Christian L. Marsh

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Christian Marsh advises clients on regulatory and land use entitlement issues governing real estate developments, ground and surface water supply projects, renewable and non-renewable energy facilities, and port and waterfront developments.

Regardless of the project’s size or scope, Christian provides effective and practical advice on matters related to endangered species, water rights, water quality, wetlands, environmental review, and the public trust doctrine. With a particular emphasis on matters pertaining to NEPA and CEQA review, Christian represents clients in state and federal court, and represented the prevailing parties in two appeals before the California Supreme Court. (Read more…)

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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 … Continue Reading

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 … Continue Reading

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 … Continue Reading

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 … Continue Reading

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 … Continue Reading

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 … Continue Reading

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 … Continue Reading

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. … Continue Reading

Governor Newsom’s New Executive Order Establishes End Dates For Pandemic-Related Suspensions for CEQA Filing, Posting, Notice, and Tribal Consultation Requirements and Brown Act Meeting Requirements

On June 11, 2021, Governor Newsom signed Executive Order N-08-21 (the “Order”) that establishes September 30, 2021, as the end date for COVID-19 pandemic-related suspensions for (1) deadlines for filing, noticing, and posting of CEQA documents with county clerk offices; (2) tribal consultation deadlines under CEQA; and (3) open meeting requirements. This end date for pandemic-related relief … Continue Reading

Third District Finds County General Plan Requirements for Mitigating Traffic Impacts Present an Unconstitutional Exaction

In an opinion filed on April 19, and certified for publication on May 4, 2021, the Third Appellate District in Alliance for Responsible Planning v. Taylor (County of El Dorado) held that a citizen-sponsored ballot measure requiring new development to fund all cumulative traffic mitigation prior to construction violated the Takings Clause of the Constitution … Continue Reading

CEQA Plaintiffs Beware: Meritless Lawsuits May Be Subject To Counter-Claims for Malicious Prosecution

In Jan Dunning et al. v. Kevin K. Johnson, APLC et al., the Fourth District Court of Appeal held that a developer and property owner could pursue its claims against a neighbor and project opponent for malicious prosecution after the developer successfully defended a meritless CEQA lawsuit against its construction of a private secondary school … Continue Reading

Poseidon’s Desalination Plant’s Supplemental EIR Holds Water According to the Court of Appeal

In California Coastkeeper v. State Lands Commission, the Third District Court of Appeal upheld the State Lands Commission’s decision to prepare a supplemental environmental impact report (EIR) for a desalination plant in Huntington Beach, overturning an earlier trial court ruling that invalidated the EIR.  Limited changes to a desalination project were proposed in order to … Continue Reading

In Martis Camp Ruling, Subsequent Review Under CEQA Hinges on the Right EIR

In an opinion published on August 17, 2020, the Third Appellate District in Martis Camp Community Association v. County of Placer ruled that Placer County had violated CEQA by adopting an addendum to support abandonment of a roadway. Despite the statutory presumption against subsequent review under CEQA, the Third District determined that the County had … Continue Reading

California Supreme Court Throws the Barn Doors Open, Finding That Groundwater Well Permits Aren’t Necessarily Ministerial

On August 27, 2020, in Protecting Our Water and Environmental Resources v. County of Stanislaus, Case No. S251709 (“Protecting Our Water”), the California Supreme Court held that the County in that instance could not categorically classify its issuance of groundwater well construction permits as ministerial decisions exempt from environmental review under the California Environmental Quality … Continue Reading

Agency Email Correspondence Must be Retained Under CEQA, Appeals Court Holds

In a ruling that should send shivers up the spine of any public agency in California needing to comply with the California Environmental Quality Act (“CEQA”), the Fourth District Court of Appeal on July 30 held that any email correspondence related to a project and its compliance with CEQA must be retained as part of … Continue Reading

Sixth District Holds CEQA Does Not Require Supplemental Review for a Streambed Alteration Permit

The Sixth Appellate District, in Willow Glen Trestle Conservancy v. San Jose (2020) 49 Cal.App.5th 127, held that seeking a new Streambed Alteration Agreement (“SAA”) from the California Department of Fish & Wildlife (“CDFW”) for a previously approved project does not constitute a “further discretionary approval” within the meaning of CEQA Guidelines section 15162 and … Continue Reading

COVID-19 Alert: Judicial Council Amends Emergency Rule 9 for CEQA and Planning Cases

On May 29, 2020, the Judicial Council of California issued a Circulating Order to amend its earlier-issued Emergency Rule 9 in order to shorten the time for tolling statutes of limitations for all civil causes and provide a fixed date, including for causes of action arising under the California Environmental Quality Act (CEQA) and State … Continue Reading

Third Appellate District Voids City Council Vote Based on Legislative Member’s Bias

On May 8, 2020, the Third Appellate District, certified for publication its earlier decision in Petrovich Development Co. LLC v. City of Sacramento (C087283), where the Court, in a rare decision, voided a city council’s denial of a  conditional use permit (CUP) upon finding that one of the councilmembers was impermissibly biased against the project; … Continue Reading

Governor Newsom Issues Order Requiring Electronic Posting of CEQA Notices and Suspending CEQA Filing, Posting, Notice, and Tribal Consultation Requirements for 60 Days

On April 23, 2020, Governor Newsom signed Executive Order N-54-20 (the “Order”) in response to the COVID-19 pandemic, which eased procedural legal requirements as to a variety of types of civil actions, including CEQA cases.  In order to combat the COVID-19 pandemic, the Governor has proclaimed a State of Emergency, and shelter in place orders … Continue Reading

Fifth Appellate District Invalidates Kern County Oil and Gas Ordinance

On Tuesday, February 25, 2020, the Fifth Appellate District invalidated Kern County’s 2015 Oil and Gas Ordinance (the “Ordinance”), which was intended to streamline the permitting process for a variety of oil and gas activities within unincorporated portions of the County, including for oil and gas production wells and related infrastructure such as well pads … Continue Reading

Trump Administration Announces Three Rules Making Sweeping Changes to Federal Endangered Species Act Regulations

On August 12, 2019, the U.S. Fish and Wildlife Service (“FWS”) and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (“NMFS”) (collectively “Services”) jointly announced three rules that significantly revamp regulations implementing the federal Endangered Species Act (“ESA”).  With the last comprehensive revisions to ESA regulations occurring in 1986, the Trump Administration’s trio … Continue Reading

After Years of Handwringing and Lengthy Stakeholder Negotiations, California Water Board Adopts State Wetland Definition and Procedures for Discharges of Dredge or Fill Material to Waters of the State

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 … Continue Reading

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.  … 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”). … Continue Reading
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