Author Archives: Casey Shorrock

THIRD DISTRICT UPHOLDS EIR FOR EL DORADO IRRIGATION DISTRICT’S “UPPER MAIN DITCH” WATER TRANSMISSION PIPELINE PROJECT

In a February 16, 2022 decision, the Third District Court of Appeal in Save the El Dorado Canal v. El Dorado Irrigation District (2022) 75 Cal.App.5th 239, upheld the District’s approval of the Blair Road Alternative for the Upper Main Ditch piping project by finding that substantial evidence supported the District’s determination that the project and alternative would have less-than-significant impacts, and rejected petitioner challenges to the EIR’s project description, hydrological, biological, and wildfire impact analyses.

Background

The El Dorado Irrigation District operates a primarily surface-water system in El Dorado County, with more than 1,250 miles of pipe and 27 miles of earthen ditches that connect the system’s facilities and treatment plants. The Upper Main Ditch (UMD) is the system’s main conveyance feature consisting of a three-mile open and unlined ditch that connects the system’s Forebay Reservoir to its Reservoir 1 Water Treatment Plant (WTP). In June 2015, the District proposed to convert the UMD to a buried 42-inch pipeline that spanned the length of the existing ditch. The upstream end of the new pipeline would connect to the Reservoir and the downstream end would connect to a new metering and inlet structure at the WTP. The District would backfill around the pipe and reshape the ditch to allow for the passage of stormwater flows up to the current 10-year storm event capacity. Ultimately, the project would conserve more water by reducing seepage and evaporation, and improve water quality by reducing contaminant infiltration.

The District considered three alternatives, and ultimately approved the Blair Road Alternative, which would also convert the UMD into a buried pipeline but would instead place the pipe across District-owned property from the Reservoir to Blair Road, where it would continue until it reached the UMD crossing, then travel across private property to the WTP. The Blair Road Alternative would involve less construction activity near residents that the project and require the removal of fewer trees. It would also reduce the number of easements across private property.

In June 2018, the District circulated the draft EIR, which described the location of the UMD and the Blair Road Alternative’s setting and noted that, should it be adopted, the District would no longer use the existing ditch—instead reverting the land back to private landowners. After an extended public comment period, the District issued the final EIR in January 2019. After which, in April 2019, the Board of Directors certified the final EIR and approved the Blair Road Alternative. The Boar determined that, although the original project would achieve the desired objectives, it would have greater potential impacts to residents along the ditch from the resulting construction and eminent domain proceedings than the Alternative.

Thereafter, Save the El Dorado Canal filed a petition for writ of mandate alleging the approval and certification violated CEQA. The trial court denied each of Petitioner’s ten contentions. Petitioner timely appealed.

The Court of Appeal’s Decision

On appeal, Petitioner re-alleged that the action violated CEQA because the EIR contained an inaccurate project description and failed to adequately analyze potential impacts to hydrology, biological resources, and wildfire hazards. Under an abuse of discretion standard, the Third District Court of Appeal rejected each claim, finding that substantial evidence supported the District’s determination and Petitioner failed to demonstrate otherwise.

Petitioner first alleged the EIR failed to adequately describe the project by omitting the “crucial fact” that the ditch that would soon be abandoned was the “only drainage system” for the watershed. Notwithstanding Petitioner’s “problematic” briefing errors, the court rejected this argument and found instead that the EIR provided a detailed description of the UMD’s size, history, and location, and explained how the UMD passively intercepts stormwater runoff that would otherwise naturally flow down slope. For the Blair Road Alternative, the EIR explained that the ditch would continue to passively receive and convey stormwater flows during storm events, even after the District abandoned its maintenance easement over it. The court concluded this was an adequate, complete, and good faith effort at full disclosure about the ditch and its relationship to the watershed’s drainage system, as well as the District’s intent to abandon the ditch should it adopt the Blair Road Alternative.

Petitioner then claimed the EIR inappropriately concluded that the Blair Road Alternative would not significantly impact watershed drainage because abandonment would permit “the underlying property owners to do with [the ditch] as they please.” Citing a comment letter submitted by the County, Petitioner claimed the EIR failed to mitigate foreseeable impacts to watershed drainage that would result from vegetation and debris clogging the abandoned ditch. The court disagreed. It found that the final EIR’s response explained that private action or inaction will ensure the abandoned ditch retains its current capacity to convey stormwater across private property thereby reducing any risk of significant flooding. Moreover, unlike the District, the County can regulate private fill activities via administrative and civil penalties to ensure such activities do not yield significant environmental effects. Thus, it would be too speculative to predict landowners’ particular actions or inactions and the ensuing potential effects to the ditch’s stormwater conveyance capacity.

Petitioner next alleged the EIR failed to mitigate impacts to riparian habitats and sensitive natural communities and conflicted with local resource protection ordinances. The court noted that the Blair Road Alternative would yield fewer potential impacts to biological resources because the pipeline would be laid in an existing road corridor that is devoid of natural riparian habitat. Because the affected waterbody is not naturally occurring, plant and wildlife species are not dependent on water in the current ditch. Nevertheless, any impacts to vegetation communities—including those resulting from tree removal—would be mitigated to less than significant levels through permit compliance. The Alternative would therefore be consistent with the General Plan’s biological resources management plan, the County’s tree mortality removal plan, and CALFIRE’s tree removal procedures.

