Thomas Law Blog

CEQA Updates

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

Posts from July, 2018

“Reasonable” Administrative Record Preparation Costs Awarded to Agency Where Plaintiff Elected to Prepare and Failed to do so within 60-Day Limit

Monday, July 30th, 2018

In LandWatch San Luis Obispo v. Cambria Community Services District (2018) Cal. App. LEXIS 661, the Second District Court of Appeals affirmed an agency may properly take over the preparation of the administrative record per Public Resources Code section 21167.6(b)(1) when petitioner elects to prepare it and fails to do so within 60 days.

LandWatch San Luis Obispo County (LandWatch) filed suit against Cambria Community Services District (District) for alleged violations of the California Environmental Quality Act in approving an emergency water supply project on January 30, 2014. In its initial pleading of October 2014, LandWatch elected to prepare the administrative record. District provided the documents November 2014. The next month, District notified LandWatch of additional documents. LandWatch requested the documents in March 2015 and received them in April 2015.

LandWatch presented a draft administrative record index in August 2015. District notified LandWatch the draft was over and under inclusive and, to avoid further delays prohibiting $4.3 million in grant fund awards, prepared and certified the record itself.

LandWatch was granted an order to include additional documents and failed to timely request the documents, stalling from December 3rd to February 17th, over 60 days while haste was of essence as the trial was set for March. District brought suit against LandWatch for the cost of preparation of the administrative record, $4,299.01, and preparation of the appendix, $26,922.46. The trial court awarded the totality of the first and half of the second amounts, $14,328.59.

The Court, relying on Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043, held that an agency is not determinatively prohibited from recovering costs for preparation of the administrative record where the petitioner initially elected to do so. Such a determination is made on a case-by-case basis where the Court has discretion to award costs.

While the award of such costs is limited to costs that are “reasonable” and “reasonably necessary,” so long as the trial court finds that it is not specifically prohibited, it is at the court’s discretion to award it. Here, the Court found that the trial court’s award was “on the low side of reasonable” for only totaling $1.77 per page. The trial court would have been “well within its bounds” to award more, especially where the 7,683 page appendix was erroneously requested by LandWatch. Finally, the Court allowed costs for court calls, copies, and transcription, costs that were circumstantially reasonable and not prohibited.

Key Point:

Any amount of delay in administrative record preparation past the 60-day limitation in Public Resources Code section 21167.6(b)(1) is “unreasonable delay” in which an agency may prepare the record and recover “reasonable” costs, at the discretion of the court, for doing so.

Second District Court of Appeal Finds County Well Permit Approval is “Ministerial,” Exempt from CEQA Review Absent Showing of Discretion, SGMA Absent Agency Law Incorporation

Friday, July 27th, 2018

An agricultural groundwater well is inspected in California (Kelly Grow/CADFW)

The approval of groundwater well permits to a handful of farmers in San Luis Obispo County (County) was within the permissions of CEQA where such issuances are ministerial and therefore exempt so long as no discretion was allowed by laws guiding the issuance. Cal. Water Impact Network v. County of San Luis Obispo (2018) Cal. App. LEXIS 662.

The County issued groundwater well permits to four agricultural enterprises for well depths ranging from 500 to 1000 feet. The County found that the permit applications were complete and complied with county and state standards. Specifically, the wells met the standards outlined in the San Luis Obispo County Code Chapter 8.40, incorporating the state well standards set by the Department of Water Resources. Finding as such, the County approved the wells without additional consideration.

California Water Impact Network (Network) appealed the well issuances claiming that the County improperly failed to conduct CEQA review and in doing so “bypassed public disclosure of potentially significant impacts to groundwater resources.” The trial court agreed with the County, no review was necessary, and dismissed Network’s petition on demurrer.

Reviewing de novo, the Court agreed with the trial court and County, no CEQA review was required where such actions are specifically exempt by Public Resources Code section 21080(b)(1) “ministerial projects.” The Court examined where a ministerial project does and does not exist and chided Network for trying to judicially alter the County Code to incorporate the then-recent Sustainable Groundwater Management Act, a task for the County’s elected officials.

