Last week, environmental groups, states, and cities filed three complaints in differing federal district court challenging The Navigable Waters Protection Rule: Definition of Waters of the United States (“WOTUS”) (“2020 WOTUS Rule”), which was published in the Federal Register on April 21, 2020, and is currently scheduled to become effective on June 22, 2020. Pursuant to the Supreme Court’s ruling in National Association of Manufacturers v. U.S. Dep’t of Defense, 138 S.Ct. 617, challenges to the 2020 WOTUS Rule must be brought in the federal district courts. The challenges, therefore, can and likely will simultaneously make their way through various circuits, perhaps with different results, dashing hopes that the 2020 WOTUS Rule would finally provide the regulated community with clarity and consistency regarding the scope of waters regulated under the Clean Water Act (“CWA”). Continue Reading
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 have required state and local governments and members of the public to implement social distancing protocols statewide. Recognizing that physical distancing protocols may prevent lead agencies, responsible agencies, and project applicants from complying with CEQA’s public filing and noticing requirements, the Order suspends all such requirements for 60 days, until June 22, 2020. The suspension does not apply to provisions governing the timeline for public review. It also does not apply to the requirement to publish and mail notices of preparation to interested parties and contiguous property owners and occupants. Continue Reading
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
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
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
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
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 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
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
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
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