Archives: June 2014

President Obama Signs the Water Resources Reform and Development Act

On June 11, 2014, President Obama signed the Water Resources Reform and Development Act (WRRDA). Historically, water resources legislation has been enacted every two years to provide policy direction to the Army Corps of Engineers (Corps) and the Administration. The WRRDA is the first water resources bill that has been signed since 2007, however.

The WRRDA authorizes 34 federal, state, and local projects aimed at maintaining the nation’s ports, levees, dams, and harbors. For example, the WRRDA authorizes projects to deepen the Boston Harbor and the Port of Savannah, to restore the Everglades, and to strengthen levees in the Sacramento region. The Congressional Budget Office estimates the total cost to implement these projects will be $12.3 billion between 2014 and 2025. This cost will be offset by $18 billion in project deauthorizations contained in the WRRDA.

Some key components of the WRRDA:

  • Authorizes approximately $45 million for flood risk management measures for the Orestimba Creek in the San Joaquin River Basin to protect the City of Newman.
  • Authorizes approximately $689 million for flood risk management measures in the Sutter River Basin.
  • Allows local communities, which may have state or local funding sources, to carry out work in advance of the Corps and receive a credit for this work.
  • Requires the Corps to set firm deadlines for preparing its studies.
  • Expedites project permitting and approvals by reducing the number of studies to be performed by the Corps.
  • Requires the Corps to allow for regional variances regarding vegetation patterns and characteristics on levees, among other variances, with feedback from state, regional, and local entities.
  • Authorizes financial assistance through the Water Infrastructure Finance and Innovation Act of 2014 to carry out pilot projects by public or private entities for flood damage reduction, hurricane and storm damage reduction, environmental restoration, coastal or inland harbor navigation improvement, or inland and intracoastal waterways navigation improvement.
  • Deauthorizes $12 billion for old, inactive port projects.
  • Reforms and preserves the Inland Waterways Trust Fund, which is used to fund the construction and rehabilitation of the nation’s inland waterways system.

In addition to the aforementioned projects, the WRRDA authorizes construction activities to strengthen 24 miles of levees protecting over 100,000 residents and $7 billion in property in the Natomas area, north of downtown Sacramento. Federal maps show that a levee breach could put homes and businesses in the area under 20 feet of water. In 2012, the Sacramento Area Flood Control Agency finished upgrading 18 miles of Natomas levees. The WRRDA authorizes the Corps to complete upgrades to the remaining 24 miles of levees, which had been stalled because of the lack of federal authorization.

Read the full text of the WRRDA here.

RMM Attorneys’ 2014 Teaching and Speaking Events

Whit Manley will serve as faculty at an Oct. 9-10, 2014, “CEQA Overview” course offered by the Center for Judiciary Education and Research (CJER), which is a program of the Judicial Council of California’s Administrative Office of the Courts. CJER provides an extensive statewide educational program for judicial officers and court staff at both the trial and appellate levels.

Jim Moose and Whit Manley are slated to speak at the First Northern California Association of Environmental Professionals Conference Oct. 23-24, 2014, in Anderson, CA. Further details will be provided as they become available.

Tiffany Wright will speak at the Fall CEQA Basics Workshop for the North Coast Chapter of the Association of Environmental Professionals on Wednesday, Nov. 5, in Eureka.

Tiffany Wright also will speak at the Fall CEQA Basics Workshop for the San Francisco Chapter of the Association of Environmental Professionals on Friday, Nov. 7, at the Association of Bay Area Governments’ office in Oakland.

Andee Leisy will speak at the Fall CEQA Basics Workshop for the Monterey Bay Chapter of the Association of Environmental Professionals on Friday, Nov. 7, at the Santa Clara Valley Water District in San Jose.

 

 

Appellate Court Upholds Permit for Landfill Expansion in Solano County

After years of environmental review and litigation, the First District Court of Appeal upheld permits authorizing the expansion of a landfill in Solano County. Waste Connections, Inc., has sought for more than a decade to expand the Potrero Hills Landfill, which is in an upland “secondary management area” of Suisun Marsh. In SPRAWLDEF v. San Francisco Bay Conservation and Development Commission, ___Cal.App.___, an environmental group challenged the San Francisco Bay Conservation and Development Commission’s approval of the permits, arguing that the commission should have approved a smaller expansion that would not affect a marsh watercourse. The court disagreed. Applying CEQA case law to the county ordinance at issue, the court held that substantial evidence in the record supported the commission’s determination that smaller alternatives were not economically reasonable.

