Sixth Appellate District Finds Responsible Agency Permits Insufficient to Trigger Supplemental Environmental Review for Previously Approved Project

June 11th, 2020

By: Thomas Law Group

In Willow Glen Trestle Conservancy v. City of San Jose (2020) 2020 Cal. App. LEXIS 423, the Sixth District Court of Appeal found that the City of San Jose’s actions in obtaining a 2018 Stream Alteration Agreement (SAA) from the California Department of Fish and Wildlife (CDFW) did not require supplemental environmental review under CEQA Guidelines section 15162.

In 2011, the City acquired ownership of the Willow Glen Railroad Trestle (the Trestle), a wooden railroad bridge built in 1922. In 2013, the City proposed a project to demolish the Trestle and replace it with a new steel truss pedestrian bridge that would serve as a link in the City’s Three Creeks Trail system (the project). In 2014, the City prepared and adopted a mitigated negative declaration (MND) and, based on the MND’s initial study, found that the Trestle was not a historic resource.

Following project approval, the Willow Glen Trestle Conservancy (Conservancy) brought suit against the City to prevent the destruction of the Trestle. (Friends of Willow Glen Trestle Conservancy v. City of San Jose (2016) 2 Cal. App. 5th 457. (Trestle I).) As explained in Trestle I, in 2014, the Trestle was not a resource that the City was required to find historic or presumed to be historic under CEQA. While CEQA allows lead agencies to use their discretion to make a determination that a such resource is nevertheless a “historic resource” for CEQA purposes, the City declined to do so. Instead, as noted above, the City specifically found that the Trestle was not a “historic resource.” (For more information on the Trestle I decision, see our previous post on the case.)

In March 2018, as part of the project, the City submitted a Notification of Lake or Streambed Alteration to CDFW, with the intent to divert the Los Gatos Creek during demolition and bridge construction. The City had submitted a similar notification in 2014, at which time CDFW issued an SAA, but the 2014 SAA expired at the end of 2017. In August 2018, CDFW sent a draft SAA to the City and proposed revisions to the City’s diversion plan. The City agreed to CDFW’s proposals and signed the final SAA in August 2018. CDFW found that the project would not have any significant impacts on fish or wildlife “with the measures specified in the 2014 MND and the [SAA]” and signed the final SAA in October 2018.

The Conservancy challenged the City’s actions in connection with obtaining the SAA. The Conservancy argued that the City violated CEQA by failing to provide supplemental environmental review of the project before the City sought and obtained the new SAA from CDFW. The superior court rejected this argument. The City was not obligated to provide supplemental environmental review because the City’s action in seeking and obtaining a new SAA was not itself a “new discretionary approval for the project” under CEQA Guidelines section 15162.

In affirming the trial court’s decision, the Court of Appeal focused on the application of CEQA Guidelines section 15162, which states that once a project subject to an MND has been approved, the lead agency’s role in project approval is completed, “unless further discretionary approval on that project is required. Information appearing after an approval does not require reopening of that approval.” (CEQA Guidelines, § 15162(c).) The Conservancy argued that the issuance of the SAA was a discretionary approval on the project warranting subsequent review under CEQA. The Court rejected this argument, stating that the Conservancy was trying to equate any action in connection with a project with an “approval on” or an “approval for” the project. The Court reasoned that if every action had to be considered an “approval,” each and every step that the City took toward implementing an approved project would necessarily constitute another “approval on” the project. This could lead to a perpetual reopening of the City’s long-final consideration of the project’s environmental impacts. The Court found that siding with the Conservancy’s argument would upset the balance struck by CEQA between “the environmental consequences of public decisions with interests in finality and efficiency,” as identified in San Mateo Gardens (2016) 1 Cal.5th 937, 949.

The Conservatory additionally claimed that different rules should apply to “a city’s own project” rather than a “private project” because an agency always “retains authority to change course in implementing its own project.” In the Conservancy’s view, because the City retained discretion to reconsider or alter the project, the City’s failure to abandon the project was itself a new discretionary approval for the project. The Court rejected this argument. There is nothing in CEQA Guidelines section 15162 suggesting that a lead agency’s post-approval choice not to abandon its project constitutes an approval justifying further environmental review. Rather, section 15162’s purpose is to limit subsequent environmental review after finality of the original environmental review with no distinction between public and private projects. The court concluded this lack of distinction rendered the Conservancy’s argument untenable.

Having rejected the Conservancy’s arguments, the Court concluded that the City’s 2018 application for an SAA did not amount to a new discretionary approval for the project. And because there was no further approval, CEQA Guidelines section 15162 did not require supplemental environmental review. Accordingly, the Court affirmed the decision of the superior court.

Key Point:

Post approval actions taken to implement a project do not amount to a new discretionary approval requiring supplemental environmental review by a lead agency under CEQA Guidelines section 15162.

Additionally, the responsible agency’s scope of review is limited to impacts related to its permitting authority.