California Affirms Protections for Migratory Birds Despite Contrary Federal Stance

California’s Attorney General and Department of Fish and Wildlife have jointly issued an advisory affirming that California law continues to provide robust protections for migratory birds, including prohibiting incidental takes, notwithstanding the recent reinterpretation of the Migratory Bird Treaty Act by the U.S. Department of the Interior.

The advisory notes that three lawsuits (including one joined by the attorney general) are challenging the Trump administration’s reinterpretation of the Act to allow incidental takes and points to the ongoing, robust protection of migratory birds based on California statutes and caselaw. More information on this advisory is available in this Update by Don Baur, Laura Zagar and Anne Beaumont.

EIR Addendum Process Upheld Against Facial Challenge

The California Court of Appeal rejected a facial challenge to the EIR addendum process, and held that an agency is not required to make new findings in connection with approval of an EIR addendum. Save Our Heritage Organisation v. City of San Diego, 28 Cal. App. 5th 656 (2018).

Background

In 2012, the City of San Diego certified an EIR and approved a project to revitalize Balboa Park, a large urban park in the city. The project involved restricting vehicles from entering many of the central roadways and plazas, building a new road to bypass the car-free areas, and constructing an underground parking structure. Four years later, the city approved minor modifications to the project to account for changed conditions at the project site after the initial project approval, comply with current building and stormwater standards, accelerate the project construction schedule, and reduce project costs. The city adopted an addendum to the EIR, which concluded that a subsequent or supplemental EIR was not required.

Facial Challenge to Addendum Process Rejected

The petitioner claimed the addendum process described in the CEQA Guidelines conflicts with CEQA’s public review requirements and is not expressly authorized by the statute. The court rejected both claims.

The court began its analysis by noting that the addendum guideline implements CEQA Section 21166, which sets forth conditions when project changes, changed circumstances, or new information requires the agency to prepare a subsequent EIR. The court explained: “the addendum process fills a gap in CEQA for projects with a previously certified EIR requiring revisions that do not warrant the preparation of subsequent EIRs. CEQA authorizes the Resources Agency to fill such gaps in the statutory scheme, so long as it does so in a manner consistent with the statute.” The court determined that the addendum process is consistent with and furthers the objectives of CEQA “by requiring an agency to substantiate its reasons for determining why project revisions do not necessitate further environmental review.”

The court also held that the absence of a public review process for addenda was not inconsistent with CEQA. Rather, it reflected the nature of an addendum as a document describing project revisions too insubstantial to require subsequent environmental review. Finally, the court noted that the Legislature’s failure to modify CEQA to eliminate the addendum process in 35 years was a strong indication that it was consistent with legislative intent.

New Findings On Project’s Significant Impacts Not Required

The petitioner also argued that the city was required to make new findings on the project’s significant impacts when it approved the addendum. The court rejected this argument as well. The court held that nothing in the statute or Guidelines required new findings when an agency approves changes to a project based on an addendum. The court explained that the purpose of findings is to address new significant effects, but an addendum is only proper where there are no new significant effects; thus, no purpose would be served by requiring new findings to address the same significant effects that had already been addressed when the project was first approved.

Federal Agencies Must Modify Operations at Columbia River Hydroelectric System to Protect Salmonid Species

The Federal Court of Appeals for the Ninth Circuit recently affirmed a district court order requiring that the National Marine Fisheries Service, the Corps of Engineers, and the Bureau of Reclamation conduct spill operations and monitoring at dams and related facilities in the Federal Columbia River Power System in order to protect migrating salmon and steelhead.  The district court issued the order after finding the continued low abundance of the species made them vulnerable to extinction from shock events such as climate change.  National Wildlife Federation v. NMFS, 886 F.3d 803 (9th Cir. 2018).

This appeal is the latest development in a long-running dispute regarding salmonids in the Columbia River listed as endangered or threatened species under the Endangered Species Act. The fish migrate up and down the Columbia and Snake Rivers every year, encountering the Columbia River dams. Turbines in the dams cause a high rate of mortality for the salmonid species that pass through or near them.

A 2014 Marine Fisheries Service biological opinion concluded that ongoing operation of the dams would jeopardize ESA-listed species and adversely modify their critical habitat. It proposed an alternative that included multiple actions over a 10-year period designed to (i) modify systems operations and structures at the dams to improve fish passage and migration conditions, and (ii) allow some spill from the dams to enhance the likelihood of survival for migrating juveniles. Two years later, the Oregon District Court found that the biological opinion violated the ESA because it had not adequately considered climate change. The federal agencies responded by preparing a new biological opinion for dam operations.
Meanwhile the State of Oregon and a coalition of environmental organizations filed a lawsuit and obtained an injunction ordering the Corps to increase spring spill over the dams as well as to operate juvenile bypass facilities and tag detection systems. The federal agencies appealed.