Solano County Ordinance, section 31-300, allows modification of a marsh watercourse only if no “reasonable alternative” exists. The commission determined that a smaller expansion alternative, designed to avoid encroaching on the intermittent watercourse, would not be economically realistic. The trial court agreed with the petitioner, Sustainability, Parks, Recycling and Wildlife Legal Defense Fund (SPRAWLDEF), that no substantial evidence supported the commission’s determination. The Court of Appeal reversed.

In evaluating whether the commission had substantial evidence for its decision, the court applied CEQA principles. The court noted that, under CEQA, governments must choose “feasible” alternatives and “feasible” mitigation measures to lessen the significant environmental impacts of projects. Employing CEQA’s definition of “feasible” and CEQA case law concerning economic infeasibility, the court concluded that CEQA’s definition of economic “feasibility” embraces the concept of reasonableness. From there, the court engaged in an extensive discussion of CEQA case law.

The court distinguished this case from CEQA cases where a determination of economic infeasibility was legally inadequate. In those cases, meaningful comparison of the proposal and the alternatives was not possible because there was no evidence regarding the cost of the alternatives. Here, the court focused on the commission’s ability to compare the costs of the proposed expansion with that of the alternatives. Waste Connections, Inc. the landfill operator, explained its profit margins and advised the commission that the economic consequences of the alternatives would be so great that the project would not be “financially viable.” It submitted data for both the proposed expansion and the alternatives, comparing the per unit cost, capacity, and the life of the landfill for each. Thus, according to the court, the commission had an “adequate record before it to fairly determine the smaller alternatives were not economically reasonable.”

The court stated that there was “no merit” to SPRAWLDEF’s assertion that the economic information regarding the costs of the proposal and alternatives should be discounted or ignored because it was provided by the real party in interest, Waste Connections, and that it was within the province of the commission to find the information credible and accept it as accurate and relevant. The court determined that this data provided the commission with “some context” to assess the economic feasibility of the alternatives and held that there was substantial evidence to support the commission’s determination that the smaller alternatives were not economically feasible.

RMM Associate Joins California Water Law Symposium Board

RMM Associate Elizabeth Sarine joined the board of directors for the nonprofit California Water Law Symposium on June 2, 2014. The annual Water Law Symposium is a collaboration of six northern California law schools: University of San Francisco, UC Berkeley, UC Hastings, Golden Gate University, UC Davis, and University of the Pacific, McGeorge. Organized by law students, the events regularly draw over 300 attendees from California’s water law and policy arenas. In 2010, the Water Law Symposium won the ABA Section of Environment, Energy and Resource’s Law Student Program of the Year Award.

During her years at UC Berkeley School of Law (Boalt Hall), Elizabeth served as symposium co-chair in 2012 and as panel co-chair in 2011 for the Water Law Symposium. The 2012 Symposium at Boalt Hall focused on the need to find sustainable approaches to the management of California’s water resources in the face of increasing uncertainty and competing demands. One of the highlights was a presentation by the late Professor Joseph Sax on the Past, Present, and Future of the Public Trust Doctrine in California. A video of this presentation, and the other panels of the 2012 Symposium, can be viewed here.

EPA Sets Emission Reduction Goals for Power Plants

After hundreds of stakeholder meetings during the past year, the U.S. Environmental Protection Agency has issued emissions guidelines for states to follow as they develop plans to address greenhouse gas emissions from existing power plants. On June 2, 2014, EPA released a proposed rule that would require fossil fuel-fired electric generating units to reduce their 2005-level carbon dioxide emissions 30% by 2030. The rule falls under Section 111(d) of the Clean Air Act.

Each state would have its own rate-based CO2 emissions standard. Interim checkpoints for the ultimate emissions reduction goal would begin in 2020. Aside from improved fossil fuel efficiency, the rule encourages emissions reductions in the energy sector by taking advantage of renewable energy sources and reducing electricity demand across the grid.

The comment period will run for 120 days. States must submit implementation plans by June 30, 2016.

The proposed rule is available here.

