027. Lori and Alex detail this framework that will impact all urban retail water suppliers throughout the state – a category that covers about 95% of California residents.
Transcript: Making Conservation a California Way of Life Framework
0:00:00.2 Lori Anne Dolquiest: In 2024, after years of deliberation, California Water officials adopted landmark rules that will guide future water use and conservation in the state. This sweeping Making Conservation a California Way of Life framework went into effect on January 1st, 2025. And this framework is intended to help preserve water supplies as climate change drives hotter, drier conditions as and droughts become more frequent and longer lasting. For those interested in water and climate issues or how these new regulations will impact water suppliers and communities throughout the state, this podcast explains the purpose behind the new regulations, the intricacies of the regulations, including variances and incentives, and what this will mean for water in California going forward.
0:00:52.2 Speaker 2: Welcome to Digging Into Land Use Law Nossaman's podcast covering the development of all things in, on or above the ground.
0:01:08.5 LD: Welcome to Digging Into Land Use Law. I'm Lori Anne Dolquiest, a partner in Nossaman's Water Practice Group based in the San Francisco office. My practice focuses on the California Public Utilities Commission, with a particular focus on water utilities. Today I have with me my colleague Alex Van Roekel. Alex, why don't you tell us a little bit about yourself.
0:01:29.9 Alex Van Roekel: Hi everyone, my name is Alex Van Roekel. I'm an attorney in Nossaman's Los Angeles office in the Water Practice Group. My practice focuses on all things water from public agencies such as cities, counties and special districts to invest our own utilities as well as private individuals and companies that have water disputes.
0:01:48.2 LD: All right, Alex, well, I'm really excited to talk to you about these new water conservation regulations today. Why don't you give me a little bit of background how, you know, sort of where these came from?
0:01:56.5 AVR: Making Conservation a California Way of Life framework, which I'm just going to call the framework developed from Senate Bill 606 and Assembly Bill 1668, which were both bills passed by the California legislature in 2018. And they're focused on urban water use objectives, which are essentially budgets for water providers. Additionally, the State Water Resources Control Board was tasked with developing the regulations for instituting the framework. And after the whole process, the framework went into effect in 2025 with compliance required starting in 2027.
0:02:35.8 LD: You mentioned the Senate bill and the assembly bill that sort of got these started. But can you give me a little context for when they were passed and what the thinking was at that point?
0:02:45.2 AVR: The bills were passed just off of the 2011 to 2017 severe drought that the state faced, and the bills were designed with a core goal of reducing urban water usage.
0:02:56.6 LD: All right, now I'm familiar with some of the earlier legislation like the Water Conservation Act of 2009, which is also known as the 20 by 2020. Can you give me some information on that? Because I do believe that informed the passage of this latter legislation.
0:03:11.6 AVR: The Water Conservation Act of 2009, often called the 20 by 2020 framework, was the state's first attempt to tackle water, urban water usage on a broader scale. And so it set standards for all water providers to reduce their usage by 20% by 2020. And all of the providers throughout the state met those standards far ahead of time. And so the practical impact of this history is that a lot of what would be the easier ways to reduce urban water usage have already been done. Examples include adding meters, introducing tiered conservation rates, which essentially means that if you use over a certain amount of water, you get charged a higher rate, replacing non functional turf, and then including rebates for things such as replacing the lawns and installing more efficient showerheads and toilets.
0:04:05.3 LD: And I've seen in my two decades of practicing here in California the real difference that those have made. In particular, even something as simple as adding meters, which we think is very routine now, made a huge difference in allowing for conservation. But as you mentioned, these are the easy things. So what is left now to increase more efficient use of water here in California?
0:04:29.3 AVR: So there's no question that what's left is going to be a lot more difficult to achieve than what was done under the 20 by 2020 framework. Some of the areas left include some of the people that were not reached by the initial outreach and rebates, and people could not have been reached either due to lack of interest or of lack of the ability to put money down pre rebate. And either way, it's going to likely take a different strategy to reach each of those groups of people than the people that were met under the 20 by 2020 framework. Additionally, we're likely to see some changes in land use policies, including a focus on how to design projects or developments to minimize water usage and take advantage of things such as stormwater capture or water reuse. And potentially the most exciting part about this framework is that it really opens the door for substantial innovation. We saw the innovation of drip irrigation revolutionize water usage in the agricultural industry, and it is likely we're going to see some of those kind of innovations to affect urban water usage.
0:05:31.6 LD: Now, I've definitely experienced some of the issues related to the challenges in getting large water infrastructure projects approved and built, and they still likely will be necessary moving forward. But anything we can do in addition to those in the meantime while they're pending, we need to look at all of our options. But what I wanted to talk to you a little about is we mentioned the legislation from 2018, but it's now 2025. Our regulations are just going into effect, whereas there's some legislative work after that. I'm particularly interested in non functional turf and whether any actions have been taken with respect to that?
0:06:09.7 AVR: Yes. So there's two primary bills that have impacted the framework since it was originally passed in 2018. The first bill was Senate Bill 1157 from 2022 and that lowered the indoor standard, essentially making that more difficult to meet and requiring that places use less water for indoor residential uses. And additionally there was Assembly Bill 1572, which was passed in 2023. Part of the design around AB 1572 was because there was some inconsistent legislation about how non functional turf was going to be treated under the framework as well as under some other bills that have been passed. And so AB 1572 created one centralized area for a non functional turf. And so what that bill did is it banned the usage of potable water. So drinkable water on non functional turf. And so for public agency property, that ban generally goes into effect at the beginning of 2027, unless the property is in a disadvantaged community and then it goes into effect starting in 2031.
0:07:17.7 LD: And so non functional turf, that's, you know what it sounds like, this is turf that may be say like a lawn and a traffic median. You don't necessarily want to be using precious potable water for something like that. And also you mentioned the indoor water standard. Indoor water is generally considered what's non discretionary, what people need for hygiene, bathing, cooking, things like that. Then outdoor water is generally considered, although there are variances with this, is water that people have more control over. This might be water used for gardening, for things like lawns, things like that, pools. So that's why it's important to have kind of an indoor water standard and then to differentiate that from outdoor water use. I'd like to talk to you a little bit about the history of these new regulations and how they got started and the process by which they were developed and eventually adopted. Could you give me some information on that?
0:08:08.6 AVR: As I mentioned earlier, the State Water Resources Control Board was tasked with developing and implementing regulations for the framework. And so before the State Water Board developed those regulations, the Department of Water Resources drafted guidelines and recommendations for the State Water Board. The State Water Board came out with their first draft of the regulations in August of 2023, and those regulations across the board were stricter than the Department of Water Resource's recommendations.
0:08:37.3 LD: Was there an assessment regarding the impact of these regulations?
0:08:42.0 AVR: The State Water Resources Control Board issued what is called a standardized regulatory impact assessment and issued that to the office administrative law on May 19th, 2023. And according to that assessment, the framework with the regulations would create $16 billion in benefits and $13.5 billion in costs, with higher benefits going to residential customers.
0:09:07.6 LD: What were some of the reactions to that assessment? I remember hearing at the time that it was a little bit controversial.
0:09:14.8 AVR: So the reactions to the initial regulations were overall fairly negative. There was a study commissioned by the Mesa Water District that was completed by the firm mCubed that was issued in September of 2023. And contrary to the State Water Board's assessment, that analysis held that the benefit to cost ratio was 0.53, whereas the standard regulatory impact assessments was 1.24. And for reference, anything above a 1 means that the benefits are higher than the cost, whereas anything below 1 means that the costs are higher than the benefits. Additionally, the Public Policy Institute of California issued its analysis in November of 2023, and that was fairly critical as well. The highlight of the analysis was that the regulations would lead to a very high cost for very little benefit, noting that the regulations would result in a net cost of $7.4 billion to save less than 1.5% of annual water used by urban and water agricultural users and farms statewide. And last, the Legislative Analyst Office was required by the framework to develop its own analysis and then issued that on January 4th of 2024. And that was also fairly critical.
