Blog

Second District Court of Appeal Upholds Class 3 Categorical Exemption for a Car Wash Project on a Vacant Lot and Finds No Unusual Circumstances

General Posted by   

In Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, the Second District Court of Appeal determined that the City of Redondo Beach did not err in finding a combination car wash and coffee shop project categorically exempt from CEQA and that unusual circumstances exception did not apply. The site was previously a car wash, but was unused since 2001 and the original structure had been demolished, leaving a vacant lot. The city approved a conditional use permit (“CUP”) and determined that the project was exempt under CEQA Guidelines § 15303, as “new, small facilities or structures [and] installation of small new equipment and facilities in structures.”

The dispute between the parties on the exemption concerned whether a car wash fits within the category of “commercial buildings” as defined in CEQA Guidelines section 15303, subdivision (c), and whether the car wash met the size restrictions of that section. The court held that the list in 15303(c) is illustrative and the section expressly includes “similar structure[s].” The car wash qualified because it was a consumer-facing commercial business, similar to those listed in 15303(c), and it included a coffee shop which qualifies as a restaurant. On the issue of size, the court found that, because the project was going to be in an “urbanized area,” the size limit was 10,000 square feet instead of 2,500. So the project’s 4,080 square feet was well under the limit. Lastly, the court found that there was no evidence that the project would “involve the use of significant amounts of hazardous substances” and was thus exempt.

On the unusual circumstances exception issue, the court applied the two tests discussed by the California Supreme Court in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (“Berkeley Hillside”). Under the first test, the court first determines whether there are unusual circumstances under the substantial evidence standard, and, if unusual circumstances are found, “whether there is a reasonable possibility of a significant effect on the environment due to unusual circumstances” under the fair argument standard. The second test requires the challenger to establish unusual circumstances by showing that the project will have a significant effect on the environment.

In applying the first test, the court found that presence of other car washes in the surrounding area, and the fact that the site had been a car wash previously, indicated that the circumstances were not unusual. The court also stated that common operational effects, like noise, traffic, and parking do not constitute unusual circumstances in and of themselves. The court concluded that the petitioners had failed to produce substantial evidence supporting unusual circumstances based on the project’s features. The court therefore never reached the second, fair argument prong of the first test.

The court applied the second test from Berkeley Hillside, and found that petitioners failed to meet their burden under that test as well. Petitioners argued that the project will have a significant effect on the environment because operating a car wash would violate the city’s noise ordinance. The court found this unpersuasive because the city had found that the project would not violate the noise ordinance and took the extra step to condition approval of the project on its meeting the noise ordinance. Petitioners also argued that the project would have a significant adverse effect on traffic because the design of the car wash would cause backups within the property. The court stated that the flow of cars within the property was not “traffic” as defined by CEQA, and there was substantial evidence supporting the city’s finding that any such backups would not affect traffic on the streets.

The court concluded that neither of the Berkeley Hillside tests had been satisfied, and therefore the petitioners had failed to show unusual circumstances. The court upheld the city’s issuance of the CUP and finding that the project was exempt from CEQA.

First District Court of Appeal Holds that the Discovery Rule Does Not Apply to Challenges Brought Under Public Resources Code § 21167

General Posted by   

In Communities For A Better Environment v. Bay Area Air Quality Management District (2016) 1 Cal.App.5th 715, the First District Court of Appeal held a petition for writ of mandate as time-barred under Public Resources Code § 21167, subdivision (d). Petitioners argued that the ”discovery rule” should apply because the Bay Area Air Quality Management District (“District”) failed to provide public notice of the ministerial approval and the project itself (a change in operation at a transloading facility from ethanol to crude oil) was “hidden from the public eye.” The court held that the statute governed when the public was deemed to have constructive notice of a project, and the discovery rule postpones the accrual of an action beyond the date of the injury, not beyond the date when the plaintiff is deemed to have constructive notice.