The court was also unpersuaded by Petitioner’s claim that the EIR failed to adequately analyze and mitigate impacts to tree mortality. Relying on facts and expert opinion, the EIR explained that trees surrounding the project site are not native riparian species, and thus, not dependent on water conveyed through the ditch. To the contrary, most of the adjacent tree species are stress-tolerant and can withstand climatic variation and changes in water seepage. The court also found that because both the project and Alternative were specifically designed to avoid Waters of the U.S. (WOTUS), and that, in any event, mitigation would alleviate any impacts, regulatory requirements associated with WOTUS were met.

Lastly, the court rejected Petitioner’s contention that the EIR failed to adequately consider the project’s fire risks by only considering construction-related impacts. Petitioner asserted the project would have potentially significant impacts by removing a water source that could be used as a firefighting tool. The court disagreed by noting that the EIR specifically debunked Petitioner’s claim—the ditch supplies potable drinking water only, and water from the ditch has never been used to fight fires. Indeed, CAL FIRE’s Strategic Fire Plan did not identify the UMD as a potential firefighting resource.

– Bridget McDonald

Changes to State Clearinghouse Document Submission Process (AB 819) Effective January 1, 2022

On January 1, 2022, Assembly Bill (AB) 819 (Levine, 2021), signed into law on July 16, 2021, takes effect and changes several CEQA communication, noticing, and filing requirements. Most notably, Public Resources Code section 21082.1(c)(4) now requires electronic submissions of draft environmental documents to the State Clearinghouse for all projects subject to CEQA review, regardless of whether the agency is a lead, responsible, or trustee agency or if the project is of sufficient statewide, regional, or areawide environmental significance. Documents include environmental impact reports (EIRs), negative declarations (NDs), and mitigated negative declarations (MNDs).

Other notable changes:

  • Public Resources Code section 21092.2(d) requires that all lead agencies post CEQA-related notices on their websites, “if any.”
  • Public Resources Code section 21092.3 requires notices of preparation (NOPs) and notices of availability for review (NOAs) to be posted on the county clerk’s website.
  • Public Resources Code section 21108(d) now requires electronic filing of all notices of determination (NODs) and notices of exemption (NOEs) with the State Clearinghouse for which the lead agency is a state agency.
  • Public Resources Code section 21161 requires all notices of completion (NOCs) to be filed electronically with the State Clearinghouse; mailed copes are no longer required.

All document submitters must be registered in OPR’s “CEQA Submit” to upload and submit documents and notices. For instructions on how to register and electronically submit documents, visit: http://opr.ca.gov/sch/document-submission.html.

For the State’s technical advisory on AB 819, visit: http://opr.ca.gov/sch/docs/20211202-Submitting_CEQA_Docs_to_the_SCH_Under_AB_819.pdf.

FIRST DISTRICT UPHOLDS STATE WATER RESOURCES CONTROL BOARD’S RELIANCE ON CEQA’s MINISTERIAL EXEMPTION FOR REGISTRATION OF APPROPRIATION OF WATER FOR DOMESTIC USE UNDER THE WATER RIGHTS PERMITTING REFORM ACT

In Mission Peak v. State Water Resources Control Board (2021) 72 Cal.App.5th 873, the First District Court of Appeal held that the State Water Resources Control Board’s (Board’s) registration process is ministerial and therefore exempt from CEQA.

Background

The Water Rights Permitting Reform Act of 1988 permits eligible persons to acquire a right to appropriate up to 10 acre-feet per year of  water for domestic or other specified uses by completing a registration process with the Board. Pursuant to this Act, the State Water Resources Control Board granted a small domestic use registration to two Alameda County property owners without conducting environmental review on the premise that the action was ministerial and thereby did not trigger CEQA.

Mission Peak Conservancy and Kelly Abreau (collectively, Mission Peak) sued the Board, alleging that it violated CEQA by approving the registration without conducting CEQA review. Mission Peak contended that the Board’s approval was discretionary and that it should have denied the registration because the property owners did not qualify for small domestic use and also because their registration form contained false information. The Board filed a demurrer, which the trial court sustained without leave to amend. Mission Peak appealed.

Court of Appeal’s Decision

The Court of Appeal determined that the Board’s registration process was indeed a ministerial act, not discretionary, and was therefore exempt from CEQA pursuant to Public Resources Code section 21080, subdivision (b)(1). As the court explained, “[m]inisterial projects involve ‘little or no personal judgment by the public official as to the wisdom or manner of carrying out the project.’ (Guidelines, § 15369.) . . . The test is whether the law governing the agency’s decision to approve the project gives it authority to require changes that would lessen the project’s environmental effects.”

The court determined the Board did not have such authority here. Although the Board has statutory authority to impose general conditions applicable to all registrations, it did not have authority “to place conditions on the . . . registration to lessen its environmental effects.” The Board determines whether a registration is compliant by applying a checklist of fixed criteria, and the registration is automatically deemed complete if it meets these criteria. Accordingly, there is no discretion involved in the registration, and it is therefore not subject to CEQA.