0:10:33.3 LD: It's my understanding that the regulations were subsequently updated in, I believe it was March of 2024, is that right?
0:10:41.0 AVR: That is correct. The primary update to the regulations was issued on March 12, 2024, and the press release that accompanied those noted that the goal of the update was to simplify compliance and increase flexibility.
0:10:55.9 LD: All right, and how did it do this?
0:10:58.1 AVR: So it changed the compliance states from starting in 2025 to 2027. That was largely because of COVID related delays to the Department of Water Resources and the State Water Resource Control Board's work. It also made it easier to qualify for variances, added a bonus incentive for water from direct potable reuse projects, and created two new alternative compliance pathways. One is for suppliers with households below median household incomes that needed at least an overall 20% reduction to meet their goals. And those parties have to show a reduction of 1% per year. And then there's an additional alternate compliance pathway. If a provider needs to cut at least 30% of their usage, they just need to show a reduction of at least 2% per year.
0:11:48.5 LD: Were there anything else that they changed other than these sort of incentives and alternative compliance pathways?
0:11:56.0 AVR: Apart from the primary update, there were a total of four other updates that the state water board issued to their regulations. Some of the most notable changes to those were that they changed the details on the standard if a provider is already meeting their budget. They also addressed the urban tree canopy issue, which is a concern raised based on the outdoor residential budget. To address that issue, they added a variance for irrigating existing residential trees starting in July of 2040, and they increased the size of the variant for planting climate ready trees.
0:12:32.1 LD: So what you call the urban tree canopy issue, was this a concern that water conservation regulations would lead communities to clear out or plant fewer trees, which can also have issues related to climate and heat and the impact of high temperatures? Is that correct?
0:12:49.6 AVR: Yes, that was the goal of addressing this issue was that there would be trees that would not receive enough water or that new trees would not be planted, and that agencies and water providers would have to make difficult choices to be able to meet their budgets. These additions were to try to avoid some of those difficult choices, recognizing the benefits of urban trees, including areas like avoiding hotspots.
0:13:12.3 LD: So ultimately, it's my understanding these were approved July 3rd, 2024. What was the updated analysis regarding the benefits and costs?
0:13:22.6 AVR: So the updated standardized regulatory impact assessment issued by the State Water Board in June of 2024 stated that based on the new regulations, there would be $6.2 billion in benefits and $4.7 billion in costs.
0:13:38.6 LD: That's certainly improvements from some of the critical analyses that were done earlier, to the earlier versions of the regulations. Let's talk now though about the regulations themselves. It's my understanding these apply to water suppliers, not necessarily individual customers, although they will likely impact, or customers will sort of feel the impact of them eventually.
0:14:00.8 AVR: That is correct. The regulations target urban water suppliers, which are defined as a supplier that has at least 3,000 end users or provides at least 3,000 acre feet of potable water. And so in total, the regulations apply to about 405 suppliers across the state which provide water for roughly 95% of California residents.
0:14:22.2 LD: These are set as water budgets, is that right?
0:14:25.5 AVR: Yes. So the core focus of the regulations is on these urban water use objectives, which are essentially budgets. And the budgets are set up to get tougher over time with the most stringent requirements starting in the mid 2040s.
0:14:41.3 LD: And are these budgets differentiated as far as different uses? You've got residential, you've got commercial, industrial. Is that right?
0:14:49.3 AVR: Yes. So the budget is split into four categories. Indoor residential usage, outdoor residential usage, commercial industrial, and institutional uses, which we're going to call CII uses, with dedicated irrigation meters and water loss.
0:15:06.5 LD: So the statute sets the indoor residential use standards. What about the CII?
0:15:13.3 AVR: So the CII is focused on meters that measure only the amount of water used outdoors, as opposed to a mixed use meter, which measures both indoor and outdoor water usage together. That's what makes it a dedicated meter. And so the CII uses apply to commercial water users, industrial water users, and institutional water users.
0:15:36.6 LD: Alex, talk to me a little bit about water loss. I've often heard the word every drop of water in California is precious. And it looks like these statutes want to deal with the issue of water loss and minimizing the amount of water loss as part of the process of transmitting water to end users. Could you talk to me a little bit about that?
0:15:57.0 AVR: Water loss is defined as the amount of leakage and other water that water suppliers lose, but does not end up with its customers. So the water usage in the framework is based on Senate Bill 555 from 2015, which includes its own reporting requirements and water law standards. Additionally, the State Water Board has a model that it is issued to calculate the supplier's individual standards, and at this point in time, it is released standards for all providers.
0:16:24.1 LD: And what are these different standards?
0:16:27.5 AVR: So the two different standards include one, if the benefit from fixing the water loss is greater than its cost, then the standard is the average baseline real loss. Whereas if the benefit from fixing the water loss is the same or less than its cost, then the standard is the sum of the background reported and unreported leakage.
0:16:46.7 LD: And it appears to be this sets an incentive for identifying and fixing water loss sources as the best course of action to address water loss issues. Certainly that gets onto the issue of other incentives or variances that I believe are baked into the new regulations. Can you give us some information regarding these variances and incentives, which it's my understanding they're designed to address the fact that water use varies due to a variety of factors. The customer, makeup of the customer base, the region, the technology needed to provide water service. And earlier, water conservation regulations were criticized for being too blunt. And I believe that the new regulations tried to address this issue.
0:17:30.2 AVR: Yes. So in order to kind of help providers to meet their budgets, the regulations offer alternative compliance pathways which we discussed earlier. Variances, temporary provisions, and bonus incentives. So variances are based on structural factors that cause some areas that have higher water usage, and they're defined as a unique use that has a material effect on a supplier's urban water use objective. The temporary provisions are distinguished from variances because they only apply for a limited time. They are available for challenges within wastewater collection, treatment and reuse system, the planting of new climate ready trees and the establishment of qualifying landscapes, which are those that require temporary irrigation and are associated with particular kinds of development. The bonus incentives are based on potable reuse and there's also extensions that are available based on having a disadvantaged community designation based on household income, a low benefit to cost ratio, or the need for substantial improvements.
0:18:34.0 LD: Alex, can you give me an actual example of what some variances might be?
0:18:39.9 AVR: Yes. So, examples of variances include populations of horses or other livestock, responding to non drought emergencies, and irrigating existing residential trees. So for emergency events, there are variances related to both outdoor residential and CII uses and they apply to declared state and local emergencies. An example of this would be the recent wildfires in Southern California for which Governor Newsom declared a state of emergency. As a result, urban water suppliers may be able to obtain a variance based on these recent wildfires.
0:19:13.5 LD: That's interesting. I know the recent wildfires have really put a focus on water issues both in Southern California and throughout the state. It's interesting that these regulations sort of anticipated that. And it'll be interesting also to see whether there are any new regulations to address those issues going forward. But what about, also, you mentioned bonus incentives. Could you provide me some examples of those?
0:19:40.4 AVR: Yeah. So the bonus incentives are designed around potable reuse, which is the recycling of water that turns previously used water into drinking water quality. And there are two forms of potable reuse, direct and indirect. Indirect potable reuse has been around for a while in California. And so what that is is the taking of used water, cleaning it, and then injecting it into an environmental buffer, such as a groundwater or aquifer, where it can mix with other water. Some estimates put the current indirect potable reuse as 750,000 acre feet, which Governor Newsom hopes to raise by 800,000 by 2030 and 1.8 million by 2040. One notable example is the Orange County Water District Groundwater Replenishment System, which is the world's largest water purification system for indirect potable reuse. It recycles 130 million gallons of water a day. And involved a $900 million investment to expand water reuse. A second example is pure water San Diego, which is currently partially built, but will provide nearly half of San Diego's water supply by the end of 2035. And phase one is designed to tackle 30 million gallons per day. And then there's also direct reuse, which is the cleaning of water and then piping it directly to customers without using any buffer.
