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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts from August, 2012


Water Service Contracts in Central Valley Survive Endangered Species Act Challenges

Tuesday, August 7th, 2012

In Natural Resources Defense Council v. Salazar, (2012) 2012 U.S. App. Lexis 14614, the 9th District Court of Appeals affirmed a grant of summary judgment, concluding plaintiffs did not have standing to challenge the renewal of certain water service contracts under the Endangered Species Act and that renewal of other water service contracts was exempt from the Endangered Species Act.

In 2005, the United States Bureau of Reclamation (Bureau) renewed 41 water service contracts to provide water from the San Joaquin and Sacramento Rivers to users. Some of those contracts (settlement contracts) were initially entered in 1964 to settle the claims pertaining to the priority of water rights established before the Central Valley Project (CVP). The CVP is a project operated by the Bureau which began in the 1930’s to regulate the flow of water in the San Joaquin and Sacramento Rivers. The remaining contracts (DMC contracts) were initially entered with a coalition of users who obtained service from the Delta-Mendota Canal.

Plaintiffs, environmental organizations and the Metropolitan Water District of Southern California, filed a lawsuit challenging the renewal of the contracts on the basis such renewal violated section 7(a)(2) of the Endangered Species Act. Specifically, they claimed the Bureau had not met its requirements under section 7(a)(2), which requires federal agencies to insure that their actions are not likely to jeopardize the continued existence of any endangered species, to protect the Delta Smelt, a small fish added to the endangered species list in 1993. The trial court granted summary judgment to defendants on the grounds that plaintiffs did not have standing to challenge the renewal of the DMC contracts and renewal of the settlement contracts was exempted from section 7(a)(2).

Plaintiffs appealed, claiming they had standing and the renewal of the contracts was not exempt from the requirements of section 7(a)(2). First, the court rejected the defendants’ assertion that the case was mooted by the US Fish and Wildlife Service 2008 opinion. That opinion concluded the renewal of the contracts would not likely adversely affect the Delta Smelt and defendants argued it effectively eliminated any case or controversy. This assertion did not hold because a California District Court concluded the 2008 opinion was partially unlawful and because it was also unclear whether it considered the contracts at issue.

On the standing issue, the Court affirmed that the plaintiffs did not have standing to challenge the renewal of the DMC contracts. Standing did not exist here because the relevant contracts contained a shortage provision which expressly allowed the bureau to take any action to meet its legal obligations, including not delivering water to DMC contractors to satisfy section 7(a)(2) requirements. That provision prevented any causal connection from the renewal of the contracts to the threatened injury (i.e., jeopardy of the Delta Smelt) because the contracts expressly allowed for section 7(a)(2) compliance. That being the case, plaintiffs failed to meet the standing requirement of tracing injury to defendant’s conduct.

Last, the court affirmed that the renewal of the settlement contracts was exempt from section 7(a)(2). Section 7(a)(2) only applies to federal agency action where such actions are discretionary. Renewing the settlement contracts was not a discretionary action because the Bureau was required, pursuant to the Central Valley Project Improvement Act, to comply with all California Water Resources Control Board decisions, including the decision requiring the Bureau to address the issue of those claiming senior water rights under California law. The Bureau recognized such rights when it entered into the settlement contracts, the terms of which require renewal for the same quantity and allocation of water to be delivered to the contractors. Thus, “[t]he Bureau’s hands are tied historically by those asserting senior water rights in the CVP.”

Key Points:

An agency’s opinion cannot moot an issue when a court subsequently holds the opinion to be unlawful. A plaintiff cannot establish a link between renewing a contract and injury under the Endangered Species Act for standing purposes where the contract specifically provides for compliance with the Endangered Species Act. Renewal of water service contracts which grant water rights based on pre-CVP water rights seniority is exempt from section 7(a)(2) of the Endangered Species Act.