The District issued a ministerial permit for the project in July 2013, which was not subject to CEQA. But the District did not file the optional notice of exemption (“NOE”) and the applicant began transloading crude oil at its facility in October 2013. The conditions of the permit were modified in October and December of 2013, and the District issued a second permit incorporating these modifications in February 2014. On March 27, 2014 petitioners filed a petition for a writ of mandate. The District argued that the petition was time-barred because it should have been brought within 180 days of July 2013, when the permit was issued. Petitioners argued that they only became aware of the project on July 31, 2014, and that the facility is completely enclosed making the change in operation “invisible.” The trial court dismissed the petition without leave to amend as time-barred under 21167.

The First District Court of Appeal distinguished Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929 (“Concerned Citizens”). In Concerned Citizens, the Court interpreted “the date of commencement of the project” to mean “commencement” of the project approved by the lead agency and analyzed in the EIR. Because the project had changed significantly, the petitioners could bring an action within 180 days of when they knew or reasonably should have known that the project commenced was substantially different from the approved project. Here, petitioners did not argue that there was a substantial change in the project, and instead argued that the discovery rule should postpone the accrual of the action until they had actual notice of the project. The First District found this argument to have been rejected in Concerned Citizens, as contrary to legislative intent.

The Court of Appeal also distinguished Ventura Foothill Neighbors v. County of Ventura (2014) 232 Cal.App.4th 429 (“Ventura Foothills”). In that case, the height of a planned building was changed from 75 feet to 90 feet, and while a notice of determination (“NOD”) was filed because of the change, the NOD did not disclose the change in height. The court in Ventura Foothills determined that the 30-day statute of limitations for NODs only applied to the determinations announced in the NOD. Since the change in height was not disclosed, the 30-day statute had not run. Here, the petitioners could not point to any deficiencies in a required notice.

The court stated that in both cases the court interpreted the statute so that the triggering date for barring an action did not occur. Because petitioners could not argue for such an interpretation in this case, their claim was time-barred. Similarly, they could not amend their pleadings to show that the dates of constructive notice in 21167 had not occurred more than 180 days prior to their filing suit.

Second District Court of Appeal Holds that, On Direct Appeal, a Reviewing Court Cannot Issue a Writ of Mandate and Supervise Compliance with the Writ

General Posted by   

In Center for Biological Diversity v. Department of Fish and Wildlife (2016) 1 Cal.App.5th 452, a partially published opinion on remand from the California Supreme Court (Center for Biological Diversity v. Department of Fish and Wildlife (2015) 62 Cal. 4th 204), the Second District reversed in part and affirmed in part the trial court’s judgment.

In the non-published portions of the opinion, the Second District reversed the trial court’s decision where it was inconsistent with the opinion of the California Supreme Court. The Second District reversed on the issues of significance criteria selection and baseline calculation, and affirmed on the issues of cumulative greenhouse gas emission impacts and two mitigation measures that would violate Fish and Game Code section 5515. The Second District also reconsidered its previous ruling in the case on two issues in light of the California Supreme Court’s holding that comments filed after certification of the joint EIR/EIS were timely. The Second District considered comments and the responses thereto, but stuck to its original conclusion that the findings on Native American Cultural Resources and impacts of dissolved copper on steelhead smolt were supported by substantial evidence.

In the published portion of the opinion, the Second District considered whether it had the authority to, instead of remanding the matter to the trial court, issue its own writ of mandate to the Department of Fish and Wildlife (DFW) and supervise compliance. The developer/real party in interest requested that the court do so, and its motion was supported by DFW. The developer suggested that the California Supreme Court’s opinion in this case and the language of Public Resources Code section 21168.9 would allow the appellate court to do so. They also argued that the general principle of expedient resolution to CEQA litigation supported the appellate courts ability to issue its own writ of mandate.

The Second District looked first at the plain language of section 21168.9 and determined that there was some ambiguity in the statute’s use of the term “appellate court” because courts of appeal do have original mandate jurisdiction in some cases. But the court’s exploration of the legislative history of section 21168.9 found nothing to suggest that the legislature intended appellate courts on direct appeal to have the authority to issue writs of mandate.

