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
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.
In Bldg. A Better Redondo v. City of Redondo Beach (2021) 2021 Cal. App. Unpub. LEXIS 1038, the Second District Court of Appeal upheld an $80,000 costs and $683,000 attorney fee award, following a partially successful CEQA challenge. The Court rejected ten challenges to the award (bulleted below) including challenges to the $650/hour rate, fees for Petitioners’ counsel attending a City Council hearing after litigation commenced, and for holding the City jointly and severally liable.
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.
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.
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.
In Save Berkeley’s Neighborhoods v. Regents of the University of California (2020) 51 Cal. App. 5th 226, the First District Court of Appeal overruled a demurrer rejecting community members’ allegations that the University of California at Berkeley (UC Berkeley) violated CEQA by failing to analyze enrollment increases beyond the development envelope considered in the campus Long Range Development Plan (LRDP).
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
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
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