0:21:02.8 AVR: The regulations were just passed to allow direct potable reuse at the end of 2023 with an effective date of August of 2024. And so projects are still being developed to take advantage of those regulations.
0:21:15.9 LD: I'll be interested to see what happens in the world with direct reuse. As you mentioned, we have several notable examples of indirect potable reuse, and it will be interesting to see what movement there is made towards direct reuse. But I also, moving on, I wanted to talk a little bit about reporting with respect to these regulations. If you could provide some information to our listeners regarding the recording and also the enforcement requirements, which are always top of mind for water suppliers that need to comply.
0:21:48.2 AVR: Yes, so the reporting to the Department of Water Resources is required every year starting on November 1st of 2023. And the reporting includes details on what needs to be reported for variances. And then in terms of enforcement, the state is authorized to issue informational orders starting on November 1st of 2023, written notices on November 1st of 2024, and conservation orders on November 1st of 2025. The regulation provide for fines of up to $1,000 per day under normal conditions and $10,000 per day under drought conditions. And the failure to provide the requested information in the reporting is also a violation subject to civil liability. So suppliers who violate the framework could be subject to actions or even fines. But at least initially, officials have said the emphasis will be on progress and compliance at the outset.
0:22:42.4 LD: Well, that's good to hear as everyone learns how to work with these regulations and we see what happens when they're actually put into effect. Now, I remember when these regulations were implemented, the reactions did vary. I know there was some concern by the public interest groups that the regulations don't go far enough. And also I know there were some concerns from smaller and disadvantaged communities. These conservation regulations, there is a cost to compliance. And I do know that there were some changes made, like you mentioned, to address those concerns. But I think those concerns will still continue going forward. And I think you also mentioned, I was glad to hear you talked particularly about the issue related to the trees, which I know got a lot of spotlight when it was first brought up because that's an issue particularly in urban environments and in particularly in disadvantaged urban environments may not have as much tree coverage. So I do know that the groups that raised that concern were police that that variance was put in. As you know, Nossaman represents many water providers, both publicly owned and investor owned. And based on my discussions with water suppliers, I think that regulations, the reaction to the regulations is generally positive.
0:23:53.2 LD: All Californians know that we need to take steps to increase the efficiency of water use. And the water suppliers are, have been working towards this for decades. I do know though that there are concerns about reporting requirements and the costs and sort of the scale, you know, will these decreases actually be achievable? So as I mentioned, I think it will be interesting to see how this actually plays out going forward. But I'd like you to discuss a little bit about the impact of these regulations. The forecasts that we see, how these will impact the state of California both with respect to water saved and also with respect to the costs.
0:24:35.9 AVR: Yes. So the regulations were initially tasked as costing $13.5 billion through 2040, and the update is now $4.7 billion through 2050. Obviously substantially less with the updated regulations. But $4.7 billion is still a substantial cost for water providers. Regulations are also projected to save roughly 500,000 acre feet of water annually by 2040, which should be enough to supply roughly 1.4 million households per year.
0:25:07.4 LD: Those figures are interesting and I will be looking at these to see if we actually do achieve these savings at this cost. But Alex, I think that regardless of the water saved, it's likely that these regulations will impact the way we think about water usage in this state. Do you agree?
0:25:26.7 AVR: Yeah, I think there's no question. As I mentioned before, this is a possibility for substantial innovation going forward. We're likely to see land use policies that will have to really consider their water source and how to design projects to operate as efficiently as possible. We're likely to see increases in areas such as water recycling and water reuse and stormwater capture. We're likely to see more water reuse projects through both larger recycling plants as well as smaller project specific developments. And it is likely we will see some substantial innovations that will change water usage in the state out of necessity to meet these regulations.
0:26:02.0 LD: I agree. I think we are going to see probably all of that and more. And we here at Nossaman will likely be both involved and watching all of these developments.
0:26:11.6 AVR: So we've covered a lot of ground here today. Starting with the basis for the regulations, reporting and enforcement and the potential impacts of regulations on California communities. And I hope you found this informative and it's been a joy to talk with you as always, Lori.
0:26:26.0 LD: You too, Alex. Thank you to our listeners for joining us for this episode of Digging Into Land Use Law. For additional information on this topic or other environmental land use matters, please visit our website @nossaman.com and don't forget to subscribe to Digging Into Land Use Law wherever you listen to podcasts so you don't miss an episode. Until next time.
0:26:52.8 Speaker 2: Digging Into Land Use Law is presented by Nossaman LLP and cannot be copied or rebroadcast without consent. Content reflects the personal views and opinions of the participants. The information provided in this podcast is for informational purposes only, is not intended as legal advice, and does not create an attorney client relationship. Listeners should not act solely upon this information without seeking professional legal counsel.
- The Loper Bright Decision – What Really Happened to Chevron and What's Next
In the latest episode of Digging Into Land Use Law, Brooke Marcus and Paul Weiland discuss how "Chevron deference" has loomed large over administrative law during the past four decades. The Loper Bright decision overruled Chevron deference, and for those interested in federal administrative law or how this major Supreme Court decision will impact federal environmental and natural resource laws, Brooke and Paul explain the role of Chevron deference pre-Loper Bright, what the Loper Bright decision really did and what that means for federal environmental and natural resource laws going forward.
Transcript: The Loper Bright Decision – What Really Happened to Chevron and What's Next
0:00:03.0 Brooke Marcus: Chevron deference has had a significant presence in administrative law over the last four decades. The Loper Bright decision overruled Chevron deference. For those interested in federal administrative law or are interested in how this major Supreme Court decision will impact federal environmental and natural resource laws, this podcast explains the role of Chevron deference pre-Loper Bright, what the Loper Bright decision really did, and what this may mean for federal environmental and natural resource laws going forward.
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0:00:32.8 Speaker 2: Welcome to Digging Into Land Use Law, Nossaman's podcast covering the development of all things in, on, or above the ground.
0:00:48.5 BM: Hi, everyone. Welcome to Digging Into Land Use Law. I'm Brooke Marcus, a partner in Nossaman's environmental and land use practice group based in the Austin office. My practice focuses on federal natural resource laws and permitting compliance strategies, as well as federal wildlife policy. Today I have with me my colleague, Paul Weiland. Paul, why don't you tell us a little bit about yourself?
0:01:13.1 Paul Weiland: Thanks, Brooke. Yeah, my name is Paul Weiland and I'm a partner in Nossaman's Irvine, California office where I focus on wildlife law, both litigating and transactional. I've been with Nossaman for about 20 years.
0:01:26.7 BM: Thanks, Paul. Today we're going to talk about the Supreme Court's June 28, 2024 Loper Bright Enterprises versus Raimondo decision, which overruled Chevron deference. To give you a little sense of where we're headed, we're going to start by explaining what Chevron deference really is and why it mattered, explain what the Loper Bright decision did, and then talk about some of the legal and practical implications of this decision going forward, particularly with an eye for federal environmental and natural resource laws. So with that, let's talk about Chevron deference and what it is. I feel like there was a lot of news about Chevron deference being overruled, but I think sometimes it's helpful to recall what Chevron deference actually is. Starting there, a brief 101 on administrative law. You have statutes and you have rules. Congress, within their authority, enacts legislation and the statutes, and those statutes can provide authority to agencies to administer certain areas. So I'm going to give a very silly example here. Congress passing a law, enacting a law that agency acts the authority to regulate cookies. That law could be very broadly written or it could be pretty prescriptive. So you could consider a law that says agency X, you have the authority to regulate cookies, and that's all it could really say.
0:02:47.8 BM: It could also say something a little bit more detailed. It could say agency X, you have the authority to regulate cookies and you shall develop a permitting program for cookies. Or a law could say agency X, you have the authority to regulate cookies, you shall develop a permit program to regulate cookies, and that permit program should be sure to determine whether or not there are nuts or chocolate chips in those cookies. And so congress has brought authority and when they're delegating their authority to agencies, how prescriptive they wanna be in the delegation of that authority, and within that authority is where agencies operate. So then an agency says, okay, we've got this authority to regulate cookies, how are we going to do that?
