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Trial Court Rejects Challenge to EIR for Cadiz Valley Groundwater Recovery Project in San Bernardino County, Appeal Likely to Follow

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On May 1, 2014, the Orange County Superior Court ruled against petitioners in six related cases and upheld the EIR for the Cadiz Valley Water Conservation, Recovery, and Storage Project.  The court noted its concern over the designation of Santa Margarita Water District as the lead agency for the project under CEQA.  But it concluded that even if the County of San Bernardino would have been a more appropriate lead agency, these concerns did not provide sufficient grounds for the granting of any of the writs sought by petitioners Delaware Tetra and Center for Biological Diversity.

Cadiz, Inc., is a private corporation that owns approximately 34,000 acres in the Mojave Desert portion of eastern San Bernardino County.  A vast groundwater basin capable of holding an estimated 17-34 million acre feet (MAF) underlies the Cadiz property.  The groundwater recovery project would allow Cadiz to sell up to 2 MAF of water that would otherwise become saline and evaporate over the next 100 years.  The project involves pumping and delivering to water providers like the Santa Margarita Water District a total of 50,000 AF a year for 50 years. The participating water districts and water providers could also send their surplus surface water supplies to the Cadiz Valley Project to recharge the groundwater and store it until the water is needed in subsequent years.

Currently, six entities have signed purchase or option agreements with Cadiz: 1) Santa Margarita Water District, 2) Three Valleys Municipal Water District, 3) Suburban Water Systems, 4) Golden State Water Company, 5) Jurupa Community Services, and 6) California Water Service Company.  These entities will receive 80% of the project’s water supplies, while 20% is reserved for future use by water agencies in San Bernardino County.

The project drew CEQA challenges from both the private sector and environmental groups.  Petitioner Delaware Tetra Technologies owns a salt mining operation in the Cadiz and Fenner Valleys of San Bernardino County. The groundwater recovery project threatens the continued operation of the salt mine because it will reduce the flow of saline water that creates salt when it evaporates.

In other suits, petitioners Center for Biological Diversity (CBD) and other conservation groups asserted several CEQA claims, including concern over the potential environmental impacts on nearby springs in wilderness areas and the Mojave National Preserve.   They argue that the project would be growth-inducing because the Santa Margarita Water District will send the groundwater it purchases to support development in Orange County.  The Orange County Superior Court’s Ruling did not specify its rationale for rejecting petitioners’ CEQA arguments.  Instead, the court directed respondents Santa Margarita Water District and the County of San Bernardino to prepare proposed findings as to each petition reflecting that the court adopted the respondents’ arguments but noting that the court had some concerns regarding the lead agency designation.  Counsel for CBD has indicated that it will appeal the decision.

U.S. Supreme Court Rules the EPA Has Authority Under Good Neighbor Provision of Clean Air Act to Establish Rules Limiting Emissions and Curtailing Air Pollution Emitted in Upwind States

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Environmental Protection Agency et al. v. EME Homer City Generation, L.P., et al. (2014) __U.S.__ (April 29, 2014, Case no. 12-1182)

Over the past several decades, Congress and the Environmental Protection Agency (EPA) have made several efforts to address the difficult challenge of curtailing air pollution emitted in upwind states, but causing harm in downwind states. Under the Clean Air Act, the EPA must establish national ambient air quality standards (NAAQS) for pollutants at levels that will protect health. Once the EPA establishes a NAAQS, it must designate “nonattainment” areas—locations where pollution concentration exceeds the NAAQS. Within three years of any new or revised NAAQS, each state must submit a State Implementation Plan (SIP) to achieve the NAAQS. If the EPA determines a SIP is inadequate, it must prepare and adopt a Federal Implementation Plan (FIP). Among other things, the SIP must “contain adequate provisions … prohibiting … any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will … contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any … [NAAQS].” (42 U.S.C. § 7410 (a)(2)(D)(i).) This requirement is known as the “Good Neighbor Provision” of the Clean Air Act.