The court then examined the lay of the land, in terms of CEQA and appellate practice, when section 21168.9 was adopted in 1984. According to the Second District, “the practice in 1984 … was for administrative mandate petitions to be filed in superior court,” and no statute provided appellate courts with authority to hear direct CEQA challenges at that time. Further, the Code of Civil Procedure—then and now—limits an appellate court to affirming or reversing and modifying the lower court’s judgment. And, after making its decision, the appellate court must remand the matter back to the trial court. The court found nothing to suggest that the legislature intended to alter this procedure when it enacted Public Resources Code section 21168.9. The court also stated that there is a presumption against repeal by implication, which applied to the Code of Civil Procedure sections governing appellate review.

The Second District concluded there was no authority for appellate courts on direct appeal to issue writs of mandate. Given that lack of authority, there was no way for appellate courts to supervise compliance either. Lastly, the court found that section 21168.9, subdivision (b) was clear in its requirement that trial courts retain jurisdiction over the lead agency to ensure compliance with the writ of mandate.

First District Court of Appeal upholds EIR for Plan Bay Area that correctly excluded statewide emissions reductions in developing strategies to meet SB 375’s emissions targets

General Posted by   

In Bay Area Citizens v. Association of Bay Area Governments (2016) 248 Cal.App.4th 966, the First District Court of Appeal interpreted SB 375 as requiring the California Air Resources Board (Board) and regional agencies to set and meet the emissions reductions targets through regionally developed land use and transportation strategies that are independent of existing statewide clean technology mandates.  Therefore, the court of appeal affirmed the trial court’s decision, finding that the appellant’s claims about the inadequacy of the EIR failed because they were based on a misinterpretation of SB 375’s requirements.

SB 375 requires the Board to provide greenhouse gas emissions reduction targets to each region while taking into account statewide mandates such as the Low Carbon Fuel Standard and the New Vehicle Emissions Standards. Then each regional metropolitan planning organization (MPO) must prepare a sustainable communities strategy to meet those targets. The Bay Area’s Metropolitan Transportation Commission and the Association of Bay Area Governments (collectively, the Agencies) prepared Plan Bay Area. The appellants commented on the Plan’s EIR stating that the Agencies should have counted reductions expected from preexisting statewide mandates. However, when the Board’s staff conducted a technical review of the Plan they stated that the Agencies had appropriately excluded greenhouse gas emissions reductions from other technology and fuel programs. The Board then issued an executive order with the staff’s technical report attached, accepting that Plan Bay Area, if implemented, would achieve the targets.

The appellants filed a petition alleging that the Agencies failed to comply with CEQA because they falsely relied on the assumption that SB 375 compelled them to exclude consideration of the statewide mandates when assessing strategies for meeting the emissions reductions targets. First, the court looked to the plain meaning and purpose of the statute and found that because the emissions reductions from the statewide mandates are projected to dwarf those achieved by SB 375, the whole statute would be superfluous if the MPOs were simply allowed to cite the expected reductions from preexisting initiatives. Further, the Board’s AB 32 Scoping Plan repeatedly emphasized that the regional land use and transportation strategies were distinct from the statewide mandates. Although the Board was required to take the statewide mandates into account when setting targets under SB 375, they were not compelled to take any specific approach and it was within their power to instruct regions to exclude consideration of reductions expected from statewide mandates. The final technical evaluation of Plan Bay Area clearly stated the Board’s approach when it confirmed that the Agencies correctly declined to include statewide mandates because they were not counted toward the adopted targets. The court went on to say that even if the legislation did not require exclusion of reductions from statewide mandates, the Board had discretion to do so.

Next, the court addressed the claims about the inadequacy of the Plan’s EIR. The court found that the appellant’s arguments were based on their misinterpretation of SB 375 and deemed the EIR adequate. The Agencies were not required to consider the appellants proposed alternative that relied on statewide mandates because, as discussed above, it did not comply with SB 375 and was therefore infeasible. Contrary to the appellant’s contentions, the EIR did not ignore statewide mandates. Consideration of the New Vehicle Emissions Standards and the Low Carbon Fuel standard were included when determining whether implementation of the Plan would result in a net increase in emissions and whether it would impede the goals of AB 32. Further, the court found that in light of the Agencies’ sufficient disclosures throughout the EIR, including when they did and did not consider statewide mandates, the appellant’s arguments amounted to an impermissible substantive attack on Plan Bay Area.