0:03:30.5 BM: And then they promulgate rules and those rules help them interpret their authority for regulating cookies. For example, in that very broad situation, the agency may go a number of different ways because it's pretty broad authority to regulate cookies. On the other hand, where the Congress has said, you're going to regulate cookies and you're going to do it through a permit program and it's going to determine whether or not there's nuts or chocolate chips, and there's a little bit more bounds on what the agency and its rulemaking to regulate cookies may need to look like. And that's where the Chevron deference really tends to live. It lives in this interpretation of what does the statute give the agency the authority to do, and then how does the agency interpret that authority? And so Paul, would you mind telling us a little bit about the Chevron two-step?
0:04:16.3 PW: Sure. Happy to do so, Brooke. The Chevron case is a Supreme Court case that was decided in 1984, and just a little background about the case. The case involves an EPA interpretation of the term stationary source under the Clean Air Act. The issue that EPA faced was how to define this term, and they were choosing essentially between two options. One was to regulate facilities on a smokestack by smokestack basis. Each different source of air emissions would be a source or a stationary source in this case. Another alternative the EPA considered was based on something called the bubble policy, which was the idea of looking at all of the sources of emissions at an entire facility themselves as a single stationary source. And so EPA chose this latter option, and one of the reasons it did so was because by allowing the facility owners to meet their emissions criteria on the basis of the whole facility, they could reduce emissions from the least expensive sources of pollution and offset those with emissions that are from other sources within the facility that would be more difficult to regulate, essentially.
0:05:42.7 PW: And so this was considered an economically efficient approach to regulating. The Natural Resources Defense Council challenged this interpretation by EPA as inconsistent with the statute and was obviously concerned that each individual smokestack or source of emissions should be regulated on an individual basis. And so the matter worked its way up to the Supreme Court, and the court was faced with EPA interpretation of a statutory term that wasn't defined. So the court went through what's called the Chevron two-step, as Brooke alluded to, and the first step was, is the statute clear on its face essentially?
0:06:27.3 PW: If the statute is clear, then there is no gap for the agency to fill or no interpretation that's necessary because the statute is clear on its face. On the other hand, if the statute is ambiguous, you get to Chevron step two and Chevron step two is where the court asks, is the interpretation by the agency essentially non-arbitrary or reasonable? And it's not whether it's the best interpretation, it's whether it's an interpretation that passes a very low threshold, it's a feasible interpretation of the statute or one that, as I said, isn't arbitrary. And to the extent that's the case, the agency interpretation is upheld. And so that's the Chevron two-step. And as I said, it applies specifically in the context of agencies interpreting their statutes through a rulemaking process.
0:07:25.2 BM: Thanks, Paul. And thinking about how this factored into litigation and affected success probabilities, with deference afforded to agencies and their rulemaking, the way I'd always thought about this is that you have a pretty high burden to overcome if you don't like an agency rulemaking. And there is an argument that it was ambiguous, the statutory authority giving the agency the authority to make that rulemaking was ambiguous, that that was a pretty high bar to overcome to demonstrate, to get past Chevron deference to where that rulemaking would be invalidated. Do you agree? Is that how you saw it play out?
0:08:03.8 PW: Yeah, I think that at the time the decision was made, there wasn't a sense that it was a big deal, actually. What came to pass essentially was that the courts were continuously confronted with circumstances where we had broad statutory authorizations. So in the example you gave of the cookie, for example, it would be a broad authorization to regulate cookies rather than highly prescriptive authorizations from Congress. And this was really just a function of the fact that as society has become more complex, regulatory regimes have had to become more complex and Congress is limited in terms of its ability to generate and to articulate all the necessary means of regulating various activities, whether they're environmental or labor or high tech or otherwise. And so Congress has more and more written in a general sense and left to the agencies the details. And as a consequence, the agencies find themselves more and more interpreting those statutes. And so the issue of getting to Chevron step two, where the congressional directive is ambiguous, was much more commonplace than I think the Supreme Court or others anticipated in 1984 and that's why Chevron became such an important construct in administrative law and kind of a bedrock principle in administrative law over the last 40 years, frankly.
0:09:41.6 BM: Yeah, to me that touched on kind of the tension of Chevron deference, versus that agencies may be the best experts at regulating, not Congress, and therefore they should be afforded a certain amount of deference. And then to your point, the vast difference between statutes, particularly older statutes and the level of detail and direction they provide and versus some of the statutes now. But we can talk about that in a bit. I guess now I'm going to put you on the spot here, Paul, would you mind telling us a bit about the Loper Bright decision?
0:10:11.0 PW: So the Loper Bright case decided just this past term involved National Marine Fisheries Service regulation that imposed a fee on fishermen who had observers on their boats. Essentially, under a federal law called Magnuson-Stevens that regulates federal fisheries, there is a program where in order to enforce limitations on fisheries, so how many fish can be caught by a fisherman, observers are placed on the boats with the fishermen in order to observe their practices and ensure they're complying with the requirements under Magnuson-Stevens. And in this circumstance, National Marine Fisheries Service promulgated a regulation that imposed on the actual fishermen the cost of the observer. So this is involving the herring fishery that was at issue in Loper Bright. And herring fishermen had to pay to have observers on their boats. And this obviously ate into their bottom line because it was a cost that was imposed.
0:11:21.6 PW: And a critical fact in the case, for the court anyway, for the Supreme Court, was that under the act, there were certain circumstances where observers had to be paid by fishermen. So for example, on foreign vessels, so non-US vessels, the act made clear itself that observers had to be paid for by the fishermen. But with respect to the herring fishery and domestic fishermen in the United States, the act was silent. And the lower court found that there was ambiguity as a consequence of that silence and therefore deferred to the National Marine Fisheries Service and found that it was reasonable for them to impose this observer fee. The Supreme Court, in overturning the law, found that this distinction was problematic. And one way the court could have gone is to say that the statute was clear and it could have imposed the Chevron two-step, which we've already discussed, and said, oh, at Chevron step one, National Marine Fisheries Service you lose because it is clear that observers are required to be paid for in some circumstances, like on foreign vessels, but not in others, like on domestic vessels and the herring fishery.
0:12:39.7 PW: But the court didn't do that. And I think that that's a consequence of the court's desire to reach and revisit the Chevron test itself. The court instead said, when it comes to interpreting the law, that is the province of the courts. The agencies don't have any special expertise in that area relative to the courts. In fact, the job of the courts is to tell us what the law is, citing a string of Supreme Court cases going back to the 19th century. And so the court revisited and decided that this Chevron two-step should be set aside in its entirety, and that instead the courts were the ultimate arbiters when it came to interpretation of a statute, rather than the agencies having a special expertise that provided them deference, even in situations of ambiguity.
0:13:38.9 BM: Thanks for that, Paul. I guess looking forward, you and I have spoken at length about the implications. Certainly this case, to a certain degree, was anticipated, right? Certain justices had already been signaled that they were skeptical of Chevron deference. The Chevron deference question had been skirted in other cases, but in this one they took it head-on and overruled Chevron deference. So I guess thinking about going forward, the legal and practical implications and when there's challenges to rulemakings, what do we expect a court to do that they're no longer applying Chevron deference?
0:14:16.0 PW: Well, as you said, Brooke, this is one of the issues that we've been going back and forth on. I think that the agencies have already been thinking about the potential demise of Chevron, in part because the court took this case, and in part because in recent years the Supreme Court has shown reticence to rely on Chevron, even though it was its own prior decision. And under stare decisis, the court typically does rely on its own prior decisions and give them deference. The court had moved away from that. So I think what we're likely to see with the agencies is an effort to build the case for their interpretation in other ways, ultimately trying to justify their interpretation as a defensible and the most appropriate interpretation of the act when they're interpreting a statute.