Written By: Tina Thomas, Ashle Crocker and Grant Taylor (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Appellate Court Upholds City’s Approval of Large Commercial Project Even with Unknown Impacts on Greenhouse Gas Emissions, Deferred Mitigation, and Rejected Alternative

Monday, August 6th, 2012

UPDATE: On August 27, 2012, the Fourth Appellate District Court certified Rialto Citizens for Responsible Growth v. City of Rialto (2012) 2012 Cal. App. LEXIS 849 for full publication.

In a decision certified for partial publication, Rialto Citizens for Responsible Growth v. City of Rialto (2012) 2012 Cal. App. LEXIS 849, the Fourth Appellate District Court upheld the City of Rialto’s (City) approval of a 230,000 square-foot commercial retail center with a 24-hour Wal-Mart “Supercenter.” Rialto Citizens for Responsible Growth (Citizens) challenged the City’s certification of the environmental impact report (EIR) and approval of the project alleging violations of the Planning and Zoning Law and the California Environmental Quality Act (CEQA). After reviewing the City’s actions, the appellate court found no prejudicial abuse of discretion and overturned the lower court’s judgment in its entirety.

In the published portion of the opinion, Citizens argued the City violated the Planning and Zoning Law by releasing a notice of public hearing omitting the planning commission’s recommendations, and by approving the development agreement without expressly making a finding that the agreement was consistent with the general and specific plans of the project site. The court agreed with Citizens on both counts. However, due to Citizens’ failure to show prejudice, substantial injury, or probability of a different result, the court concluded the errors were harmless and upheld the City’s actions.

In the unpublished portion of the decision, Citizens alleged that the City had violated CEQA; the court upheld the City’s actions and the EIR on all counts. First, the court found the project description was incomplete because it did not include the development agreement in a listing of “permits and other approvals required to implement the project.” However, the omission did not prevent informed decision-making and therefore the purposes of CEQA were still fulfilled.

Second, the court held the EIR had adequately analyzed the project’s cumulative impacts on both traffic and air quality. The court explained that the traffic analysis complied with CEQA by relying on a summary of projections contained in a prior environmental document. With regard to air quality, the EIR concluded the project would have a significant cumulative impact since the project alone would release emissions beyond the recommended threshold. The court therefore affirmed the City’s decision to analyze the project’s cumulative impacts on air quality based on the project’s emissions alone, as opposed to in relation to other nearby projects.

Third, the court upheld the EIR’s discussion on the project’s cumulative impacts on greenhouse gas emissions and global climate change, as well as its conclusion that the impacts were too speculative to determine. According to CEQA, if an agency conducts a thorough investigation and finds that an impact is too speculative for evaluation, “the agency should note its conclusion and terminate discussion of the impact.” The court found the City had conducted a thorough investigation and researched the methodologies that were available. Given the absence of established guidelines or methodologies with which to measure the project’s individual impact on greenhouse gases, the court held the City did not abuse its discretion in concluding the impacts were too speculative to determine.

Fourth, the court found the EIR’s mitigation measures to reduce biological impacts on potentially occurring “special status” plant and animal species were sufficiently definite and did not constitute improper deferral. The court explained that the mitigation measures incorporated specific performance criteria, such as “formal consultation” with either the U.S. Fish and Wildlife Services or the California Department of Fish and Game, and therefore were not so open-ended as to allow potential impacts on the species to remain significant.

Lastly, the court concluded the City properly rejected the “reduced density alternative.” Pursuant to CEQA, an agency cannot approve a project with significant environmental impacts unless it looks at alternatives, but it can reject an alternative as infeasible if the alternative does not meet the project’s objectives. While the City’s project has significant impacts and is environmentally inferior to the “reduced density alternative,” the court found substantial evidence supporting the City’s infeasibility determination.

Key Point:

Pursuant to Government Code section 65010, a party challenging an agency’s actions based on violations of the Planning and Zoning Law must establish that such errors were prejudicial. The CEQA portion of the decision was not published. The decision addresses a number of reoccurring CEQA issues. If published, the decision would provide important guidance concerning analysis of cumulative impacts, greenhouse gas emissions, alternatives, and deferred mitigation.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues