Category: West

In Sackett v. EPA the U.S. Supreme Court will decide the proper test for determining when wetlands are “waters of the United States” (WOTUS). The State and Local Legal Center (SLLC) amicus brief argues that municipal water infrastructure isn’t WOTUS.

The Clean Water Act (CWA) prohibits discharging pollutants into “navigable waters,” defined as “waters of the United States” without a permit.

CWA regulations define WOTUS to include “wetlands” that are “adjacent” to traditional navigable waters and their tributaries. In Rapanos v. United States (2006) Justice Scalia and Justice Kennedy offered competing criteria for determining when a wetland is WOTUS. 

Justice Scalia, writing for four Justices, stated that “waters of the United States” extends to “relatively permanent, standing or flowing bodies of water” and to wetlands with a “continuous surface connection” to such permanent waters.

For Justice Kennedy, writing alone, if wetlands have a “significant nexus” to navigable waters they are “waters of the United States.” Kennedy’s “significant nexus” test turns on whether wetlands “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of navigable waters. 

In this case the Sacketts purchased a “soggy residential lot” 300 feet from Idaho’s Priest Lake. To the north of their lot, with a road in between, is a wetland that drains to a tributary that feed into a creek that flows southwest of the Sacketts’ property and empties into Priest Lake.

After obtaining permits from the county the Sacketts began backfilling the property with sand and gravel to create a stable grade. The Environmental Protection Agency issued the Sacketts a “formal administrative compliance order” explaining they were violating the CWA and that failure to comply could result in penalties of over $40,000 per day. 

Before the Ninth Circuit the Sacketts argued that the Scalia opinion controls whether their property contains wetlands. The Ninth Circuit disagreed and applied Justice Kennedy’s test.

The SLLC amicus brief, filed in support of neither party, doesn’t advocate that the Court adopt a particular test to determine whether a wetland is WOTUS. Instead, the brief argues that municipal water infrastructure which provides water supply and treatment, flood control, and stormwater management protection isn’t WOTUS.  More specifically, the SLLC brief asks the Court to exclude from WOTUS aqueducts and irrigation canals, terminal reservoirs, groundwater recharge and infiltration basins, and green infrastructure. 

The brief points out, much of this infrastructure “is in close proximity to waters that would qualify as traditionally navigable, and/or includes features that could be construed as meeting the definition of WOTUS” as promulgated by the federal government. The brief argues: “A commonsense reading of the CWA, one that looks at the Act as a whole, and its implications for traditional state control of water supply and flood control, recognizes the difference between the infrastructure that amici operate and those waters that were intended to be treated as WOTUS under the Act. Failure to recognize this difference leads to absurdities and an inability of the Act to achieve its stated purpose.”

Roderick Walston and Andre Monette of Best, Best & Krieger, wrote the SLLC amicus brief which the following national organizations joined:  National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.

The SLLC files amicus curiae briefs in support of states and local governments in the U.S. Supreme Court, conducts moot courts for attorneys arguing before the Supreme Court, and is a resource to states and local governments on the Supreme Court. CSG is a member of the SLLC. For more information, please visit https://www.statelocallc.org/.

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Our partners at the State and Local Legal Center (SLLC) are an outstanding resource for Supreme Court news & analysis. On July 14 at 2:00 pm ET, the SLLC is holding its annual Supreme Court Review webinar. Join Dan Bromberg, who wrote the SLLC amicus brief in Shurtleff v. Boston, Roman Martinez, who argued Vega v. Tekoh, and Luke McCloud, who argued Concepcion v. United States, in a discussion with Lisa Soronen of the SLLC about the most interesting and important cases for states and local governments decided this term. This webinar will be co-hosted by the National Association of Counties.

On July 19 at 12:30pm ET, join appellate advocates and state Solicitors General on for a conversation about the term’s cases and the impact that those cases could have on states and environmental law. This program will be co-hosted by the State Energy & Environmental Impact Center.

Both webinars are free and open to lawyers and non-lawyers alike. To register, please access the links below.

REGISTER: SLLC SUPREME COURT REVIEW

REGISTER: ENVIRONMENTAL LAW & THE STATES

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California Assemblymember Jose Medina, BLC Chair and Idaho Representative Clark Kauffman, CSG West Chair welcome members at reception

After a two-year delay caused by the COVID-19 pandemic, the Border Legislative Conference (BLC) reconvened April 28 – 30 in Riverside, California, under the leadership of California Assemblymember Jose Medina.

