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CEQA Updates

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

Posts from June, 2016


NINTH CIRCUIT REJECTS NEPA CHALLENGE TO CHANGES TO ALBENI FALLS DAM OPERATIONS

Monday, June 27th, 2016

In Idaho Conservation League v. Bonneville Power Administration, 2016 U.S. App. LEXIS 11175, the Ninth Circuit rejected a National Environmental Protection Act (“NEPA”) challenge to changes in the operation of the Albeni Falls Dam.

The Dam, constructed in 1957 as part of the Federal Columbia River Power System, helps provide power to the Pacific Northwest. It is jointly managed by the U.S. Army Corps of Engineers (“Corps”), the Bonneville Power Administration (“BPA”), and the Bureau of Reclamation. The Dam straddles the Pend Oreille River, which connects Lake Pend Orielle and the Columbia River. When water is released from the lake, it drives turbines that generate electricity. For decades, the Corps fluctuated the level of the lake in some winters in order to generate power as needed.

In 1995, the Corps became concerned that the winter fluctuations were adversely affecting the kokanee salmon. In 1997, the Corps began holding the lake’s elevation constant in the winter. In 2009, BPA urged the Corps to return to a flexible management approach so the Dam could generate power year-round if needed. After two years of discussions and a public comment period, the agencies issued an environmental assessment in 2011. It concluded the proposed winter fluctuations would have no significant environmental impact.

Petitioner argued that an environmental impact statement (“EIS”) should have been prepared because this change to the ongoing operations that amounted to a “major Federal action.” The Ninth Circuit, citing Upper Snake River Chapter of Trout Unlimited v. Hodel (9th Cir. 1990) 921 F.2d 232, held that an EIS was not required because the proposed winter fluctuations did not result in a significant shift in operational policy or change the status quo due to the pre-1997 operations at the Dam. The court also noted that the agencies maintained discretion to change the water levels from 1997 to 2011 and met yearly to decide how the Dam would be operated. As stated by the court: “Requiring an agency to prepare an EIS every time it takes an action consistent with past conduct would grind agency decisionmaking to a halt.”

Key Point

In determining whether a proposed change to the existing operation of a facility constitutes a major Federal action significantly affecting the quality of the human environment, thereby triggering an EIS under NEPA, courts consider several factors including whether the change would alter the status quo in light of the past and current operations. In this instance, a proposed action that involved operating a completed facility in a way that it had been operated in the past did not change the status quo, was not considered a major action, and thus did not require an EIS.

FIRST APPELLATE DISTRICT FINDS WAREHOUSE STORE PROJECT EIR FAILED TO SUFFICIENTLY ANALYZE POTENTIAL ENERGY IMPACTS IN PARTIALLY PUBLISHED OPINION

Wednesday, June 22nd, 2016

On June 21, 2016, the First Appellate District partially published its opinion for Ukiah Citizens for Safety First v. City of Ukiah (Case No. A145581). The case involved a citizen group’s petition for writ of mandate challenging the certification of an environmental impact report (EIR) by the City of Ukiah (City) for the construction of a Costco Wholesale Corporation retail store and gas station (Project).

In the published portion of the opinion, the Court addressed alleged deficiencies in the Project EIR’s energy impacts analysis. Petitioners asserted that the EIR “fails to include adequate information regarding the project’s energy use and does not comply with appendix F of the CEQA Guidelines.” Specifically, Petitioners alleged that the EIR failed to calculate the energy use attributable to vehicle trips generated by the Project and failed to calculate the operational and construction energy use of the project.

In arriving to its decision, the court relied on the standards set forth by the Third Appellate District in California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173 (CCEC), a decision that was filed after the EIR was certified and the petition was filed. Consistent with CCEC, the court found that the EIR failed to calculate the energy impacts of trips generated by the Project. The court also found that the EIR improperly relied on compliance with the California Building Code to mitigate operational and construction energy impacts, without further discussion of the CEQA Guidelines Appendix F criteria. Finally, the court found that the City inappropriately relied on mitigation measures designed to reduce greenhouse gas emissions.

