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The U.S. Court of Appeals for the Fifth Circuit found multiple defects in a Kern County EIR for a proposed ordinance streamlining the permitting process for new oil and gas wells. King and Gardiner Farms, LLC v. County Kern 45 Cal.App.5th 814 (2020).

The published portions of the Court’s 150-page opinion held the EIR: (1) impermissibly deferred formulation and implementation of mitigation measures addressing significant impacts to water supplies, and did not adequately discuss the effectiveness of those measures; (2) failed to properly mitigate farmland conversation impacts due to inappropriate reliance on agricultural conversation easements as offsetting mitigation; and (3) improperly applied a single threshold for determining the significance of the project’s noise impacts.

The Ordinance

Kern County approved an ordinance to streamline the permitting process for new oil and gas wells under which all such activities would require a permit involving, at minimum, a ministerial conformity review. This ministerial permit review process incorporated mitigation measures identified in the project’s EIR and certified by the County, which estimated that 2,697 new producing oil and gas wells would be drilled annually from 2013 through 2040, and 2,221 old wells would be capped and abandoned each year.

Water Supply Impacts

The appellate court concluded that mitigation measures to address water supply impacts — including requiring oil industry users to work together to develop and implement a plan to reduce water use — inappropriately deferred formulation of the measures or delayed their implementation.  The EIR did not commit the County itself to the measures, improperly relying on unidentified third parties who might or might not implement them at some unknown point in the future. Meanwhile, the County could continue to issue permits for oil and gas activities without mitigation in place.
Continue Reading EIR Improperly Deferred Formulation and Implementation of Mitigation Measures for New Oil and Gas Drilling

After a public agency approves a project, the agency’s actions to implement the project—in this case, applying for and accepting a streambed alteration agreement from the California Department of Fish and Wildlife—are not subsequent discretionary approvals that require supplemental environmental review under CEQA. Willow Glen Trestle Conservancy v. City of San Jose, No. H047068  (6th Dist., May 18, 2020).

The project in this case involved the City of San Jose’s replacement of a wooden railroad bridge with a new steel truss pedestrian bridge that would connect with a local trail system. The City adopted a mitigated negative declaration and approved the project in 2014. (The MND was challenged in a prior lawsuit and, as we previously reported, in 2016 the court of appeal upheld the MND and the city’s determination that the railroad bridge was not a historical resource.)

After approving the project, the City applied for and received a streambed alteration agreement from CDFW. The original SAA for the project expired at the end of 2017, before the project was completed. The City then applied for a new SAA and, following some negotiations over measures with CDFW, accepted and signed a new SAA in 2018. By that time, the railroad bridge had been added to the California Register of Historical Resources.

The petitioner sued the City, arguing that the City’s application for and acceptance of a new SAA were discretionary approvals that required supplemental environmental review under CEQA. (Under Public Resources Code section 21166 and CEQA Guidelines section 15162, supplemental environmental review following project approval is required only in connection with a subsequent discretionary approval for the project.)
Continue Reading Agency Actions to Implement an Already-Approved Project Are Not Subsequent Discretionary Approvals Requiring Supplemental Environmental Review

A court of appeal has upheld an air district’s EIR for an oil refinery modernization project. Communities for a Better Environment v. South Coast Air Quality Management District, 47 Cal. App. 5th 588 (2020).

The petitioner claimed that to analyze project impacts to air quality, the district should have used a baseline of the

An agency could be equitably estopped from relying on the 35-day statute of limitations applicable to a CEQA Notice of Exemption where the agency had misled the public into expecting the agency would instead circulate a Final EIR for public comment and file a Notice of Determination following project approval. Citizens for a Responsible Caltrans Decision v. California Department of Transportation, 46 Cal. App. 5th 1103 (2020).

Caltrans and the San Diego Association of Governments jointly developed the North Coastal Corridor (NCC) Project, which included multiple highway and railroad improvements along a 27-mile corridor between San Diego and Oceanside. One of the components of the NCC Project was construction of interchange ramps connecting Interstate 5 and State Route 56. Streets and Highways Code Section 103 created a streamlined approval process for the NCC Project, including an exemption of certain project elements from CEQA review.

Caltrans’s Final EIR for the I-5/SR-56 interchange contained conflicting language regarding the CEQA process: while it stated that the project was exempt from CEQA, it also stated that Caltrans would decide whether to approve the project after circulating the Final EIR and would file a Notice of Determination if it approved the project. A few weeks after publishing the Final EIR, and before the start of the public comment period on the Final EIR, Caltrans approved the interchange project and filed a Notice of Exemption with the State Clearinghouse. The Notice of Exemption had a different State Clearinghouse Number than the Final EIR. Caltrans then initiated the 30-day review period on the Final EIR and subsequently responded to the comments that it received on the Final EIR.
Continue Reading Misrepresentations Can Bar Agency’s Reliance on CEQA Statute of Limitations

The Second District Court of Appeal held that a project’s potentially significant environmental impacts required preparation of an EIR rather than the mitigated negative declaration adopted by the City. Save the Agoura Cornell Knoll et al. v. City of Agoura Hills et al., 46 Cal.App.5th 665 (2020).

The project at issue consisted of 35 residential apartment units plus retail, restaurant, and office space on an 8.2-acre site located in Agoura Hills, California. The City approved a Mitigated Negative Declaration (MND) for the project, finding no substantial evidence of a significant effect on the environment because the project incorporated feasible mitigation measures that would reduce any potential impacts to a less-than-significant level.

  1. Impacts on Cultural Resources

The court of appeal determined the MND’s mitigation measures were insufficient to avoid or reduce potential impacts to prehistoric cultural resources to a less-than-significant level. He proposed mitigation measures, it found, lacked any analysis of whether the archeological resources within the proposed construction site could be avoided. Nor did the measures specify any performance criteria for evaluating the feasibility of avoidance as an alternative to excavation. Further, substantial evidence provided by an expert in Native American archeology and history demonstrated that the project could likely cause significant permanent damage to the site and the proposed data recovery program was inadequate to mitigate that damage.

  1. Impacts on Sensitive Plant Species

The project site contained three special-status plant species that would be significantly impacted by project grading, landscaping, and fuel modification activities. The court found that, even with the proposed mitigation measures, the project could still have a significant impact on these sensitive plant species. It concluded that the mitigation measures improperly deferred formulation of certain mitigation efforts, failed to set forth specific performance criteria to ensure that mitigation would be effective, relied on outdated botanical surveys of the area, and did not provide for any feasible alternatives if proposed salvage and replanting efforts failed.
Continue Reading Mitigated Negative Declaration Inadequate for Mixed-Use Project