The 33rd BLC kicked off with a welcome reception at The Mission Inn Hotel’s Oriental Courtyard. Joining Assemblymember Medina were local officials and current CSG West Officers, Idaho Representative Clark Kauffman (Chair); California Assemblymember Mike Gipson (Chair-Elect); and Oregon Senator Bill Hansell (Vice Chair).

The meeting’s first order of business was to consider and vote for a Vice Chair. Diputado Cota Muñoz was designated by the Baja California Legislature to fill that role and the members voted to confirm their choice. CSG West would like to congratulate Diputado Cota Muñoz for his election as an officer of the BLC and looks forward to working with him, including hosting next year’s BLC in Baja California. Stay tuned for meeting details in an upcoming issue of the Regional Roundup!

Among the speakers invited were Consul General of Mexico in Los Angeles, Ambassador Marcela Celorio, who previously served as Consul General in San Diego in what is often referred to as the Cali Baja Region. She introduced her concept of cross border diplomacy shaped by the persistent flow of residents from the binational community in border regions, collaboration to solve cross-border challenges, and socioeconomic connections. This diplomacy, differing from traditional diplomacy, “refers to the relations carried out jointly by the stakeholders, from both sides of the U.S.-Mexico border, towards their countries’ capitals and the rest of the world, with the aim to promote, advocate and advance the interests of a profoundly intertwined binational community.”

33rd Border Legislative Conference
The Mission Inn
Riverside, CA

Jason Wells, Chief Executive of the San Ysidro Chamber of Commerce, discussed the impacts the pandemic has had on the binational relationship. Wells shared his perspective from the world’s busiest land border crossing, where more than 106 million individual crossings and forty-eight million cars and trucks cross each year. The chamber serves as a unified voice for the businesses located at and around the San Ysidro border crossing, offering technical and marketing assistance, helping with city permits, regulations, business licensing, and economic stimulus resources.

Dr Calixto Mateos, Managing Director of the North American Development Bank (NADBank), provided an update on project eligibility adopted by their board of directors last year “to expand the Bank’s lending program to include investments in a wider variety of environmental infrastructure projects that will help tackle climate change and promote a green economy, while at the same time maintaining its dedication and attention to priority projects in the core sectors of water, wastewater and municipal solid waste.” As part of the North American Free Trade Agreement (NAFTA), NADBank was established as a binational financial institution by the governments of the U.S. and Mexico to support the development and implementation of infrastructure projects, as well as to provide technical and other assistance for projects and actions that preserve, protect, or enhance the environment to advance the well-being of the people of both countries. It is capitalized by both governments and serves the communities located within 100 km north of the four U.S. border states and within 300 km south of the six Mexican border states.

A focus on movement of people and goods in the age of COVID included three perspectives. First from Elva Muñeton, Acting Executive Director of U.S. Customs and Border Protection (CBP) under the Department of Homeland Security (DHS). Ms. Muñeton works in the Los Angeles Field Office and her areas of responsibility include Greater Los Angeles and Clark County, Nevada, the Los Angeles/Long Beach Seaport, the Los Angeles International Airport, other ports of entry in the region, and the Electronics-Center of Excellence and Expertise. To foster transparency and collaboration, she spends time on stakeholder engagement with the trade and airline industries, partnerships with law enforcement, and communication from the management office. She shared challenges and opportunities that the pandemic bore for CBP but also lessons learned such as the resiliency of CBP staff and systems.

Jon Barela, CEO of The Borderplex Alliance, focused on current supply chain challenges and the need for reliability. While geopolitics affect the production of and the ability to deliver goods on time to the U.S., there are opportunities to transition business and manufacturing to the border region. “Wage growth in our region was leading the nation up until the pandemic,” he said, citing unemployment rates below 2% in Ciudad Juarez, Chihuahua, and at 3% in El Paso, Texas. The Borderplex Alliance is an award-winning economic development and policy advocacy organization. They are non-partisan and private sector-led with a mission of attracting jobs, hope, and opportunity to the Borderplex region, which is comprised of Ciudad Juarez, Chihuahua; El Paso, Texas; and Las Cruces, New Mexico, also known as the Paso del Norte region.