Many times over the past two decades, the EPA has attempted to delineate the Good Neighbor Provision’s scope by identifying under what circumstances an upwind state can be said to “contribute significantly” to nonattainment in downwind states. One such attempt is the EPA’s Cross-State Air Pollution Rule (Transport Rule), which aims to reduce mono-nitrogen oxides (NOx) and sulfur dioxide (SO2) emissions in 27 upwind states to achieve attainment of three NAAQS in downwind states. Under the Transport Rule, an upwind state “contribute[s] significantly” to downwind nonattainment if its exported pollution: (1) produces one percent or more of a NAAQS in at least one downwind state; and (2) could be eliminated cost-effectively, as determined by the EPA. Upwind states whose emissions meet both these criteria must eliminate their emissions. Based on complex modeling, the EPA also created an annual emission “budget” for each of the regulated upwind states, representing the total quantity of pollution an upwind state may produce in a given year under the Transport Rule. Having determined that each of the regulated upwind states’ SIPs was inadequate, the EPA also adopted FIPs concurrently with its adoption of the Transport Rule.

A group of state and local governments, joined by industry and labor groups, petitioned for review of the Transport Rule in the D.C. Circuit. The Court of Appeal vacated the rule in its entirety, holding that: (1) the EPA must give states a reasonable opportunity to allocate their emission budgets before issuing the FIPs; and (2) the EPA must not consider cost in determining whether an upwind state “contribute[s] significantly” to a downwind state’s nonattainment. In an opinion delivered by Justice Ginsburg, in which Justices Roberts, Kennedy, Breyer, Sotomayor, and Kagan joined, the Supreme Court reversed.

First, the Court held that the Clean Air Act does not require the EPA to give states a second chance to file a SIP after the EPA has quantified the state’s interstate pollution obligations. Although the state respondents in the case did not challenge EPA’s disapproval of any particular SIP, they argued that the EPA is nevertheless required to give upwind states an additional opportunity to promulgate adequate SIPs after the EPA has set the state’s emission budgets. The Court found that the Clean Air Act’s plain text does not support this argument. Rather, the Clean Air Act only requires that once the EPA disapproves of a SIP, the EPA must issue a FIP. Although the EPA had previously provided upwind states an opportunity to allocate emission budgets among their in-state sources, this did not mean that the EPA acted arbitrarily in declining to do so here.

Second, the Court held that EPA’s cost-effective allocation of emission reductions among upwind states is a permissible, workable, and equitable interpretation of the Good Neighbor Provision. The Court noted that the Good Neighbor Provision does not dictate a specific method of apportioning responsibility among the upwind contributors. In the absence of specific guidance, the EPA’s use of costs in the Transport Rule is an efficient and equitable solution to the allocation problem presented by the Good Neighbor Provision. Furthermore, contrary to the D.C. Circuit’s holding, the EPA must have leeway in fulfilling its mandate to maximize achievement of attainment in downwind states.

Eastern District Dissolves Injunction, Allows Homewood Ski Area Master Plan to Proceed

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On May 1, 2014, the United States District Court for the Eastern District of California issued an order granting a joint motion for partial relief from judgment and dissolution of injunction in Sierra Club v. Tahoe Regional Planning Agency (E.D. Cal., Case No. CIV. 2:12-0044 WBS CKD). In doing so, the court granted relief from its prior order requiring the County of Placer and Tahoe Regional Planning Agency (TRPA) to recirculate the Environmental Impact Report-Environmental Impact Statement (EIR–EIS) for the Homewood Ski Area Master Plan.

The court found the parties met their burden under Federal Rule of Civil Procedure 60(b) to modify the court’s original order. Specifically, the court concluded that new economic information supported the EIR-EIS’ discussion of the financially viability of a smaller project. The court also considered a recent settlement between the plaintiffs and the developer, in which the developer agreed to trim the project by 13 units. The court stated that the county and TRPA would determine whether additional environmental review was necessary based on this new information. The court held that the proposed modifications to the project under the settlement and the new evidence regarding the feasibility of alternatives warranted dissolving the injunction.

The court’s decision allows the developer to move forward with the project, as modified by the settlement agreement.

RMM attorneys Whit Manley, Howard (Chip) Wilkins, and John Wheat represented the developer — Homewood Village Resorts, LLC and JMA Ventures, LLC — in the case.

