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CEQA Updates

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

Posts Tagged ‘Endangered Species Act’


Public Trust Doctrine Applies to Groundwater, Sustainable Groundwater Management Act Exists Concurrently with Common Law and Did Not “Occupy the Field”

Wednesday, August 29th, 2018

The Scott River appears to be dry sand in October of the 2014 California Drought.

In Environmental Law Foundation v. State Water Resources Control Board (2018) 26 Cal.App.5th 844, the Third District Court of Appeal held that the public trust doctrine applies to groundwater basin management where groundwater may effect “navigable waters” and the Sustainable Groundwater Management Act (SGMA), Water Code section 10720 et seq., did not change this.

The parties stipulated to the facts and issues for the Court to address. The Scott River is a tributary of the Klamath River and a navigable waterway located in the northwest California. The Scott River has historically been used for water recreation and serves as habitat for salmon species listed in the Endangered Species Act. Groundwater aquifers adjacent to the Scott River in Siskiyou County (County) are hydrologically connected to the surface flows of the Scott River. Local farmers drilled groundwater wells and, in some summers and early fall months, the River was dewatered due to the groundwater pumping.

Environmental groups petitioned the County and the State Water Resources Control Board (SWRCB) to take administrative action to limit pumping in the Scott River watershed based on the public trust doctrine. When both refused, Environmental Law Foundation (ELF) filed suit.

ELF alleged that groundwater resources, which are interconnected with the surface water flows of the Scott River, are subject to and protected by the State’s public trust doctrine. The SWRCB reconsidered and adopted ELF’s position before the litigation concluded. The County claimed that it had no duty to limit groundwater pumping or consider its environmental impacts. The County further claimed that SGMA, which created a statewide system of groundwater management, was a comprehensive statutory scheme that displaced common law principles like the public trust doctrine. The trial court held that the public trust doctrine applies to groundwater in this case and SGMA did not effect this. The County timely appealed.

The Appellate Court, with Presiding Justice Raye writing for a unanimous Court, relied heavily on National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 and held that groundwater in the Scott River Valley is subject to the public trust doctrine. In National Audubon, the Supreme Court held that the public trust doctrine fully applies to the State’s complex water rights system. Specifically, the City of Los Angeles’ diversion of water from the non-navigable, freshwater streams flowing into Mono Lake, which were reducing the lake level and causing environmental damage to the lake ecosystem, could be limited by state water regulators under the public trust doctrine. The Court held that the Scott River facts were analogous to those in National Audubon as the pumping was similarly effecting the water level of the river. However, there was a heightened duty to protect the Scott River where it is a navigable waterway. “The analysis begins and ends with whether the challenged activity harms a navigable waterway and thereby violate the public trust.” Accordingly, the Court concluded that the public trust doctrine fully applies to extractions of groundwater that effect a navigable waterway.

The Court then held that, by enacting the SGMA, the Legislature did not intend to “occupy the field” of groundwater management and thereby abolish the public trust doctrine. Definitively, the Court held, “the enactment of SGMA does not, as the County maintains, occupy the field, replace or fulfill public trust duties, or scuttle decades of decisions upholding, defending, and expanding the public trust doctrine.”

The Court affirmed the trial court’s decision.

Key Point:                                                            

The State and its legal subdivisions must concurrently consider public trust principles and the Sustainable Groundwater Management Act in monitoring groundwater resources. Further, only where the Legislature intended to “occupy the field” will common law principles be superseded by Legislative acts.

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.

CSU Board of Trustees’ EIR for Campus Expansion was Held as Sufficient, with the Exception of its Analysis on Impacts to Surrounding Parklands

Tuesday, June 12th, 2012

In an unpublished decision, City of Hayward v. Board of Trustees of the California State University, 2012 Cal. App. Unpub. LEXIS 4097, the Board of Trustees of the California State University (Trustees) wished to expand its Hayward campus in order to meet its assigned enrollment ceiling.  In 2009, the Trustees approved a master plan to guide campus development for the next 20-30 years.  The City of Hayward (City) sued claiming the Trustees’ environmental impact report (EIR) failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands.  The California First Appellate District reversed the trial court’s holding and found that the Trustees’ EIR was adequate, with the exception of parklands.  The court therefore modified the writ of mandate ordering the Trustees to revise the analysis of potential environmental impacts to surrounding parklands.

