Residential Development Project Consistent with Specific Plan Found Exempt from Further CEQA Review

In Citizens’ Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th 460, the First District Court of Appeal affirmed the trial court’s ruling that a residential project in a specific plan area in the city of Newark fell within Government Code section 65457, a statutory exemption under CEQA for residential development projects that are consistent with a specific plan for which an Environmental Impact Report (EIR) has been certified. Petitioners argued a subsequent EIR was required due to three project changes that they claimed led to new significant impacts. However, the Court found the exemption applied to the project as the exemption’s focus is to increase the supply of housing and it therefore should apply to projects that meet the criteria “regardless of possible environmental impacts.”

Court Holds CEQA Is Not Preempted in Federal Hydroelectric Relicensing Proceeding

By Tiffanie Ellis and Brian Cragg on September 21, 2022 Posted in Environmental Impact Report (EIR)

In County of Butte v. Dep’t of Wat. Resources (2022) 13 Cal.5th 612, issued on August 1, 2022, the California Supreme Court carved out a role for the California Environmental Quality Act (“CEQA”) even where the project is largely governed by a federal proceeding. The case arose in connection with the relicensing of the Oroville Dam by the Federal Energy Regulatory Commission (“FERC”). The Federal Power Act (“FPA”) (16 U.S.C. § 791, et seq.) delegates to FERC the authority to license hydroelectric dams; the FPA has “a significant preemptive sweep.” Despite a comprehensive federal process for licensing dams, the Supreme Court held that state agency review under CEQA was not entirely preempted. As significant as the ruling itself is the strident dissent, penned by outgoing Chief Justice Cantil-Sakauye.

Third District Invalidates Water Bottling Facility EIR for Overly Narrow Project Objectives and Failure to Recirculate

By Breana M. Inoshita, Christian L. Marsh and Jennie Woo on September 20, 2022 Posted in Environmental Impact Report (EIR), Impact Analysis

On April 20, 2022, the Third District Court of Appeal filed its opinion in We Advocate Through Environmental Review v. County of Siskiyou (2022) 78 Cal.App.5th 683, reversing the trial court’s judgment upholding the County’s Environmental Impact Report (“EIR”) for a water bottling facility. The court held that (1) the County’s EIR for the botting facility defined the project objectives in an overly narrow manner; and (2) the County’s process for evaluating the project’s climate change impacts was flawed. This is one of two CEQA cases brought by the same Petitioners challenging the facility; see our blog post on the related CEQA case here.

Third Circuit Makes Clear That Lead Agencies and Responsible Agencies Alike Must Make Findings Under CEQA

By Breana M. Inoshita, Christian L. Marsh and Christopher Marelich on September 20, 2022 Posted in Environmental Impact Report (EIR), Responsible Agencies, Water Quality

On May 11, 2022, the Third District Court of Appeal published its opinion in We Advocate Through Environmental Review v. City of Mount Shasta (2022) 78 Cal.App.5th 629, reversing the decision below and ordering the trial court to grant a petition for writ of mandate, specifying actions under CEQA that the City of Mt. Shasta (“City”) must take before issuing a wastewater permit for a water bottling facility. The court held that the City, acting as a responsible agency, had failed to make findings or support such findings as required by Public Resources Code section 21081 on the significant effects identified by the lead agency, Siskiyou County (“County”), in its environmental impact report (“EIR”). This is one of two CEQA cases brought by the same Petitioners challenging the facility; see our blog post on the related CEQA case here.

Third Appellate District Upholds EIR for El Dorado Irrigation District’s Upper Main Ditch Piping Project

By Breana M. Inoshita and Kathryn L. Oehlschlager on May 24, 2022 Posted in Environmental Impact Report (EIR), Impact Analysis

In an opinion certified for publication on February 16, 2022, the Third District Court of Appeal upheld El Dorado Irrigation District’s decision to certify an environmental impact report (EIR) for and approve the Upper Main Ditch piping project, affirming the trial court’s judgment denying a petition for writ of mandate.

The Upper Main Ditch is an unlined earthen ditch system that spans approximately three miles and delivers a maximum of 15,080 acre-feet of raw water annually. The Upper Main Ditch also passively intercepts stormwater runoff and can accommodate stormflows equivalent to a 10-year design stormflow. A 2017 study cited in the EIR found that 11% to 33% of the water conveyed through the ditch is lost to seepage and evaporation each year.