First District Court of Appeal Upholds EIR for Plan Bay Area that Correctly Excluded Statewide Emissions Reductions in Developing Strategies to Meet SB 375’s Emissions Targets

General Posted by   

In Bay Area Citizens v. Association of Bay Area Governments (2016) 248 Cal.App.4th 966, the First District Court of Appeal interpreted SB 375 as requiring the California Air Resources Board (Board) and regional agencies to set and meet the emissions reductions targets through regionally-developed land use and transportation strategies that are independent of existing statewide clean technology mandates. Therefore, the court of appeal upheld the Bay Area Metropolitan Transportation Commission and the Association of Bay Area Government’s (collectively, the Agencies) “Plan Bay Area” and its EIR, finding the opponent’s arguments failed because they were based on a misinterpretation of SB 375’s requirements.

SB 375 requires the Board to provide greenhouse gas emissions reduction targets to each region while taking into account statewide mandates such as the Low Carbon Fuel Standard and the New Vehicle Emissions Standards. Then, each regional metropolitan planning organization (MPO) must prepare a sustainable communities strategy to meet those targets. The Agencies prepared Plan Bay Area. The petitioners commented on the Plan’s EIR stating that the Agencies should have counted reductions expected from preexisting statewide mandates. When the Board’s staff conducted a technical review of the Plan, however, they stated that the Agencies had appropriately excluded greenhouse gas emissions reductions from other technology and fuel programs. The Board then issued an executive order with the staff’s technical report attached, accepting that Plan Bay Area, if implemented, would achieve the targets.

The petitioners alleged that the Agencies failed to comply with CEQA by incorrectly assuming that SB 375 compelled them to exclude compliance with statewide mandates when assessing strategies to meet emissions reductions targets. First, the court looked to the plain meaning and purpose of the statute and found that because the emissions reductions from the statewide mandates are projected to dwarf those achieved by SB 375, the whole statute would be superfluous if the MPOs were simply allowed to cite the expected reductions from preexisting initiatives. Further, the Board’s AB 32 Scoping Plan repeatedly emphasized that the regional land use and transportation strategies were distinct from the statewide mandates. Although the Board was required to take the statewide mandates into account when setting targets under SB 375, the statute did not require any specific approach and the board had discretion to instruct MPOs to exclude consideration of reductions expected from statewide mandates. The Board made this instruction clear when it approved of Plan Bay Area with the exclusion of reductions from statewide mandates.

On the alleged inadequacy of the Plan’s EIR, the court stated that the petitioner’s arguments were based on their misinterpretation of SB 375 and found the EIR adequate. The Agencies were not required to consider the appellants proposed alternative that relied on statewide mandates because, as discussed above, it did not comply with SB 375 and was therefore infeasible. Contrary to the appellants’ contentions, the EIR did not ignore statewide mandates. Consideration of the New Vehicle Emissions Standards and the Low Carbon Fuel standard were included when determining whether implementation of the Plan would result in a net increase in emissions and whether it would impede the goals of AB 32. Further, the court found that in light of the Agencies’ sufficient disclosures throughout the EIR, including when they did and did not consider statewide mandates, the appellant’s arguments amounted to an impermissible substantive attack on the plan.

Written by Sabrina S. Eshaghi

Fourth District Court of Appeals Finds an Addendum Cannot Cure an Inadequate Certified EIR

General Posted by   

In Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256, the Fourth District Court of Appeal found that the city’s environmental impact report (EIR) failed to sufficiently analyze potential energy impacts and that the adoption of an addendum subsequent to EIR approval could not be considered in determining the EIR’s adequacy because it was not part of the administrative record. Therefore, the appellate court reversed the trial court’s ruling that the EIR was adequate when analyzed in tandem with the addendum.