Department of Toxic Substances Control Grants Final Hazardous Waste Permit Modification for Expansion of Kettleman Hills Landfill

After five years of study and review, California’s Department of Toxic Substances Control (DTSC) granted a final Hazardous Waste Permit modification for the expansion of the existing Kettleman Hills hazardous waste landfill owned by Chemical Waste Management, Inc. (CWMI). The approval on May 21, 2014, paves the way for the landfill, which is operating near capacity, to increase capacity by five million cubic yards. The landfill is located three and a half miles from Kettleman City in Kings County.

The permit includes stringent conditions aimed at further protecting public health and the environment, including increased monitoring for PCBs and other contaminants, expanded sampling and analysis of liquids captured by the landfill’s subsurface collection system, strict diesel emission standards for trucks using the facility, a containment system to control spills, required aerial and land surveys, and increased inspections. The DTSC permit review process included extensive public involvement, including a lengthy public comment period, and 23 public meetings and interview sessions with people in communities near the facility.

RMM attorneys Andrea K. Leisy and Amanda R. Berlin represented CWMI in litigation challenging the County of King’s certification of a Subsequent EIR for the landfill expansion. The Superior Court of Kings County upheld the adequacy of the EIR in 2011, as did the Fifth District Court of Appeal in 2012. More information about the DTSC decision can be found here.

Energy Information Administration (EIA) Reduces Its Estimates of Recoverable Oil in the Monterey Shale to 600 Million Barrels, down 96% from 2012 Estimates

At the May 21, 2014 Oil & Gas Strategies Summit in New York, EIA Administrator Adam Sieminski shocked many with his announcement that the federal agency has drastically cut its estimates of technically recoverable oil in the Monterey Shale from 13.7 billion barrels to 600 million barrels. According to Sieminski’s reported comments, the revision was prompted, in part, by new evidence the EIA and U.S. Geological Survey collected on output from wells where new techniques have been tested.

In 2011, the EIA published a report by INTEK Inc. that estimated there were 15.4 billion barrels of technically recoverable shale oil, or “tight oil” in the Monterey Formation.   Sometime in 2012, the EIA reduced this estimate to 13.7 billion barrels.  Now, the agency plans to release a report in the coming months that will explain why it has decided to severely reduce the estimate to 600 million barrels.

The Post Carbon Institute’s December 2013 report on the Monterey Shale presaged this news.   The PCI report—“Drilling California: A Reality Check on the Monterey Shale”—provided several reasons why the EIA’s 2011 estimates were likely to be “highly overstated.”  For example, the report asserts that:

  • “Existing fields within the Monterey are areally restricted and are primarily controlled by structural and stratigraphic trapping mechanisms, thus the assumption of broad regions of prospectivity is highly questionable.”
  • “An analysis of every well producing from Monterey shale reservoirs reveals that average initial productivity is less than half of the typical horizontal and vertical shale wells assumed in the EIA/INTEK report, and less than a quarter of the ‘typical Elk Hills vertical shale well’.”
  • “Fracking and acidization have doubtless been tried extensively on Monterey shale wells, yet the data do not show any significant increase in initial well productivity or likely cumulative oil recovery for recent wells.”

(J. David Hughes, PCI Fellow, Drilling California: A Reality Check on the Monterey Shale, at p. 46.)

Fifth District Court of Appeal Rejects Claims that Active Adult Housing Project Conflicts with Fresno County’s General Plan, but Concludes EIR for the Project Failed to Provide Sufficient Detail Regarding Air Quality Impacts on Human Health

On May 27, 2014, the Fifth District Court of Appeal issued its decision in Sierra Club et al. v. County of Fresno et al. (Case No. F066798). The case involves the County of Fresno’s approval of the Friant Ranch project, a master-planned retirement community for “active adults” (age 55 and older) on an approximately 942-acre site in north central Fresno County.

In the trial court, petitioners Sierra Club, Revive the San Joaquin, and League of Women Voters of Fresno (collectively, the Sierra Club), argued that: (1) the Friant Ranch project was inconsistent with the county’s general plan policies regarding agricultural land use and traffic levels of service; (2) the EIR’s analysis of the project’s air quality impacts was inadequate; and (3) the EIR’s analysis of water quality impacts associated with the project’s wastewater treatment plant was inadequate. The trial court denied the Sierra Club’s petition for writ of mandate. The Sierra Club appealed.

