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.
2019 Amendments to the CEQA Guidelines – Part One
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
California Supreme Court Set to Review Companion Groundwater Cases and Resolve When County-Issued Well Permits May Be Treated As Ministerial and Not Subject to CEQA
After a long drought, the California Supreme Court at its November 14, 2018 conference voted unanimously to grant review of three decisions involving the question of whether well permits issued pursuant to county ordinances and incorporating state groundwater well-drilling standards are ministerial and thus not subject to review under the California Environmental Quality Act (“CEQA”). Although interpreting different county well ordinances enacted by San Luis Obispo and Stanislaus Counties, the ordinances each incorporated state well-drilling standards (Bulletin 74). Yet, the Second and Fifth Districts reached diametrically opposing conclusions regarding whether those ordinances require the exercise of discretion. Continue Reading
Fourth District Upholds San Diego’s Addendum for Balboa Park Revitalization Project, Validates the CEQA Addendum Process
On October 24, 2018, the Fourth Appellate District upheld the trial court’s decision in Save Our Heritage Organization v. City of San Diego (D073064), finding that the use of an addendum as outlined in section 15164 of the California Environmental Quality Act (“CEQA”) Guideline for approval of project modifications is valid under CEQA and does not conflict with CEQA’s public review requirements. Additionally, the Court also found that once an EIR is approved, the lead agency is not required to make any additional findings under the Public Resources Code (“PRC”) section 21081 of CEQA to approve modifications to a project using an addendum. Overall, this appellate decision is in agreement with the line of CEQA cases approving the use of addenda to approve project modifications that do not result in additional significant environmental impacts. Once again, the appellate court affirmed the CEQA policy that once an EIR is certified, “the interests of finality are favored over the policy of encouraging public comment.” Continue Reading
Court of Appeal Allows CEQA Challenge to PG&E Tree Removal Project to Proceed, But Finds Claims under Planning & Zoning Law Time-Barred
On October 23, the First Appellate District issued its opinion in Save Lafayette Trees v. City of Lafayette et al. (Case No. A154168) finding that Save Lafayette Trees’ (“Save Lafayette”) CEQA challenge to a Pacific Gas and Electric (PG&E) tree removal project was timely filed and served, reversing in part and affirming in part the trial court’s sustaining of a demurrer to the petition for writ of mandate (“Petition”). The Court of Appeal affirmed the dismissal of the petitioner’s remaining causes of action brought under the California Planning and Zoning Law.
California Supreme Court Hears CEQA Appeal Questioning the Appropriate Legal Standard of Review for EIR Challenges and the Need for More Specific Health Impact Analyses
On October 2, after waiting over three-and-a-half years, the California Supreme Court finally heard oral arguments in Sierra Club et al. v. County of Fresno et al. (Case No. S219783). This case, which challenges an EIR prepared for the Friant Ranch retirement community in Fresno County, raises far-reaching and consequential CEQA questions, namely, the standard of review for the adequacy of an EIR’s discussion of required CEQA topics and the level of analysis needed to identify a project’s effect on human health. Continue Reading