The Court of Appeals upheld the district court’s injunction, ruling that the court was not required to find irreparable harm due to an “extinction-level threat” to the protected species before it could issue an injunction. Rather, the court’s finding a “definitive threat of future harm, beyond speculation,” was sufficient.

Reviewing the district court’s factual findings, the appellate court agreed they were sufficient to show irreparable harm. The court had found that the salmonids were in a “precarious” state and would remain there without conservation efforts beyond those in the 2014 biological opinion. Sustained low abundance of the species made them vulnerable to extinction, and the federal agencies should have analyzed how “climate change increases the chances of ‘shock events’ that would be catastrophic for the listed species’ survival.”

City’s Agreement to Extend Life of Billboards Violated Initiative Measure Prohibiting New Billboards

The Second District Court of Appeal held that the purported amendment of an agreement to extend the period in which billboards were permitted within the City constituted a new agreement and hence violated the terms of a ballot initiative prohibiting new billboards. Citizens for Amending Proposition L v. City of Pomona, No. (2nd Dist., Nov. 9, 2018).

The City of Pomona entered into an agreement with Regency Outdoor Advertising allowing billboards alongside several Pomona freeways, but requiring their removal upon the agreement’s expiration. Thereafter, Proposition L was passed prohibiting construction of new billboards within city limits. The City/Regency agreement expired in June 2014. One month later, the city council adopted an ordinance purporting to amend the agreement by extending it for an additional 12-year term. Plaintiffs sued, contending that the “amendment” was in fact a new agreement allowing new billboards in violation of Proposition L.

Preliminarily, the court rejected the City’s argument that the plaintiffs lacked standing. It noted that both plaintiffs — one of whom was a competitor of Regency — were residents of the City and hence could assert public interest standing in having City laws enforced. The court also disagreed with the City’s claim that Regency was an indispensable party and that the failure to include Regency within the applicable limitations period required dismissal of the suit. The agreement required Regency to pay the City $1 million as consideration for the new agreement. Accordingly, the court reasoned, the interests of the City and Regency were aligned both legally and financially and Regency’s interests were thus adequately protected by the City’s assertion of its own interests in upholding the contract.

On the merits, the court found that the purported amendment of the City/Regency agreement was a nullity because the agreement had already expired at the time the amendment was approved by the city council. As a new agreement, it was subject to the rules, regulations, and official policies in force in the City at the time of its adoption, including Proposition L. The new agreement violated Proposition L because the original agreement had required removal of the billboards upon its expiration, and thus the new agreement effectively permitted billboards that would otherwise not have existed, contravening both the letter and spirit of the ballot measure.

City Approval of Agreement for Tree Removal Triggered 90-Day Statute of Limitations Under Planning and Zoning Law

Broadly construing Government Code § 65009, which establishes a 90-day limitations period for claims under the Planning and Zoning Law, an appellate court held that approval of an agreement allowing removal of trees constituted a “decision regarding a permit,” triggering the 90-day filing deadline. Save Lafayette Trees v. City of Lafayette, No. A154168 (1st Dist., Oct. 23, 2018).

The City of Lafayette entered into an agreement with PG&E allowing removal of approximately 270 trees within a natural gas pipeline right-of-way. Petitioners sued contending that the agreement had been approved in violation of the Planning and Zoning Law and CEQA. The trial court dismissed the complaint on the ground that it had not been filed and served within the 90-day limitations period under Section 65009.

Government Code § 65009 provides that an action challenging “any decision” regarding “permits, when the zoning ordinance provides therefor” must be filed and served within 90 days of the decision. On appeal, petitioners argued that Section 65009 was inapplicable because the City entered into an agreement allowing tree removal and did not issue any permits. The appellate court disagreed, finding “no meaningful difference between the two in this instance.”  It noted that the staff report to the City Council regarding the agreement expressly referred to the project as a “major tree removal project” that required a permit under the municipal code. Approval of the agreement allowing removal of the trees, the court said, was properly considered to be a decision regarding a permit subject to Section 65009.

Petitioners also argued that its action was subject to a longer, 180-day statute of limitations in the City’s municipal code governing challenges to decisions of the City Council. The court concluded this provision was preempted by Section 65009 because it expressly conflicted with the statute’s 90-day period. In dicta, the court noted that most local statutes of limitations regarding challenges to planning and Planning and Zoning Law decisions had likely been preempted by the enactment of Section 65009.

The court also found, however, that petitioners’ CEQA challenge was subject to the 180-day limitations period under Public Resources Code, not the 90-day period under Section 65009. Concluding that the two statutes could not be reconciled because they established different deadlines, the court held that the CEQA limitations period, as the more specific, controlled.