Specifically, the Court rejected Mission Peak’s argument that “a different agency, the Department of Fish and Wildlife, has discretion to impose conditions that could ameliorate the project’s environmental impacts” and therefore the the process is discretionary. Not so. As the court explained, another agency’s discretionary authority for its review cannot be imputed to the Board. Mission Peak then argued that “the project did not satisfy the requirements for a small domestic use registration because the [applicant] misrepresented facts,” and thereby the Board did have discretion in that it could deny the project or request changes to meet program requirements. But, “the test is whether the Board had the legal authority to impose environmentally beneficial changes as conditions of the project,” not whether the agency could request changes on an application or deny it.  Lastly, Mission Peak argued that the Board violated CEQA because the project did not meet program requirements. The court pointed out that “this is simply an argument that the Board made an erroneous ministerial decisions.” And such an error is not the basis for a CEQA claim. Plainly stated, “CEQA does not regulate ministerial decisions—full stop.”

– Veronika S. Morrison

SIXTH DISTRICT HOLDS COASTAL COMMISSION VIOLATED CEQA BY FAILING TO COMPLETE ENVIRONMENTAL REVIEW OF COASTAL DEVELOPMENT PERMIT PRIOR TO PROJECT APPROVAL

In Friends, Artists, and Neighbors of Elkhorn Slough v. California Coastal Commission (2021) 72 Cal.App.5th 666, the Sixth District Court of Appeal held that the California Coastal Commission (CCC) violated CEQA by analyzing a coastal development permit’s environmental impacts and adopting findings in support thereof after it had approved the permit and underlying project. Although the CCC is authorized to issue “revised findings” when the Commission’s action differs from what was proposed in the staff report, the court held that the revised findings in this case went too far and were an improper pot-hoc rationalization.

Background

In 2000, Real Party in Interest Heritage/Western Communities, Ltd., applied to the County of Monterey for a combined development permit and coastal development permit (CDP) for the Rancho Los robles Subdivision. The project proposed more than 100 residential units on a commercial parcel. Monterey County prepared an EIR containing several alternatives, including one with a reduced number of units.

In 2008, the County Planning Commission recommended denying the project due to water supply and traffic congestion issues. Heritage/Western appealed the denial to the County Board of Supervisors. The Board disagreed with the Planning Commission and approved the project. The Board also certified the EIR and adopted a statement of overriding considerations regarding significant and avoidable impacts to traffic, groundwater, and seawater intrusion.

In 2009, Friends, Artists, and Neighbors of Elkhorn Slough (FANS) appealed the Board’s decision to the CCC, alongside two Coastal Commissioners. CCC staff issued a staff report recommending denial of the CDP primarily due to lack of adequate water supply. The staff report concluded further analysis for certain issues was unwarranted in light of staff’s recommendation to deny the permit.

On November 8, 2017, the CCC held a de novo hearing and voted to approve the CDP, despite staff recommending denial.

In August 2018, CCC staff issued a subsequent report, containing revised findings in support of the CCC’s approval of the CDP. The 2018 report concluded that water supply was no longer an issue that necessitated denying the project. The 2018 staff report also considered other impacts previously identified in the 2017 report and determined they were no longer relevant or significant, and that staff’s prior conditions of approval would still apply to the project but be adjusted where necessary and implemented in a manner consistent with the project as approved by the Commission. Finally, the report concluded that the project was consistent with CEQA because it adequately addressed any potential adverse impacts to coastal resources, and there were no additional feasible alternatives or mitigation measures that would substantially lessen adverse impacts. The CCC approved the revised findings at a public hearing on September 13, 2018, approximately ten months after the CDP was approved.

FANS filed a petition for writ of mandate challenging the CCC’s approval of the CDP. The trial court denied the petition, rejecting FANS’ assertion that the CCC violated CEQA by approving the project without conducting environmental review before making findings. FANS appealed.

Court of Appeal’s Decision

On appeal, FANS asserted that the CCC failed to employ the proper procedures required by CEQA and the Coastal Act because its “revised findings” were a post-hoc rationalization for the CCC’s prior decision to approve the project and went beyond what was permitted by the CCC’s regulations. The Court of Appeal agreed and reversed the trial court.

The Court of Appeal outlined the steps for seeking CCC review of an approved CDP application and noted that the Commission’s de novo review of a permit application mimics CEQA’s environmental review process. The analysis and recommendation in a staff report must be accompanied by specific findings regarding—among other factors—the project’s conformity with the Coastal Act and CEQA. If the CCC’s action on the project substantially differs from staff’s recommendation, the prevailing Commissioners must separately state the basis to allow staff to prepare a revised staff report with proposed revised findings that reflect the action taken by the Commissioners. Under section 13096 of the CCC’s regulations, a public hearing must be held before the revised findings are adopted. (Cal. Code Regs., tit. 13, § 13096, subd. (c).) After the hearing, the CCC must vote on whether to adopt the revised findings.

Based on the facts of the case, the court held that the CCC’s environmental review for the CDP was incomplete at the time of approval, and the revised finding did not make up for the shortcoming. The court determined that the CCC’s decision to approve the project relied on a staff report that failed to contain elements required by CEQA (and the Commission’s certified regulatory program), including project alternatives, feasible mitigation measures to substantially lessen significant adverse effects, and conditions of approval.