While this litigation was pending and recognizing the deficiencies in its EIR based on the principles set forth in the CCEC opinion, the City adopted an addendum to the EIR. The addendum clarified the EIR’s findings on energy impacts, but did not alter the conclusions reached in the EIR. While the trial court considered the addendum over Petitioners’ objections, the appellate court found this to be an inappropriate expansion of the administrative record. The court explained that the administrative record before a reviewing court should generally only consist of evidence that was before the decision-making body when it rendered its decision. Thus, the court did not address whether the language in the addendum cured the EIR’s defects. Moreover, the court found that the City’s subsequent addendum did not cure the prior approval of an inadequate EIR because the preparation of an addendum assumes that the EIR was properly certified. Because the EIR, as certified, inadequately addressed the energy impacts of the project, the court held that recirculation and consideration of public comments concerning the energy analysis will be necessary before the EIR can be recertified.

In the unpublished portion of the opinion, the court rejected Petitioners’ remaining contentions regarding: (1) the EIR’s analysis of transportation and traffic impacts; (3) the EIR’s analysis of noise impacts; and (3) the Project’s consistency with applicable zoning requirements. The court affirmed the trial court’s decision on the remaining contentions because there was sufficient evidence in the record to support the City’s conclusions.

Key Point: Addendums can only be used to clarify, amplify, or make insignificant modifications to an adequate EIR.

NEWLY PUBLISHED FOURTH DISTRICT OPINION FINDS WAL-MART PROJECT INCONSISTENT WITH GENERAL PLAN AND CREATES NEW FINDINGS REQUIREMENT FOR PARCEL MAP APPROVALS

Monday, June 20th, 2016

On June 15, 2016, the Fourth District Court of Appeal published its opinion in Spring Valley Lake Association v. City of Victorville (D069442). The case involved a CEQA and Planning and Zoning Law challenge to a Wal-Mart project (“Project”) that was approved by the City of Victorville. After the trial court found in favor of Petitioner Spring Valley Lake Association (“Petitioner”) on some of its claims, Real Party in Interest Wal-Mart appealed and Petitioner cross-appealed.

Wal-Mart’s Appeal

Wal-Mart appealed the trial court’s determinations that: (1) there was no substantial evidence in support of the City’s general plan consistency finding; and (2) the EIR had inadequately analyzed the Project’s greenhouse gas emissions impacts. The appellate court affirmed the trial court’s judgment on both issues.

The general plan consistency issue turned on one policy, IM 7.1.1.4, which requires all new commercial or industrial development to generate electricity on-site “to the maximum extent feasible.” The Project was developed to be solar ready, but Wal-Mart did not commit to the installation of panels because, as explained in a response to comment, it was uncertain whether the $750,000 cost would be offset by any federal tax credits or California incentives. Without the offsets, the response stated that the installation was economically infeasible. The court interpreted this response as effectively finding that “there was no extent to which it would be feasible to require the project to generate electricity on-site, whether by solar or other means.” The court held that this finding was not supported by substantial evidence in the record because there was no mention of why non-solar methods of generating electricity on-site were infeasible. The court showed little deference to the City’s own interpretation of what was considered “feasible” in this situation.

Surprisingly, despite the policy’s ambiguous language “to the maximum extent feasible,” the court held that this was a “fundamental, mandatory, and clear” policy. As such, the Project’s failure to be in conformance with this one policy was sufficient for the court to reject the City’s general plan consistency determination. (See Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782.)

Turning to the EIR’s greenhouse gas analysis, the court held there was conflicting evidence about whether the Project would achieve a 15-percent reduction above Title 24 standards. References in the EIR stated in some places that the figure would be 14-percent, and in others, 10-percent. Because the record did not show the Project would actually achieve the 15 percent reduction, the court held that there was no support for the City’s determination that the Project would not have significant greenhouse gas emissions impacts.