The Court quoted a ministerial act is where “little or no personal judgement” is used by the public official, they merely apply the law and give no individualized or special consideration. This is contrasted to a discretionary project where such judgement or deliberation is required. Reading the legislative intent, the Court reminded that in ministerial acts, agencies, in this case the County, have no ability to influence the project therefore it makes sense they would be excluded. The Court found well permits are a type of building permits which are “presumed to be ministerial.”

Citing rules on judicial statutory interpretation, the Court refused appellant’s argument that County had some discretionary powers under Chapter 8.40 to impose additional conditions on well permits. The Chapter was clear; a well permit “shall be issued” so long as the listed conditions are met. Similarly, the Court excused any indication that the County had a responsibility to impose groundwater preservation measures as such goals are properly addressed by the County’s elected officials.

Though appellants did not contend that the applicants failed to satisfy the well specifications, the Court found all conditions were met in this ministerial action therefore the well permits were kept intact.

Key Point:

The issuance of groundwater well permits are ministerial duties exempt from CEQA review. Therein, SGMA considerations need not be addressed in agency decisions unless the guiding agency law specifically incorporates it.

Endangered Species Act Proposed Rules Lighten Required Considerations for Threatened Species, Narrows Agency Responsibilities for Critical Habitats

Friday, July 20th, 2018

Island Foxes, a species no longer listed as endangered, in the Channel Islands National Park in California. (U.S. Fish and Wildlife Service)

On Thursday, July 19, 2018 the U.S. Fish and Wildlife Service (USDFW) and the National Oceanic Atmospheric Administration (NOAA) released proposed revisions to the federal Endangered Species Act (ESA). These proposals amend procedures for species protection by changing requisite considerations and protections afforded “threatened” species, limiting the time scope for such considerations, and streamlining agency consultation.

The Endangered Species Act prohibits federal agencies from authorizing, funding, or carrying out any action that would jeopardize a critical habitat that an endangered or threatened species relies on. Specifically, it is prohibited that any project “take,” or harm, any plants, animals or invertebrates that are listed as threatened or protected. Originally passed in 1973, the Act has been significantly amended in 1978, 1982, and 1988 to meet modern demands.

The proposed rules would extinguish the “blanket rule” under section 4(d) of the ESA, which provides the same level of consideration and protection to threatened species as it does to endangered species. Threatened species are those that are likely to become endangered but are not currently endangered, at risk of extinction. Currently, protections that shield threatened species mirror those for endangered species unless otherwise specified. The proposed rules would permit USDFW to craft specific plans for each threatened species determination that are “necessary and advisable for the conservation of the species,” according to the USDFW press release. While NOAA currently employs a similar practice, it may make it more difficult to shield species.

The proposed rules would shorten the requisite timeline for species endangerment considerations. Currently, “threatened” means “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The vagueness of “foreseeable future” has been useful for environmental advocates to promote consideration of how climate change may affect the species. The proposed rules would change this section to mean only so far as can be “reasonably determined” that both the future threats and the species’ responses to those threats are foreseeable. This means that climate change considerations may not be required.

In the same vein, the proposed rules would repeal the prohibition on considering economic factors when deciding whether or not a species should be protected and the procedure to delist a species will now be the same standard as decisions to list the species.

Section 4 also deals with the procedures for listing, recovery and designating of critical habitats, or areas essential to support the conservation of a species. The proposed rules would revise the procedure for designating critical habitat by incorporating a non-exhaustive list of circumstances where they may find that designation of a critical habitat for a particular species would not be prudent. The agency will first evaluate areas currently occupied by the species before considering unoccupied areas. Additionally, the proposed changes would clarify when they may determine unoccupied areas are essential or not to the conservation of the species.

While none of these changes will be retroactive, they are part of the Trump Administration’s refocusing of federal environmental laws. Last month the administration began the process of overhauling the National Environmental Policy Act (NEPA). The Environmental Protection Agency, meanwhile, has used industry guidance documents and policy memos to dial back its oversight of air pollution under the Clean Air Act.

Deputy Secretary of the Interior Department described the ESA rule proposals as streamlining and improving the regulatory process. Indeed, per the USDFW press release, the changes are meant to narrow consultation requirements and allow federal agencies to simplify their actions with shorter ESA consideration. Opponents are concerned the changes will vacate protections for threatened species and weaken USDFW and NOAA’s abilities to address climate change.

The public has 60 days to issue comments on the proposed rules before the Interior Department and the Department of Commerce finalizes them.