A developer established a probability of prevailing on its claims for malicious prosecution where the evidence showed that the neighboring owner lacked probable cause for pursuing CEQA litigation and acted with malice. Dunning v. Johnson, 64 Cal. App. 5th 156 (2021).

Clews Horse Ranch sued to challenge a decision by the City of San

On January 26, 2021, attorneys from Perkins Coie presented the 31st Annual Land Use and Development Law Briefing. Topics included:

    • Key Developments in Land Use Law
    • Legislative Changes Affecting Housing Development
    • CEQA: Key Cases and Trends
    • COVID 19 — Real Estate Impacts
    • Wetlands, Endangered Species and NEPA Update

A full set of the written materials,

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?

In 2018, the CEQA Guideline which defines the term “mitigation” was amended to add “conservation easements” to the list of measures that can provide “compensatory” mitigation for an environmental impact. Guideline §15370(e). The amendment was intended to resolve a debate about whether conservation easements over off-site farmland can provide a means to mitigate not only

A Summary of Published Appellate Opinions Involving the California Environmental Quality Act

Despite relatively few published opinions this year, there were significant appellate court rulings on a range of topics, including whether projects are properly classified as discretionary or ministerial, the adequacy of mitigation, agencies’ document retention obligations, the remedy for an inadequate EIR, mootness, and statutes of limitations.

The one California Supreme Court CEQA decision addressed the distinction between discretionary projects and exempt ministerial projects. In Protecting Our Water and Environmental Resources v. County of Stanislaus, the court held that the agency’s issuance of  well permits was discretionary in certain circumstances because the permit approval process required the agency to exercise independent judgment and allowed it to modify a project in response to environmental concerns.

A key theme in several cases, involving both EIRs and negative declarations, was courts’ critical look at the adequacy of mitigation measures. In three cases, the court held that agencies had improperly deferred formulation of mitigation. In one case, the court held that a greenhouse gas mitigation measure allowing for carbon offsets was inadequate because it lacked assurances that the offsets would be effective mitigation and it did not specify objective standards for implementation. In another case, the court held that a mitigation measure requiring oil and gas drillers to develop and implement a plan to reduce their water use improperly deferred formulation and implementation of mitigation and lacked enforceability. The court also ruled that agricultural conservation easements are not adequate mitigation for the loss of farmland because they do not offset that loss or create new farmland. In a third case, the court held inadequate a mitigation measure that required construction monitoring and development of a data recovery excavation program if avoidance of archaeological sites was not possible; the agency had not analyzed whether archaeological sites could be avoided and the mitigation measure did not specify performance criteria for evaluating the feasibility of avoidance.

In a significant decision on administrative records, a court held that a lead agency must save all emails about a project, notwithstanding any contrary records retention policy. The court further held that a lead agency could be compelled to produce potential administrative record documents through discovery.

One court applied the mootness doctrine to dismiss a case where construction of the project was completed during litigation. In that case, the developer did not begin construction in violation of any court orders or in bad faith, and the petitioners waited to seek an injunction until construction was nearly completed.

In a decision that conflicts with holdings from other appellate districts, the Fifth District held that partial decertification of an EIR is never permissible when the EIR has been adjudged inadequate; rather, decertification of the entire EIR is the only remedy. The court also held that even under the rule followed by other courts, partial decertification was not appropriate because the EIR’s defects could not be severed from the statement of overriding considerations that supported the agency’s approval of the project.

The following summaries are intended to identify the key issues in the cases decided in 2020. Each summary is linked to a more detailed post on this site describing the court’s opinion.
Continue Reading CEQA YEAR IN REVIEW 2020

While a number of court decisions have considered how CEQA lead agencies should assess the significance of a project’s greenhouse gas emissions, few have examined mitigation measures for those impacts. In Golden Door Properties, LLC v. County of San Diego, 50 Cal. App. 5th 467 (2020), the Fourth District Court of Appeal issued the

The Third District Court of Appeal held that CEQA and permitting challenges to an expansion project were moot because defendants had completed construction and did not build the project in violation of any court orders or in bad faith. Parkford Owners for a Better Community v. County of Placer, 54 Cal.App.5th 714 (2020).

This

Where a county ordinance allowed for exercise of discretion in some circumstances regarding issuance of well construction permits, such permits could not categorically be classified as ministerial and hence exempt from CEQA review. Protecting Our Water and Environmental Resources v County of Stanislaus, 10 Cal.5th 470 (2020).

Stanislaus County adopted an ordinance which categorically