Do the Clean Water Act and its implementing regulations require permits before stormwater runoff from logging roads can be discharged into the navigable waters of the United States? No, said the Supreme Court in its March 20th decision, reversing the Ninth Circuit’s decision in Northwest Environmental Defense Center v. Brown. The high court reaffirmed that a federal Clean Water Act NPDES point source discharge permit is not required under EPA regulations for channelized stormwater discharges to streams or other waters from logging roads. Decker v. Northwest Environmental Defense Center (No. 11-338, March 20, 2013).
A discussion of the case and its implications is available here.
Read our previous reports regarding this case:
EPA Announces Intent to Propose Revised Logging Road Storm Water Regulations
U.S. Loggers Lose an Important EPA Exemption — NEDC v. Brown
On March 18, the U.S. Supreme Court decided to hear the case of United States Forest Service v. Pacific Rivers Council, in which the Ninth Circuit overturned an Environmental Impact Statement for a 2004 amendment to a programmatic framework governing a series of logging plans for national forest lands in the Sierra Nevada Mountains. The Ninth Circuit’s June 2012 decision announced that under the National Environmental Policy Act, an EIS must analyze the environmental consequences of a proposed plan “as soon as it is reasonably possible to do so” – even where the plan does not authorize any particular project, which would require its own site-specific NEPA review before going forward. The decision generated a substantial amount of controversy and a vigorous dissent, which argued that “the majority’s opinion amounts to an inappropriate and substantial shift in our NEPA jurisprudence.” See our June 20th, 2012, post for a discussion of the prior decision, which is one of a growing line of cases showing the deep divisions within the Ninth Circuit on environmental matters.
The issues in the case before the Supreme Court include: (1) whether the plaintiffs have standing; (2) whether their challenge is ripe in the absence of any site-specific logging project at issue; and (3) the level of environmental review required under NEPA for “programmatic” – as opposed to site-specific – federal agency actions. United States Forest Service v. Pacific Rivers Council, Supreme Court Case No. 12-623.
A trial court did not have authority to extinguish portions of a road and utility easement notwithstanding its determination that the easement holder did not need the entire easement and that a smaller easement would constitute the least burden on the property subject to the easement. Cottonwood Duplexes, LLC v. Barlow, 210 Cal. App. 4th 1501 (2012)
Cottonwood Duplexes wished to subdivide property that was subject to a sixty-foot-wide roadway and utility easement. The property benefitting from the easement had itself been subdivided and now had separate roadway and utility access and hence no further need for the easement. The tentative map for the proposed subdivision included a condition requiring the easement to be removed or reduced to a width of fifteen feet before any building could occur on the subdivided property.
Unable to obtain the easement by negotiation, Cottonwood filed an action seeking either to extinguish the easement or reduce its scope. The trial court determined that the benefitted property did not require the full easement because new roads now provided access and utilities. In order to minimize the burden on the Cottonwood property, the trial court reduced the length and width of the access easement and extinguished the utility easement.
The court of appeal reversed, holding that an easement created by deed may not be extinguished, in whole or in part, based on a determination of the easement holder’s reasonable needs. The court acknowledged that grant of a nonexclusive easement of a specified width does not bestow the right to use “every square inch” of the easement, and that the grantor may place improvements on the easement that do not unreasonably interfere with the access rights of the easement owner. However, these principles regarding the extent of the use of an easement could not be applied by extension to justify the extinguishment of all or part of an easement.
Further, the appellate court noted, an easement acquired by deed is not lost simply by non-use. There must be an express or implied intent to abandon by the easement holder, and the owner of the burdened property must have incurred costs in reliance on the non-use or intent to abandon, neither of which was the case here. While California law promotes the productive use of land, the policy could not be invoked by an owner who had chosen to subdivide in a way that rendered a portion of its property unusable unless the easement was reduced in size or extinguished.
In approving a project to repair a flood-damaged road in a national forest in Nevada, the U.S. Forest Service adopted a “Selected Alternative” that combined elements from three different alternatives that were evaluated in the Environmental Impact Statement for the project. In upholding the Forest Service’s approval, the Ninth Circuit rejected the project opponents’ claims that a supplemental EIS was required under the National Environmental Policy Act. Great Old Broads for Wilderness v. Kimbell (9th Cir. No. 11-16183, Mar. 4, 2013).
