The court of appeal upheld the project description in the EIR for the University of California, Berkeley’s fire hazard vegetation reduction plan, holding that it contained sufficient information to understand the plan’s environmental impacts, including objective criteria for vegetation removal, even though it did not include a detailed tree inventory or disclose the exact number
State Water Board Registrations of Small Water Diversions Are Ministerial and Exempt from CEQA
The State Water Resources Control Board’s registrations of small water diversions are ministerial projects and hence exempt from CEQA. As such, allegedly erroneous registrations cannot be challenged under CEQA. Mission Peak Conservancy v. State Water Resources Control Board, No. A162564, 2021 WL 5917917 (1st Dist., Dec. 15, 2021).
The Water Rights Permitting Reform Act
Court Upholds Infill Development Categorical Exemption for Gas Station in Existing Shopping Center
In Protect Tustin Ranch v. City of Tustin, 70 Cal. App. 5th 951 (2021), the court of appeal upheld a city’s reliance on the infill development categorical exemption under CEQA for a new gas station in an existing shopping center in a commercial area.
The petitioner, Protect Tustin Ranch, challenged the City of Tustin’s
Ninth Circuit Invalidates Rule Requiring Notice to States Prior to Filing a Listing Petition Under the Endangered Species Act
The Ninth Circuit Court of Appeals recently invalidated a 2016 rule that required a 30-day notice to affected state fish and wildlife agencies prior to filing a petition to list a species as threatened or endangered under the Endangered Species Act. Friends of Animals v. Haaland, 997 F.3d 1010 (9th Cir. 2021).
Section 4(b)(3)
Evidence About Existing Wildfire Hazards Near a Project Does Not Require an EIR
Evidence about past wildfires and the risk of future wildfires impacting residents near a proposed project does not require the lead agency to prepare an environmental impact report unless there is substantial evidence supporting a fair argument that the project may exacerbate existing wildfire hazards. Newtown Preservation Society v. County of El Dorado, No.
City’s Ban on Short-Term Vacation Rentals in Coastal Zone Violated Coastal Act
A city’s ban on short-term vacation rentals in the coastal zone constitutes “development” under the California Coastal Act. Therefore, the Coastal Commission must first approve a coastal development permit, an amendment to the city’s certified local coastal program, or an amendment waiver before such a ban can be imposed. Kracke v. City of Santa Barbara
Court of Appeal Upholds Water Boards’ Analysis of Economic Considerations Regarding Los Angeles County MS4 Permit
A regional water board is not required to estimate the compliance costs for individual permittees before issuing a permit. City of Duarte v. State Water Resources Control Board, 60 Cal. App. 5th 258 (2021).
The case involved the National Pollutant Discharge Elimination System permit issued to 86 municipal entities in Los Angeles County that
Ninth Circuit Upholds Environmental Assessment for Highway Project in State Park
Courts reviewing an agency’s environmental assessment under NEPA may not speculate about potential significant environmental effects that are not supported by the record — they must defer to the agency’s reasonable conclusions when they are supported by evidence in the record, especially on issues within the agency’s area of expertise. Bair v. California Department of Transportation, 982 F.3d 569 (9th Cir. 2020).
This decision is the latest in long-running litigation challenging Caltrans’s plans to improve a one-mile section of U.S. 101 through Richardson Grove State Park. In its current condition, the highway section is closed to industry-standard trucks (known as “STAA” trucks because they are authorized by the Surface Transportation Assistance Act of 1982); only shorter “California Legal” trucks are permitted. To safely accommodate STAA trucks, the project would slightly widen the roadway and straighten some curves.
Caltrans issued an Environmental Assessment and Finding of No Significant Impact. (Caltrans assumed the role of federal lead agency for the project pursuant to the NEPA assignment program.) The plaintiffs filed a lawsuit in federal district court, alleging, among other claims, that the EA failed to adequately analyze the project’s effects on old-growth redwood trees and park visitors, and that Caltrans should have prepared an environmental impact statement because the project would have significant environmental effects. The district court ruled that the EA was inadequate and ordered Caltrans to prepare an EIS for the project.
The Ninth Circuit reversed, holding that the district court did not give appropriate deference to Caltrans’s conclusions and improperly relied upon inferences and speculation about environmental effects that were unsupported by the record.
Continue Reading Ninth Circuit Upholds Environmental Assessment for Highway Project in State Park
Can a Responsible Agency Impose Mitigation Measures Not Considered in the Lead Agency’s EIR?
In Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board, No. A157127, 2020 WL 7706795 (Cal. Ct. App. Dec. 29, 2020), the court ruled that CEQA does not constrain an agency’s authority to enforce the laws it administers, including those authorizing imposition of mitigation requirements. The court held that, after an EIR for a project has been certified, a regional water quality control board, acting as a responsible agency, can impose mitigation on the project through waste discharge requirements issued under the Porter-Cologne Water Quality Control Act, even though those measures were not described in the lead agency’s EIR. The court’s decision raises significant questions about the limits on a responsible agency’s ability to depart from CEQA’s requirements when deciding whether and how to approve a project.
The Santa Clara Valley Water District brought this case to challenge the San Francisco Bay Regional Water Quality Control Board’s WDRs for a flood control project on Upper Berryessa Creek near Milpitas and San Jose. The Army Corps of Engineers was responsible for the design and construction of the flood control project, while the District was the project sponsor. In January 2016, the District certified a final EIR, which found that impacts on water resources would be less-than-significant with mitigation.
Pursuant to section 401 of the Clean Water Act, the Corps applied to the Regional Board for a certification that the project would not violate state water quality laws. Facing political pressure to issue the section 401 certification quickly (because the project was needed to protect a soon-to-open BART station and was at risk of losing federal funding if the certification was delayed), the Regional Board agreed to issue the certification in March 2016. The certification stated that the Regional Board, as a responsible agency under CEQA, found that water quality impacts during construction would be reduced to less-than-significant levels with the mitigation measures described in the final EIR. The Regional Board’s certification also stated that the EIR lacked the detail necessary to assess the long-term water quality impacts relating to the project’s design, operation, and maintenance, and that it would later issue WDRs to compensate for those impacts.
In April 2017, the Regional Board issued a WDR order requiring additional mitigation to compensate for the project’s water quality impacts. The WDR order required enhancing 15,000 linear feet or 15 acres of waters of the state, which could be satisfied by one of the District’s other planned projects. The Regional Board purported to comply with CEQA by making findings in the WDR order that it had considered the District’s EIR and determined that, with the addition of the WDR order’s mitigation requirements, the project’s impacts would be less than significant.
Waste Discharge Requirements
The court rejected the District’s claim that the Regional Board lacked authority to issue WDRs under the Porter-Cologne Act because the project would not cause a discharge of waste. The District argued that substances must be useless, unneeded, or discarded to constitute waste for purposes of the Porter-Cologne Act, and that the project’s sedimentation effects did not meet this test. The court ruled that even if the District’s interpretation of the law were correct, the project would result in a discharge of waste: The project’s widening of the creek bed would slow the flow of water and lead to increased sedimentation in the creek; this additional sediment would not be useful or necessary and would require periodic removal.
Continue Reading Can a Responsible Agency Impose Mitigation Measures Not Considered in the Lead Agency’s EIR?
Ninth Circuit Clarifies When Uncertainty Requires an Environmental Impact Statement
A federal agency is not required to prepare an environmental impact statement for an action with uncertain environmental effects if the agency reasonably predicts that the effects will not be significant based on available evidence. American Wild Horse Campaign v. Bernhardt, 963 F.3d 1001 (9th Cir. 2020).
The plaintiffs challenged the Bureau of Land