Petitioner’s Cross-Appeal

Petitioner cross-appealed the trial court’s determination that the City did not violate CEQA by failing to recirculate the EIR after it revised the traffic, air quality, hydrology, and biological resources impacts analyses. The court of appeal held that recirculation was required only for the air quality and hydrology analyses because the revisions to those sections constituted “significant new information” and the public did not have a meaningful opportunity to comment on those changes.

Petitioner also argued on appeal that the City violated the Planning and Zoning Law by failing to make all the findings required by Government Code section 66474 before approving the Project’s parcel map. In what appears to be an issue of first impression, the court agreed, relying on an Attorney General’s Opinion from 1975.

Key Point: Going forward, local governments should affirmatively address that the approval of the parcel map does not create any of the issues listed in Government Code section 66474. Local governments should also continue to make findings under Government Code section 66473.5 when approving a parcel map.

Thomas Law Group is requesting depublication of the Court’s general plan consistency discussion as it departs from the existing case law’s emphasis on deference to the agency’s determination of consistency.

FIFTH APPELLATE DISTRICT REJECTS GENERAL PLAN CONSISTENCY AND CEQA CHALLENGES TO LARGE SHOPPING CENTER PROJECT IN AN UNPUBLISHED OPINION

Thursday, June 16th, 2016

A neighborhood group, Naraghi Lakes Neighborhood Preservation Association (“Petitioner”), challenged the City of Modesto’s approval of a 170,000 square foot shopping center project (“Project”) on an 18-acre site adjacent to an established residential neighborhood. Petitioner alleged that the City’s approval was inconsistent with Modesto’s General Plan and did not comply with CEQA. On June 7, 2016, the Fifth District ruled in favor of the City in an unpublished opinion, Naraghi Lakes Neighborhood Preservation Association v. City of Modesto, 2016 Cal. App. Unpub. LEXIS 4149.

The Project area was within the General Plan’s “Neighborhood Plan Prototypes,” which were designed to create a blueprint for residential neighborhood development. One of the Neighborhood Plan Prototype’s policies requires: “A 7-9 acre neighborhood shopping center, containing 60,000 to 100,000 square feet gross leasable space.” Petitioner argued that the large size of the Project was inconsistent with this policy. The court disagreed, finding that the prototypes were meant to provide guidance, not inflexible mandates, and that the Project was in conformance with other General Plan policies. The court emphasized that perfect conformity will all policies is not required and that a finding of consistency should be upheld unless “no reasonable person could have reached the same conclusion.”

Next, the court found that the City had made the appropriate findings required by the General Plan to rezone the property and rejected Petitioner’s argument that the proposed environmental mitigation was not “adequate” because some traffic impacts were not mitigated to less than significant levels. Because other policies in the General Plan allowed the City to avoid making infeasible or prohibitively expensive traffic improvements, the court did not agree with Petitioner’s interpretation of “adequate” mitigation. The court did not consider other general plan consistency arguments proffered by Petitioner because these contentions were not raised in the administrative proceedings.

Finally, the court addressed Petitioner’s argument that the City failed to comply with CEQA because: (1) the findings of infeasibility as to certain mitigation measures were not supported by substantial evidence; (2) the EIR did not adequately analyze a reduced project alternative; (3) the urban decay findings were not supported by substantial evidence; and (4) the findings made in connection with the statement of overriding considerations were not supported by substantial evidence. The court held that there was sufficient evidence in the record to support the various findings singled-out by Petitioner and found that the City’s alternatives analysis complied with CEQA.

Accordingly, the appellate court affirmed the trial court’s judgment in favor of the City.

ARMY CORPS’ “APPROVED” JURISDICTIONAL DETERMINATIONS CAN BE CHALLENGED IN FEDERAL COURT

Tuesday, June 14th, 2016

In United States Army Corps of Engineers v. Hawkes, 578 U.S. __ (2016), the U.S. Supreme Court affirmed the Eighth Circuit and held that an approved jurisdictional determination (“JD”) issued under the federal Clean Water Act (“Act”) by the U.S. Army Corps of Engineers’ (“Corps”) is a final agency action that can be challenged in federal court. The Act’s Section 404 prohibits the discharge of dredged or fill material into jurisdictional “waters of the United States” without a Section 404 permit from the Corps. A JD provides property owners with the Corps’ determination as to whether a property contains a water of the U.S. Note, the ruling applies only to “approved” JDs and not “preliminary” JDs, which simply advise a property owner that there may be waters of the U.S. on the property.