Sacramento Superior Court Upholds MND and Rejects Challenge to City of Folsom’s Approval of the Lake Natoma Trail Enhancement Project

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On April 30, 2014, Sacramento Superior Court Judge Michael P. Kenny ruled in favor of the City of Folsom and denied a petition for writ of mandate challenging the City’s compliance with CEQA for its approval of a Lake Natoma trail improvement project.

The Lake Natoma Waterfront and Trail Access Enhancement Project would use State Proposition 50 funding to address impacts from the overuse of the recreation area between historic Folsom and the American River by enhancing existing pedestrian pathways to facilitate wheelchair access to the river trail system and mitigate existing erosion problems, creating new scenic rest areas, providing direct landing access for kayaks and small, non-motorized vessels, and removing non-native, invasive vegetation. Petitioner Save the American River Association argued that the project was inconsistent with regional recreation management plans and that the City failed to adequately analyze the aesthetic impacts of installing up to six lighted bollards on the edge of the project site. Judge Kenny rejected these arguments.

The court determined that the project was consistent with both the Folsom Lake State Recreation Area’s General Plan and the American River Parkway Plan with respect to the types and intensity of recreational uses that the project would facilitate. The court also found that there was no substantial evidence supporting a fair argument that the limited number of lighted bollards at the edge of the project near existing development could have a significant adverse effect on the environment. Therefore, the court upheld the City’s adopted mitigated negative declaration and its approval of the project.

RMM attorneys Sabrina Teller and John Wheat represented the City of Folsom in this case.

EPA Interprets its Clean Water Act Jurisdiction in Proposed Rule

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The Clean Water Act (CWA) was passed in 1972 to protect and remediate America’s waters. While the country has made great strides toward these goals in the years since the CWA’s enactment, one-third of America’s lakes, rivers, and coastal waters still remain unsafe for fishing and swimming. The federal government intends to increase the effectiveness of the CWA by clarifying its scope and expanding its application.

On April 21, 2014, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers jointly issued a proposed rule, “Definition of ‘Waters of the United States’ Under the Clean Water Act.” The rule, which will define the scope of waters protected under the CWA, is meant to clarify the agencies’ regulatory jurisdiction for streams and wetlands under the CWA. The rule could expand EPA’s and the Corps’s jurisdiction, subjecting more projects and activities to the CWA’s permitting requirements for discharges, pollutants, and fill materials. In more clearly defining “waters of the United States,” the agencies hope to alleviate some of the confusion over the CWA’s reach created by the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) 531 U.S. 159 and Rapanos v. United States (2006) 547 U.S. 715.

The proposed rule clarifies that the CWA protects most seasonal and rain-dependent streams, and wetlands near rivers and streams. Specifically, the proposed rule defines “waters of the United States” as “traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands.” In addition, the agencies propose that “other waters” (those which do not fit within the proposed categories of waters jurisdictional by rule) would only be jurisdictional upon a case-specific determination that that, either alone or in combination with similarly situated ‘‘other waters’’ in the region, they have a ‘‘significant nexus’’ to a traditional navigable water, interstate water, or the territorial seas. The rule would also offer a definition of significant nexus and explain how similarly situated ‘‘other waters’’ in the region should be identified.

The rule will not be finalized until completion of a scientific assessment. The proposed rule contains a draft assessment, comprised of a review and synthesis of more than one thousand pieces of peer-reviewed scientific literature.

EPA and the Corps seek input on how the CWA should apply to “other waters” — those not fitting the definition of waters of the United States — and whether waters spanning multiple ecological regions should be evaluated individually or collectively. Comments on the proposed rule are due to EPA by July 21, 2014.

The proposed rule can be found at http://www2.epa.gov/sites/production/files/2014-04/documents/fr-2014-07142.pdf.

The proposed rule also preserves the CWA’s exemptions for agriculture. In collaboration with the U.S. Department of Agriculture, the agencies developed an interpretive rule to ensure that certain specific water conservation practices will not be subject to dredge or fill permitting requirements. This interpretive rule will go into effect immediately. The agencies recognize, however, the value of receiving public comment on the interpretive rule and are publishing it by separate notice in the Federal Register.