First District Invalidates Garaventa Hills EIR for Improperly Classifying No-Project Alternative of Preserving Residentially-Zoned Land as Infeasible

By Christian L. Marsh and Natalie C. Kirkish on May 23, 2022 Posted in CEQA Guidelines, Endangered Species Act, Environmental Impact Report (EIR), Exhaustion of Administrative Remedies, Impact Analysis, Litigation

On March 30, 2022, the First District Court of Appeal published its opinion in Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, invalidating an Environmental Impact Report (“EIR”) for the Garaventa Hills Project (“Project”) because it failed to disclose the feasibility of funding sources or rezoning that could allow the City to preserve the property as open space. Instead, the EIR improperly concluded that the no-project (no-development) alternative was infeasible because the Project was zoned for residential development and that there was no current proposal for preservation of the property. This issue, the Court of Appeal held, was sufficiently raised in the administrative proceedings, and thus the Petitioner, Save the Hill, had exhausted its administrative remedies and preserved the issue for litigation.

Full Quantification of Water Rights Not Required for CEQA Review, Second District Declares

By Christian L. Marsh and Natalie C. Kirkish on May 23, 2022 Posted in Downey Brand CEQA Practice, Environmental Impact Report (EIR), Impact Analysis, Litigation

On March 22, 2022, the Second District Court of Appeal published its Opinion in Buena Vista Water Storage District v. Kern Water Bank Authority, upholding the Environmental Impact Report (EIR) for the Kern Water Bank Authority’s Conservation and Storage Project (“Project”) and reversing the trial court’s ruling. The Project proposes to divert up to 500,000 acre-feet-per-year (AFY) from the Kern River for recharge, storage, and later recovery within the Kern Water Bank. Buena Vista Water Storage District (“Buena Vista”) filed a Petition for Writ of Mandate attacking the EIR on several grounds focused on the allegation that the Kern Water Bank Authority (KWBA) was required to calculate and quantify existing water rights on the Kern River in order for the EIR’s analysis to pass muster under the California Environmental Quality Act (CEQA). The Ventura County Superior Court agreed, holding that quantifying water rights—beyond assessment of historical physical diversions—was necessary to the EIR’s project description, environmental baseline, and analysis of the Project’s impacts on water supply. The Second Appellate District reversed, holding that CEQA does not require a quantification of existing water rights—it need only address actual historical diversions of water.

New NEPA Rule Restores Demanding Environmental Review Practices for Major Federal Projects

By Hina Gupta and Megan V. Unger on April 26, 2022 Posted in CEQA Guidelines, CEQA Legislation

On April 19, 2022, the Biden administration finalized a new rule (“Final Rule”) rolling back the Trump administration’s 2020 changes limiting the scope of the National Environmental Policy Act (NEPA). The Final Rule re-establishes the prior broader scope of NEPA review, restores key provisions of NEPA that existed prior to 2020, and requires a more rigorous environmental review of major federal projects like pipelines and highways, including the projects authorized in the $1.2 trillion Infrastructure Bill that President Biden signed in November 2021, commonly referred to as the “Infrastructure Investment and Jobs Act” (see this past Downey Brand alert regarding the Act’s key provisions and this alert regarding the NEPA streamlining provisions authorized under the Infrastructure Bill for key environmental and infrastructure projects).

BAAQMD Modifies its CEQA Thresholds for Evaluating the Significance of Climate Impacts from Land Use Projects and Plans

By Darrin D. Gambelin and Megan V. Unger on April 20, 2022 Posted in CEQA Guidelines

On April 20, 2022, the Bay Area Air Quality Management District (BAAQMD) adopted changes to its thresholds for evaluating the significance of climate impacts from land use projects and plans under CEQA. These thresholds of significance changes are important because they can be used by agencies as guidelines for determining climate impacts from projects subject to CEQA. However, it is important to note that agencies are not required to abide by these thresholds, as they are only guidelines.

California Offshore Wind Gains Momentum with Two Key Milestones in April

By Breana M. Inoshita and Christian L. Marsh on April 15, 2022 Posted in Uncategorized

In early April there were two major leaps forward in offshore wind development in California. On April 6, 2022, the Bureau of Ocean Energy Management (BOEM), a bureau within the U.S. Interior Department, released a Draft Environmental Assessment for the Morro Bay Wind Energy Area (WEA) off California’s Central Coast. The next day, the California Coastal Commission removed a key barrier to the first offshore wind development, voting unanimously to conditionally concur with BOEM’s federal consistency determination that proposed leasing and lease activities within the Humboldt WEA off California’s Northern Coast are consistent with the California Coastal Management Program (CCMP).

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