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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Third Appellate District Recognizes Unique Regional Resources at Lake Tahoe in Finding Olympic Valley Resort EIR Flawed

In September 2021, the Third District Court of Appeal in Sierra Watch v. Placer County reversed a judgement upholding Placer County’s Environmental Impact Report (EIR) for a resort development project in the Olympic (formerly Squaw) Valley area. In the published portion of the opinion, the court found errors in the EIR’s description of the environmental setting and related water and air quality impact analyses, as well as in the EIR’s analysis and mitigation for construction noise impacts.

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Real Parties in Interest Are Not Automatically Indispensable Parties to CEQA Litigation

In Save Berkeley’s Neighborhoods v. The Regents of the University of California, Case No. A160560, the Court of Appeal held that under the California Environmental Quality Act (“CEQA”) and related procedural rules, real parties in interest are not automatically considered indispensable parties to CEQA litigation.  Whether a real party in interest is indispensable turns on the case-by-case analysis outlined in California Code of Civil Procedure (“CCP”) section 389(b), and each court must make that determination as to the specific entity at issue, including real parties in interest.  This case departs from earlier precedent and the Legislature’s efforts to create clearer rules concerning the naming of real parties in interest, thus making it easier for petitioners to make procedural errors without legal consequences.

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Are Reductions in Parking a CEQA Impact – Second District Finds Context is Key

On August 19, 2021, in Save Our Access – San Gabriel Mountains vs. Watershed Conservation Authority, the Second District Court of Appeal, in reversing the lower court’s judgement, upheld an Environmental Impact Report’s (EIR’s) finding of less than significant impact under CEQA for an intentional reduction in parking meant to protect and restore the environment. The court found that a reduction in parking is usually a social and not an environmental impact. Because the petitioner failed to identify any secondary adverse physical effects on the environment resulting from the project’s impact on available parking, there was no CEQA impact here.

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