The public is encouraged to provide their comments on the interpretive rule to the docket on the interpretive rule, Docket Id. No. EPA–HQ–OW–2013–0820, and not the docket for the proposed CWA jurisdiction rule.

The interpretive rule and the request for comments can be found at http://water.epa.gov/lawsregs/guidance/wetlands/agriculture.cfm.

Variance from Setback Requirement Allowed for Seaside Home Replacement

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On March 14, 2014, in Eskland v. City of Del Mar (Mar. 14, 2014) ___ Cal.App.4th ___, Case No. D061370, the Fourth District Court of Appeal upheld the City of Del Mar’s decision to grant a variance from the zoning code for a house that violated the local setback requirement. The court, affirming the judgment below, found that the City had not abused its discretion in allowing the encroachment, as the variance was permitted under the local municipal code.

Jon Scurlock owned a house on a steep seaside lot in the City of Del Mar. The house lay only eleven feet from the road, and thus did not comply with the 20-foot front yard setback requirement. The court assumed for the sake of argument that when the house was originally built, it complied with the setback requirement in existence at that time.

Scurlock proposed to tear the house down and build a new house in its place. After the design review board approved the plans, Scurlock applied to the city planning commission for a variance from the setback requirement, since the new house would be built in the footprint of the old house and would therefore encroach to the same degree. The planning commission approved the variance, citing special circumstances of the lot warranting approval.

The Eskelands, neighbors of Scurlock, filed a writ of administrative mandamus seeking to set aside the City’s approval of the variance. The trial court denied the petition, ruling that substantial evidence supported the city’s approval. The Eskelands appealed.

The parties disputed whether the new house would expand or maintain the existing degree of structural nonconformity, but the court found it unnecessary to resolve the issue because the municipal code permitted property owners to expand the degree of nonconformity pursuant to a variance. The court found that the record contained the requisite substantial evidence of “special circumstances” to support the variance. The topography of Sclurlock’s lot was more significantly sloped than neighboring properties, making relocation of the house to another part of the property expensive, impractical, and potentially dangerous. Furthermore, the street curved in a C-shape in front of the property, creating a smaller setback space. The planning commission had concluded that locating a single-family residence elsewhere on the property would cause adverse impacts to the steep slopes.

The court rejected the Eskelands’ contention that Scurlock was impermissibly continuing a structural nonconformity in violation of the municipal code. The court pointed out that a variance and the continuance of a nonconformity are completely separate legal concepts. The concepts’ locations in separate code sections lent credence to the court’s interpretation that the prohibition on structural nonconformities was not intended to trump the provision for variances.

The standard of review in administrative mandamus affords a strong presumption of correctness to the agency. Under this presumption, the court found that the City had properly considered the evidence in reaching its findings, and upheld Scurlock’s variance.

Eastern District Denies Sierra Club’s Motion for Summary Judgment, Grants Tahoe Regional Planning Agency’s Cross-Motion for Summary Judgment in Challenge to Lake Tahoe Regional Plan Update

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On April 7, 2014, the United States District Court for the Eastern District of California issued an order in Sierra Club v. Tahoe Regional Planning Agency (April 7, 2014), E. D. Cal. Case No. 2:13-cv-00267 denying plaintiffs Sierra Club and Friends of the West Shore’s motion for summary judgment, and granting defendant Tahoe Regional Planning Agency’s (TRPA’s) cross-motion for summary judgment. The outcome upheld TRPA’s approval of its Regional Plan Update (RPU), which guides all land-use planning and development within the Lake Tahoe Region.

Background

In 2012, TRPA certified the final EIS for and approved its RPU. Key components of the RPU include TRPA’s adoption of a Regional Transportation Plan and the incorporation of Lake Tahoe’s Total Maximum Daily Load (“TMDL”) into its Regional Plan.  Plaintiffs challenged the approval, contending the RPU violated the Tahoe Regional Compact’s requirements.  Plaintiffs overarching contention was that TRPA failed to adequately evaluate potential impacts associated with the RPU’s strategy of loosening certain development restrictions in order to incentivize redevelopment in urban areas and remove existing development in outlying areas, based on the premise that this strategy would enable more environmentally sensible land use.  Plaintiffs also argued TRPA’s findings that the RPU would achieve and maintain adopted threshold standards was not supported substantial evidence as required under the Compact.  TRPA, in contrast, characterized the RPU as incorporating contemporary planning principles, current science, and a focus on redevelopment incentives to convert substandard development into modern, environmentally beneficial, visually attractive, walkable, bikeable communities.   TRPA argued that its finding were supported by substantial evidence and that the PRU would accelerate threshold attainment by creating incentives to restore sensitive lands and increasing BMP compliance.