In reaching its conclusion, the court explained the importance of these factors: “Requiring specific findings about alternatives and mitigation measures ‘ensures there is evidence of the public agency’s actual consideration of alternatives and mitigation measures, and reveals to citizens the analytical process by which the public agency arrived at its decision.’ [Citation.]” (Opinion, p. 32.) Through this lens, the court clarified that section 13096 “requires commissioners to set forth the analytic route between the evidence and the action at the hearing before approval.” The court further observed that no prior case law involved facts similar to this one, where the CCC’s environmental analysis was this incomplete at the time a CDP was approved. Accordingly, the court found that the CCC abused its discretion because it was required to conduct the analysis before it approved the project.

– Bridget McDonald

FOURTH DISTRICT UPHOLDS EIR FOR ROADWAY CONNECTION PROJECT AND HOLDS CITY’S QUASI-LEGISLATIVE APPROVALS WERE NOT SUBJECT TO PROCEDURAL DUE PROCESS REQUIREMENTS

In Save Civita Because Sudberry Won’t v. City of San Diego (2021) 72 Cal.App.5th 957, a partially published opinion, the Fourth District Court of Appeal held that the City of San Diego did not violate CEQA by failing to summarize revisions made in its recirculated draft EIR, and that the City’s certification of the Final EIR and approval of the project were quasi-legislative acts not subject to procedural due process requirements.

Background

In 2008, as part of an alternative to a proposed mixed-use development project, the City of San Diego proposed a four-lane major roadway in Mission Valley that would directly connect the development to local roadways. This connector roadway required an amendment to the Serra Mesa Community Plan (SMCP) and the City’s General Plan.

In April 2016, the City issued examined this connector roadway as its own project and prepared a programmatic draft EIR (PDEIR) for the SMCP and General Plan amendments. In March 2017, when roadway construction became foreseeable and upon a large volume of public comment, the City issued a revised and recirculated draft EIR (RE-DEIR) that looked at both the programmatic portion of the project, the adoption of amendments, as well as the actual construction of the roadway. In August 2017, the City issued the Final EIR for the project. Also in August 2017, the Planning Commission voted unanimously, with one member recusing, to recommend approval of the project and certification of the FEIR, with the City Council’s Smart Growth & Land Use Committee voting the same a month later. The City Council certified the Final EIR and approved the project in October 2017.

Save Civita Because Sudberry Won’t (Save Civita) filed a petition for writ of mandate and complaint for declaratory and injunctive relief challenging the City’s certification of the Final EIR and approval of the project on several grounds, namely here that it violated the requirement in CEQA Guidelines section 15088.5, subdivision (g) that a recirculated EIR summarize the revisions made to the prior EIR, and also that it violated procedural due process rights. The trial court denied the petition and complaint. Save Civita appealed.

The Court of Appeal’s Decision

Save Civita argued that the City violated CEQA Guidelines section 15088.5, subdivision (g), because it failed to summarize the changes in the RE-DEIR from the PDEIR, thereby forcing readers to “‘leaf through thousands of pages,’” and cause them “‘to have the mistaken belief’” that the two EIRs address the same project. The Court of Appeal disagreed, holding that statements in the RE-DEIR adequately summarized the changes to the PDEIR, and that these summary provisions informed the public that the revisions to the PDEIR were extensive and the PDEIR had been effectively “replaced” by the RE-DEIR. To make its determination, the court also looked to section 15088.5, subdivision (f), which requires that an agency inform the public that, when an EIR is so substantially revised that the document is recirculated, then comments on the prior EIR will not receive a response. The City fulfilled this criteria.

Furthermore, the court concluded that even if the City had failed to comply with the summation requirements of section 15088.5, any such failure was not prejudicial because it did not deprive the public of a meaningful opportunity to discuss and critique the project. Specifically, the court noted that the administrative record contained “ample and vigorous” public discussion of the RE-DEIR, proof that there were not fatal obstacles to public discourse created by any absence of a revision summary.

Save Civita also argued that the City’s certification of the Final EIR and project approval violated the public’s procedural right to due process and a fair hearing because a member of the City Council, who voted to approve the project was, according to Save Civita, “‘a cheerleader for the Project’” who had predetermined his vote. The court foreclosed this claim by explaining that procedural due process requirements are applicable only to quasi-adjudicatory hearings. Here, the City’s actions were quasi-legislative because they involved the adoption of generally applicable rules on the basis of broad public policy. The project approved by the City and analyzed in its EIR—construction of the roadway and amendment of planning documents—were, as the court determined, matters of public policy that required it to assess a broad spectrum of community costs and benefits. Therefore, procedural due process did not apply.

– Veronika S. Morrison

Supreme Court of the U.S. Holds that Draft Biological Opinions that are Pre-decisional and Deliberative Are Protected from Disclosure Under FOIA By the Deliberative Process Privilege

On March 4, 2021, the Supreme Court of the United States in United States Fish and Wildlife Service v. Sierra Club, Inc. (2021) 141 S.Ct. 777, in an opinion written by newly appointed Justice Barrett and joined by Justices Roberts, Thomas, Alito, Kagan, Gorsuch, and Kavanaugh, reversed in part the Ninth Circuit Court of Appeals’ decision in holding that the deliberative process privilege protects Draft Biological Opinions (B.O.s) from disclosure under the Freedom of Information Act (FOIA) if the Draft B.O.s are pre-decisional and deliberative, even if they represent an agency’s last views on a proposed action.

BACKGROUND

In 2011, the U.S. Environmental Protection Agency (EPA) proposed a rule on the design and operation of cooling water intake structures intended for use in industrial facilities, to make use of technology to minimize adverse environmental impacts. (See 79 Fe. Reg. 22174 (2001).) Even still, these cooling structures would kill a certain amount of fish and other aquatic species, some of which might be federally protected (threatened or endangered). Accordingly, under Section 7 of the Endangered Species Act (ESA), the EPA consulted with the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS), both of which began preparation of Draft B.O.s in order to make their jeopardy determinations, i.e., whether or not the EPA’s proposal would jeopardize the continued existence of a protected species. Informal consultation with these agencies began in 2012 and formal consultation began in 2013. Multiple documents were exchanged between agencies during this time.

In November 2013, the EPA revised its proposed rule in response to consultation, and USFWS/NMFS tentatively agreed to provide the EPA with their Draft B.O.s by December 6th and Final documents by December 20th. Both Draft B.O.s concluded that the proposed rule likely would jeopardize protected species. Neither agency formally approved their Draft B.O. or presented them to the EPA by the deadline and, instead, both agencies concluded that more work needed to be done. As well, the EPA was still internally debating its rule, therefore all parties agreed to extend the period of consultation.

By March 2014, the EPA had revised its proposed rule again from the 2013 version, in a manner that allowed USFWS/NMFS to issue a joint no-jeopardy determination, after which the EPA issued its final rule that same day. Sierra Club made FOIA requests to USFWS/NMFS regarding their consultation on this rule, and both agencies invoked the deliberative process privilege for the Draft B.O.s of EPA’s 2013 proposed rule. Sierra Club sued in the Northern District of California, and won on this issue. The Ninth Circuit affirmed the trial court’s decision on this issue. The Supreme Court grant certiorari.

ANALYSIS

FOIA mandates the disclosure of documents held by federal agencies upon request unless one of nine exemptions apply. One such exemption is the deliberative process privilege, which protects documents from FOIA requests if they reflect an agency’s preliminary thinking about an issue, as opposed to its final opinion. The deliberative process privilege exists to encourage agency candor so as to improve decisionmaking and avoid the “chilling effect” that can occur when an agency believes its internal discussion may be made public. Pre-decisional, deliberative documents are exempt from disclosure under this privilege, whereas documents indicating final agency opinion must be disclosed. This does not mean, however, that the last document prepared by the agency is necessarily a final document.  As Justice Barrett put it, sometimes a document does not present a final opinion upon which an agency has settled and is only considered final at all because nothing else follows it, because the proposed action upon which it is based “dies on the vine.” Further, whether or not the agency producing the document treats it as final is a primary determining factor.

Here, the Sierra Club contended that the 2013 Draft B.O.s, with their jeopardy determinations, must be considered final under prior precedent because they forced the EPA to change its rule in response. According to Justice Barrett, however,  the precedent cited by Sierra Club was inapposite and the Draft B.O.s prepared in response to the EPA’s 2013 proposed rule were simply draft documents that “died on the vine” when the EPA changed its rule in 2014, and did not represent final agency opinions. She reasoned that, because the 2013 Draft B.O.s were not made available to the EPA, they were still “subject to change.” Even if they had been made available to the EPA, existing regulations would still allow them to be revised. Justice Barrett further found that the gap in time between due dates for the 2013 Draft B.O.s and their Final counterparts indicated their deliberative nature, for why would there be a two-week gap between draft and final unless revisions were anticipated? Mostly though, the court relied on the fact that neither the USFWS nor NMFS had finalized their 2013 Draft B.O.s—they were unapproved by agency decisionmakers and not forwarded to the EPA—as evidence showing that the agencies did not view them as final and thereby proving their lack of finality. These documents then were not really Draft B.O.s but instead were “drafts of draft[s].” They may have contained the last words on the 2013 proposed rule but were not intended to be final.

DISSENT

Justice Breyer penned a dissent, joined by Justice Sotomayor, in which he questioned the majority’s position that the documents were “drafts of drafts,” and asserted that Draft B.O.s do not normally “enjoy” the deliberative process privilege. The dissent preferred a more in-depth factual analysis to determine finality of the documents, and would have liked the question remanded to allow the Ninth Circuit to determine exactly how much more work needed to be done on the draft documents to establish whether they were closer to draft or final documents. Justice Breyer also noted the long agency history of disclosing Draft B.O.s to the public.

– Casey Shorrock

Third District Court of Appeal Holds that the County Relied on the Incorrect Prior EIR in Subsequent Review for a Partial Road Abandonment

On August 17, 2020, the Third Appellate District in Martis Camp Community Association v. County of Placer (2020) 53 Cal.App.5th 569 reversed the trial court’s decision in part and found that Placer County abused its discretion when it approved a partial road abandonment because it relied on the incorrect prior EIR for its addendum and therefore could not accurately determine whether a supplemental or subsequent EIR was required. The court, however, affirmed the lower court’s rejection of the petitioners’ claim that baseline conditions should include the existing but disallowed use of the road along with other non-CEQA claims.