The court started with the principle that a federal agency must have some flexibility to modify the alternatives studied in a draft EIS to reflect public input. Citing longstanding NEPA guidance issued by the Council on Environmental Quality, the court then explained that a new alternative does not trigger the requirement under NEPA to prepare a supplemental EIS if the alternative is “qualitatively within the spectrum of alternatives” discussed in the draft EIS. The court readily concluded that no supplementation was required here, based on its finding that all of the elements of the Forest Service’s Selected Alternative had been adequately studied in the draft EIS.
The court also rejected the claim that the Forest Service did not properly document its explanation as to why no supplemental EIS was required. The court acknowledged that that the Forest Service often presents this type of explanation in a Supplemental Information Report that is separate from the Record of Decision approving the project. But the court made clear that this procedure is not mandatory, as long as the Service makes a reasoned decision, documented in the record, that an supplemental EIS is not warranted.
The case does not break new ground, but it highlights an important principle under NEPA: a supplemental EIS is not required merely because the agency selects an alternative that is different from those it studied in the EIS; rather, the question is whether the new alternative is within the range of what the EIS analyzed or instead represents a substantial deviation from the alternatives studied.
In July 2012, a three-judge panel of the Ninth Circuit ruled in Natural Resources Defense Council v. Salazar, 686 F.3d 1092 (9th Cir. 2012), that the decision by the U.S. Bureau of Reclamation to renew a series of water service contracts in connection with the Central Valley Project did not constitute “agency action” under the Endangered Species Act. The panel therefore ruled there was no duty to engage in formal consultations with the U.S. Fish & Wildlife Service over potential impacts to the delta smelt, a listed fish species. (See our July 25, 2012 post for a discussion of the court’s opinion.)
On March 5, 2013, the Ninth Circuit agreed to rehear the case en banc, which means the July 2012 decision may not be cited as precedent. Oral argument on rehearing is scheduled to take place in June 2013.
The panel’s July 2012 decision – that the Bureau lacked discretionary authority in renewing the water contracts – seemed to conflict squarely with the Ninth Circuit’s prior en banc ruling in Karuk Tribe of California v. U.S. Forest Service, 681 F.3d 1006 (9th Cir. 2012). In Karuk, the court held – in a contentious 7-4 decision – that the Forest Service took an affirmative, discretionary act, which triggered consultation under the ESA, when it decided not to require a detailed plan of operations for small-scale recreational mining activities allowed to proceed under a Notice of Intent. (See our June 12, 2012 post for further details on the Karuk decision.)
In light of the two differing rulings, and now the Ninth Circuit’s decision to rehear NRDC v. Salazar en banc, the key question of what constitutes discretionary “agency action” for purposes of requiring ESA consultation is in a dramatic state of flux. Stay tuned to Perkins Coie’s California Land Use & Development Law Report for the latest developments in this emerging area of the law.
Natural Resources Defense Council v. Salazar (9th Cir. Case No. 09-17661).
In 2008, the City of Santa Cruz and the University of California settled litigation challenging the University’s long-term development plan for expanding the UC Santa Cruz campus. A key provision of the settlement agreement required the city to seek approvals from the Local Agency Formation Commission for providing water and sewer service to the part of the planned campus expansion outside the city’s boundaries. The city then prepared an Environmental Impact Report for the LAFCO to use in issuing these approvals.
Project opponents sued, raising a host of claims under CEQA. In an opinion published in November 2012 (see our prior post), the California court of appeal ruled that the project objectives were invalid because they failed provide an accurate description of the project’s underlying purpose. The court noted that the project objectives stated in the EIR were designed merely to implement the settlement agreement and obtain the necessary LAFCO approvals, whereas the real purpose of the project was to provide water and sewer service to parts of the expanded campus.
But the court then withdrew the opinion and filed a new opinion after rehearing. Habitat and Watershed Caretakers v. City of Santa Cruz (6th Appellate District, Feb. 19, 2013). The court changed its ruling on the project’s objectives, emphasizing that the Final EIR corrected the problem caused by the Draft EIR, by revising the objectives to reveal the project’s true underlying purpose – to provide extraterritorial water and sewer service to parts of the UC Santa Cruz campus.
