Sixth District Court of Appeal holds that seeking a streambed alteration agreement from CDFW was not a “further discretionary approval” by the City of San Jose, and therefore subsequent CEQA review was not required

Ruling on the petitioners’ second attempt to halt the demolition of the Willow Glen Trestle, the Sixth District Court of Appeal held that the act of seeking a new streambed alteration agreement from the California Department of Fish and Wildlife for the previously reviewed project was not a “new discretionary approval,” and therefore did not require supplemental environmental review. (Willow Glen Trestle Conservancy v. City of San Jose (2020) ___Cal.App.5th ___ (Case No. H047068).)

Background

In 2014, the City of San Jose (the City) approved a mitigated negative declaration (MND) for the demolition and replacement of the Willow Glen Railroad Trestle, a wooden railroad bridge built in 1922. When the City approved the MND, the trestle was not listed in the California Register of Historical Resources. The Friends of the Willow Glen Trestle filed a lawsuit challenging the MND. The trial court concluded that substantial evidence supported a fair argument that the trestle was a historical resource, and the City was therefore required to prepare an environmental impact report. The Court of Appeal remanded the matter to the trial court, holding that the substantial evidence standard of review, not the fair argument standard, applied to the City’s determination of historical status. (Friends of Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457.)

In May 2017, the California State Historical Resources Commission approved listing the trestle in the California Register of Historical Resources. Also in 2017, the City’s streambed alteration agreement (SAA) with the California Department of Fish and Wildlife (CDFW) expired. The City submitted a new notification to CDFW and CDFW issued a final SAA in August 2018. The Willow Glen Trestle Conservancy and Friends of the Willow Glen Trestle (collectively the Conservancy) filed another lawsuit, this time alleging that entering into the SAA was a discretionary approval by the City that triggered supplemental environmental review under Public Resources Code section 21166.

The trial court determined the 2018 SAA did not involve a new discretionary approval and the Conservancy appealed.

The Court of Appeal’s Opinion

Public Resources Code section 21166 and CEQA Guidelines section 15162 require supplemental environmental review, in limited circumstances, when an agency must make a “further discretionary approval” for a project for which the agency has already completed review. The Conservancy argued that the City’s submission of a notification to CDFW in order to obtain a new SAA amounted to an approval by the City, requiring supplemental environmental review. The Court of Appeal disagreed, holding that approval of the SAA was an action by CDFW, not the City.

The Conservancy argued that the City’s act of seeking and accepting the SAA was a discretionary approval. Quoting the Supreme Court in Friends of College of San Mateo Gardens v. San Mateo Community College Dist. (2016) 1 Cal.5th 937, 945, the Court of Appeal emphasized that sections 21166 and 15162 limit the circumstances under which a subsequent or supplemental EIR must be prepared, and promote the interests in finality and efficiency. If every action in connection with a project were considered an “approval,” the court said, each and every step of a lead agency would reopen environmental review under CEQA.

The Conservancy also argued that different rules should apply because this was the City’s own project, rather than a private project. The Conservancy argued that because the City retained discretion to reconsider or alter the project, its failure to abandon the project was itself a new discretionary approval. The court rejected this argument, again because the purpose of section 15162 is to limit subsequent environmental review. In addition, the court said, section 15162 makes no distinction between public and private projects.

The court concluded that the City was implementing the project when it submitted a new notification to CDFW and when it accepted the SAA. The only new approval was CDFW’s, and the Conservancy did not challenge that decision.