Background

In early 2005, the Placer County Board of Supervisors approved two residential developments and certified their final EIRs—the Martis Camp and the Retreat projects. Martis Camp consists of 650 homes on 2,200 acres just south of State Route (SR) 267 and west of Northstar ski resort. The Retreat consists of 18 homes on 31 acres just east of Martis Camp and within the larger Northstar development. The main roadway connecting Martis Camp to SR 267 is Schaffer Mill Road, a private street that dead-ends at Martis Camp’s southeastern shared boundary with the Retreat. On the other side of that boundary is Mill Site Road, a public road that ultimately connects to Northstar Drive and Northstar ski resort. As initially planned in the 2003 Martis Valley Community Plan, an emergency access roadway with gated access was constructed between Schafer Mill Road and Mill Site Road. The Martis Camp conditions of approval required the developer to construct  this emergency access roadway, provide the County with access for emergency and transit vehicle use, and place signage notifying traffic coming from Schafer Mill Road that the roadway and gate were for “Emergency Access Only.” The Retreat conditions of approval included construction of Mill Site Road and required Retreat property owners to fund road maintenance and snow removal services because such services represented a “‘special benefit’” to them as the sole approved users of the road. At some point around 2010, Martis Camp residents began regularly using Mill Site Road as a more direct route to Northstar in an effort to bypass SR 267. This use coincided with the Martis Camp developer replacing the manual gate with an automatic one that operated by transponder, issuing transponders to Martis Camp property owners, and removing emergency access signage. Retreat residents quickly complained to the County about this use, and in response the Director of the Community Development Resources Agency issued letters in 2011 and 2012 stating that Martis Camp residents have the right to use this road as “owners of property abutting a pubic roadway.” In 2013, Retreat property owners filed a lawsuit to enforce the prohibition on the use of Mill Site Road by Martis Camp residents. That litigation, separate from this case, resulted in the trial court sustaining the County’s demurrers, but on appeal, the court reversed and remanded for the trial court to consider the CEQA claims.

In 2014, Retreat residents petitioned the County to abandon its public road easement rights in Mill Site Road (and a nearby cul-de-sac) and dissolve the associated maintenance benefits. In 2015, the Board approved the petition requests by partially abandoning the road but reserving an easement for public transit and utility services as well as for emergency access and a multipurpose public trail. In approving the road abandonment, the County prepared, and the Board relied on, an addendum to the Martis Camp EIR. The County initially considered relying on the Retreat EIR, but concluded that the Martis Camp EIR was the appropriate environmental document for its subsequent CEQA review because road abandonment would, in effect, “restore traffic patterns to those that were envisioned by the Martis Camp project and analyzed in its EIR.” .

Martis Camp property owners and the Martis Camp Community Association (MCCA) filed petitions for writ of mandate challenging the County’s actions and alleged that the County violated CEQA when it improperly: (1) relied on an addendum to the Martis Camp EIR instead of the Retreat EIR; (2) prepared an addendum instead of a supplemental EIR; and (3) used a baseline that omitted existing use of the road by Martis Camp residents. Other non-CEQA claims alleged that the County violated statutory standards for abandoning Mill Site Road and violated the Brown Act by improperly modifying project conditions of approval without proper notice. Amended petitions asserted “causes of action for inverse condemnation.” After consolidating the two petitions, the trial court sustained without leave to amend a demurrer on the inverse condemnation claim for Martis Camp property owners, but overruled the demurer with respect to MCCA and bifurcated it from other claims. The trial court then denied all other claims. Petitioners appealed.

CEQA Claims

Discussed below, the Court of Appeal reversed the trial court as to the first and second CEQA claims and affirmed the third and remanded to the County for additional consideration.

Addendum Prepared for Wrong EIR: The court held that the County’s decision to prepare an addendum for the Martis Camp EIR was “not supported by substantial evidence” and that its failure to consider whether the abandonment of Mill Site Road would require major revisions to the Retreat EIR was a prejudicial abuse of discretion, largely because the road “was not part of the Martis Camp project; it was part of the Retreat project.” The County had argued that road abandonment was a change in circumstances surrounding the Martis Camp project such that further environmental review for that project was appropriately triggered. But, the court pointed out that only “a further discretionary decision” on a project triggers subsequent CEQA review and because Mill Site Road is not a part of the Martis Camp project, there was no related discretionary action. As further support, the court cited to the finding that conditions of approval “prohibited” Martis Camp residents from regularly using the road. The court did concede, however, that the County’s approach was “reasonable from the perspective of informed decisionmaking.” Nevertheless, the County “should have looked to the Retreat EIR” when assessing the need for further environmental review.

Supplement or Subsequent EIR May Be Required: The petitioners argued that the County should have prepared a supplemental or subsequent EIR for the Mill Site Road abandonment instead of just an addendum because of “more and severe environmental impacts by forcing Martis Camp residents to use SR 267 to reach Northstar.” The court agreed with the petitioners, but did not address the substance of this claim because of the County’s improper reliance on the Martis Camp EIR. Instead, it generally found that the County had “prejudicially abused its discretion” when it relied on the wrong EIR to conclude that no subsequent or supplemental EIR was required.

In Supplemental Review, “Baseline” is the Approved Project: The court rejected the petitioners’ claim that the baseline should have included the existing use of Mill Site Road by Martis Camp residents. Agreeing with respondents, the court found that the petitioners “are conflating” CEQA rules for initial project review under Public Resources Code section 21151 with rules for supplemental review under section 21166. To that end, the court ordered the matter remanded so that the County may first decide whether the applicable EIR “retains relevance despite changes to the project or its surrounding circumstances,” and then consider whether project changes “require major revisions” to the EIR due to “new significant environmental effects or a substantial increase in the severity of previously identified significant effects,” per Public Resource Code section 21166. If it is found that the road abandonment has “rendered the Retreat EIR irrelevant to the decisionmaking process,” then the County must “start from the beginning” under section 21151 and determine whether a new EIR is required.