BLC members

Jacqueline Reynoso, Director of Programs and Policy for the Cordova Corporation, addressed collaborative planning and national agreements between the United States and Mexico. She emphasized the need for more efficient pre-clearance processes at border crossings, noting there are thirty-two available lanes at the San Ysidro port of entry but only a limited number are operating on any given day. She also engaged with members about policy solutions to incentivize broader participation in cross border trade. In discussing the United States-Mexico-Canada Agreement (USMCA), Reynoso proposed a list of professions which should be updated to reflect current industry needs. She emphasized that “we’re all here to build North American competitiveness.”

Chair of the Select Committee on California-Mexico Cooperation and representing the 40th senate district, California Senator Ben Hueso participated in the meeting. His district encompasses the cities of Imperial Beach, Chula Vista, National City and portions of the City of San Diego and Imperial County. He shared his intimate understanding of the environmental challenges and solutions along the shared border region. This included his journey advocating and passing legislation to protect state parks, the Salton Sea, the Tijuana River and beaches against contamination and pollution. Senator Hueso also provided information about lithium mining under the Salton Sea and potential economic opportunities stemming from its use. Reinforcing one of the meeting’s main themes, Senator Hueso emphasized binational cooperation as an essential component to address environmental concerns while growing the economy.

Participating members also evaluated post pandemic economic recovery and growth. As is usually the case, one cannot discuss economic growth singularly as it is intertwined with other considerations. This is the point Diputado Roman Cota Muñoz made as he advocated for a resolution to expedite border crossings, describing “miles and miles of vehicles that are basically parked.”  He emphasized health and environmental impacts related to urban traffic and vehicles idling at border crossings. Addressing recent border policies implemented in Texas, Diputado Cota Muñoz reported cargo delays of up to eight hours during which truckers were unable to exit their vehicles. Reiterating a point made by Jacqueline Reynoso, he also addressed the limited lane availability at border crossings, citing an estimate of $3.4 million in lost wages and production due to border wait times. Diputado Cota Muñoz closed the presentation with an optimistic goal of a 20-minute wait time at border locations.

Jaime Hurtado, who serves as the manager of the international business office at Riverside County Economic Development, shared his insight into what sets this region apart from others with foreign trade zones, with an above national average export growth expanding 11%, $90.3 Billion GDP, $80 Billion in exports (international and domestic), and a workforce of over one+ million persons. Riverside County consists of 7,200 square miles that stretch from its western border adjacent to Orange County and the Colorado River at the eastern border, adjacent to the Arizona border. It is the fourth most populated county in the state of California, approximately the size of New Jersey.

One of its fastest growing industries is logistics, with transportation corridors being a regional advantage. Riverside County has five major freeways connecting businesses to Los Angeles, San Diego, Orange County, and Arizona, as well as seventeen airports serving the county. Hurtado mentioned the need for building a plan for inclusive, sustainable growth across the region, stating one way to do this is through employing migrants’ existing skill sets, which he argues are underutilized in addressing urgent workforce needs. Mr. Hurtado appealed to policymakers to help promote more efficient immigration policies, outlining the social, political, and financial implications for both the U.S. and Mexico.

L to R: Oregon Senator Bill Hansell, CSG West Vice Chair; California Assemblymember Mike Gipson, CSG West Chair Elect; Idaho Representative Clark Kauffman, CSG West Chair; and California Assemblymember Jose Medina, BLC Chair.

L to R: Oregon Senator Bill Hansell, CSG West Vice Chair; California Assemblymember Mike Gipson, CSG West Chair Elect; Idaho Representative Clark Kauffman, CSG West Chair; and California Assemblymember Jose Medina, BLC Chair.