Although the court upheld the project objectives, it adhered to its prior ruling that struck down the EIR’s analysis of project alternatives. The court faulted the EIR for failing to evaluate an alternative that would use less water than the proposed project.
In arguing that an evaluation of this alternative was not required under CEQA, the city and UC claimed the alternative would not avoid significant impacts on water supplies resulting from campus expansion, since UC could simply expand other areas of the campus that are already within the city’s water service area, thereby resulting in the same amount of water use without the need for LAFCO approvals. But the court rejected this claim, stating that these issues should been discussed and analyzed in the EIR. The court concluded: “CEQA does not permit a lead agency to omit any discussion, analysis, or even mention of any alternatives that feasibly might reduce the environmental impact of a project on the unanalyzed theory that such an alternative might not provide to be environmentally superior to the project.”
So, the ruling is slightly different, but the result is the same — and the dispute over the expansion of the UC Santa Cruz campus continues.
The California Endangered Species Act allows interested parties to file a petition with the California Fish & Game Commission to list or delist a species as threatened or endangered. If the Commission accepts the petition, it then decides whether to take the action requested in the petition, based on a scientific report by the California Department of Fish & Game.
In 1995, the Commission listed as endangered coho salmon in two creeks in Santa Cruz County. Years later, the timber industry filed a delisting petition disputing the factual basis for the 1995 listing. The Commission decided not to accept the petition for full consideration.
In December 2012, the court of appeal upheld the Commission’s decision, ruling that a delisting petition was an improper means for challenging the factual basis for the Commission’s 1995 listing decision. Rather, the court ruled, a delisting petition is reserved for presenting new information, arising after the listing decision, showing the conditions that led to the listing are no longer present and the species is either extinct or has recovered.
On February 27, the California Supreme Court decided to hear the case.
The Court’s web site summarizes the issue presented: “Under the California Endangered Species Act, may the Fish and Game Commission consider a petition to delist a species on the ground that the original listing was in error? If so, does the petition at issue here contain sufficient information to warrant the Commission’s further consideration?”
Central Coast Forest Association v. California Fish & Game Commission, California Supreme Court No. S208181. For additional information, see our post on the court of appeal’s decision.
On March 5, 2013, the Council on Environmental Quality released a handbook intended to help agencies and practitioners coordinate environmental reviews under the National Environmental Policy Act with overlapping review requirements under the California Environmental Quality Act. It also released a separate handbook on coordination of review under NEPA and the National Historic Preservation Act.
Neither handbook makes new rules. Instead, each summarizes existing streamlining procedures in the hope that more agencies will take advantage of them. The two handbooks are:
NEPA and CEQA: Integrating State and Federal Environmental Reviews.
This handbook is a draft for public review, with a comment period that will close on April 19, 2013. Significant comments by stakeholders seem likely. The handbook touches on numerous hot-button NEPA and CEQA issues – particularly those raised by large-scale energy development on federal lands in California.
The handbook, prepared jointly by CEQ and the California Governor’s Office of Planning and Research, suggests how NEPA and CEQA documents can successfully be combined despite the differences between the two statutes. The authors advocate, and provide a framework for, Memoranda of Understanding between federal and California lead agencies to help coordinate NEPA/CEQA reviews from the outset.
The handbook concludes with a short discussion of renewable energy projects that undergo both NEPA review and the California Energy Commission’s CEQA-equivalent process. The CEC licenses thermal power plants – including solar thermal power plants – 50 megawatts or larger. As the handbook notes, the CEC process, which includes evidentiary hearings with sworn testimony, “can be disorienting” to federal agency partners. The handbook recognizes that energy projects subject to both federal and CEC approval have proven particularly challenging and advocates “close coordination” as a remedy. The handbook is available online: NEPA/CEQA Handbook.
NEPA and NHPA: A Handbook for Integrating NEPA and Section 106.