The project at issue was a Costco warehouse store and gas station. The EIR concluded the project would have significant traffic impacts but the city certified it and adopted a statement of overriding conditions.  CEQA requires that EIRs propose mitigation measures to reduce the wasteful, inefficient, and unnecessary consumption of energy. Although the certified EIR mentioned energy impacts throughout, it did not contain a separate section devoted to energy impacts analysis. One section stated that since the project would comply with the California Code of Regulations Title 24 energy conservation standards, it would not result in wasteful, inefficient, and unnecessary consumption of energy.

Project opponents filed a petition asserting that the EIR failed to include adequate information regarding the project’s energy use. After the writ petition was filed, the Third District Court of Appeal issued an opinion finding that the analysis of energy impacts in an EIR substantially similar to the one at issue in this case was inadequate. In California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173 (CCEC) the Third District held that the energy analysis was insufficient for three reasons: (1) the EIR concluded the project would generate new trips without calculating the impacts of those trips; (2) the EIR improperly relied on compliance with the building code to mitigate energy impacts without analyzing the additional considerations required by appendix F; and (3) reliance on mitigation measures designed to reduce greenhouse gas emissions was misplaced because though there may be a correlation between the two, air quality mitigation is not a substitute for energy analysis. Ukiah’s EIR had all three of these problems. The city addressed these deficiencies by adopting an addendum to the EIR, and the trial court read the two documents together and concluded the energy analysis was adequate.

The court of appeal reversed the trial court’s decision upholding the EIR and found that subject to Code of Civil Procedure section 1094.5 the addendum was not part of the administrative record and therefore could not be considered in deciding whether the city abused its discretion in certifying the EIR. CEQA Guidelines section 15164, which allows the preparation of addendums, assumes the EIR previously certified was adequate and does not allow retroactive correction of inadequate EIRs. Thus, the court directed the city to set aside its project approval and certification of the EIR until recirculation of the energy analysis and consideration of public comments took place. The court did not offer any opinion on the adequacy of the addendum.

In the unpublished portion of the opinion the court rejected the rest of the project opponent’s arguments. First, the impacts from an interchange improvement discussed in the traffic section of the EIR did not need to be analyzed because it was a longstanding proposal that was needed regardless of the project. Second, the population estimates used in the traffic study were supported by substantial evidence. Third, the court held that the noise study was sufficient and that the impacts to nearby hotel guests were insignificant because nighttime deliveries already occurred for existing commercial uses. Lastly, the court found that the Airport Industrial Park specific plan, with which the project was inconsistent, did not apply because it was effectively superseded.

Written by Sabrina S. Eshaghi

Fourth District Court of Appeal Holds Wal-Mart Project Inconsistent with General Plan Renewable Energy Requirements; CEQA Required City to Recirculate the EIR based on 350-Pages of New Analysis

General Posted by   

In Spring Valley Lake Association v. City of Victorville (2016) 248 Cal.App.4th 91, Division One of the Fourth District Court of Appeal reversed the San Bernardino County Superior Court’s decision in part, agreeing with the petitioner that revisions to impact analyses after the Draft EIR had been circulated for review constituted significant new information triggering recirculation, and that the Subdivision Map Act required the respondent city to adopt affirmative findings prior to approving a parcel map. The court also held that the project—a commercial retail development anchored by a Wal-Mart—was inconsistent with the city’s general plan.

Subdivision Map Act

The Court of Appeal held that the City of Victorville violated the Subdivision Map Act by failing, in approving the proposed parcel map associated with the project, to make the findings addressing the issues enumerated in Government Code section 66474, subdivisions (a) through (g). On its face, this section seems only to require that a local agency deny approval of a proposal parcel map if it makes any one of the specified findings. The section does not explicitly address what findings must be made in approving a proposed parcel map. The court held, however, that section 66474 does apply in the latter situation, and requires city and county legislative bodies, in approving parcel maps, to make affirmative findings on each matter addressed in subdivisions (a) through (g) of that section. In reaching this conclusion, the court relied on the following: (i) a related provision of the Subdivision Map Act (Government section 66473.5), which requires local legislative bodies, in approving parcel maps, to affirmatively find that such maps are consistent with the governing general plan and any applicable specific plan; (ii) a 1975 opinion from the Attorney General concluding that section 66474 requires affirmative findings for parcel map approvals as well as parcel map denials; and (iii) case law and secondary sources supporting the Attorney General’s broad interpretation of section 66474.

