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On August 28, 2019, the California Office of Administrative Law (“OAL”) approved the State Wetland Definition and Procedures for Discharges of Dredged or Fill Materials to Waters of the State (“Procedures”). Consequently, the Procedures will become effective on May 28, 2020 — nine (9) months after OAL approval, based on the implementation date set forth in the Procedures.

The move by OAL comes despite allegations by the San Joaquin Tributaries Authority (“SJTA”) that the State Water Board exceeded its statutory authority and failed to comply with the California Water Code. The SJTA filed a petition for writ of mandate and complaint for mandatory relief challenging the Procedures in Sacramento Superior Court on May 1, 2019, and subsequently filed an amended petition for writ of mandate and complaint on May 20, 2019. According to the SJTA, the State Water Board’s adoption of the Procedures was unlawful, and must therefore be set aside for several reasons, which are fully described in our May 9, 2019 client alert on the litigation.

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.

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.

The CEQA Statute and Guidelines both contain provisions outlining what types of projects are exempt from environmental review. There are dozens of exemptions, however, that are listed in other provisions of the California codes that can be difficult to find. On June 6, 2018, the Governor’s Office of Planning and Research (OPR) released a helpful…

In a March 2018 decision, the First Appellate District examined several CEQA issues pertinent to petroleum refining and hazardous materials transport.  In Rodeo Citizens Association v. County of Contra Costa, the appeals court affirmed several findings of the lower court, dismissing challenges to the environmental impact report (“EIR”) prepared for a propane and butane recovery project at the Phillips 66 refinery in Rodeo.  (The appeals court did not review the trial court’s order to the county to set aside the certification of the EIR and correct several other air quality related issues.)  The appeals court found the risk of rail transportation of propane and butane was appropriately measured against the baseline of existing risks; the project description did not mask plans for the refinery to alter its crude oil feedstock; and that greenhouse gas impacts from downstream uses of petroleum products need not be evaluated.

The United States Supreme Court will not be taking up the California Supreme Court’s July 2017 decision in the Friends of the Eel River case.  In that decision, authored by Chief Justice Cantil-Sakauye, the California Supreme Court held that the federal Interstate Commerce Commission Termination Act (ICCTA) did not preempt application of CEQA to the…

On January 12, 2018, the First Appellate District held that the California Attorney General need not exhaust administrative remedies in order to contest the adequacy of Environmental Impact Reports (EIRs) under the California Environmental Quality Act (CEQA), as is normally required of third-party challengers under Section 21177.  City of Long Beach v. City of Los Angeles, Case No. A148993 (2018).  The Appeals Court also held that BNSF Railway Company’s (BNSF) proposed construction of a new railyard in Southern California failed to adequately consider air quality impacts from the project.  The case emphasizes the need for EIRs to consider impacts to ambient air pollutant concentrations and the cumulative impacts of such pollutants under CEQA, even if the underlying analysis may be time consuming and difficult to generate.

On March 22, 2018, the Second Appellate District certified for publication its opinion in Covina Residents for Responsible Development v. City of Covina, et al. (2018) 230 Cal.Rptr.3d 550, concerning a Mitigated Negative Declaration (MND) for a proposed 68-unit, mixed-use, infill project located one quarter mile from the Covina Metrolink commuter rail station in the City of Covina. The case is notable as the first published decision addressing the application of CEQA’s exemption for parking impacts under Public Resources Code (PRC) Section 21099, subdivision (d)(1), which was enacted as part of SB 743 “to further the Legislature’s strategy of encouraging transit-oriented, infill development consistent with the goal of reducing greenhouse gases announced in [SB 375].”

On July 27, the California Supreme Court released its long-awaited decision in Friends of the Eel River v. North Coast Railroad Authority (S222472), resolving a split among the State’s courts of appeal—but arguably conflicting with federal precedent—with respect to the scope of federal preemption of CEQA with respect to state-owned rail projects.

We discussed the oral arguments in this case in a prior blog post.  In a 6-1 opinion authored by Chief Justice Cantil-Sakauye (with Justice Corrigan dissenting), the Court has now held that application of CEQA to a railroad project undertaken by a state entity, North Coast Railroad Authority (“NCRA”), was not preempted by the federal Interstate Commerce Commission Termination Act (“ICCTA”).  The Court relied on a distinction between a state’s “regulation” of private railroad operations (which is clearly preempted) and a state’s “self-governance” with respect to a state-owned rail project (which, the Court held, is not preempted).  As a result, the Court reversed the judgment of the First Appellate District and remanded the matter for further proceedings on petitioners’ CEQA claims.

Today, in an opinion authored by Justice Liu, the California Supreme Court ruled that the greenhouse gas analysis in an environmental impact report (“EIR”) prepared for the San Diego Association of Government’s (“SANDAG”) regional transportation plan (“RTP”) did not violate the California Environmental Quality Act (“CEQA”), but did little to resolve uncertainties in addressing climate change issues under CEQA.  As we previewed in our May discussion of the oral argument in this case, Cleveland National Forest Foundation v. San Diego Association of Governments, the majority of the Court found that SANDAG’s discussion of the impacts of greenhouse gas emissions was adequate given the state of science and guidance, at least at the time of the issuance of the RTP in 2011. The Supreme Court cautioned, however, that this EIR should not be considered a template for future projects as developing science and regulations will likely provide further guidance on this issue.