Both parties agreed that disposition at the summary judgment stage was appropriate given that the case was based on an administrative record. The court refused to consider documents outside the record which post-dated the TRPA’s approval of the RPU. The court reviewed Sierra Club’s claims that TRPA violated the Compact in approving the RPU under an arbitrary and capricious standard, which confers deference to agencies.

The District Court’s Decision

Plaintiffs first argued that TRPA failed to analyze the potential localized impacts from concentrating impervious surface coverage in urban centers. Plaintiffs contended that TRPA’s failure to conduct a watershed-level analysis on the effect of geologically-concentrated coverage and its decision to conduct only a region-wide study was arbitrary and capricious. The court disagreed holding TRPA’s choice of modeling was an exercise of its scientific expertise and entitled to deference. In reaching this conclusion, the court stated that although Plaintiffs may prefer a different model, TRPA’s choice of the TMDL model was supported by substantial evidence and the EIS explained why Plaintiffs’ proposed watershed-level analyses were neither feasible nor necessary given the programmatic nature of the EIS.  The court further held that TRPA was not required to address “every possible scientific uncertainty” and that the EIS’s region-wide analysis was consistent with the regional scale of the RPU.  The court found TRPA’s decision to defer site-level analysis was reasonable because site-level analysis was required under the RPU when local jurisdictions approve Area Plans or when specific development projects are proposed.   The court also rejected Plaintiffs’ argument that compliance with Tahoe TMDL was not mandatory and that TRPA could not rely on the TMDL to support its findings that water quality thresholds would be attained under the RPU.

Plaintiffs’ second argument was that the EIS failed to examine the cumulative impacts to soil conservation resulting from increased development and concentrated impervious surface coverage in urban centers. The court, however, found that TRPA’s conclusion that the RPU would not have a significant effect on local soil conditions was supported by the record. The court stated although EIS’s discussion of the RPU’s soil related impacts was not as thorough as its discussion of water-quality impacts, this was consistent with the fact that the vast majority of comments focused on RPU’s potential impact on water quality.

Next, Plaintiffs argued that TRPA improperly relied on BMP installation and maintenance in concluding that the RPU would not significantly affect water quality.  TRPA responded to this argument noting that under the RPU all new or re-development is required to install and maintain BMPs as a condition of project approval.  Plaintiffs took issue with the past failures of the agency to enforce BMP retrofit requirements for existing development, but the court found that this view overlooked the RPU’s inclusion of programs designed to incentivize and improve the maintenance of BMPs for these parcels. Given that BMP maintenance is mandatory under TRPA ordinances, the court opined, the agency was entitled to conclude that its BMP ordinance would be largely followed.

Finally, TRPA argued that, contrary to plaintiffs’ assertions, its conclusion that the RPU would attain and maintain ozone threshold standards was supported by substantial evidence. The court found TRPA was not required to make a finding that the Lake Tahoe Air Basin is currently in attainment of all threshold standards. Rather, it was only required to find that the RPU implemented a plan that would achieve and maintain threshold standards. The RPU implemented a number of programs and policies designed to reduce automobile dependency. This, with other findings, constituted substantial evidence supporting TRPA’s conclusion that the Regional Plan, as amended by the RPU, would achieve and maintain ozone threshold standards.

