Scott B. Birkey

Scott is a land use and natural resources lawyer who handles entitlement, compliance, and litigation matters for residential and commercial developers, and educational and health-care institutions throughout California.

Land Use Entitlements And Permits Experience

Scott has successfully represented developers in obtaining all forms of land use entitlements, including securing development agreements, subdivision maps,  general plan amendments, rezonings, site development permits, and other land use approvals. His clients include urban infill developers, master-planned community developers, affordable housing developers, renewable energy developers, and educational and health-care institutions, typically in connection with multiple and complex land use entitlements and, in many instances, involving local, state, and federal agencies.  Scott has also assisted clients with land use due diligence in connection with purchases and sales of property.

Endangered Species And Wetlands Permitting Experience

Scott is a leading authority on obtaining permits and approvals under the federal and state Endangered Species Acts, Section 404 of the Clean Water Act, Section 1602/1603 of the California Fish and Game Code (streambed alteration agreements), and the Porter-Cologne Water Quality Control Act (water quality certifications and waste discharge requirements). Scott has extensive experience advising clients as to conservation easements and other similar approaches to mitigation to satisfy permit obligations, and has participated in the review and preparation of large-scale habitat conservation plans and natural community conservation plans on behalf of both private developers and public agencies. Scott regularly prepares and reviews environmental documents in accordance with the California Environmental Quality Act, the National Environmental Policy Act, and Section 404 of the Clean Water Act.  Scott is co-author of Natural Resource Regulation in California published by Solano Press, the leading treatise in California on permitting projects under the federal and state Endangered Species Act, Section 404 of the Clean Water Act, and other statutory regimes regulating the incidental take of special-status species and the fill of wetlands.

Land Use And Natural Resources Litigation Experience

Scott defends project approvals on behalf of residential and commercial developers and public agencies in both state and federal courts. His litigation matters involve challenges to project approvals brought under the California Environmental Quality Act, the National Environmental Policy Act, the Clean Water Act, the Endangered Species Act, and a variety of California planning and zoning laws. Scott also represents clients in enforcement actions brought by the U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers, Regional Water Quality Control Boards, and the California Department of Fish and Wildlife.

• Assisted a landowner with entitling over 90 residential units using the SB 35 ministerial approval process in the City of Burbank.
• Represented a homebuilder in litigation filed under the National Environmental Policy Act, the Endangered Species Act, and the Clean Water Act relative to an 80-acre residential development within a specific plan area in Sacramento County.
• Represented an academic institution in litigation filed under the California Environmental Quality Act related to campus development on an approximately 200-acre project site within a larger long-range development plan.
• Assisted a development partnership with obtaining a General Plan Amendment, Rezoning, and a Use Permit for a 300-acre master-planned community project in Butte County. Project involved review of an Environmental Impact Report under the California Environmental Quality Act.
• Advised a developer regarding redevelopment of infill project site in the City of San Jose and involved General Plan and Specific Plan Amendments. Project involved review of an Environmental Impact Report under the California Environmental Quality Act.
• Advised a water company in Sacramento Valley regarding a "consistency determination" under the California Endangered Species Act and Section 7 of the Endangered Species Act for installation of fish screens and other water conveyance infrastructure.
• Advised a renewable energy company regarding acquisition and compliance with Endangered Species Act incidental take permit, streambed alteration agreement, and waste discharge requirements for a 150 MW wind energy facility in Kern County.
• Assisted a hospital in the City of Oakland with obtaining multiple land use entitlements related to Master Plan required for seismic upgrades. Project involved review of an Environmental Impact Report under the California Environmental Quality Act.
• Advised an affordable housing developer in connection with land use entitlements for new and refurbished apartments in the City of East Palo Alto. Project involved review of a Mitigated Negative Declaration under the California Environmental Act and an Environmental Assessment under the National Environmental Policy Act.
• Assisted a lender with land use due diligence on a 150-acre project site in the City of San Francisco with reviewing multiple and complex entitlements.
• Assisted a renewable energy company with land use diligence involving financing for multiple renewable energy project sites in Riverside County.
• Assisted a development partnership with obtaining a Section 404 Clean Water Act permit, Endangered Species Act Section 7 Biological Opinion, Streambed Alteration Agreement, Section 401 Water Quality Certificate, and Section 2081 California Endangered Species Act Incidental Take Permit for a 300-acre master planned community project in Butte County.
• Advised a university with obtaining Section 404 Clean Water Act permit and associated National Environmental Policy Act review in Merced County.
• Represented a company in connection with defense against challenge to Endangered Species Act Section 10 Incidental Take Permit/Habitat Conservation Plan and Endangered Species Act Section 7 Biological Opinion.
• Represented a municipal government with defending California Environmental Quality Act challenge brought against port expansion project.

Honors & Recognitions

Best Lawyers, Land Use & Zoning Law, 2018-2025

Northern California Super Lawyers, 2010; 2013-2023

Professional Affiliations

State Bar of California

Member, Association of California Water Agencies