0:15:13.8 PW: I would say also, and this is something we've discussed, that the agencies may not see the value in rulemaking as a tool because it's costly and time-consuming and requires an opportunity for notice and comment to the public, which takes time and requires responding to the range of comments that the agency receives from the public. So there may be less incentive to go through this process in certain circumstances as well, because at the end of the day, the agency doesn't benefit from the deference it previously did when it went through it. I guess I'd say to you, Brooke, I don't know what your thoughts are about the proclivities of agencies to do this versus to use other tools available to implement policy.
0:16:05.7 BM: I agree with you. Commonly, rulemakings have been preferred because they're more durable. They're harder to unwind. You have to go through the proposed rule, comment period, final rule, and to unwind it, you have to go through proposed unwind, comment period, final unwind. And so for many reasons, the rulemaking process was desirable for the regulated community because it provided some amount of certainty and predictability in the long term, particularly when you had Chevron deference because there was also an expectation that the agency would be afforded a certain amount of deference if and when that rule was ever challenged, if there was an ambiguity that received Chevron deference.
0:16:45.8 BM: Now, I think with the specter of potential litigation without deference and really not knowing how courts are going to rule post-Loper Bright, I think there probably is a chilling effect on rulemaking and potentially more increased focus on things that you named, guidance policies, instructional manuals, those sorts of things, rather than going through the rulemaking process because it just doesn't provide that level of certainty and durability, or at least we don't know if it will until we see how courts start to interpret that Loper Bright decision.
0:17:22.0 BM: The other thing that I keep coming back to is the level of prescriptiveness in the statutes and thinking about in the environmental and natural resource space, how the older statutes don't provide as much direction to the agencies as the newer statutes. And I think something that you saw in the Loper Bright decision was a big focus on first looking where there's questions of law with respect to the interpretation of the statute in a rulemaking, first looking to whether or not that agency was acting within its authority. And so you think of some of the older statutes that we work with, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, those are older statutes that have more of that broad, less detailed authorization to the agencies than some of the newer statutes.
0:18:07.4 BM: Even the Endangered Species Act, which is getting a bit long in the tooth, but still quite a bit younger than MBTA and the Eagle Act, there even the Section 10 permitting process, for instance, is fairly prescriptive in what a permit program should look like under Section 10. And so, it'll be interesting to see, for me, how the courts will look at that statutory authority and how narrowly or how broadly they draw that when they're evaluating these challenges to rulemaking so I think that remains to be seen. In my opinion, you may have thoughts otherwise.
0:18:38.3 PW: Yeah. I think that part of the signal that the court has given to in Loper Bright and we saw this in particular in a concurrence by Justice Gorsuch, who talked about separation of powers issues, is that there should be respect for the differentiation between the legislative functions that Congress should be serving in the executive functions, that the executive branch should be serving. And we may see more of that from the Supreme Court over time. And one of the interesting dynamics that that creates is that it suggests that Congress needs to step in and on a more regular basis, reauthorize the major environmental statutes and other statutes and be more specific when it's doing so that just runs head up against the challenges that Congress has had in acting statutory re-authorizations.
0:19:37.1 PW: I think it was contemplated in the '70s that when many of the major federal environmental statutes were enacted, that re-authorizations would occur routinely on like a five-year cycle, and with some of those statutory schemes like the Clean Air Act and Clean Water Act, they did in the early years of the implementation of those statutes, but over time, it's been more and more difficult for Congress to legislate essentially. And as you suggested, some of the statutes like the MBTA have not been subject to any meaningful reassessment by Congress in more than a century, and even the Endangered Species Act, which is more recent, has really only been subject to very modest tweaks since the 1982 amendments, which I think were the most recent, more comprehensive amendments to the statute.
0:20:31.4 PW: While the Supreme Court may be looking to Congress to step into a greater extent, we certainly don't see evidence that Congress is necessarily likely to become more functional and able to do that, and so I'm not sure where that sleeve leaves us, but I think that leaves the courts in an ongoing role of playing arbiter, and we might talk a little bit about how the deck is stacked otherwise, because many of the issues that arise don't involve interpretation of statutes and rule-making. And so, I don't know, Brooke, maybe you'd like to talk about some of the other aspects of deference that we see and whether those may change.
0:21:18.5 BM: Yeah, that was exactly where I was thinking as well. Paul, you and I have talked about facts, right? And Loper Bright there is a focus on the statutory authority granted to the agency, and that questions of law are in the purview of the courts and that the agencies are not necessarily entitled to the level of deference they were receiving previously. But when you think about how many agency actions involve factual determinations that aren't necessarily rule-makings of authority under a statute, but are really factual determinations within their purview. I think that is something that's lost and some of the discussions about Loper Bright is that there still is a certain amount of deference afforded agencies when it comes to highly factual, highly technical determinations made by that agency. And I know you've been looking at some of those cases in that line of cases, I know particularly you've been focused on some recent case law there may I burden you with elaborating there too.
0:22:17.6 PW: Happy to do so. There's a line of cases that really starts, in my view with the Baltimore Gas and Electric case, which is a Supreme Court case from the '70s involving a National Environmental Policy Act, and that issue in that case was a Nuclear Regulatory Commission's interpretation of authority to regulate material that was highly technical in nature essentially. And the court found that the agency was acting within an area of specialized expertise, and that in such circumstances it's appropriate for the court to show extreme deference to the agencies. And that line of cases as you suggest, deals with issues of fact or agencies within the agencies expertise as opposed to interpretation of statutes, which is dealt with in the Chevron and Loper Bright line of cases.
0:23:11.5 PW: Just this past summer, the United States Court of Appeals for the DC Circuit, which is the Court of Appeals in Washington, DC that handles many of the challenges to regulatory actions by agencies issued a decision in a DPA case, in which the dispute with respect to the agencies authority to regulate, and the court reaffirmed that line of cases, the Baltimore Gas and Electric line of cases that in its area of technical expertise, agencies are entitled to extreme deference. And as you also allude to, many of the cases that come before the court don't involve agency interpretation of statutes and rules, but involve actual actions that are taken, for example, on a permit application for a grant of a right of way and in those factual circumstances, Chevron doesn't apply, and instead the agency is acting on a case-by-case basis, and in those circumstances, the agencies have the benefits of essentially multiple layers of deference.
0:24:29.0 PW: One of them starts with the Administrative Procedure Act itself, which is the Act that governs administrative agency actions and the review of those actions by the courts, which says that agency actions are subject to being set aside or overturned if they're arbitrary or capricious. That's a relatively low standard. The agency doesn't... Action doesn't have to be the best action that the agency can take, it just has to be non-arbitrary and non-capricious, and so the courts in interpreting that provision, which is directly from Congress already have a certain degree of deference that they're affording to the agencies. And in the context of the Baltimore Gas and Electric line of cases, with respect to technical issues, they are as well affording deference to agencies, and so deference is not going away as a consequence of the Loper Bright case, except for in a certain set of circumstances.
0:25:32.7 BM: Thanks, Paul. You're talking about the line of cases with respect to highly detailed technical determinations. Reminds me that it's important to think about Loper Bright in the greater context of a number of different impactful decisions that have come out over the last few Supreme Court terms. You had West Virginia, the EPA, which looked at the major questions doctrine, whether or not agencies were making determinations of significant political and economic significance that was really out of their purview. You have Corner Posts adjust the common understanding of how long a plaintiff may challenge a rulemaking under the Administrative Procedure Act, changing that to time of injury versus time of the completion of the rulemaking. You have OHIO v. EPA, talking about the agencies duties to respond to public comments as part of its charge and whether a rule making is proper. You have the Huntsman case from the DC Circuit that you just mentioned. You have Loper Bright.
