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 comply with desalination-related amendments to the State’s Ocean Plan.  Because the prior EIR retained informational value, and the proposed changes to the Project were minor, it was appropriate for the Commission, in its capacity as a responsible agency, to prepare a supplemental EIR under the California Environmental Quality Act (CEQA).  After initially releasing its opinion informally, the Court on May 7, 2021, certified the opinion for publication. Continue Reading

In First Published Opinion Interpreting SB 35, Court of Appeal Rejects City of Berkeley’s Attempts to Avoid Application of the Law and Orders Streamlined Approval of Mixed-Use Infill Project

On April 20, 2021, the First District Court of Appeal filed its first published opinion interpreting California Senate Bill 35’s streamlining provisions in Ruegg & Ellsworth v. City of Berkeley.  The Court held that the City of Berkeley erred in finding a mixed-use development project ineligible for SB 35 streamlining.  Because the project met the essential qualifications under SB 35, the First District commanded the trial court to issue a writ of mandate directing the City to approve the project without further environmental review.  This marks the first published decision to enforce the State’s new affordable housing laws and is a harbinger of battles to come.

In 2015, the developer submitted an application for a mixed-use development on a surface parking lot that is part of a three-block area the Berkeley Landmarks Preservation Commission designated as a City of Berkeley Landmark in 2000, as the location of the West Berkeley Shellmound.  After several years of legal wrangling with the City and stakeholders over that proposal, and following the passage of SB 35, the developer submitted a new application, proposing a mixed-use project comprised of 260 dwelling units—50 percent of which were designated as “affordable to low-income households”—above approximately 27,500 square feet of retail space and parking. Continue Reading

Properly Posting Notice of Determination Triggers Short CEQA Statute of Limitations Despite Not Providing the Notice to Petitioner as Requested

Published on February 9, 2021, the Court of Appeal in Organizacion Comunidad de Alviso v. City of San Jose held that the City of San Jose’s (“City’s”) posting of a second, revised Notice of Determination (“NOD”) adequately triggered CEQA’s abbreviated, 30-day statute of limitations despite the fact that the City failed to provide a copy to the Petitioner’s representative as requested. While CEQA requires lead agencies to provide notices to those who have requested them, the Court held that the revised NOD in this instance provided constructive notice sufficient to trigger the 30-day statute and dismiss the case. Continue Reading

First District Finds Petitioner Failed to Exhaust Administrative Remedies in CEQA Challenge to Removal of Controversial Sculpture

In an opinion filed on February 1, 2021, the First Appellate District in Schmid v. City and County of San Francisco found that petitioners challenging the City of San Francisco’s decision to remove a controversial sculpture had failed to exhaust their administrative remedies by not appealing the CEQA determination by the San Francisco Historic Preservation Committee (“HPC”) to the San Francisco Board of Supervisors (“Board of Supervisors”). The challenge involved the unelected HPC’s decision to remove a sculpture facing criticism for “displaying a racist attitude towards Native Americans,” a dispute that the court described as “a local version of the controversies over removal of commemorative symbols, generally names and statues of historical figures, that have played out across the country recently.” The Court found that, “[u]nder CEQA and San Francisco Administrative Code, chapter 31, any appeal of a categorical exemption determination must be made to the Board of Supervisors, as the body of elected officials responsible for making final CEQA determinations.” (Pub. Resources Code, § 21151(c); Cal. Code Regs., tit. 14, § 15061(e); S.F. Admin. Code, § 31.16(a).)

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California Supreme Court Grants Review of Third District’s Preemption Decision

On December 11, 2019, the California Supreme Court granted review of the Third District’s decision in County of Butte v. Department of Water Resources, dismissing a CEQA challenge to DWR’s relicensing application to the Federal Energy Regulatory Commission (FERC) for the Oroville Dam on the basis that the claim was preempted by federal law. The Court of Appeal held the Federal Power Act (FPA) exclusively occupies the field of dam licensing and preempts state regulation, and accordingly found that it had no jurisdiction to consider the case. Continue Reading

Judge Finds that Water Boards Have Authority to Regulate Discharges of Dredge and Fill Material as Waste Under Porter-Cologne Water Quality Control Act

On February 18, 2021, the First Appellate District issued an opinion in Sweeney et al. v. California Regional Water Quality Control Bd., San Francisco Bay Region et al. (Case No. A153583) (“Sweeney”).  The opinion is much anticipated given its relevance to the continued validity of the State Water Resources Control Board’s recently adopted State Procedures for Discharges of Dredged and Fill Material (“Procedures”).  The Appellate Court reversed the lower court in the entirety, substantially deferring to the actions and prosecutorial discretion of the State Water Resources Control Board (“State Water Board”) and San Francisco Bay Regional Water Quality Control Board (“Regional Water Board”, collectively, “Water Boards”) based on application of a revised standard of review.  Importantly, according to the court, the appropriate interpretation of the Porter-Cologne Water Quality Control Act’s (“Porter-Cologne Act”) definition of waste provides the Water Boards adequate authority to regulate discharges of dredge and fill material, bolstering the Water Boards’ efforts to continue with implementation and enforcement of the Procedures, which were recently called into question and narrowed by the trial court order issued in San Joaquin Tributaries Authority v.  State Water Resources Control Bd. (Case No. 34-2019-80003133) (“SJTA”).  A full analysis of that order is available here. Continue Reading

Biden’s Inauguration Day Executive Order on Environment and Energy Regulation

On his first day in office on January 20, 2021, President Biden signed an Executive Order titled, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” (the Order). The Order directed federal agencies to immediately begin a review of federal regulations and regulatory action over the last four years. The Order directed agency heads to consider revision, rescission, or suspension of regulations rather than directing any particular course of action. However, the Order illuminates the Biden Administration’s priorities with respect to the regulatory landscape for energy and the environment. Continue Reading

Judge Suspends State Procedures as Applied to Majority of Waters of the State; Retains Application to Waters Subject to the Clean Water Act and All Ocean Waters Regardless of Jurisdiction

On December 17, 2020, the Sacramento County Superior Court substantially limited the scope of waters to which the State Procedures for Discharges of Dredged and Fill Material (“Procedures”) apply through its decision in San Joaquin Tributaries Authority v. State Water Resources Control Board (Case No. 34-2019-80003133).  According to the Court, the State Water Resources Control Board (“State Water Board”) exceeded its policy-making and water quality control plan development authority, resulting in the restriction of the Procedures to those waters regulated under the Federal Water Pollution Control Act or Clean Water Act (“CWA”) and State “ocean waters.”  The Court’s decision significantly narrows the delta between the discharges of dredged and fill material regulated exclusively under the Procedures, and those that will now be regulated under both federal and state water quality control laws.  However, because the Court’s opinion did not invalidate the Procedures in their entirety, permittees will still need to evaluate application of the Procedures, though to a constricted set of waters and aquatic features. Continue Reading

First Appellate District Approves Responsible Agency’s Imposition of Mitigation Not Considered in the EIR

In an opinion filed on December 29, 2020, the First Appellate District in Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board upheld a Responsible Agency’s imposition of additional mitigation more than a year after it had issued an initial approval for the project.  Although the court was careful to say that it was addressing “unique circumstances” that would “seldom arise,” the decision is potentially problematic for project proponents, and especially for public agencies trying to pursue necessary public-infrastructure projects. 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 abused its discretion in relying on the wrong EIR as a basis for analysis. Continue Reading

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