by William W. Abbott

Readers of this firm’s publications likely remember the efforts of the Wilson administration to create an impetus in the 1998 CEQA Guidelines amendments for the use of thresholds of significance as a means of reducing EIRs. While well intentioned, this effort was tanked by the superior court, whose invalidation of a selection 1998 amendments was then largely affirmed by the Third District Court of Appeal in Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98. In the recent decision of Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099 (March 12, 2004, modified April 9, 2004), the same appellate court had another opportunity to weigh in on the use of thresholds of significance, this time focusing on Appendix G of the Guidelines.

The project in question involved the conversion of an open ditch water conveyance system to a pipeline. Many water suppliers in the foothills are looking to make this conversion in an effort to improve water quality, decrease transmission loss and reduce liability and maintenance costs. While many would view this effort as an environmental improvement, these leaking ditches have inadvertently created environmental values by increasing the amount of water available in summer and fall months in areas which would otherwise be dry. This was the situation the Amador Water Agency found itself in when it undertook an EIR in support of a lengthy ditch-to-pipeline project. Relying upon the criteria set forth in Appendix G of the CEQA Guidelines, the lead agency determined that impacts to hydrology would be less-than-significant. This determination was challenged by project opponents, claiming the EIR used irrelevant thresholds and insufficiently described the basis of concluding the impacts were not significant.

While the appellate court spends a fair amount of time wrestling with the argument that the Appendix G thresholds are irrelevant for this type of project, the EIR was found to be inadequate by the appellate court on the basis that the conclusion of no-significant-effect lacked adequate supporting analysis. An EIR must contain “a statement briefly indicating the reasons for determining that various effects on the environment of a project are not significant and consequently have not been discussed in detail in the environmental impact report.” Pub. Resources Code, § 21100(c); see also Guidelines, § 15128. In this case, the EIR simply stated that “(t)he change in local hydrology associated with dewatering the Amador Canal and eliminating all leakage is not considered to be a significant hydrological impact per se.” The appellate court observed that this was “but a bare conclusion,” and did not constitute a “statement of reasons” as required by CEQA.

While in one sense this decision rests on an inadequacy of disclosure, the court may be hinting at something more. It certainly raises a cautionary note for lead agencies whose rote reliance on Appendix G may not be an absolute safe harbor in terms of CEQA practice. To the extent a project does not neatly fit the Appendix G criteria, the lead agency may need to be innovative to define a relevant threshold applicable to the environmental values in question.

William W. Abbott is a partner with the law firm of Abbott & Kindermann, LLP in Sacramento. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.