Consistency with General Plan

The Court of Appeal agreed with the trial court’s decision that the city’s finding that the project was consistent with the general plan’s requirement for on-site generation of electricity was not supported by substantial evidence. The general plan requires that all new commercial projects generate on-site electricity to the maximum extent feasible. As part of the project approvals, however, the city did not require the project to generate on-site electricity. In doing so, the city effectively found that generation of on-site electricity was infeasible. In support of this outcome, the EIR stated that there were many factors considered in determining whether the use of solar panels is cost effective, and described the project as being “solar ready.” But the EIR provided no discussion of those factors or how they applied to the project. Nor did the EIR discuss the feasibility of other alternatives such as wind power. The appellate court therefore held that the city’s finding that the project complied with the general plan requirement that commercial projects generate electricity on-site to the maximum extent feasible was not supported by substantial evidence. It is not clear why the court applied the substantial evidence standard to petitioner’s general plan consistency claims, rather than the traditional arbitrary and capricious standard.

Greenhouse Gas Emissions

The appellate court affirmed the trial court’s decision that the EIR failed to adequately address the project’s impact on greenhouse gas (GHG) emissions. In concluding the project would have no significant impacts on GHG emissions, the city relied on the project’s compliance with the general plan policy to exceed the Title 24 Building Energy Efficiency Standards for Residential and Nonresidential Buildings by 15 percent. The appellate court determined that this conclusion was not supported by the record. First, the court pointed out inconsistencies in the EIR. In one place, the EIR stated that the project would achieve a minimum of 14 percent increased efficiency over Title 24 Standards. In other places, including the technical reports, the EIR stated the project would only be a minimum of ten percent more efficient than Title 24 Standards. Second, in responding to comments, the city acknowledged that the EIR was “currently not in conformity” with the general plan policy that the project would comply with the new energy efficiency standards at the time of construction, and stated that “several of the project’s current energy efficient measures likely meet the 15 percent requirement.” The court found that, at most, the record showed that the project may comply, but not that it would comply with the general plan policy. Therefore, the city’s conclusion that the project would have no significant air quality impacts from GHG emissions was not supported by substantial evidence.

Recirculation under CEQA

Finally, the appellate court also held that the city’s revisions to analyses of certain impact topics constituted “significant new information” triggering recirculation of portions of the Draft EIR. First, the city added to the Final EIR information analyzing the project’s consistency with general plan air quality policies that had inadvertently been omitted from the Draft EIR. Noting that the public did not have a meaningful opportunity to comment on this information, the court found this information disclosed a substantial adverse effect, and therefore triggered the obligation to recirculate the draft EIR. Second, after the city circulated the draft EIR, the applicant substantially revised the project’s storm water management plan. Although no new impacts were identified, the final EIR included 350-pages of new water quality and hydrology analysis. The court held the new information triggered the duty to recirculate. As the court reasoned: “Given their breadth, complexity, and purpose, the revisions to the hydrology and water quality analysis deprived the public of a meaningful opportunity to comment on an ostensibly feasible way to mitigate a substantial adverse environmental effect.” Notably, the court reached these conclusions without attempting to relate its reasoning to the four examples within CEQA Guidelines section 15088.5, subdivision (a), of situations requiring recirculation.

 

Fourth District Court of Appeal Finds CEQA Review was not Required Prior to County Approval of a Memorandum of Understanding

General Posted by   

In Delaware Tetra Technologies, Inc. v. County of San Bernardino (2016) 247 Cal.App.4th 352, the Fourth District upheld the County of San Bernardino’s approval of a Memorandum of Understanding between the county, the Santa Margarita Water District, and the Fenner Valley Mutual Water Company, that laid the groundwork for developing a plan for a groundwater pumping project. The court held that environmental review was not required under CEQA prior to the county’s approval of the MOU.

