To VMT or not to VMT? Third District Says Level of Service No Longer Valid to Measure Traffic Impacts, But Use of Vehicle Miles Traveled is Not Yet Required

The Third District Court of Appeals recently weighed in on the interpretation of Public Resources Code section 21099(b)(2) (“Section 21099(b)(2)”) and newly enacted CEQA Guidelines section 15064.3, which govern the consideration of traffic impacts under CEQA. In Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609 (“Citizens”), the Court determined that although Guidelines section 15064.3 does not become effective until July 1, 2020, Section 21099(b)(2) already prevents lead agencies from relying on impacts to vehicle delay to determine that traffic impacts are significant.

The Petitioner challenged the environmental impact report (EIR) prepared for an amendment to the City of Sacramento’s General Plan, alleging, among other things, that the project would increase congestion on city streets and would therefore have a significant impact on the environment. The Court disagreed, finding that level of service (LOS)—a method of determining traffic impacts based on congestion and wait times at intersections—is no longer valid under CEQA. Continue Reading

After Months of Delay The 2020 WOTUS Rule is Finally Published, Ensuring the California Regulated Community Receives No Relief Associated with the Rule’s Bright Lines and Clarifications

On April 21, 2020, The Navigable Waters Protection Rule: Definition of Waters of the United States (“WOTUS”) (“2020 WOTUS Rule”) was published in the Federal Register, and will become effective on June 22, 2020. Publication of the 2020 WOTUS Rule in the Federal Register is the final step in the Trump Administration’s repeal and replacement of the 2015 Waters of the United States Rule (“2015 WOTUS Rule”), issued under the Obama Administration. Due to litigation that ultimately resulted in a stay of the 2015 WOTUS Rule prior to the effective date, that rule never became effective nationwide. Continue Reading

Two CEQA Statute of Limitations Cases, Two Different Results

CEQA Statute of Limitations

California Courts of Appeal recently issued two cases addressing the strict statute of limitations applicable to agency action under CEQA.

Citizens for a Responsible Caltrans Decision v. Department of Transportation –  (March 24, 2020, D074374) __ Cal.5th__

The Fourth District in Citizens for a Responsible Caltrans Decision v. Department of Transportation overturned a lower court’s dismissal of a citizen group’s challenge to an exemption issued by California Department of Transportation (“Caltrans”) for a highway interchange project in San Diego, finding that the Petitioner had pled facts sufficient to allow the lower court to find that the action was timely, and finding as a matter of first impression that the Project was not exempt from CEQA.  This case is a good reminder that courts will strictly scrutinize agency action that appears designed to deceive the public, even if well-intended. Continue Reading

COVID-19 Alert: Judicial Council Issues Sweeping Emergency Rules; Local Agencies Issue Regional Changes

In response to the COVID-19 pandemic, the state and several local jurisdictions have issued orders/rules in the last few weeks that affect not only the timing of processing land use and planning entitlements, but also the filing of California Environmental Quality Act (CEQA) and other claims challenging land use projects and approvals in California courts. The situation is fluid, but this entry summarizes some of the major orders affecting planning and CEQA deadlines.

In one of the most significant developments, on April 6, 2020, the Judicial Council of California issued Emergency Rules to address impacts of the COVID-19 pandemic on the judicial branch. Among other things, the Judicial Council added emergency rule 9 to the Rules of Court, which tolls the time to file any type of civil litigation from April 6, 2020 until 90 days after California Governor Gavin Newsom lifts the state of emergency for the COVID-19 pandemic. This is a significant time extension for many civil case types, and CEQA claims in particular, as they otherwise must be filed within 30 or 35 days of agency action. In practice, this means that project proponents and lead agencies will likely have a longer period of uncertainty related to whether a project will be challenged in court, both during the state of emergency and for some time afterward. Continue Reading

Fifth Appellate District Invalidates Kern County Oil and Gas Ordinance

Oil and Gas Ordinance in Kern CountyOn 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 and pipelines.  Although the Court’s decision does not impact permits that were already issued under the Ordinance, the Court’s decision requires the trial court to issue a writ of mandate vacating and setting aside the Ordinance.  Accordingly, and at least for now, future project applicants will not be able to obtain streamlined review under the County’s Ordnance. Continue Reading

State Wetland Definition and Procedures for Discharges of Dredge or Fill Material to Waters of the State Becomes Effective on May 28, 2020

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. Continue Reading

California Supreme Court Holds Medical Marijuana Zoning Ordinance is a Project Subject to CEQA

Every CEQA analysis begins with the threshold question of whether the activity is a “project” as defined by Public Resources Code section 21065 and 21080. In Union of Medical Marijuana Patients, Inc. v. City of San Diego, the California Supreme Court held that regardless of the nature of a project, CEQA applies if it “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment….”  (Pub. Resources Code §21065.)

In so holding, the Court rejected the argument that the categories of activities listed in Public Resources Code Section 21080(a) are projects as a matter of law; rather, they are examples of activities that might be projects under CEQA. The Court further held that in determining whether the activity is a project, the agency’s task is not to look at the actual impact of the activity, but rather to look at whether “the theoretical effects … are sufficiently plausible to raise the possibility that the activity ‘may cause … a reasonably foreseeable indirect physical change in the project.’” (Union of Medical Marijuana Patients, Inc. v. City of San Diego (August 19, 2019, S238563) __ Cal.5th__ [p. 35, quoting Pub. Resources Code §21065].)  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 of new rules herald a new era for the ESA with a species-specific protections approach for “threatened” species, renewed clarification on species listing/delisting and the designation of critical habitat, and updated definitions and procedures for the interagency consultation process. Continue Reading

2019 Amendments to the CEQA Guidelines: Part Two – Greenhouse Gases, Energy, and Wildfire Impacts

This post is Part Two of our blog series on the 2019 amendments to the CEQA Guidelines.  This post focuses on amendments in the areas of greenhouse gas (“GHG”) emissions, energy, and wildfire impacts, as well as a discussion of OPR’s draft CEQA and Climate Change Advisory.

GHG Impacts and Draft CEQA and Climate Change Advisory

The amendments to the CEQA Guidelines are designed to improve the analysis of impacts from GHG emissions in CEQA documents.  These amendments clarify the manner in which the significance of a project’s GHG emissions is determined, and give the lead agency discretion to select a model or methodology to estimate GHG emissions.  Several of these amendments were made to ensure consistency with recent appellate case law dealing with GHG emissions, cumulative impacts, and significance determinations, including Center for Biological Diversity v. Dept. of Fish & Wildlife (2015) 62 Cal.4th 204 and Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497. 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 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.
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