This handbook, prepared jointly by CEQ and the Advisory Council on Historic Preservation, focuses on ways NEPA and NHPA analyses can occur simultaneously, so as to minimize duplication of effort while also making sure that effects on historic properties are fully evaluated. Citing streamlining regulations adopted in 1999, the handbook provides a roadmap for the coordination of the NEPA and NHPA processes, and also for the less common approach that allows for the “substitution” of the NEPA process for the NHPA process. This handbook is also available online: NEPA/NHPA Handbook.
In response to a business community campaign calling for broad CEQA reform, California State Senator Senate President pro Tempore Darrell Steinberg released his highly anticipated CEQA “modernization” bill, SB 731. So far, the bill is more remarkable for what it lacks, than for what it contains:
- A Co-author. 2012’s chief CEQA reform champion, Senator Michael Rubio, abruptly resigned from the state senate on February 22, the same day the legislation expected to bear his name was introduced.
- Details. Senator Steinberg describes his CEQA bill as a “framework.” Others have used the term “outline.” The bill expresses intentions to address various topics but contains no specifics. Reflecting the resulting ambiguity, the bill is receiving positive press from both the Silicon Valley Leadership Group and the Natural Resources Defense Council.
- Standards-based Reform. The bill states “It is not the intent of the Legislature to replace full CEQA analysis with state or local standards”. Why does the bill include a cryptic sentence saying what the bill doesn’t do? Because state and local standards were the heart of the far more sweeping reform measure that Senator Rubio floated at the end of the 2012 legislative session. The Rubio legislation posited that since CEQA’s passage, a host of other environmental laws had been enacted to regulate most (if not all) of the subjects CEQA addresses. The Rubio legislation suggested that if a CEQA document discusses compliance with these other laws, project challengers should not be able to file a CEQA suit to demand more analysis and mitigation. With the possible exception of the land-use related topics detailed below, the Rubio approach appears to be dead.
- Changes to Standing Rules. Many of the business community’s examples of CEQA abuses can be traced to litigation by trade unions using CEQA to leverage project-labor agreements, other businesses using CEQA to stifle competition, and landowners using CEQA to protect property values. The new Steinberg bill contains no indication that the legislation will tighten procedural rules about who can file suit. Perhaps tellingly, early press stories quote the environmental community, the business community, and a trade union representative, as if each should be provided equal time in a debate over CEQA reform.
While the Steinberg bill doesn’t include sweeping measures to overhaul CEQA, it targets some important areas of the law where revisions, if carefully crafted, could reduce delay and uncertainty:
- Significance Thresholds. The bill calls for the Legislature to set thresholds of significance for noise, aesthetics, parking and traffic levels of service. The idea is that if a project can meet such a threshold, no additional environmental review would be required for those impacts. If the thresholds are set high enough to allow a large number of projects to fit within existing CEQA exemptions or to rely on negative declarations rather than Environmental Impact Reports, they could be effective in reducing CEQA paperwork and litigation risk. On the other hand, these types of thresholds likely would create a presumption that projects exceeding them necessitate full EIRs. If set too low, the thresholds could require heightened environmental review for projects that otherwise would merit little attention. The bill also states that it would not preclude local agencies from setting more stringent thresholds, which could eliminate benefits in slow- and no-growth communities.
- Limited Review for Specified Projects. The bill proposes to convert CEQA Guidelines addressing infill development to statutory provisions. It also expresses an intent to explore amendments to expand the definition of “infill” to include projects in the Central Valley, and to further streamline CEQA review for renewable energy, advanced manufacturing, transit, bike, pedestrian, and renewable energy transmission projects. Many of these provisions appear designed to advance Governor Brown’s agenda for infrastructure and renewable energy development. The reference to transit projects and infill in the Central Valley may be designed to promote High Speed Rail and pave the way for local development near stations slated for near-term development in the Central Valley. Statutory relief from CEQA review for renewable energy and renewable energy transmission projects appears designed to further the Governor’s 2050 Renewable Portfolio Standards. The reference to bike projects likely stems from litigation forcing the City of San Francisco to prepare an EIR for a bicycle path plan.
