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PROFESSOR’S

INSTRUCTIONS

1. This is an open

‐book, take‐home exam. You may use:

a. the course book (Percival, Schroeder et al., Environmental Regulation: Law,

Science and Policy),

b. your course notes (including any course hand

‐outs and postings and

documents on our Camino course website).

2. No additional research beyond the listed items is permitted. You must work on the

exam on your own.

3. The exam will be available beginning December 5, 2016. Your exam answer is due

within 7 days of pick-up of the exam, but no later than December 15, 2016, 4 pm.

4. The total exam answer may not exceed 3000 words. You must provide a word count

at the end of the exam.

5. There will be a 1/3 grade penalty for every three hours that the exam is late. I will

only grade the exam answer up to the 3000 word limit.

6. Place your Exam ID#, the name of the course, and exam date on EACH page of your

exam answer (if typed) or EACH examination book (if handwritten).

7. Retain a copy of your exam answer (as a precautionary measure).

8. If you compose your exam in the library or any other public space, do not put drafts of

your answer in the recycle boxes.

STOP! DO NOT FLIP THIS COVER PAGE UNTIL TOLD TO DO SO BY THE PROCTOR

Environmental Protection Law Final Exam

Fall 2016

Costco is planning to build a new gigantic 200,000 square foot warehouse store in Foster

City, California. Accordingly, Costco has purchased a 10 acre parcel of land. The parcel is

surrounded on all sides by land owned by the Department of Interior.

In planning for the construction of the new warehouse store, Costco discovers

the presence of a seasonal stream, Foster Creek, that passes through the property.

Foster Creek contains water only during the rainy season and empties directly into the

San Francisco Bay. The location of the stream will not impact construction of the

warehouse because the stream is situated on the edge of the property. However, a less

convenient discovery is the presence of a wetland on the parcel, covering about half of

the land. Even though it is dry most of the year, that portion of the land turns into a

wetland during the rainy season. Construction of a parking lot would not be possible

without draining the wetland or ensuring adequate drainage during the rainy season.

Since the new warehouse store will be located more than a mile from the nearest city

sewer lines, Costco plans to install state of the art bathroom facilities that will use minimal

amounts of water. Doing so will allow Costco to forego connection of the building to the

municipal sewer system and save a lot of money. The small amounts of waste water that will

be generated even with these systems in place, however, will be discharged directly into the

Foster Creek and go into the Bay. Environmental engineers have assured Costco that the total

amount of wastewater generated will be no more than what is generated by 5 single family

homes. Hence, the Costco managers figure they do not need to apply for any waste water

discharge permits.

As Costco is investigating the feasibility of draining the wetland, two other unpleasant

surprises are discovered. First, an environmental engineer finds that the wetland serves as the

habitat of the Leopard-spotted freshwater frog (Leopard Frog), a species listed as endangered

under the Endangered Species Act.

The other unpleasant surprise is the discovery of more than a hundred 55-gallon

drums leaking unidentifiable toxic waste. Much of the liquid waste appears to have

seeped into the ground. The environmental consultants have also been unable to

answer some basic questions about the waste: what is the origin of the toxic waste?,

who put it there?, when it was dumped?, and who might be the responsible party?

After some internal discussions among the managers, Costco decides not to dig up or

remove the hazardous waste, but instead leave it in place. After all, the waste is in a

spot on the property that will not be disturbed by the construction activities. One

Costco manager remarks: “No harm, no foul.”

Once the initial survey of the property and construction planning is done, Costco applies

to the Interior Department for a license to build an access road across the DOI land (leading to

the future warehouse store) and to obtain a corresponding easement. Issuance of the

easement and road permit would be authorized by an obscure statutory provision that states as

follows: “In order to advance the welfare of local communities, the

Secretary of the Interior

shall have the authority to convey easements and road construction permits when doing so

would cause no serious adverse environmental effects.”

Costco cooperates with the Interior Department staff to prepare an Environmental

Assessment for the easement and access road permit. The Environmental Assessment (EA)

finds that there will be no significant impact. The EA study concludes that since the access road

would only expand the width of an existing unpaved dirt-road by 30 feet and cover it with

asphalt, the environmental impacts would be negligible. Previously, the dirt-road was used by

hikers, bikers, and Interior Department trucks to access the Bay shore.

Shortly after the EA and Finding of No Significant Impact are finalized, the Interior

Department issues the permit to Costco.

Now, a local environmental group, Foster City Environmentalists (FCE), has learned that

Costco is about to start construction on the access road and draining of the wetland. It is

contemplating legal action.

Describe the legal issues that are raised in the above scenario from the perspectives of

both groups, FCE and Costco, and provide a brief analysis of each issue based on the (limited)

set of cases, regulations, and statutory provisions we have studied in this course.

Make sure that your total exam answer does not exceed 3000 words. You must

provide a word count at the end of the exam.