Ella Foley-Gannon

Ella Foley-Gannon is a partner in the Real Estate, Land Use, Natural Resources and Environmental practice group in the San Francisco office. She is also a member of the Climate Change industry group and the Renewable Energy industry group.

Areas of Practice

Ms. Foley-Gannon specializes in lands use, environmental and administrative law issues. Her clients include mixed-use, retail and residential builders, solar energy companies, oil companies, other power generating companies, and industrial manufactures. She counsels clients regarding compliance with a myriad of federal, state and local land use and natural resource laws, including the National Environmental Policy Act, the Federal Endangered Species Act, the Clean Water Act, the California Environmental Quality Act, the California Water Code, the California Endangered Species Act, and California Fish and Game Code. Ms. Foley-Gannon has broad experience in assisting clients with obtaining and complying with federal and state natural resource permits. She is a recognized expert in endangered species, wetland, water quality and water rights issues and is a frequent speaker on such topics at legal conferences throughout the country. She has worked on projects throughout the state and has strong relationships with broad array of state and federal regulators.

Ms. Foley-Gannon frequently serves as a team leader for land development projects during every stage of the development process including due diligence, permitting, litigation and permit compliance. She is adept at overseeing a large team of interdisciplinary consultants and at developing innovative solutions to difficult permitting challenges. In addition to her experience negotiating with regulators and other stakeholders to gain entitlements, she also works with clients to ensure ongoing compliance with complex permit requirements and conditions, draft conservation agreements and negotiates long-term management agreements for preserved lands. She also has experience in defending permits in state and federal courts. Ms. Foley-Gannon works with various industry groups in commenting on and developing legislative and regulatory policies and proposals.

Prior to joining Sheppard, Mullin, Ms. Foley-Gannon served as a law clerk to the Honorable Melvin Brunetti of the Ninth Circuit Court of Appeals. While attending Hastings College of the Law, she also served as a research fellow for the University of California's Water Resources Department.

Education

• J.D., University of California, Hastings College of the Law, 1998, magna cum laude, order of the coif,
• B.A., University of Michigan, 1989

Clerkships

• Law clerk to the Honorable Melvin Brunetti of the Ninth Circuit Court of Appeals
• Research Fellow for the University of California Water Resources Department

Admissions

• District Court of California, Northern District and the Ninth Circuit Court of Appeals

Representative Matters

Project Planning and Permitting

Represented Lennar Communities in connection with permitting a large mixed-use development project in Placer County which includes approximately 1,880 residential homes, a commercial center, an 18-hole golf course and 690 acres of natural open space. Permits and authorizations obtained for the project included: Section 404 wetland permit from the U.S. Army Corps of Engineers, water certification from the Regional Water Quality Control Board, Incidental Take Statement and Biological Opinion from the U.S. Fish and Wildlife Service through a Section 7 consultation, a Streambed Alteration Agreement with the California Department of Fish and Game, Section 106 Agreement between State Historic Preservation Office and the Corps of Engineers. Also negotiated deed restrictions and an easement with the Department of Toxic Substances Control.

Storm Water Permitting

Conducted audit of a major builder's storm water pollution prevention plans for their large mixed-use projects to ensure compliance with the requirements of the California General Permit for Discharges of Stromwater Runoff Associated with Construction Related Activities. Helped develop a field guide to compliance with General Permit requirements for future projects. Assisted client in responding to and addressing regulatory requirements associated with discharges of untreated stormwater and helped obtain concurrence from Regional Water Quality Control Board that discharge did not constitute violation of permit conditions.

Represents manufacturing facility in connection with obtaining and complying with NDPES permit.

Energy Projects

Represented major energy company in connection with NPDES permitting for a once through cooling plant. Assisted in responding to appeal of NPDES permit to the State Water Resources Control Board which was dismissed.

Represents major oil company in connection with endangered species permitting for linear projects.

Represents proponent of two large solar projects in connection with obtaining Rights of Entry from the Bureau of Land Management.

Litigation

Successfully defended federal entitlements issued to a mixed-use development project in Hayward, California. Case involved claims of non-compliance with the Clean Water Act and the Endangered Species Act. Assisted in negotiation of settlement of appeal of the District Court's decision.

