State Wetland Definition and Procedures for Discharges of Dredge or Fill Material to Waters of the State Becomes Effective on May 28, 2020

On August 28, 2019, the California Office of Administrative Law (“OAL”) approved the State Wetland Definition and Procedures for Discharges of Dredged or Fill Materials to Waters of the State (“Procedures”). Consequently, the Procedures will become effective on May 28, 2020 — nine (9) months after OAL approval, based on the implementation date set forth in the Procedures.

The move by OAL comes despite allegations by the San Joaquin Tributaries Authority (“SJTA”) that the State Water Board exceeded its statutory authority and failed to comply with the California Water Code. The SJTA filed a petition for writ of mandate and complaint for mandatory relief challenging the Procedures in Sacramento Superior Court on May 1, 2019, and subsequently filed an amended petition for writ of mandate and complaint on May 20, 2019. According to the SJTA, the State Water Board’s adoption of the Procedures was unlawful, and must therefore be set aside for several reasons, which are fully described in our May 9, 2019 client alert on the litigation. Continue Reading

California Supreme Court Holds Medical Marijuana Zoning Ordinance is a Project Subject to CEQA

Every CEQA analysis begins with the threshold question of whether the activity is a “project” as defined by Public Resources Code section 21065 and 21080. In Union of Medical Marijuana Patients, Inc. v. City of San Diego, the California Supreme Court held that regardless of the nature of a project, CEQA applies if it “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment….”  (Pub. Resources Code §21065.)

In so holding, the Court rejected the argument that the categories of activities listed in Public Resources Code Section 21080(a) are projects as a matter of law; rather, they are examples of activities that might be projects under CEQA. The Court further held that in determining whether the activity is a project, the agency’s task is not to look at the actual impact of the activity, but rather to look at whether “the theoretical effects … are sufficiently plausible to raise the possibility that the activity ‘may cause … a reasonably foreseeable indirect physical change in the project.’” (Union of Medical Marijuana Patients, Inc. v. City of San Diego (August 19, 2019, S238563) __ Cal.5th__ [p. 35, quoting Pub. Resources Code §21065].)  Continue Reading

Trump Administration Announces Three Rules Making Sweeping Changes to Federal Endangered Species Act Regulations

On August 12, 2019, the U.S. Fish and Wildlife Service (“FWS”) and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (“NMFS”) (collectively “Services”) jointly announced three rules that significantly revamp regulations implementing the federal Endangered Species Act (“ESA”).  With the last comprehensive revisions to ESA regulations occurring in 1986, the Trump Administration’s trio of new rules herald a new era for the ESA with a species-specific protections approach for “threatened” species, renewed clarification on species listing/delisting and the designation of critical habitat, and updated definitions and procedures for the interagency consultation process. Continue Reading

2019 Amendments to the CEQA Guidelines: Part Two – Greenhouse Gases, Energy, and Wildfire Impacts

This post is Part Two of our blog series on the 2019 amendments to the CEQA Guidelines.  This post focuses on amendments in the areas of greenhouse gas (“GHG”) emissions, energy, and wildfire impacts, as well as a discussion of OPR’s draft CEQA and Climate Change Advisory.

GHG Impacts and Draft CEQA and Climate Change Advisory

The amendments to the CEQA Guidelines are designed to improve the analysis of impacts from GHG emissions in CEQA documents.  These amendments clarify the manner in which the significance of a project’s GHG emissions is determined, and give the lead agency discretion to select a model or methodology to estimate GHG emissions.  Several of these amendments were made to ensure consistency with recent appellate case law dealing with GHG emissions, cumulative impacts, and significance determinations, including Center for Biological Diversity v. Dept. of Fish & Wildlife (2015) 62 Cal.4th 204 and Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497. Continue Reading

After Years of Handwringing and Lengthy Stakeholder Negotiations, California Water Board Adopts State Wetland Definition and Procedures for Discharges of Dredge or Fill Material to Waters of the State

On Tuesday, April 2, 2019, the California State Water Resources Control Board (“State Water Board”) adopted its proposed State Wetland Definition and Procedures for Discharges of Dredge or Fill Material to Waters of the State (“Procedures”). The Procedures were adopted after a lengthy stakeholder process and represent an attempt by the State to compromise among the non-governmental organization (“NGO”) community and the regulated community, which span a broad array of stakeholders, including developers, agriculture, municipalities, water and flood control districts, and industry. The Procedures  consist of: (1) a state-wide definition of wetlands; (2) a framework for determining whether a feature meeting the wetland definition is a water of the state (“Jurisdictional Framework”), (3) wetland delineation procedures, and (4) procedures for application submittal and the review and approval of water quality certifications, waste discharge requirements (“WDRs”), and waivers of WDRs for dredge or fill activities (collectively referred to as “Orders”). Among other ramifications, the new Procedures largely duplicate (and in some respects are inconsistent with) federal procedures, but add a significant new layer to the already byzantine regulatory process for permitting projects that involve fill of federal and state waters and wetlands.
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First District Rejects “Location Exception” for Project in Earthquake Fault and Landslide Areas and Affirms Class 3 Exemption for Small Residential Projects in the Berkeley Hills

In Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880 [certified for partial publication], the Court of the Appeal for the First District affirmed that the construction of three new single-family homes on adjacent parcels in the Berkeley Hills was exempt under CEQA’s Class 3 exemption for single-family residences in urbanized areas.  In doing so, the Court held that the “location exception” to CEQA categorical exemptions (Guidelines, § 15300.2(a)) does not apply because an earthquake fault zone or earthquake-induced landslide area is not an “environmental resource of hazardous or critical concern.”  This case importantly limits the location exception to areas that are considered beneficial environmental resources, as opposed to hazardous geologic zones.

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2019 Amendments to the CEQA Guidelines: Part One – Transportation Impacts

On January 3, 2019 the Natural Resources Agency (“Agency”) announced that the long awaited comprehensive amendments to the CEQA Guidelines are now in effect.  The last major update to the Guidelines was in the late 1990s.  As a result, the Agency and the Office of Planning and Research (OPR) had a significant amount of material to synthesize in preparing these amendments, including several legislative changes and over two decades of CEQA case law.

The amendments include two new sections and revisions to 29 existing sections and three appendices.  Many of the revisions merely reflect holdings from previous case law and will not generate new requirements in preparing CEQA documents.  Some revisions, however, do constitute substantive changes in impact analysis and it will be important for public agency staff, environmental consultants, and attorneys to review these amendments carefully.  To access a complete copy of the revised CEQA Guidelines click here. Continue Reading

Court of Appeal Finds No Discretionary Action in St. Helena Multi-family Dwelling Development

On December 18, 2018, the First Appellate District, in McCorkle v. St. Helena (A153238), affirmed the trial court’s denial of a Petition for Writ of Mandate challenging the City of St. Helena’s approval of a multi-dwelling residential development.  First, consistent with Public Resources Code section 21151 and interpreting case law, the court held that the City Council properly delegated to nonelected officials—the Planning Commission—the project’s design review.  Second, the court found that the City did not have discretion regarding the environmental effects of the project because the City zoning code properly limited its authority to design issues.  Therefore, the California Environmental Quality Act (“CEQA”) did not apply.  Having determined that CEQA did not apply, the court found that it did not need to address whether the City properly found the project to fall within the Class 32 infill exemption under CEQA Guidelines section 15332. Continue Reading

Fourth District Upholds Use of Existing Facilities Exemption for San Diego Amusement Park Lease, Finding no Causal Connection Between “Unusual Circumstance” and Potential Impacts

San Diegans for Open Government v. City of San Diego – filed Dec. 27, 2018, publication ordered Jan. 15, 2019, Fourth District, Div. One

The Fourth District Court of Appeal affirmed a trial court judgment upholding use of the “existing facilities” categorical exemption for a lease for a beachside amusement park, finding no unusual circumstances barring use of the exemption. The Petitioner, San Diegans for Open Government (SDOG), failed to demonstrate any causal connection between the “unusual circumstances” of a local measure limiting development and the alleged significant impacts of traffic and noise, which were also found to be speculative.  Continue Reading

California Supreme Court Requires De Novo Review for EIR Adequacy Challenges and Imposes Heightened EIR Requirements Connecting Environmental Impacts with Specific Health Consequences

In a long-awaited decision, on December 24, 2018 the California Supreme Court in Sierra Club v. County of Fresno (S219783) affirmed, in part, and reversed, in part, the Fifth District Court of Appeal’s decision concerning a challenge to the adequacy of an EIR prepared for the Friant Ranch retirement community (“Project”).  Employing a de novo standard of review, the Court found that the Project EIR is inadequate as a matter of law because the EIR did not make a reasonable effort to connect the Project’s air quality impacts to specific health consequences (or explain why it is not feasible to do so).  The Court also upheld the lead agency County of Fresno’s discretion to substitute equally effective or more superior future mitigation measures and adopt mitigation measures that do not reduce the Project’s significant and unavoidable impacts to a less-than-significant level.  This decision poses significant hurdles for project proponents going forward with new, heightened requirements for EIR analysis of environmental and health impacts and a more scrutinizing, independent legal standard of review for challenges to the adequacy of an EIR. Continue Reading

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