On appeal, the Sierra Club argued that the general plan policy to “maintain agriculturally designated areas for agricultural use” prohibits the county from redesignating land designated as agriculture to other uses. Because the Friant Ranch project included a general plan amendment redesignating the project site from agriculture to residential and commercial designations, the Sierra Club argued the county’s approval of the project violated the agricultural policy. Respondent County of Fresno, and Real Party in Interest, Friant Ranch, LP, represented by RMM attorneys Jim Moose, Tiffany Wright, and Laura Harris, contended that the general plan does not require the county to maintain land currently designated agriculture in that designation in perpetuity. The court agreed that the general plan allows the county to amend land use designations. And, because the project site is no longer designated agriculture, the project is not inconsistent with the requirement to maintain agriculturally designated areas in agricultural use. The court also held that the Sierra Club had failed to exhaust its arguments concerning the county’s transportation policies.

The Sierra Club also argued that the EIR lacked sufficient detail about the amount and location of wastewater discharge from the project’s proposed wastewater treatment plant. Although the Sierra Club did not make this argument in the trial court (and therefore would ordinarily be deemed to have forfeited the argument), the Court of Appeal exercised its discretion to consider the argument because matters involving the disposal of wastewater affect the public interest and the argument raised a question of law. Although not directly stated, the Court of Appeal appeared to believe that CEQA requires detailed information regarding the water balance to be included in the project’s CEQA documents. The court explained that the fact that the county’s experts opined that sufficient storage was available was irrelevant because, according to the court, the existence of substantial evidence in the record does not mean that sufficient information was disclosed in the EIR. The court therefore undertook an exhaustive review of various statements in the EIR and its supporting appendices about the amount of wastewater anticipated to be generated by the project and the size of the storage pond. Based on this review, the court determined that sufficient information was included in the CEQA documents regarding the amount and location of wastewater disposal.

The Sierra Club further claimed that the EIR’s discussion of air quality impacts was inadequate because the EIR: (1) did not explain what it meant to exceed the thresholds of significance by tens of tons per year; and (2) provided no meaningful analysis of the adverse health effects that would be associated with the project’s estimated emissions, which were above the thresholds. Although the EIR disclosed the types of health impacts associated with unsafe levels of the pollutants, quantified the project’s emissions, and concluded that the project would exceed the thresholds of significance set by the local air district, which are based on standards necessary for public health, the court held that this was not enough.

The court concluded that although the EIR had identified the adverse health impacts that could result from the project’s effect on air quality, it did not sufficiently analyze this effect. For example, the information disclosed in the EIR did not enable the reader to determine whether the 100-plus tons per year of coarse particulate matter, reactive organic gases, and mono-nitrogen oxides would require people with respiratory difficulties to wear filtering devices when they go outdoors in the project area or nonattainment basin. Nor did the information provided in the EIR make it possible to know how many additional days the San Joaquin Valley Air Basin would be in nonattainment due to the project. The court noted that answers to these examples are not necessarily required in a revised EIR, but that the EIR must contain some analysis of the correlation between the project’s emissions and human health.

The court also concluded that the county’s mitigation measures adopted for the project’s significant and unavoidable operational air quality impacts violated CEQA because, in the court’s opinion, the mitigation measures were too vague and unenforceable. The court reasoned that the mitigation measures needed to be more specific about who would implement the measures, and when. As an example, the court noted that the mitigation measure that trees “shall be carefully selected and located” to protect buildings from energy consuming environmental conditions uses the passive voice to hide the identity of the actor—that is, the person or entity selecting and locating the trees.

The court also concluded that the mitigation measures were impermissibly deferred. Although the Sierra Club had not raised this argument in the trial court, the court decided to consider the issue because it raised an important issue of policy. The mitigation measures stated that the county and the San Joaquin Valley Air Pollution Control District may substitute different air pollution control measures that are “equally effective or superior” to those set forth in the EIR, as better technology becomes available. The court found that this possibility of substitution rendered the mitigation measures deferred because the contents of the substituted provisions are unknown at present. Therefore, the court looked to whether the mitigation measures contained adequate performance standards to determine what types of measures would be “equally effective or superior” and concluded that many did not. For example, one mitigation measure required nonresidential projects to have bike lockers, which the court held failed to specify any performance standard to determine how to substitute the measure for an equally or more effective measure.