In December 2010, Hawkes and two other companies (“Respondents”) applied to the Corps for a Section 404 permit to mine peat on their 530-acre parcel in Marshall County, Minnesota. Peat, an organic material that forms in wetlands and bogs, is used for soil improvement, fuel, and to provide structural support and moisture for golf greens.

In February 2012, the Corps issued an approved JD stating that the property contained a water of the U.S. because its wetlands had a significant nexus to the Red River of the North, located approximately 120 miles away. Respondents appealed the JD to the Corps’ Mississippi Valley Division Commander, but the Corps merely reaffirmed its original conclusion. Respondents then sought judicial review of the JD under the Administrative Procedure Act (“APA”) as a final agency action.

The Court held that the JD constituted a reviewable “final agency action” because (1) the JD marked the consummation of the agency’s decisionmaking process and (2) the JD also gave rise to direct and appreciable legal consequences: It deprived Respondents of a five-year safe harbor from enforcement proceedings by the Corps and EPA under the Act, which would have been provided by a determination that the parcel did not contain a water of the U.S. The Court further held that the JD was reviewable under the APA because Respondents had no adequate alternatives to judicial review. Finally, the Court rejected the Corps’ argument that approved JDs should not be subject to judicial review because the determinations are not required by the Act but are voluntarily made by the Corps.

While the notably brief opinion was unanimous, Justice Kennedy filed a concurring opinion, in which Justices Thomas and Alito joined, which noted that the Act continued to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property. Justices Ginsburg and Kagan also wrote separate concurring opinions.

Key Point:

The ruling is positive news for property owners as they can now challenge “approved” jurisdictional determinations without having to wait for their day in court until an enforcement proceeding occurs or the “arduous, expensive and long” permitting process ends. This should be particularly reassuring given the complex nature of these determinations. After Rapanos v. United States (2006) 547 U.S. 715, the Corps and EPA attempted to clarify the test for determining Waters of the U.S. in a controversial final rule that has been challenged by multiple states. However, because approving JDs is not required by statute, the benefits of this ruling may be limited if, in order to avoid litigation, the Corps stops issuing approved JDs as part of the Section 404 permitting process.

FOURTH DISTRICT HOLDS THAT PALM SPRINGS’ GENERAL PLAN AMENDMENT IS NOT CATEGORICALLY EXEMPT IN PUBLISHED OPINION

Friday, June 10th, 2016

Note: the Supreme Court granted a request for depublication of this opinion on August 22, 2016. See http://www.thomaslaw.com/blog/supreme-court-depublishes-people-proper-planning-v-city-palm-springs/ 

In a recently published opinion, People for Proper Planning v. City of Palm Springs, 2016 Cal. App. LEXIS 407, the Fourth District reversed the trial court and held that the City of Palm Springs’s (City) general plan amendment was not categorically exempt from CEQA.

The City’s general plan previously designated the minimum and maximum density of residential units allowed in each land use zone. In 2013, the City amended its general plan to eliminate minimum density requirements for all residential zones. The City concluded that the change was exempt from CEQA based on a Class 5 categorical exemption for “minor alterations in land use limitations . . . which do not result in any changes in land use or density.” (CEQA Guidelines, § 15305.)

The City argued that the amendment would not actually result in density changes because the City had been disregarding the minimum density requirement for years, effectively creating a baseline where there were no minimum densities. The Court disagreed, holding that the baseline was the general plan itself, not the City’s pattern of practice. Therefore, the City could not rely on the Class 5 exemption because the amendment would clearly change the densities contained in the general plan.