Based on the Trustees’ analysis on fire protection and public services, the court came to four conclusions.  First, the court found substantial evidence to support the Trustees’ conclusion that additional and expanded fire facilities will not have a significant environmental impact.  Second, the court held that the Trustees did not have to provide mitigation measures for the new fire facilities since they concluded that more fire protection services would not result in significant environmental impacts.  Third, the court stated that the Trustees do not need to fund the expansion of the fire department services but rather the city has a constitutional duty to provide such services.  Lastly, the court found that the EIR sufficiently analyzed the impact of the campus expansion on the city’s public services and properly came to the conclusion that the “cumulative effect would be less than significant.”

The court next addressed the issue of traffic and parking.  The court first held that the Trustees’ analysis of potential sites for faculty housing was sufficient.  Since the Trustees prepared a program EIR as opposed to a project EIR, they properly deferred site-specific analysis of possible environmental effects of building faculty housing until a later time.  The court next examined the Trustees’ mitigation measures.  With the main goal of shifting commuters out of single-occupant cars and into carpools, transit, biking, and walking, the court found “no deficiency” in the way the EIR considered impacts of the master plan on parking and traffic, incorporated mitigation measures, and reached the conclusion that some environmental impacts are unavoidable.  Lastly, the City claimed that the Trustees’ EIR failed to include a “mitigation measure … providing for the University to pay its fair share of traffic improvements.”  (City of Hayward, 2012 Cal. App. Unpub. LEXIS 4097 at 60.)  Since the City did not raise this issue in its opening brief, the court declined to address it and held it as waived.

Pertaining to impacts on air quality, the court supported the Trustees’ EIR.  While the EIR concluded that the master plan would produce long-term emissions of pollutants, it presented transportation mitigation measures that would reduce some, though not all, emissions to a less than significant level.  The court also explained that since neither the trial court nor the City suggested further mitigation measures the Trustees should consider, then that portion of the Trustees’ EIR was sufficient and did not need to be reexamined.

Impacts on parklands was the one area with which the court agreed with the City and the lower court.  The court explained that the Trustees’ reliance on “long-standing use patterns” of the students as opposed to factual evidence was “nominal” and did not prove a meaningful enough  analysis to inform or analyze the extent of the impact the master plan was likely to have on surrounding parks.  Therefore, the court ordered the Trustees to reanalyze those impacts prior to certifying a revised EIR.

Written By: Tina Thomas, Ashle Crocker 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.

Court Holds Res Judicata Bars NEPA and ESA Challenges to Guidelines Adopted by State Department

Tuesday, February 21st, 2012

In Turtle Island Restoration Network v. U.S. Dept. of States (9th Cir. 2012) 2012 U.S.LEXIS 3263, the Ninth Circuit Court determined that res judicata barred Turtle Island Restoration Network (“TIRN”) from bringing a challenge under the National Environmental Policy Act (“NEPA”) and Endangered Species Act (“ESA”) because an organization for which TIRN was formally a member, the Earth Island Institute (“EII”), should have raised the NEPA challenge during a prior lawsuit. In the prior lawsuit, EII did not bring any NEPA challenge; EII instead alleged that the guidelines adopted by the United States Department of State (“State Department”) were inconsistent with law. In the new litigation, TIRN argued that the State Department failed to comply with NEPA and ESA in approving the guidelines.

Res judicata only applies where there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties. In this case, the only disputed issue was whether there was “an identity of claims.” A court must consider four factors in answering this question: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. The Court focused on the fourth question. The Court found that EII and TIRN could have conveniently brought claims for NEPA and ESA violations when it filed its prior complaint. The Court stated that a party’s decision not to advance NEPA and ESA claims in an asserted effort to resolve the issues without litigation is not an excuse for failing to raise the claims during prior litigation. The Court acknowledged that the two actions may be procedurally different, but reiterated that both arise from the government’s regulation of shrimp imports to encourage foreign turtle-safe shrimp harvesting. Therefore, the Court held that the two suits arose out of the same transactional nucleus of facts. Res judicata barred the NEPA and ESA challenges that TIRN could have brought in its prior complaint.

Key Points:

Res judicata may bar a petitioner from bringing NEPA and ESA challenges based on an agency’s alleged pattern and practice of violating the Acts if the petitioner could have asserted these challenges in prior litigation.

Written By: Tina Thomas and Chris Butcher

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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.