In Siskiyou County Water Users Association v. Natural Resources Agency (2012) 2012 Cal. App. Unpub. LEXIS 7073, the Siskiyou County Water Users Association (Association) challenged a pair of compromise agreements made between stakeholders regarding the potential removal of hydroelectric dams to help restore fisheries on the Klamath River (Agreements), alleging the Agreements constituted a “project” pursuant to the California Environmental Quality Act (CEQA). The trial court dismissed the Association’s claims as time-barred. The Third Appellate District Court upheld the lower court’s ruling.
The Agreements included proposed federal and California legislation which were necessary to carry out the Agreements. The Natural Resources Agency (Agency) filed a notice of determination (NOD) stating the execution of the Agreements was not a “project” within the meaning of CEQA since it did not bind the Agency to any specific course of action. The Association challenged the validity of the NOD and argued the Agreements should have been subject to CEQA review before becoming effective. In response to the lower court’s determination that its claims were time-barred, the Association advanced three arguments on appeal, all of which were rejected.
The Association first claimed the 180-day statute of limitations period applied because the Agency’s notice was substantially defective. The court disagreed. The court explained the Association was using the wrong rubric to examine the NOD. While the court acknowledged that the Agency used the title NOD, the court found the notice was more properly viewed as a notice of exemption (NOE) because the Agency concluded the Agreements were not subject to CEQA review. The court also found the mistitle of the notice dispositive since it did not lead to any material misrepresentation. Since the substance of the notice complied with requirements for an NOE, the court held the notice triggered the shorter limitation period.
The Association’s second claim alleged the parties’ failure to seek legislation identified in the Agreements constituted a modification of the action and therefore either restarted the limitations period or gave rise to equitable estoppel. The court rejected both arguments, holding the Association failed to show the execution of the Agreements fell within CEQA, and also failed to show reasonable reliance or an injury outweighing a public interest to establish estoppel.
The Association last claimed the Department of Fish and Game (Department) was improperly designated as the lead agency and that this claim “is ripe and justiciable before the Department completes the draft environmental impact report (EIR).” The court was not convinced. The Department’s status as a lead agency was not final because no action subject to CEQA had yet to be taken; if another agency believed it was better suited as the lead agency, it could negotiate with the Department or request an administrative review of the designation when timely. The court also explained that to prevail on a CEQA claim a petitioner is required to make a showing of prejudice to the environmental review process. The court therefore held the Association’s challenge was premature.
Determining an action is not a “project” under CEQA is similar to finding an action is exempt, therefore, the agency should publish a notice of exemption, as opposed to a notice of determination.
Written By: Tina Thomas, Christopher Butcher and Holly McMannes (law clerk)
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