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California Land Use Law & Policy Reporter

April 2019

Volume 28, Number 6 April 2019


Defining ‘Waters of the United States’ and ‘Waters of the State’—Clear as Mud by David C. Smith, Esq., Manatt, Phelps & Phillips, LLP, San



Circuit Court of Appeals:

D.C. Circuit Finds States Waive Clean Water Act Water Quality Certification Leverage When They Contractually Agree to Delay for More than One


Hoopa Valley Tribe v. Federal Energy Regulatory Commission, 913 F.3d 1099, (D.C. Cir. 2019).


District Court of Appeal:

Second District Court Finds City’s Access to Private Database Did Not Mean Database Files Were Public Records163

Anderson-Barker v. Superior Court, ___Cal.App.5th ___, Case No. B285391 (2nd Dist. Jan. 22, 2019).

First District Court Finds Possible Earthquake/Landslide Zone Is Not an ‘Environmental Resource’ under Location Exception to CEQA Class 3 Categorical Exemption164

Berkeley Hills Watershed Coalition v. City of Berkeley, ___Cal.App.5th___, Case No. A153942 (1st Dist. Jan. 30, 2019).

First District Court Makes Distinction between Public and Private

Use of Property and Application of Civil Code Section 1009 in Easement Matter167

Ditzian v. Unger, 31 Cal.App.5th 738 (1st. Dist. 2019).

First District Court Finds City’s Design Review Process for Multi-Family Dwellings in High Density Residential District Did Not Require CEQA Analy-


McCorkle Eastside Neighborhood Group et al. v City of St. Helena et al., ___Cal.App.5th___, Case No. A153238 (1st Dist. Jan. 25, 2019).

Fifth District Court Interprets Civil Code Section 1009, Subdivision (B) to Prohibit Implied in Fact Dedications of Private Noncoastal Property170

Mikkelsen v. Hansen, ___Cal.App.5th___, Case No. F072990 (5th Dist. Jan. 10, 2019).

Third District Court Affirms Trial Court Decision that Challenge to Highway Dedication Was Time Barred172

Prout v. Department of Transportation, ___Cal.App.5th___, Case No. C076812 (3rd Dist. Jan. 11, 2019).

Fourth District Court Rejects Challenges to Amended Lease Agreement for San Diego Amusement


San Diegans for Open Government v. City of San Diego, 31 Cal.App.5th 349 (4th Dist. 2018).

Second District Court Addresses Exemption of Certain Development Projects from Permitting in Land Use Plan and the California Coastal Act176

Venice Coalition to Preserve Unique Community Character v. City of Los Angeles et al., ___Cal.App.5th___, Case No. B285295 (2nd Dist. Jan. 9, 2019).