The court held that even if the project did fall within the Class 5 exemption, the petitioner had put forward sufficient evidence that this amendment could have a significant effect on the environment by causing cumulative impacts to the City’s stock of high density, low, and moderate income housing. The opinion appears to rely on the “unusual circumstances” exception to categorical exemptions in holding that the project was not exempt from CEQA.

Surprisingly, the opinion does not mention last year’s Supreme Court decision Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, which articulated the standard of review for the unusual circumstances exception. As stated by the Supreme Court, “[e]vidence that a project may have a significant effect is not alone enough to remove it from a class consisting of similar projects that the Secretary has found ‘do not have a significant effect on the environment.’” (Id. at p. 1115, original italics.) Rather, the unusual circumstances exception must be triggered by: (1) providing substantial evidence that an unusual circumstance distinguishes the project from others in the exempt class; or (2) providing substantial evidence that the project will have a significant effect on the environment, thus presenting unusual circumstances.

Instead of citing to Berkeley Hillside, the opinion quotes Committee to Save the Hollywoodland Specific Plan v. City of Los Angeles (2008) 161 Cal.App.4th 1168 for the proposition that courts are divided on the standard of review, and then appears to apply the fair argument standard. The end result is almost certainly correct because the court stated that it would have reached the same conclusion using the substantial evidence test. However, the opinion may reinsert confusion into the proper approach to evaluating and applying the “unusual circumstances” exception despite the Supreme Court’s clear articulation of the proper inquiry in Berkeley Hillside. Accordingly, Thomas Law Group has requested depublication of the opinion.

SECOND DISTRICT UPHOLDS CITY’S PERMITTING PROCESS FOR MALIBU HIGH SCHOOL PROJECT IN UNPUBLISHED DECISION

Friday, June 10th, 2016

In an unpublished opinion, Malibu Community Alliance v. City of Malibu, 2016 Cal. App. Unpub. LEXIS 3116, Division Seven of the Second Appellate District adjudicated a challenge to development permits granted by the City of Malibu (City) to the Santa Monica-Malibu Unified School District (District) for the installation of athletic field lights at Malibu High School. Petitioners sought a writ of mandate ordering the City to revoke the permits. The trial court denied the petition and the appellate court affirmed.

The District had previously used temporary lights for evening athletic events. Permanent field lighting was planned as part of a larger construction project on the Malibu high school and middle school campuses. After issuing the initial study, the school district learned that permanent lighting would be in violation of a condition of its coastal development permit obtained from the California Coastal Commission unless the District obtained an amendment to its campus’s coastal development permit and Malibu’s local coastal program. The District then decided to separate the field lighting project from the larger campus project and conduct an independent environmental review of each project. The District proceeded to draft an environmental impact report (EIR) for the larger construction project and a mitigated negative declaration (MND) for the field lighting project.

During the environmental review process for the EIR and the MND, multiple comments suggested that this division of the projects constituted illegal piecemealing under CEQA and that the cumulative impacts of both projects were not analyzed. In the Final EIR, the District responded to these comments and analyzed the cumulative impacts of the construction project and lighting project. The District certified the EIR, approved the construction project, and issued its notice of determination in February 2012; it adopted the MND, approved the lighting project, and issued its notice of determination in April 2012. These actions were not legally challenged.

Two months later, in June 2012, the City relied on the MND when it granted the conditional use permit to the District for the installation of the lights. It was this permitting process that Petitioners challenged, claiming that the City should have prepared a supplemental environmental review because there had been a “substantial change in circumstances” regarding the project. Specifically, Petitioners pointed to the fact that the applications for the lighting project and larger construction project were pending before the City at the same time. According to Petitioners, this caused the two separate projects to “bec[ome] one project.”

The court disagreed, holding that the timing of the applications did not constitute a substantial change that would trigger supplemental environmental review. Further, the court found that Petitioners were required to bring any claim of piecemealing within 30 days of the District filing its notice of determination and were thus precluded from collaterally attacking the environmental review under the guise of a challenge to the City’s later permitting process.