- Projects Implementing Specific Plans and Sustainable Communities Strategies. The bill proposes to tighten up existing streamlining provisions to provide greater certainty and avoid duplicative CEQA review for projects implementing a specific plan. The bill also suggests that similar treatment might be available for projects implementing Sustainable Communities Strategies adopted under SB 375 or other types of plans adopted within the past five years. While CEQA already authorizes this type of streamlined environmental review, the existing statutory provisions contain vaguely worded exceptions that can make it risky to rely on them. As a result, many cities and counties subject projects implementing adopted plans to unnecessary and lengthy CEQA reviews.
- Late Hits and Data Dumps. The bill states an intention to address the practice of filing last minute comment letters, often containing voluminous data and new information. Published court cases have allowed project opponents to use eleventh hour comments and studies to support CEQA litigation, placing public agencies at a disadvantage in demonstrating that their record contains evidence to rebut claims never before brought to their attention. More recent court cases have been critical of such practices, and have narrowed the extent that project opponents may rely on issues raised only generally, or buried in voluminous materials. Legislation in this area could reduce litigation risks, but also runs a chance of negating recent court decisions that already were beginning to close this loophole.
- Judicial Remedies. The bill would provide clearer instructions to courts in crafting a remedy that preserves portions of a CEQA document that are not found to violate CEQA. The bill also calls for exploring options to keep approvals in place so that projects can proceed while an agency cures a CEQA defect. These types of changes could be effective for two reasons. First, if they make litigation less likely to halt project construction or operation, they could reduce the incentive to file a CEQA lawsuit. Second, they could reduce the time that it takes to cure a CEQA defect. However, the law already provides much of this flexibility.
Time will tell whether the final bill will be effective in reducing CEQA paperwork, cost, and delay. The bill merits close attention to ensure that it does not create yet more hoops for projects to jump through, or undermine some of the streamlining and flexibility already built into CEQA. We will continue to provide updates as the legislative process unfolds.
The first published California Environmental Quality Act case of 2013, Save Cuyama Valley v. County of Santa Barbara, strongly endorsed a lead agency’s authority to use its own, project-specific significance thresholds in an environmental impact report. In addition, the court upheld the county’s project approval despite finding that one of the EIR’s environmental impact findings was erroneous.
The county prepared the EIR for a proposal to mine sand and gravel in the bed of the Cuyama River. It used a significance threshold for river bed and bank impacts, that the county had crafted specifically for the project. In upholding this project-specific significance standard, the court emphasized:
- CEQA gives lead agencies discretion to develop their own thresholds of significance
- Agencies may devise significance thresholds on a project-by-project basis
- CEQA requires that a lead agency formally adopt a threshold of significance only if it is for “general use” in evaluating future projects
- The significance thresholds listed in Appendix G to the CEQA Guidelines are only “suggested” and an EIR need not explain why different thresholds are used
The court also rejected a claim that the project approval was fatally flawed, even though it agreed with the project opponent that the EIR wrongly concluded that the project’s impact on groundwater quality would be less than significant. The court found that the premise for the EIR’s conclusion – that groundwater would rarely be exposed by mining operations – was not adequately supported by the data. But the court also found no showing that the error hampered informed decision-making about the project. One of the county’s conditions of project approval required the mine operator to avoid excavating near the groundwater level and to backfill any pit in which groundwater was exposed. Because the EIR set forth the pertinent data, and the condition of approval would negate any adverse impact on groundwater quality from the project, the court concluded that the EIR’s unsupported conclusion about the impact was “of no moment.”
At a time when the proper role of the environmental impact checklist in Appendix G to the CEQA Guidelines is facing heightened scrutiny (see our prior post on the Ballona Wetlands Land Trust decision), Save Cuyama Valley is an important reminder that the significance thresholds in Appendix G are only “suggestions” – and that lead agencies have the ultimate responsibility for determining what thresholds to use in the environmental documents they prepare.
The court’s ruling also is notable for upholding the project approval despite the error in the analysis of groundwater impacts, as it reflects the courts’ increasing willingness to consider whether flaws in an EIR should be treated under CEQA as harmless error.
Save Cuyama Valley v. County of Santa Barbara (2nd Appellate Dist. Div. 6 Case No. B233318, filed Jan. 10, 2013, modified and ordered published Feb. 8, 2013).