Other Claims

As a threshold issue, the court concluded that MCCA’s pending, bifurcated inverse condemnation claim did not preclude it from appealing the denial of other claims because the “‘one final judgement’ rule” does not definitively apply when there are multiple parties in a lawsuit. The court then upheld the trial court’s dismissal of the Martis Camp property owners’ inverse condemnation claim and its denial of the remaining non-CEQA claims, discussed below.

No Inverse Condemnation: The crux of the petitioners’ argument was that they have “abutter’s rights to access Mill Site Road” and “by approving the abandonment…the market value of their properties” is reduced, thereby impairing their property rights and effectuating inverse condemnation. However, as noted by the court, Martis Camp property owners do not own property that physically abuts Mill Site Road from whence an inverse condemnation claim can be made. Moreover, any theoretical “nonexclusive easement” granted to Martis Camp residents in 2011/2012 by the Director of the Community Development Resources Agency “does not alter this result.” Therefore, the court affirmed the trial court’s dismissal of this claim.

Abandonment of Road Was Proper: The court started its analysis by noting that two standards of mandate review—ordinary (legislative) mandate and administrative mandate—have been used by courts to decide issue arising from road abandonment. Ordinary mandate is governed by Code of Civil Procedure section 1085 and applies to ministerial acts and quasi-judicial acts and decisions. Administrative mandate is governed by section 1094.5 and applies only to quasi-judicial decisions resulting from a proceeding where there was a hearing, evidence, and agency discretion “in the determination of facts.” Because “the outcome of this appeal would be the same under either standard, the court declined to “enter [the] debate” as to which standard applied. Thus, “for simplicity” it applied the “less deferential” administrative mandate standard that results in an abuse of discretion determination if an agency’s findings are not supported by “substantial evidence in light of the whole record.”

The petitioners argued that the County violated the California Streets and Highways Code when it abandoned Mill Site Road because it did not possess substantial evidence showing that the road was both unnecessary for public use and that abandonment is in the public interest, as is statutorily required. The petitioners then attempted to evidence the road’s public necessity with the fact that it was used regularly by Martis Camp residents and by the County’s choice to reserve emergency and public transit easements as a condition of abandonment. However, the court pointed out the mere “‘convenient’” use of a road does not make it necessary, and that Mill Site Road was “not planned, designed, or approved to accommodate that use.” Further, the court found no authority to support the notion that emergency and public transit easements denote the public necessity of a roadway. To the contrary, the court noted that the statute expressly authorizes “a legislative body to place conditions on abandonment” or to only partially abandon a roadway. The court also found that abandonment was in the public interest because, per the Board of Supervisors’ findings, it conformed with existing planning and environmental documents, protected “the integrity of the traffic management system,” and alleviated the County of the burden of road maintenance—all of which benefited the public.

No Brown Act Violation: The petitioners argued that the County violated the Brown Act when it approved the abandonment of the Mill Site Road because such abandonment altered conditions of approval established by the 2011/2012 letters from the Director of the Community Development Resources Agency and, therefore, should have been included on the agenda for the Board of Supervisor’s meeting per the Act’s noticing requirements. The trial court rejected this argument, and the Court of Appeal agreed, on grounds that the 2011/2012 letters do not override language in the conditions of approval for Martis Camp or the Retreat, which “did not contemplate Martis Camp residents using the emergency access road as a means of ingress and egress from the community.” Also, the court found that the Board was not bound by the Director’s prior enforcement decisions; therefore, the Board’s overruling of those enforcement decisions was not a “‘distinct item of business’” that required separate notice under the Brown Act.

Casey Shorrock

First District Court of Appeal Holds U.C. Regents Not Exempt from Analyzing Impacts of Student Enrollment Increases that Exceed Projections in Long Range Development Plan EIRs

In a partially published opinion issued on June 25, 2020, the First District Court of Appeal in Save Berkeley’s Neighborhoods v. Regents of the University of California (2020) 51 Cal.App.5th 226 reversed a trial court judgment on a demurrer and held that Public Resources Code section 21080.09 does not exempt the U.C. Regents from analyzing the environmental impacts of decisions to increase student enrollment at U.C. Berkeley in exceedance of projected enrollment numbers in their long range development plan EIRs.

Background

In 2005, the U.C. Regents adopted a long range development plan to guide the growth and development of the U.C. Berkeley campus through the year 2020. As is required under Public Resources Code section 21080.09, which pertains specifically to long range development plans at public higher education campuses, the Regents certified a program EIR for the plan. The 2005 development plan projected that, by the year 2020, U.C. Berkeley’s enrollment would increase by 1,650 students and that the university would add 2,500 new beds for students, and the EIR analyzed the potential environmental impacts based on these figures.