Port Master Plan Conflicted with Coastal Act Goals

A core principle of the California Coastal Act is to maximize public access to the coast, including recreational opportunities in the coastal zone. The Court of Appeal determined that the Coastal Commission acted within its authority in rejecting an amendment to a port master plan as inconsistent with this principle. San Diego Unified Port Dist. v. California Coastal Commission, No. D072954 (4th Dist., Oct. 1, 2018)

The Port District applied to the California Coastal Commission for certification of an amendment of the District’s port master plan to authorize specified hotel development, including construction of a 175-room hotel. The Commission denied the amendment finding it inconsistent with the public access and recreation policies of the Coastal Act because it did not adequately protect and encourage lower-cost visitor and public recreational opportunities. The District sought and the trial court issued a writ of mandate invalidating the decision. The trial court found the Commission, in excess of its jurisdiction, had essentially conditioned its certification on the provision of lower-cost overnight accommodations, which “infring[ed] on the wide discretion afforded the District to determine the contents of land use plans and how to implement those plans.”

The Fourth Appellate District reversed the trial court’s rulings.

The appellate court rejected the District’s contention that it fell within a specifically defined category of local government entity over which the Commission’s authority was limited. The court declined to “rewrite the law” to extend certain restrictions on the Commission’s jurisdiction to port district master plans, which are governed by Chapter 8 of the Coastal Act.

The court then addressed (de novo) whether the Commission’s decision was within its authority under the Coastal Act. The District argued that “precise policy” originates with a legislative body such as the District, meaning the District is charged with creating policies to implement the Coastal Act whereas the Commission merely verifies a plan’s consistency. The court disagreed, acknowledging the breadth of the mandate in reviewing planned development and other uses within the coastal zone. This mandate includes promulgating statewide rules and statewide policies, not merely acting as a “rubber stamp agency” with respect to local planning. The Commission exercises its independent judgment on the issue of a local entity’s compliance with coastal policy, and its “broad supervisory role” is particularly important when dealing with a port master plan.

The court acknowledged that the Commission may not conditionally approve a master plan under the Coastal Act, i.e., grant certification subject to a specified modification.  But this is not what the Commission did in this case – it denied certification on grounds that the proposed amendment did not further the Act’s public access policies.  While the Commission suggested how the District might meet the Act’s policy that “lower cost visitor… facilities shall be… provided,” it expressly acknowledged it was not permitted to make such modifications to the plan.

The court reaffirmed that the Commission is empowered to exercise independent judgment in determining not only whether a master plan amendment conforms with the Act’s policies, but also whether the plan “carries out those policies” (emphasis in original). The Commission has a statutory mandate to consider “the manner of public access” on a case-by-case basis and may take into account social and economic needs. The court concluded that the Commission exercised this mandate in deciding that the plan amendment did not adequately protect lower-cost visitor and public recreational opportunities, including overnight accommodations.

Possibility that Zoning Standards Might Be Violated in Final Design Did Not Mandate EIR at Tentative Map Stage

A project opponent’s argument that the project might violate zoning laws in the future is not sufficient to require a city to prepare an EIR under CEQA. Friends of Riverside’s Hills v. City of Riverside, 26 Cal.App.5th 1137 (2018).

The Lofgrens requested a residential development permit to build six single-family homes on an 11-acre parcel in Riverside. The proposed development was within the City’s RC – Residential Conservation Zone, which had unique zoning standards to preserve the area’s topographic conditions. These included two different sets of standards for lot size, dwelling density, and lot coverage depending on whether the development was “conventional” or a “Planned Residential Development” (“PRD”). City zoning laws allowed subdivisions qualifying as PRDs more flexibility to create smaller lots in existing neighborhoods and promoted clustering of lots on less sensitive sections of the property to preserve open space. The Lofgrens’ applied for a PRD permit with a six-lot tentative tract map and a list of mandatory project requirements that would qualify the project as a PRD.

In response to objections from Friends of Riverside’s Hills to their original application, the Lofgrens also submitted a revised five-lot subdivision map that complied with conventional zoning requirements. The City of Riverside approved the PRD permit, finding the project in compliance with all PRD standards for residential development in the RC Zone. The City conditioned the Lofgrens’ ability to obtain a grading permit on submission of a final tract map and evidence that natural features on steeper portions of the property were preserved as open space. The City also required the Lofgrens’ future building permits to comply with RC Zone “superior design standards.”

The City issued a negative declaration, concluding that the project did not require an environmental impact report under CEQA. The City reasoned the project did not conflict with any land use provisions that were adopted to avoid or mitigate environmental impacts. Continue Reading

CEQA Project Baseline Should Not Have Been Set Prior to Demolition of Historic Structure

The Fourth District Court of Appeal held that the project baseline under CEQA for construction of a new home should not have been set prior to demolition of a potential historic structure when the demolition had occurred before submittal of a permit application to build the new home. Bottini v. City of San Diego, No. D071670 (4th Dist., Sep. 18, 2018).