The last day of the meeting focused on higher education and Title 42. Mariana Barberena, Program Manager, Office of Global Initiatives at the Bi-National Center at Texas A&M International University (TAMIU), outlined her institution’s extensive partnerships. TAMIU has signed thirty-six agreements with Mexican universities and organizations to partner through research, education, leadership, and public service. Shared projects include dual degrees through the A.R. Sanchez Jr. School of Business where students who complete this program receive a degree with the seals of TAMIU and the Universidad Regionmontaña, or Universidad Autónoma de Nuevo León in the Mexican state of Nuevo León. A similar effort is underway with the Universidad Autónoma de Tamaulipas (UAT), with follow-up meetings planned to develop these dual degrees by the Spring of 2023. Among the benefits and goals of these partnerships is to contribute to the successful development of international relationships between practitioners and government, create communication streams between U.S. and Mexican universities, and to highlight public service through specific programs geared to train or enhance the management of local and international non-profit organizations. The partnerships also aim to train, develop, and educate the next generation of leaders through diverse campus resources.

Professor Armando Vazquez-Ramos, President & CEO of the California-Mexico Studies Center, Inc., called attention to what he considers a dire need for a California and a broader U.S.-Mexico binational higher education agenda. He stated that there have been previous efforts towards this objective, such as the 100,000 Strong in the Americas Innovation Fund which was a hemispheric-wide initiative supported by the U.S. Department of State, U.S. Embassies, and Partners of the Americas with visionary companies, foundations, and education institutions working to strengthen collaboration among governments, business, and academia- all of which are critical to economies of the Americas.

Professor Vazquez-Ramos believes there is an urgent need to develop and propose new ideas in the post-pandemic era that promote a better understanding between the two countries through collaboration by scholars to strengthen and develop research, exchange programs, and teaching. For example, he has been leading Dreamers (students who qualify for the Deferred Action on Childhood Arrivals program) on a study abroad program to Mexico for the last several years. This program allows many to see members of their family still living in Mexico, while also being immersed in a comprehensive cultural and educational experience. It operates in collaboration with the Colegio de la Frontera Norte (COLEF) and is hosted by the Centro Internacional de Lenguas, Arte, y Cultura Paulo Freire (CILAC Freire) in Cuernavaca, Morelos. His ideas to advance a binational higher education agenda include establishing collaboration with the Summit of the Americas when it convenes in Los Angeles next week, promoting Mexican diaspora studies in Mexico, and developing joint policies and resources with Mexico and other Western Hemisphere nations.

The 33rd BLC could not have closed with a more salient topic than Title 42. Title 42 is a clause of the 1944 Public Health Services Law that “allows the government to prevent the introduction of individuals during certain public health emergencies.” It was implemented in March 2020 by the U.S. Centers for Disease Control and Prevention (CDC), restricting mobility and asylum access along the Southwest border of the U.S. On April 1, the CDC announced the policy would end May 23.

Ariel Ruiz Soto, Policy Analyst of the U.S. Immigration Policy Program as well as the Latin America and Caribbean Initiative at the Migration Policy Institute (MPI), shared updates and important considerations for states and border communities along the U.S.-Mexico border. Mr. Ruiz Soto explained that in practice Title 42 allows CBP to expel migrants it encounters without an opportunity to seek asylum within U.S. and without consequences. The unintended consequences of that policy, he argues, include rising recidivism rates since its implementation.

At the time the BLC met, a federal district judge issued a Temporary Restraining Order (TRO) to stop “early implementation of the Title 42 Termination Order.” The exception being the use of expedited removal for single adult repeat crossers for which there is a pending hearing requested by several states. Mr. Ruiz Soto shared that an asylum rule pilot will become effective May 31, at which time DHS can refer cases to U.S. Citizenship and Immigration Services (USCIS) asylum officers for significantly more expeditions adjudication – either removal or granting asylum. This pilot will be gradually implemented. Mr. Ruiz Soto stated that success will depend on staffing and migrant volumes, as well as expanding access to legal assistance and representation to ensure efficiency and fairness. As of March 2021, USCIS employed 785 asylum officers and will therefore need to hire between 794 and 4,647 new officers and staff to process 75,000 – 300,000 cases annually.

Before closing the meeting, participating legislators had the opportunity to offer issues of interest to be addressed at next year’s meeting, or in the interim through virtual legislative exchanges. Diputado Cota Muñoz expressed interest in hosting the 34th gathering in Valle de Guadalupe, Baja California, which is located two hours south of San Diego and is often compared to California’s Sonoma County for its relaxed but also sophisticated atmosphere that produces 90% of all wine that comes from Mexico.