0:26:30.1 BM: I think the interesting thing to me is that several of these cases either introduced or reinvigorate new concepts or kinda reset the game board a bit, so Loper Bright, if you wipe out Chevron deference, what do you have now? I think seeing how all of these cases fit together and how folks use them in the context of litigation and then how courts rule based on these cases, looking at them all together is going to be very interesting over the next few years. I think Loper Bright's one thing, but I think there's a number of holdings that have happened in the last few years that all together create kind of a new fabric with which they're going to see court decisions, interpreting administrative laws and agency rule makings and agency actions and all sorts of things that's going to look a bit different than it has in the past. I guess that being said, you and I have talked, and I think both of us are on the same page that the Loper Bright decision was certainly impactful, but the sky is not necessarily falling. Do you mind elaborating, I guess, where you fall on that, so that I'm not speaking for you.
0:27:39.1 PW: Yeah, happy to do so. I think in terms of whether the sky is falling, it's certainly premature to make a prediction, as I alluded to. I think when the Chevron case came out, it did not receive attention as a watershed moment in administrative law until the years that followed, and it wasn't clear I don't think even to the Supreme Court itself, how frequently it would be relied upon by federal court for viewing agency actions, and so with respect to the Loper Bright case, I think it's more judicious to take a wait and see approach than to presume that the sky has fallen. For starters, I think the agencies are fairly savvy and we'll try to go about continuing to do their business as they're supposed to in carrying out the laws, they will be marshaling on what arguments they can to support their actions and aware of the limitations that the statutes impose on them and doing their best to avoid being in a situation where they're stretching, as arguably, I think the National Marine and Fisheries Service was in the Loper Bright case.
0:28:57.8 PW: I also think that the courts may take a somewhat cautious approach to applying Loper Bright and not throw out the baby with a bath water, be aware of some of the other sources of deference that we've already talked about. And I think that there will be an expectation and this is a case, not just from any single community, and this is one of the other things that we might talk about, certainly deference to agency actions is as important to the business community in many situations as it is to various advocacy groups, such as environmental groups or voting rights groups or civil rights groups, because the business community relies on a stable regulatory environment. And you might talk a little bit about from a permitting perspective, whether Chevron is a cause of concern to clients or they see it as a opportunity?
0:30:04.7 BM: Yeah, it's a good question. I alluded to this a little bit earlier, that the regulated community generally values durability and predictability, and my practice focuses on large energy infrastructure typically, which has long development times, the permits take several years and having certainty in what permit process is going to be applied is crucial. That's crucial to understanding how much time you need to obtain a permit, what sorts of rules and requirements you're going to be held to for a project design in terms of feminization measures, those sorts of things, but also cost modeling, what sorts of requirements that have a cost attached to them are going to be required and what might those costs look like for purposes of financial models and whatnot. And so I think there's a lot of value in having stable rulemaking, stable permit regimes that stay in place and aren't constantly at risk of being withdrawn or over-turned in court. I think there's a lot of talk about, oh, if you don't like a rule now there's an easier way to challenge it because you won't necessarily have shot on deference, but I think there's a lot of value in having stability across rule makings. And to your point, you spoke of courts being cautious and they applying Loper Bright, even if Chevron deference has gone away, it would not surprise me if we start to see courts find another way to defer to the agencies without calling it Chevron deference.
0:31:40.5 BM: On the agency side, Post-Sackett which overruled the significant nexus test and determining whether or not something was jurisdictional under the Clean Water Act, even those significant nexus test no longer exists. You see the agency in that case still applying the significant nexus test just not necessarily calling it the significant nexus test when determining whether or not a water is jurisdictional. Similarly on the court side, I think it would not surprise me if you found courts providing deference agencies but not necessarily calling it Chevron deference, and I think we've already seen a little bit of that. And I think we've seen it back to your point about agencies being very deft at these rule-makings, you'll see them stack their preambles with legal justifications that aren't... Hoping that Chevron deference still exists, they're carefully lining out the legal justification for why they have the authority to do what they're doing and why it's supported by the record and what they're doing, so I think there's already been an anticipation of that Chevron deference potentially being overruled actions by the agencies to shore up the rule-makings to try to avoid the instability that could occur, in the event Chevron deference went away like it did.
0:32:55.2 PW: If we think about the business community wanting a stable regulatory environment and the environmental community being concerned about the overturning of Chevron and Loper Bright. Do you wanna talk a little bit about who might like to see the Loper Bright outcome and why?
0:33:17.3 BM: The regulated community likes a stable permitting regime when they need to rely on that permitting regime, it's a workable permitting regime and it's something they can rely. And again, financial modeling, project design, long-term planning, that sort of thing. Similarly, the environmental community loves environmental rules that they feel are sufficiently protective of the resources they're protecting, and so they wanna see stability there, they don't want Chevron deference to go away where the agency is protecting a resource that's of importance to them. I think both of those parties feel differently when it's not that way, so for instance, when the environmental community sees a rule-making that they don't think is sufficiently protective of a resource, then Loper Bright is great because they have a better shot at having that rule invalidated.
0:34:08.1 BM: Similarly, if the regulated community feels that an agency is over-reaching in terms of the prescriptiveness of a regulation, the burdens required to obtain a permit, for instance, in that instance, the regulated community is going to like Loper Bright because it perhaps gives them a better shot at overturning that rule making without Chevron deference. And so, I think the same party is that enjoy Loper Bright also, depending on what the rule-making is doing, will come out the exact opposite way. I just think it has the opportunity work for and against the regulated community, the environmental community, just depending on the circumstances.
0:34:48.8 PW: Yeah, I agree. I think that both face risks associated with the Loper Bright decision, but also opportunities depending on their posture in a specific case, but it's my sense that the risk may outweigh the benefits. I would say there's a kind of a third group that is a group of kind of persistent cheerleaders, I would say For Loper Bright and those are folks that just feel as a general proposition that the federal government is too big. And so, if you feel that the agencies have too much authority and excise too much control over people's lives and businesses activities, then Loper Bright can be seen as part of the group of changes that folks have advocated that would like to see a smaller, what's called a smaller administrative state overall, really a smaller executive branch ultimately of the Federal Government overall. And I think that some of the other cases you alluded to, like the West Virginia case and Corner Posts are seen as contributing with Loper Bright to that end. So that's the group that I really think is probably most consistently pleased because for them, they don't have the downside risk that businesses and advocacy groups have who actually use and depend on federal statutes and federal regulations.
0:36:26.7 BM: Yeah, I agree wholeheartedly and hope that that group never needs to seek a permit based on a reliable permit program.
0:36:36.1 PW: You mentioned the Sackett case. Do you wanna talk a little bit about the underlying regulatory program that the Army Corp of Engineers administers under the Clean Water Act, that was an issue in the case, Brooke?
0:36:47.8 BM: Sure, so Clean Water Act, Section 404, and actually Section 402 regulate Waters of the United States, also known as WODIS for short. What constitutes a WODIS has been the subject of much higher and dispute. It remains and flux to a certain degree, the last year's Sackett case arguably resolved some of that back and forth. Essentially, the EPA and the Army Corp of Engineers both administer the Clean Water Act. They've done several rule-makings trying to define what constitutes a WODIS, those rule makings have been withdrawn, revised, challenged throughout the years, throughout changes in administration. And last year, the Supreme Court heard a case that put squarely to the Supreme Court, what's the appropriate test for determining whether or not something is a WODIS.
0:37:43.7 BM: Based on a 2008 Supreme Court case, the operative tests that have been used, were whether there is a continuous surface connection to a traditionally navigable water or if there was a significant nexus to a traditionally navigable water. And then determining what continuous surface connection and determining what a significant nexus is became something that was very fact-specific based on the features that you may have within an area, different districts would apply those tests different ways, but before the Supreme Court was whether or not those tests were appropriate for determining whether or not there was a WODIS, and what the Supreme Court said is that significant nexus is not an appropriate test for determining a WODIS, essentially cutting off the significant nexus arm of assessment when determining whether or not a water feature is a WODIS.