The Bottinis applied to the City for a Coastal Development Permit (CDP) to construct a single-family home on a vacant lot. City staff determined that the project was categorically exempt from environmental review under CEQA’s Class 3 exemption for construction of a single-family home. On appeal, however, the City Council found that full environmental review was necessary because the Bottinis had demolished a 19th century cottage named Windemere on the lot shortly before applying for the CDP. The City had itself previously concluded that Windemere was not a historic resource, declared the structure to be a public nuisance, and authorized the Bottinis to demolish the cottage. Nevertheless, the City Council retroactively declared the cottage “historic,” concluded that the demolition should be considered part of the new home project, and found that there was a reasonable possibility that CEQA’s “historical resources” and “unusual circumstances” exceptions precluded use of the categorical exemption.

The Bottinis sued, contending that the City’s baseline determination violated CEQA and the City’s decisions regarding the historic status of Windemere and the extent of the required environmental review violated the Bottinis’ due process rights and resulted in a regulatory taking of their property. Continue Reading

Seven-Year Extension of Diablo Canyon Lease Held Exempt from CEQA

A court of appeal has rejected CEQA and public trust challenges to a State Lands Commission lease extension allowing the Diablo Canyon nuclear power plant to continue operating through 2025.  World Business Academy v. California State Lands Commission, 24 Cal. App. 4th 476 (2018).

Pacific Gas & Electric Company plans to cease operating Diablo Canyon in 2025, when the plant’s federal licenses will expire.  The plant’s cooling water intake and discharge structures are on state-owned submerged and tidal lands, for which the Commission had issued leases to PG&E expiring in 2018 and 2019.  The Commission granted PG&E a consolidated lease extension through 2025, relying on CEQA’s categorical exemption for continued operation of existing facilities.

CEQA’s categorical exemptions are subject to several exceptions that can force a lead agency to prepare a negative declaration or an environmental impact report.  The “unusual circumstances” exception applies “where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”  Here, Diablo Canyon opponents argued that continued operation of the state’s last nuclear power plant was rife with unusual circumstances that could cause significant environmental effects.

To show that the unusual circumstances exception applies, normally a challenger must show both:  1) unusual circumstances; and 2) a reasonable possibility of a significant environmental effect due to those unusual circumstances.  Here, the Commission had made no finding regarding unusual circumstances.  With no finding before it, the court of appeal elected to assume unusual circumstances did exist, and then proceeded to the second half of the test:  whether there was a fair argument that the lease extension would cause significant environmental impacts. Continue Reading

Federal Appeals Court Rejects Challenges to Newhall Ranch EIS and Section 404 Permit

In the latest decision in the long-running legal saga over the proposed Newhall Ranch development in Los Angeles County, the U.S. Court of Appeals for the Ninth Circuit upheld the Army Corps of Engineers’ EIS and Section 404 permit, giving substantial deference to the Corps’ decisionmaking. Friends of the Santa Clara River v. U.S. Army Corps of Engineers, 887 F.3d 906 (9th Cir. 2018).

Background

Newhall Ranch is a proposed large-scale master-planned community in Los Angeles County. The County approved a specific plan for the project that provided for more than 21,000 residential units and 4.4 million square feet of commercial, office, and retail uses. In connection with the project, Newhall Land and Farming Company applied to the Army Corps of Engineers for a permit under Section 404 of the Clean Water Act to discharge dredge or fill material into navigable waters. The Corps, along with the California Department of Fish and Wildlife, prepared a combined EIS/EIR. The EIS/EIR considered eight project alternatives, including Newhall’s preferred alternative, a no-build alternative and six other alternatives.

The Corps issued a Record of Decision that adopted one of the studied alternatives (“Modified Alternative 3”) as the least environmentally damaging practicable alternative. Modified Alternative 3 involved developing less acreage than Newhall’s preferred alternative, at a higher cost per developable acre. The Corps also determined that wastewater and stormwater discharges from the project would not affect endangered steelhead in the Santa Clara River downstream from the project. Based on this “no effect” determination, the Corps did not consult with the National Marine Fisheries Service on impacts to endangered steelhead.

The plaintiffs claimed that the Corps’ decisions violated the Clean Water Act, the Endangered Species Act, and the National Environmental Policy Act. First, the plaintiffs challenged the Corps’ selection of Modified Alternative 3 as the least environmentally damaging practicable alternative. Second, the plaintiffs challenged the Corps’ failure to consult with NMFS. Third, the plaintiffs argued that the EIS did not adequately analyze cumulative impacts on steelhead. Continue Reading

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