FOURTH APPELLATE DISTRICT UPHOLDS MOJAVE DESERT GROUNDWATER EXTRACTION IN TWO PUBLISHED OPINIONS

Friday, June 10th, 2016

A proposal to pump fresh groundwater from an underground aquifer located in the Mojave Desert (“Project”) resulted in six related cases. On May 10, 2016, the Fourth Appellate District upheld the Project in all six cases: Delaware Tetra Technologies, Inc. v. County of San Bernardino, 2016 Cal. App. Lexis 380, 2016 Cal. App. Unpub. LEXIS 3434, 2016 Cal. App. Unpub. LEXIS 3438, 2016 Cal. App. Unpub. LEXIS 3439, and Center for Biological Diversity v. County of San Bernardino, 2016 Cal. App. Lexis 382 and 2016 Cal. App. Unpub. LEXIS 3441.

The proposed Project is a public/private partnership designed to prevent water waste caused by brine and evaporation, and to ultimately transport water to customers in Los Angeles, Orange, Riverside, San Bernardino, and Ventura Counties. Once in operation, the Project would appropriate an average of 50,000 acre feet of groundwater over a period of 50 years. The groundwater extraction would be subject to the County’s 2002 Groundwater Ordinance, which was designed to ensure that groundwater extractions maintain safe yield of affected aquifers.

In March 2011, the Santa Margarita Water District (“Santa Margarita”) posted a notice of preparation of a draft Environmental Impact Report (“EIR”) for the Project. Under a June 2011 agreement, Santa Margarita agreed to act as the lead agency and San Bernardino County (“County”) agreed to act as a responsible agency. The Draft EIR was released for public review and comment in December 2012. During the EIR process, Santa Margarita, the County, the landowner, and Fenner Valley executed a memorandum of understanding (“MOU”) in which the parties agreed that a groundwater management, monitoring and mitigation plan would be developed in connection with the finalization of the EIR. The Final EIR was certified in July 2012.

Delaware Tetra Technologies

In the first published case, Delaware Tetra Technologies, Inc. challenged the County’s resolution authorizing the execution of the 2012 MOU, arguing that the County should have completed an environmental review under CEQA prior to approving the MOU.

Applying the de novo standard of review, the Court concluded that environmental review was not required because establishing a groundwater management, monitoring and mitigation plan under the MOU would not cause a direct, or a reasonably foreseeable indirect, physical change in the environment. Moreover, the MOU did not foreclose alternatives or mitigation measures, nor commit the County to a particular course of action that would cause an environmental impact. Rather, the MOU established that the County still retained full discretion.

Center for Biological Diversity

In the second published case, the Center for Biological Diversity, the San Bernardino Valley Audubon Society, Sierra Club, and National Parks Conservation Association (collectively, “CBD”) filed a petition for writ of mandate challenging the approval of the Project under CEQA. The Court concluded that Santa Margarita did not abuse its direction when it approved the Project and certified the EIR.

The court first held that Santa Margarita was properly designated as a lead agency because it was jointly undertaking the Project with the landowner and because it was the agency with the principal authority to approve and supervise the Project. Next, the Court held that the Project description, which characterized the Project as “a means of conserving water,” was not misleading because the Project would conserve water otherwise lost to brine and evaporation.

Finally, the Court rejected CBD’s contentions that the EIR did not provide an accurate duration for pumping by the Project and would result in more water being withdrawn than was contemplated and discussed by the EIR. Although the EIR recognized that the parties may choose to extend pumping for an additional term after the stated completion date of the Project, the Court found that the additional term was not reasonably foreseeable and noted that any additional term would require additional environmental review. The court further noted that the EIR did not permit withdrawal of water in excess of the amounts identified.

Key Points:

In holding that the MOU was not a “project,” the Court reaffirmed the principles of Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 regarding when an activity constitutes a “project” subject to environmental review. Memoranda of Understanding will not require environmental review under CEQA where they do not commit a lead agency to a particular course of action, foreclose alternatives or mitigation measures, or result in environmental impacts.

In addition, the Court reaffirmed in several different contexts that a court’s role is not to “pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.”  Petitioners bear the burden of describing the lead agency’s supporting evidence and showing how it is lacking.