The project involved a public/private partnership to construct 34 wells on property owned by Cadiz, Inc., to pump an average of 50,000 acre-feet of groundwater per year for 50 years, transport that water via pipeline to the Colorado River Aqueduct, and deliver that water to project participants, including the Santa Margarita Water District. The county entered into the MOU with Santa Margarita and the Fenner Valley Mutual Water Company (the project operator) to establish a process for completing a plan for the project. Specifically, under the MOU, the parties agreed that a groundwater management, monitoring, and mitigation plan would be developed in connection with the finalization of the EIR for the project that would govern the operation and management of the project by Fenner Valley during the operational phase of the project. Once completed, the plan would need to be reviewed by the county for final approval.

Relying primarily on Save Tara v. City of West Hollywood, the project opponents argued that the MOU was one of several necessary steps in approving the project, and the county was therefore required to perform environmental review prior to approval of the MOU. The Court of Appeal disagreed.

The question was whether the approval of the MOU by the county would commit it to an activity with direct or indirect impacts on the environment. The court determined that the county retained full discretion to approve or disapprove the project despite executing the MOU and therefore had not committed itself as the City of West Hollywood had in Save Tara. Further, the court found that the act of approving the MOU did not exclude the consideration of alternatives or mitigation measures, which would typically be part of the environmental review, citing Cedar Fair L.P. v. City of Santa Clara.

The appellate court emphasized that its opinion did not foreclose environmental review under CEQA; in fact, the MOU required that an EIR be prepared prior to final approval of the project. The approval of the MOU was not a sufficient commitment toward the project to require an EIR on its own. The opponents also argued that approval of the MOU violated a county ordinance on groundwater management, but that issue was decided in an accompanying unpublished opinion, which the court referenced in holding that the MOU did not violate the ordinance.

Fourth District Court of Appeal Upholds EIR for Groundwater Pumping Project

General Posted by   

In Center for Biological Diversity v. County of San Bernardino (2016) 247 Cal.App.4th 326, the Fourth District upheld the Santa Margarita Water District’s certification of a final EIR and approval of a plan to pump groundwater in San Bernardino County. The court overturned the trial court’s ruling that Santa Margarita was not properly designated as the lead agency under CEQA and held that the EIR’s description of the project was sufficiently accurate.

The challenged project involved a plan  to construct 34 wells on property owned by Cadiz, Inc., to pump an average of 50,000 acre-feet of groundwater per year for 50 years, transport that water via pipeline to the Colorado River Aqueduct, and deliver that water to project participants, including Santa Margarita. San Bernardino County entered into an MOU with Santa Margarita, which designated Santa Margarita as the lead agency for CEQA purposes and tasked them with preparing the EIR.

The project opponents argued that Santa Margarita was not the proper lead agency under CEQA because San Bernardino County had to approve the project before pumping could begin. The Fourth District disagreed, stating that Santa Margarita was the proper lead agency under CEQA Guidelines section 15051, subdivisions (a), (b), or (d). San Bernardino had the most authority over the pumping, but Santa Margarita had greater responsibility over the project as a whole, which was to be partially carried out by a private party as well as Santa Margarita. Further, the MOU between San Bernardino and Santa Margarita was an agreement between the parties which designated Santa Margarita as the lead agency, which satisfied section 15051, subdivision (d).

The opponents also argued that the project description in the EIR was misleading and inaccurate, with regard to the description of the project objectives, the pumping, the time frame for pumping, and the total amount of water that would be extracted. The court held that the project’s fundamental purpose was to “save substantial quantities of groundwater,” and not just groundwater lost to evaporation, and thus the objectives were not misleading. As to the duration of the pumping phase of the project, the court found that the pumping could be “extended for a limited time” to fulfill the terms of the water delivery contracts, and that it could be extended to reach the total amount that can be extracted under the plan (2.5 million acre-feet). The court held, however, that extending the project beyond the 50 years would require a new agreement and additional environmental review, which would be too speculative to require at the outset. Lastly, the court found that the EIR’s description of the rate and total amount of groundwater withdrawal were sufficiently defined to not be misleading.

2425262728