0:38:35.9 BM: With that became a revision to the rule that was defining WODIS to no longer refer to significant nexus. But there's still a number of fact questions that remain when someone has a water feature, they take that to the Army Corp of Engineers. They say, "Here are the water features within our project area. Here's what we think is a WODIS, here is what we think is not. Do you agree, Army Corp of Engineers? And do you agree process can go to couple of different ways?" But that's essentially where it goes. And what we're finding is that even in a post-Sackett, no more significant nexus world, the Army Corp of Engineers in some cases, is still finding a feature to be a WODIS based on something that's akin to significant nexus just not called significant nexus. So again, thinking of that and how the courts may apply deference without calling it Chevron deference, it similarly would not surprise me that if there are challenges to certain rule-makings where a court feels the agency should receive deference, they may apply something akin to Chevron deference without calling it Chevron deference.
0:39:41.9 PW: Thanks, Brooke. That's a pretty complicated regulatory program, when you say water features, I'm thinking about koi ponds and fountains, or is there something different you have in mind?
0:39:53.2 BM: Streams, creeks, wet areas next to streams and creek, the desert that may get water a few months out of the year, depressions, all sorts of different things come into question when folks are trying to determine whether or not something is really a WODIS. And really the tension there goes back to the question of what does the federal government really have jurisdiction over? Is there really an inter-state network here where water within a project site has enough of a connection to a water of that crosses state lines to really make it appropriate for the federal government to assert jurisdiction over it?
0:40:32.1 PW: Yeah, that's helpful. Out here in California, there are a lot of dry washes that are mostly dry most of the time, but do have running water part of the time, and I know there has been a tension about whether those are, as you say, WODIS under the act, and how do we interpret what Congress was intending to do when it enacted the Clean Water Act in terms of the scope of regulation, but it sounds like those debates will continue.
0:41:02.5 BM: Yeah, I agree. I think it's going to be similar to how we're waiting to see how courts and various agencies respond to Loper Bright. I think in the context of Clean Water Act over the past year or so since the decision, there's still a lot of uncertainty and remains to be seen with how WODIS are going to be determined in light of that Sockett decision.
0:41:25.7 PW: All right, well, we've covered a lot of ground here, today, starting with the Chevron decision from the Supreme Court in 1984 and the Loper Bright decision justice past summer, and also some other topics in environmental law. And I hope you found this informative and it's been a joy to talk with you Brooke as always.
0:41:46.6 BM: Thanks, Paul. Thank you to our listeners for joining us for this episode of Digging Into Land Use Law. For additional information on this topic or other environmental land use matters, please visit our website at nossaman.com. And don't forget to subscribe to Digging Into Land Use Law wherever you listen to podcast so you don't miss an episode. Until next time.
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0:42:11.0 S2: Digging Into Land Use Law is presented by Nossaman LLP, and cannot be copied or re-broadcast without consent. Content reflects the personal views and opinions of the participants. The information provided in this podcast is for informational purposes only, is not intended as legal advice and does not create an attorney client relationship. Listeners should not act solely upon this information without seeking professional legal counsel.
- Unwritten Easements Part 1 – Implied Easements
In the latest episode of Digging Into Land Use Law, Karla MacCary and Elinor Eizdi explore the law of implied easements, which is a murky area of the law that was made more clear by a recent California Supreme Court case that gave a property owner exclusive use of a portion of the neighboring property. Implied easements are a creature of equity which can save the value and utility of property where a property owner thought it had an easement, or even thought it owned land it did not. This is the first in a short series of podcasts on easements created without a written grant or reservation.
Transcript: Unwritten Easements Part 1 – Implied Easements
0:00:00.4 Karla MacCary: Implied easements are a creature of equity which can save the value and utility of property where a property owner thought it had an easement or even though it owned land that it did not. A recent California Supreme Court case brought some clarity to this murky area of real estate law.
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0:00:27.9 Speaker 2: Welcome to Digging Into Land Use Law, Nossaman's podcast, covering the development of all things in on or above the ground.
0:00:43.0 KM: Thank you for joining us for this episode of Digging Into Land Use Law. In this episode, we'll be exploring implied easements, their creation, the associated burdens and benefits, and some examples from recent case law. My name is Karla MacCary and I'm a transactional real estate partner at the Los Angeles office of Nossaman LLP. As part of my practice, I have performed title and survey review for buyers, sellers, and lenders, and helped address situations where what is present on the ground does not match what's shown on the title report or survey. With me today, I have Elinor Eizdi, a partner at our Los Angeles office, and Elinor has spent many years addressing easements in title matters, particularly with public agencies. This is part two of our series regarding easements. In the first installment, Simon Adams and I provided an overview of the law of easements in general. Now, before we start with our discussion of implied easements, we wanted to do a quick recap of easements in general and their nature. Elinor, would you like to start us off with some background regarding easements?
0:02:06.9 Elinor Eizdi: Thank you, Karla. An easement is an interest in a land of another that gives the owner of the easement a limited right to use another person's property. And two, to prevent the owner from using their own property. For example, there can be an easement for a private road. An easement can be temporary or it can be permanent. A temporary easement can be set to terminate on a specific date or once something happens. For example, a construction easement is one that we have all seen. It can set to terminate on a specific date or can terminate once the construction is finished. On the other hand, an easement for a private road would likely be a permanent easement. Easements can be created in several ways. An easement can be granted or can be reserved as part of a transaction. This can be done expressly in a written document. One example is a grant deed. An easement can be granted or reserved impliedly based on clear evidence of the party's end. An easement can be created by prescription, or a court can also impose an equitable easement.
0:03:17.8 KM: So today we'll focus on implied easements. There was a California Supreme Court case on implied easements in 2024 that brought more clarity to a subject that can be murky. However, before we get started, I do want to go over equitable easements as it will come up in the case that we are going to discuss, and it has some similarities with implied easements. In recent years, courts have used equitable easements when a user is not entitled to an easement on a more traditional basis. However, even then courts are very cautious when ordering one. So when the following conditions have been met, courts have exercised their equitable powers to issue a permanent injunction against future interference. One, a party has used and improved an area of land for a long period of time with an innocent belief that he or she had a right to use the land.
0:04:22.5 KM: Two, there would be irreparable harm if the party could not continue to use the land. And three, the property owner would suffer little harm from the further use of the land as an easement. The second and third elements show that for an equitable easement to be granted, courts must find disproportionate hardship and the requirement of disproportionate hardship serves three purposes. One prevents a property owner that is only slightly inconvenienced from exercising legal extortion against an innocent trespasser. Two, because the trespasser is effectively granted the power to take the property of another, the courts approach the creation of an equitable easement with an abundance of caution. And three, requiring the trespasser to show disproportionate hardship narrows the scope of the inquiry and prevents an inquiry as to which party would just make better use of the property. Now that we have some background regarding equitable easements, let's move on to implied easements.
0:05:44.4 KM: California has codified the doctrine of implied easements in civil code section 1104. The code essentially says that when one conveys a portion of an estate to another party but fails to expressly grant an easement in the written document, the law will infer that the parties intended the conveyed portion of the property to enjoy the preexisting uses of the grantor's remaining estate that were obvious and permanent. And the doctrine of implied easements is also a product of the common law, and the cases made clear that the law of implied easements is broader than Section 1104 read in isolation might suggest. It's important to keep in mind that generally implied easements are not favored in the law. And the evidentiary standard applied by the courts for recognizing an implied easement is a high one. Since implied easements deprived the owner of the property from exclusive use of its property, courts do not lightly infer that the parties intended to create one. The courts require clear evidence of the party's intent, taking into account the circumstances surrounding the transaction, the particular situation of the parties and the state of the property. The California Supreme Court case recently reviewed the law of implied easements and issued an opinion in the case of Romero versus Shih. Elinor, can you tell us about the case and what it means for property owners moving forward?