The court also rejected Plaintiffs’ argument that TRPA failed to adequately explain its rationale for changing its conclusion regarding one of its ozone threshold in the Final EIS.  The court noted that data unavailable when TRPA published its draft EIS had led to a change its conclusion.  This new data indicated the region was in attainment with the all ozone threshold standards. The court deferred to TRPA’s scientific determination that data from a single Nevada monitoring site was representative of conditions throughout the Lake Tahoe Air Basin based on historical trends and that this data was sufficient to evaluate attainment of ozone thresholds.  The court noted that TPRA acknowledged the limited data available from monitoring sites during the relevant time frame and took this into account in its determination that there was a “moderate” confidence level for this conclusion.  The court found TRPA’s conclusion was supported by substantial evidence stating that TRPA was not required to demonstrate complete certainty in its findings.

RMM partners Whitman Manley and Howard (Chip) Wilkins represented TRPA.

OPR Solicits Input in Effort to Improve State Groundwater Management

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On January 27, 2014, Governor Jerry Brown issued the California Water Action Plan, which highlights the challenges for managing the State’s water resources and outlines strategic goals and actions to provide more reliable water supplies, restore important species and habitat, and establish a more resilient and sustainably managed water resource system for farms, ecosystems and communities. The plan specifically identified a number of actions to implement sustainable groundwater management practices. One of those actions called for legislation to provide local and regional agencies with comprehensive authority to manage groundwater. If those agencies fail to achieve sustainable management, the Plan proposes allowing the state to temporarily assume responsibility for groundwater management. The Governor’s Office of Planning and Research (OPR) is now seeking input on actions that can be taken to improve groundwater management in California.

Groundwater control has generally been left to local efforts and courts; California has no comprehensive authority for monitoring or regulating groundwater. One primary objective of the Plan is to establish a legal framework through which to improve groundwater management and expand groundwater storage capacity.

OPR planned two sustainable groundwater management workshops, on March 24 and April 16, facilitated by the California Environmental Protection Agency, the California Department of Food and Agriculture, and the California Natural Resources Agency. The purpose of the workshops is to solicit ideas and approaches to groundwater management.

OPR now seeks input on the following questions:

  • What new or modified statutory authorities do local and regional agencies need to manage groundwater more effectively?
  • What would help local agencies overcome barriers to funding for conservation, projects, and programs?
  • What types of governance structures are most effective for managing groundwater locally, and should these models be encouraged?
  • What specific data and information do local managers need to succeed? What should be done to help them obtain the data?
  • What can be done to help local and regional agencies manage a basin or sub-basin that spans multiple jurisdictions?
  • Are there improvements to the groundwater adjudication process that would make it more useful and cost-effective for local authorities?
  • What role should groundwater management plans play, and does their content need to change?
  • What incentives could local and regional agencies be given to improve groundwater management?
  • Should local groundwater management planning be connected, through formal processes, to land use decisions, county general plans, or integrated regional water management plans? If so, what kind of formal processes?

More information can be found at:

http://www.opr.ca.gov/docs/Sustainable_Groundwater_Management_3-7-2014.pdf

http://www.opr.ca.gov/docs/joint_workshop_notice.pdf

Written comments are due to OPR by April 25, 2014.

Tahoe Regional Planning Agency Will Proceed with Regional Plan Update After Federal Court Victory

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On April 7, 2014, the United States District Court for the Eastern District of California issued an order granting defendant Tahoe Regional Planning Agency’s (TRPA’s) cross-motion for summary judgment against Sierra Club and Friends of the West Shore. In doing so, the court upheld TRPA’s approval of its Regional Plan Update (RPU).

The court held that TRPA’s findings were supported by substantial evidence in the record, deferring to the agency’s expertise where the parties engaged in factual disputes. TRPA used the Total Maximum Daily Load model to reduce the flow of pollutants into the lake, rather than relying solely on strict limits on impervious surface coverage to achieve this goal, as it had done under the previous plan. The court determined that this decision was reasonable and supported by substantial evidence in the record, including numerous reports and studies prepared by TRPA. The court also upheld TRPA’s methodology for examining cumulative impacts to soil conservation, and stated that the agency was entitled to conclude that its mandatory, incentivized best management practices ordinance would be followed and would help improve lake clarity. Finally, the court upheld TRPA’s finding that the Regional Plan, as amended by the RPU, would achieve and maintain the ozone threshold in the Tahoe basin.

RMM partners Whitman Manley and Howard (Chip) Wilkins represented TRPA in the case.

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