If you were able to join us in Riverside this year, we appreciate your engagement! If you did not, please consider joining us in Baja California next year. Details will be forthcoming. To our sponsors, we truly appreciate your support and participation!

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On April 8-9, in response to recent shootings in his district, Assemblymember Mike Gipson, CSG West chair-elect, convened a conference to address gun violence and gang violence. The event was held at California State University, Dominguez Hills and included elected officials Assemblymember Mia Bonta, Los Angeles County Supervisor Holly J. Mitchell, law enforcement, gang interventionists, and community leaders.

Attendees listened to presentations from the Los Angeles County Office of Violence Prevention, Brady United, and the Los Angeles Gang Reduction & Youth Development Program (GRYD). Los Angeles Police Department staff gave a demonstration of the uncomplicated steps to assemble a ghost gun.

Assemblymember Gipson reported that 93% of recovered guns last year were ghost guns. Ghost guns consist of two components – polymer and steel – which can be bought legally by unlicensed buyers. This type of firearm can be assembled in as little as 30 minutes for roughly $400.

Attendees participated in five breakout sessions: (1) Intervention, (2) Prevention, (3) Aftercare (resources/services), (4) Jobs/Trades and Education/Programing, and (5) Healing Support for Frontline Workers. Participants shared stories, successes, communication strategies, and areas where increased support is critical.

Assemblymember Gipson ended the conference with a commitment to redouble his efforts around the ghost gun epidemic. He has authored AB 1621, which tightens ghost gun restrictions and addresses unserialized firearm components. Presently, there are four other gun reform bills on the docket: AB 1594, AB 2571, and SB 1327. Since 2015, 51 related bills have been chaptered in the California Legislature.

Assemblymember Gipson also announced that he would work with Governor Gavin Newsom to create a California State Office of Violence Prevention. Currently, these offices exist solely at the county level.

In recent weeks, the White House and the Department of Justice have released formal announcements addressing the danger of ghost guns and the steps being taken to mitigate the escalating situation.

Video highlights from “It Takes A Village: Addressing Gun and Gang Violence” can be viewed here.

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Forty-eight state government officials from across the U.S. have been selected for The Council of State Governments distinguished Henry Toll Fellowship. The program is the nation’s premier leadership development opportunity for state leaders.

CSG West is delighted to congratulate this year’s recipients and highlight legislators selected from the West:

Representative Troy N. Hashimoto, Hawaii House of RepresentativesAssemblywoman Sandra Jauregui, Assistant Majority Whip, Nevada State AssemblyRepresentative DeLena Johnson, Alaska House of RepresentativesSenator Patty Kuderer, Washington State SenateRepresentative Laurie Lickley, Idaho House of RepresentativesRepresentative Daniel H. Ortiz, Alaska House of Representatives

CSG TOLL FELLOWSHIP CLASS OF 2022

The post <strong>Congratulations to Western Leaders Selected for the CSG Henry Toll Fellowship Class of 2022</strong> appeared first on CSG West.

With an estimated 105,000 overdose deaths during the 12 month period that ended in October 2021, the highest number recorded in a such a period, strategies to address opioid addiction and other substance use disorders are more critical than ever.

The U.S. Department of Health and Human Services (HHS) has announced a State Opioid Response (SOR) grant funding opportunity that will provide nearly $1.5 billion to states and territories to help address this epidemic. Along with the recently announced Tribal Opioid Response grant funding opportunity, the SOR program is part of the HHS Overdose Prevention Strategy released last October. Click below for more details about each grant.

STATE OPIOID RESPONSE GRANTS

TRIBAL OPIOID RESPONSE GRANTS

The post <strong>HHS Announces Grant Funding Opportunities to Support State and Tribal Opioid Response</strong> appeared first on CSG West.

A recently published article by CSG features Utah as an example of a state using several methods to provide financial transparency and interbranch collaboration for the strategic distribution of federal ARPA funds. In the article, Utah Senator Kirk Cullimore, a CSG West Executive Committee Member, shares insight into seven guiding principles which aided Utah in determining allocations toward public health, infrastructure, water, education remediation, and other key areas reflecting statewide goals.

Click below to read the full article.

PUTTING AMERICAN RESCUE PLAN DOLLARS TO WORK: UTAH

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