0:07:42.7 EE: Yeah, so Karla, as you mentioned the California Supreme Court has only issued its decision in the case of Tana Kova Romero versus Shih one. She earlier this year. Just to simplify, I'll refer to the cases Romero versus Shih. To give you some background, the case involves a dispute over a residential driveway in Sierra Madre consisting of an eight foot wide strip of land. In the early 1940s, Edwin and Ann Cutler or the Cutlers purchased two adjacent properties in Sierra Madre. They then built a home on the landline to the east. We'll refer to that property as the 643 properties. Sometimes later, the Cutlers built a brick garden planter in the front corner of the yard, and next to it a driveway running along the western edge of the property for its entire length. The planter and driveway encroached by about eight feet onto the Cutlers other property, which laid directly to the west. We will refer to that property as the 651 property. In total, they took almost 1300 square feet or about 13% of the 651 property.
0:08:48.7 KM: There is no doubt that that is a significant portion, 1300 square feet, that's the size of my first house.
0:08:57.4 EE: That is definitely something more fighting for Karla. Eventually the Cutlers built a house on the 651 property. In connection with the project, they applied to the city to adjust the boundary between the two properties to the line marked by the chain link fence that had been installed by the driveway and planter. Essentially, what they wanted to do was adjust the boundary line so the the encroached area would be considered part of the 643 property and not part of the 651 property. However, they never completed the process and the boundary line remained as it was. Interestingly, later transfers of each of the properties included the encroached area in the legal description. Since the landline adjustment was never completed, the owners of the 643 property did not own the land with the encroaching improvements and the grand deeds for the 643 property were wild deeds with respect to that land. Karla, do you want to tell our listeners what wild deeds are?
0:09:53.8 KM: Yes. I love the term wild deeds. A wild deed is a deed outside of the chain of title. So even though the deed is recorded, because it's not in the chain of title, it does not effectively convey title. Here for example, the owners of the 643 property did not own the land with the encroachment. Any recorded deed was not connected to the chain of title for that piece of land.
0:10:20.6 EE: Exactly. So for the next three decades, the encroached area, which was technically part of the 651 property, was used for the benefit of the 643 property. When acquiring their respective properties the Romeros and the Shihs were not aware of any easements, encroachments, or boundary disputes. A year after the Romeros acquired their property, the 651 property, they took some measurements of the front yard for a landscaping project and realized that their parcel was not as wide as they'd expected. They had done a survey of the property, which revealed that the 643 properties garden planter and driveway were encroaching on their property, the 651 property. The Romeros then sued the Shihs. In a bench trial focusing on the easement issue the court found that the Shihs had an implied easement over the strip of land. The court noted that the focus of the implied easement analysis is what the parties intended at the time of dividing or conveying the property. Whether their intended use was exclusive or not does not matter. In the alternative, the trial court created an equitable easement over the disputed area. Karla, that is the exact issue that you covered earlier in our podcast.
0:11:37.8 KM: Yes, it is.
0:11:40.6 EE: As applied in this case even if the Shihs did not meet the burden to justify an applied easement in order to promote justice, the trial court created an equitable easement in favor of the Shihs over the strip of land. The appellate court reversed on the implied easement issue. The appellate court found the critical issue to be whether the easement was exclusive, meaning if it divests the owners of nearly all of the rights that the owners customarily have in residential property, including accents and practical usage. While the court acknowledged that easements can be exclusive, it held that it does not apply to implied easements. Since the right to use the land as a driveway would effectively prevent the property owners from using the land the appellate court concluded that the easement should have been in writing.
0:12:31.1 KM: But the case did not end there. Did it? It actually went to the Supreme Court. Right?
0:12:35.5 EE: Yeah, that's right. The drama did not end there. The Supreme Court reversed and remanded with directions. In its decision the Supreme Court looked at the elements of an implied easement. One, the owner of the property conveys or transfers a portion of that property to another. Two, the owner's prior existing use of the property was of a nature that the parties must have intended or believed that the use would continue, meaning that the use was known to the parties or was so obviously and apparently permanent, that the parties should have known of the use. And three, that easement is reasonably necessary to the use and benefit of the parcel that is benefited by the use of the easement. The California Supreme Court also looked at the issue of exclusive implied easement, which the appellate court paid particular attention to.
0:13:20.6 KM: Before we continue, Elinor, can you tell our listeners what exclusive easements are?
0:13:28.5 EE: Yes. So in general the holder of an exclusive easement has the right to exclude others from using the easement area. Here, the Supreme Court identified a range of exclusivity, but noted that an easement by its nature is limited and is considered a non-possessory interest in land because it permits the holder of the easement a limited use of the property for a particular purpose, leaving the property owner the right to use the property for all other purposes that do not unreasonably interfere with the easement. While the Supreme Court agreed with the appellate court that effectively exclusive easements are not prohibited. However, it disagreed with the appellate court as to whether the law prohibits courts from recognizing effectively exclusive implied easements. The easement recognized by the trial court was broadly exclusive and that the Shihs had the right to use the property in a manner that effectively excluded the property owners from the most practical use of the easement area.
0:14:24.5 EE: However, the Romeros, the property owners could use the property in a manner that was not inconsistent with the Shihs use, including the right to terminate the easement if the Shihs stopped using the easement for the specified limited purposes. The California Supreme Court also discussed in detail the line of cases relating to easements by prescription, which the appellate court relied upon. Those are easements that can be created by a party's unilateral conduct, specifically by continuously using the property for five years in a manner that is open, notorious, and clearly visible to the owner of the land and hostile and adverse to the owner. The Supreme Court ultimately distinguished these cases and noted that permitting express or implied easements do not create any of the statutory nullification concerns that prescriptive exclusive easements do.
0:15:16.1 KM: We'll cover prescriptive easements in our next podcast, so please stay tuned for that.
0:15:22.9 EE: So going back to our case, ultimately the Supreme Court's holding did not end the proceedings. The court remanded for the Court of appeals to consider whether the evidence supports the trial court's conclusion that an implied easement exists in this case. So just to sum it up, Romero versus Shih clarifies the law on the subject of implied easements, but more needs to be done before one can rely on an implied easement.
0:15:48.1 KM: Can you give our listeners some suggestions as to how to protect themselves?
0:15:53.6 EE: So if you have a project that is relying on the benefit of an implied easement, you will need to go to court and ask for the court to find that there is an easement before you or your investors or other finance sources can have comfort you have the easement rights you think you have. After all, the owner of the property could challenge any rights you might think you have. Any associated litigation will be timely, costly, and there's no guaranteeing the outcome.
0:16:19.3 S2: There are also a few lessons from Romero versus Shih that we should keep in mind. As we can see from the case, the buyers of the 651 property did everything that was customary in buying a house, but did not discover the encroachment and the trial court held against them, but the buyer did not get a survey. While it's not very common when buying residential property to get a survey, a thorough title review and a survey or boundary line survey are necessary to avoid the nightmare situation shown in this case, and even more so when you're acquiring high value property and with the cost of real estate in California now, you need to ask yourself whether it makes sense to get a boundary survey as part of your due diligence in buying a house. A chain of title report would also have revealed the problem here, but a survey is much more useful because it would be necessary in any event for landscaping and in construction projects. Well, thank you Elinor for talking with us today about implied easements, and thank you to our listeners for joining us for this episode of Digging Into Land Use Law. For additional information on this topic or other environmental land use in real estate matters, please visit our website at Nossaman.com and don't forget to subscribe to Digging Into Land Use Law wherever you listen to podcasts so that you don't miss an episode. Until next time.
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0:17:58.5 S2: Digging Into Land Use Law is presented by Nossaman LLP and cannot be copied or rebroadcast without consent. Content reflects the personal views and opinions of the participants. The information provided in this podcast is for informational purposes only, is not intended as legal advice and does not create an attorney-client relationship. Listeners should not act solely upon this information without seeking professional legal counsel.