Court Holds CEQA Is Not Preempted in Federal Hydroelectric Relicensing Proceeding

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.

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

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.

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

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.

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

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.

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

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.

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

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).

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

 

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.

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California Offshore Wind Gains Momentum with Two Key Milestones in April

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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Project Applicants and Lead Agencies Cannot Have it Both Ways: CEQA Requires Preparation of an MND or EIR, But Not Both

In an opinion certified for partial publication, the Third Appellate District on November 3, 2021, decided Farmland Protection Alliance v. County of Yolo, finding that the California Environmental Quality Act (“CEQA”) does not allow an agency to split environmental review across multiple levels of review—for example, by preparing a negative declaration to address some project issues and an environmental impact report to address others. Rather, CEQA requires an agency to prepare a full EIR whenever any aspect of a project may have a significant effect on the environment. Continue Reading

California Enacts More Than Two Dozen Laws This Year to Combat Housing Crisis

This legislative year, Governor Gavin Newsom signed into law thirty-one pieces of legislation designed to combat California’s ongoing housing crisis by providing tools to expand housing production, streamline housing permitting, and increase allowable density across the state.  Key housing-related bills, which take effect on January 1, 2022, unless otherwise noted, are discussed below.

  • SB 7, known as the Housing and Jobs Expansion and Extension Act, took immediate effect as an “urgency statute” to address the state’s housing crisis through zoning and the California Environmental Quality Act (CEQA) reform. It reenacts AB 900 through 2025 and extends expedited CEQA review for small-scale infill housing projects.  For a more in-depth discussion of SB 7, please refer to Downey Brand’s previous CEQA Chronicles SB 7 blog post.
  • SB 8 extends the term of the Housing Crisis Act of 2019 (SB 330) to January 1, 2030, and allows applicants who submit qualifying preliminary applications for housing developments prior to January 1, 2030 to utilize the protections of the Act through January 1, 2034. SB 8 also clarifies aspects of the existing law.  SB 330 included procedural and substantive protections for qualifying housing development projects such as accelerating the approval process, limiting fee increases on housing applications, and implementing accountability provisions.  Through SB 8, the Legislature clarifies the definition of a “housing development project” for purposes of the Housing Crisis Act to include projects that involve no discretionary approval, projects that involve both discretionary and ministerial approvals, and projects that include construction of a single dwelling unit.  SB 8 adds demolition, relocation, and return rights, and also clarifies that developers cannot demolish multiple units and replace them with a single family home.

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