Successfully defended a development project in a citizen suit challenge involving claims under the Endangered Species Act, the Clean Water Act, and the National Environmental Policy Act. Assisted in negotiation of settlement of the appeal of the District Court's decision as well as a global settlement of state law claims against the project.

Defended a retail project in a suit involving claims under the California Environmental Quality Act.

Administrative Advocacy

Represents the California Building Industry Association in connection with the State Water Resources Control Board's proposal to develop a state wetland and riparian protection policy.

Articles

• Ninth Circuit Raises the Level of Protection Afforded to Critical Habitat, , September 29, 2004

Books, Articles and Blogs

• EPA May Use Cost-Benefit Analysis In Setting "Best Technology Available" Standards Under Clean Water Act (with Robert Uram and James Rusk)

• State Water Board Lifts Moratorium on New Construction in LA Region (with James Rusk)

• State Water Board Imposes Moratorium on New Construction in Los Angeles Region (with James Rusk)

• Corps and EPA Issue Important New Mitigation Rule (with Robert Uram et. al.)

• Army Corps of Engineers, U.S. EPA Publish Long-Awaited Guidance on Determining Clean Water Act Regulatory Jurisdiction Subject to Supreme Court's Rapanos and Carabell Decisions (with Robert Uram and Aaron Foxworthy)

• Army Corps Issues New and Modified Nationwide Permits (with Julie Austin)

• New State Fees for Water Rights Permits and Licenses Unconstitutional Due to Failure to Demonstrate Reasonable "Proportionality" to Fee Payors (with David Lanferman)

• Clean Water Act Regulations Do Not Require Numeric Testing of Individual Pollutants or Numeric Effluent Limitations for Industrial Stormwater Discharges (with Julie Austin)

• Court Concludes Fish and Wildlife Service Improperly Ignored Recovery Goal of Critical Habitat Designation (with Robert Uram)

• D.C. Circuit Hold Unanimously that "Tulloch Rule" Is Ripe for Judicial Review (with Robert Uram and Keith Garner)

• Two Recent Cases Shed Light on Section 404 Alternatives Analysis (with Robert Uram)

• Institutional Arrangements for Conjunctive Water Management in California and Analysis of Legal Reform Alternatives (with Brian E. Gray), University of California Water Resources Center, 1999. (related article published at:  Hastings West-Northwest Journal of Environmental Law and Policy (Winter 2000))

Speeches

• "Wetlands Regulation and Land Use Planning: Understanding the Corps' New Mitigation Rule and Application of the 404(b)(1) Guidelines," Law Seminars International Land Use in Northern California Conference, San Francisco, CA, March 2009
• "National Environmental Policy Act: Wetlands Issues within the NEPA Process," CLE International California Wetlands Conference, San Francisco, CA, March 2009 (Co-Chair of Conference)
• "Cumulative Impacts: Practical Considerations," CLE International NEPA Conference, San Diego, CA, February 2009 and San Francisco, CA, March 2009
• "Development and Preservation of Water Rights and Supply," Lorman Conference, Santa Rosa, CA, January 2009
• "California Regulation of Wetlands After SWANCC – Testing the Limits of Regulatory Authority," CLE International California Wetlands Conference, Sacramento, CA, January 2008
• Panelist, "Integrating Resources in Floodplain-Grant Programs and Collaborative Partnerships," FMA 2007 Annual Conference: Collaborative Approaches to Integrated Floodplain Management, South Lake Tahoe, NV, September 2007
• "Overview of Storm Water Regulations: A Practical Review of the Regulations Effect on Development projects in California," CLE International Annual California Wetlands Conference, San Diego, CA, August 2007
• "Endangered Species Act and Wetlands Regulations: ESA Considerations in 404 Permitting Process," CLE International National Wetlands Conference, Las Vegas, NV, June 2007
• Conference co-chair and speaker, "Endangered Species and Wetlands Regulations," CLE International California Wetlands Conference, Sacramento, CA, January 2007
• "Intersection of State and Federal Regulation of Isolated Wetlands: Filling the Gap Created by SWANCC," CLE International Wetlands Conference, Ann Arbor, MI, November 2006