In 2018, Save Berkeley’s Neighborhoods, a California non-profit formed “to improve Berkeley’s quality of life and protect its environment,” filed a petition for writ of mandate alleging that, beginning in 2007, the U.C. regents made a series of discretionary decisions that would increase the university’s enrollment well beyond the projections in the 2005 EIR. Under CEQA, Save Berkeley argued, student enrollment projections were part of the project description, and the U.C. Regents changed the project when they approved enrollment increases beyond the 2005 projections. Furthermore, Save Berkeley argued, such increases in student enrollment caused and will continue to cause new significant environmental impacts, including increased use of off-campus housing, displacement of tenants, traffic impacts, noise, and increased reliance on public services. As a result, Save Berkeley argued that CEQA requires the preparation of a new or subsequent EIR. Notably, Save Berkeley alleged it did not learn of the decisions to increase enrollment until October 2017.

In the trial court, the U.C. Regents demurred on grounds that under section 21080.09 enrollment increases are not the “project” or a change in the project that might trigger subsequent environmental review. The Regents also argued the claims were time barred by the statute of limitations or were moot because a Notice of Preparation had recently been issued for a new project that would include analyze impacts from current and foreseeable campus population levels. The trial court sustained the demurrer without leave to amend on grounds that the petition was time barred and that the “project” for purposes of CEQA is the development and land use plan, thus, changes in enrollment are not project changes requiring subsequent CEQA review. Save Berkeley appealed.

Appellate Decision

The First District Court of Appeal reversed, finding the petition sufficient to state a cause of action and survive a demurrer. While the court began by noting that nobody disputes that the 2005 EIR could no longer be challenged because the statute of limitations expired, it then framed the issue as whether changes to the project—i.e., decisions to increase enrollment—required some form of CEQA review.

The U.C. Regents primarily argued that section 21080.09 effectively exempts analysis of increases in enrollment until a plan or physical development project is approved because there is no mention of the word “enrollment” in section 21080.09’s  definition of a “long range development plan.”. The Court of Appeal rejected this argument and pointed to CEQA’s broad definition of a “project” in Public Resources Code section 21065.. As the court explained, while section 21080.9 instructs that the effects of enrollment increases are to be considered in an EIR for a long range development plan, the statute does not state that enrollment changes need only be analyzed in the context of an EIR for a development plan or physical development. In short, section 21080.09 “does not address subsequent enrollment decisions, much less exempt them from CEQA,” and “a public university’s decision to increase enrollment levels can be a ‘project’ subject to CEQA whether or not it is related to a development plan.”

The court had no trouble concluding that Save Berkeley had stated a valid cause of action under CEQA. Accepting the allegations in the petition as true, as is required for a demurrer, Save Berkeley had plead that discretionary decisions since the 2005 EIR to increase enrollment have caused and continue to cause significant environmental impacts not analyzed in the 2005 EIR, which is sufficient to trigger the need for subsequent review under CEQA. The court’s opinion left open how such review could be accomplished, such as through the use of tiering from the 2005 EIR or the preparation of a subsequent or supplement EIR depending on the magnitude of the revisions necessary.

Collin McCarthy

EPA Releases Navigable Waters Protection Rule that Redefines Waters of the U.S.

On January 23, 2020, the U.S. Environmental Protection Agency (EPA) released its Navigable Waters Protection Rule to replace the 2015 Clean Water Rule, promulgated by the Obama administration and repealed by the current administration in 2019. The new rule purports to clarify federal regulation of waters within the U.S. by differentiating “waters of the U.S.,” which are subject to federal jurisdiction under the Clean Water Act, and non-jurisdictional waters. It identifies four categories of protected waters—the territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds, and impoundments; and wetlands that are adjacent to jurisdictional waters. The new rule also identifies waters not subject to federal control, including groundwater; ephemeral features; ditches; prior converted cropland; farm and stock watering ponds; waste treatment systems; and rainfall collection features.

The new rule is moored to late Justice Antonin Scalia’s plurality opinion in the landmark Supreme Court case Rapanos v. United States, 547 U.S. 715 (2006), that offers a more restrictive view of jurisdictional waters. Justice Anthony Kennedy’s concurrence in the same case offers a more expansive view and spawned what became known and implemented as the “significant nexus” test—which placed all waters that bear a significant nexus to traditional navigable waterways within federal jurisdiction. For nearly a decade, Kennedy’s significant nexus test, imprecise as it may be, supplemented the 1986 U.S. Army Corps of Engineers (USACE) definition of jurisdiction waters in a majority of regions—later serving as the basis for the 2015 Rule.

Implications of the new Trump administration rule vary state by state but mark a clear reduction in federal protection for waters that were formerly classified as jurisdictional, notably wetlands and ephemeral waterways. California is especially affected because of its unique climate and abundance of wetlands and seasonal streams. A primary stated goal of the current administration with the Navigable Waters Protection Rule was to increase state responsibility for managing their waters, which is the exact outcome in California where the State Water Board will soon regulate what are referred to as “Waters of the State.” This new regulatory program becomes effective on May 28, 2020, and closely tracks the 2015 rule in terms of protection and coverage.

The Navigable Waters Protection Rule arrives on the heels of nearly 620,000 public comments on its proposal, fewer than the over one million received on the 2015 rule’s proposal.  The rule will take effect 60 days after publication in the Federal Register, although a publication date has yet to be released. Until such time, the 1986 USACE definition prevails, along with any adopted Supreme Court clarifications. For Ninth Circuit territory, this means a return, if only temporary, to Kennedy’s “significant nexus” test.

Casey Shorrock