Furthermore, the court held that the statement in the EIR that the mitigation measures would “substantially” reduce air quality impacts was not supported by a discussion in the EIR and therefore violated CEQA.

Lastly, the court rejected Sierra Club’s claim that the county had not responded in good faith to comments suggesting that the county consider off-site emission reduction programs, such as the air district’s “Voluntary Emission Reduction Agreement” program. The court found that the county’s response to such comments, which explained that VERAs are voluntary and would be considered in connection with future project approvals was reasoned and met an objective good faith standard.

First District Court of Appeal Upholds Use of Class 3 Categorical Exemption for Utility Project in San Francisco

The First District Court of Appeal ordered publication of its opinion upholding San Francisco’s determination that a city-wide utility project was exempt from CEQA under the “Class 3” categorical exemption. The case, San Francisco Beautiful v. City and County of San Francisco (April 20, 2014) ___ Cal.App. ___, was published May 30, 2014.

The challenged project was AT&T’s proposal to install 726 metal utility boxes housing telecommunications equipment on San Francisco sidewalks in order to expand its fiber-optic network. San Francisco approved the project without requiring an EIR, based on its conclusion that the project fell within the “Class 3” categorical exemption described in CEQA Guidelines section 15303. Class 3 establishes exemptions for “[1] construction and location of limited numbers of new, small facilities or structures,” and “[2] installation of small new equipment and facilities in small structures.” (CEQA Guidelines, § 15303.) Among the examples of this exemption are “[w]ater main, sewage, electrical, gas, and other utility extensions, including street improvements, of reasonable length to serve such construction.” (Guidelines, § 15303, subd. (d).)

The petitioners argued that the project was not exempt under clause 1 of the Class 3 exemption because the 726 new structures were not a “limited number,” and that it was not exempt under clause 2 because it involved the construction and location of new structures, rather than the “installation” of equipment in existing small structures. The Court of Appeal disagreed, finding that under clause 2, the terms of the exemption were not limited to the installation of equipment in existing small structures. Rather, it determined that the Class 3 exemption can apply even when new structures are installed or constructed. Based on this determination, the court held that the city’s project fit into the Class 3 exemption. Because it found the project exempt on this basis, the court found it unnecessary to address the “limited number” argument.

The petitioners also claimed that, even if the Class 3 exemption applied, the city was still required to prepare an EIR because exceptions to the exemption applied. Specifically, they argued that the project would have a significant environmental effect due to unusual circumstances and would have cumulative impacts. (See CEQA Guidelines, § 15300.2, subd. (b), (c).) Regarding the unusual circumstances exception, the court determined that the petitioners identified no unusual circumstances relating to placement of the new utility structures in an urbanized area that already housed similar structures. The court also determined that, even if there were unusual circumstances, the petitioners failed to demonstrate that the project would have a significant environmental effect.  Notably, the court rejected the petitioners’ argument that residents’ views on the project’s aesthetic effects constituted evidence of a significant impact sufficient to trigger the need for an EIR.

The court acknowledged that the appropriate standard of review for the “unusual circumstances” exception is an issue currently pending before the Supreme Court (Berkeley Hillside Preservation v. City of Berkeley (S201116, rev. granted May 23, 2012). The court was careful to explain that its decision would be the same under either standard of review (“substantial evidence” or “fair argument”) and, therefore, it was not necessary for the court to determine that issue or any other issues that are before the Supreme Court in Berkeley Hillside.

The court also rejected the applicability of the cumulative impacts exception, explaining that the city did not have to consider the cumulative impact of all similar equipment to be installed throughout the city because the CEQA Guidelines instead limit the cumulative impact exception to successive projects of the same type in the same place. For the purposes of the utility boxes, the court found the “same place” meant the individual locations where the boxes would be placed.

Lastly, the court determined that the city had not improperly relied on mitigation measures in concluding the project was categorically exempt from CEQA. Although the city was required to review the utility cabinets to evaluate their potential to impede travel, inconvenience property owners, or otherwise disturb use of the right-of-way, that review is required by a Public Works Order, which is generally applicable to excavation permits for surface-mounted facilities. According to the court, this was not considered mitigation because an agency may rely on generally applicable regulations to conclude an environmental impact will not be significant and therefore does not require mitigation.