February 2008

By Cori Badgley

Under the California Environmental Quality Act (“CEQA”), the definition of “environment” includes historical resources. If a project has the potential to affect historical resources, it is subject to environmental review. In Valley Advocates v. City of Fresno (2008) No. F050952, the appellate court held that the inquiry of whether a resource should be listed in the local register cannot be relied upon for purposes of CEQA to determine whether a resource is historic. Additionally, the court held that the fair argument standard does not apply to the question of whether a resource is a discretionary historical resource under CEQA.

Continue Reading What You Consider Ancient History Might Require a Fresh Look Under CEQA

CEQA Alternatives

Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437

The Court of Appeal discussed two important CEQA topics: the evaluation of second-unit zoning and EIR alternatives. First, the court concluded that an impact analysis need not assume full build-out under second-unit zoning. Second, the court clarified the duty of inquiry and held that the lead agency must assess the feasibility of project alternatives. Read More

Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587

The Court of Appeal upped the ante in evaluating economic feasibility for EIR alternatives for a project involving demolition of a historic structure. An evaluation of remodeling costs alone, without a comparison to new construction costs, was held insufficient as a basis to reject the feasibility of remodeling as an alternative. Read More

CEQA Water Supply Analysis

Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412

Few CEQA cases reach the California Supreme Court. Accordingly, it is noteworthy that the Court issued two decisions on CEQA issues in 2007. The more significant case, Vineyard Area Citizens, provides added extensive guidance on the interface between water supply and CEQA. The case also provides guidance on EIR recirculation. Read More

CEQA Impact Analysis

San Joaquin Raptor v. County of Merced (2007) 149 Cal.App.4th 649

Unlike residential or commercial development projects with somewhat predictable levels of activity (and in turn, environmental effects), mining projects involving rock, sand and gravel can vary widely based upon local economic conditions. San Joaquin Raptor examines the duty of the lead agency to also evaluate impacts associated with periodic or sustained peaks, and not just to rely upon historic averages. The decision also addressed deferred mitigation in the area of biological impacts. Read More

Global Warming

State of California v. County of San Bernardino, San Bernardino County Superior Court (filed Apr. 13, 2007)

In April California Attorney General Jerry Brown filed suit challenging the adequacy of the EIR for San Bernardino County’s General Plan. The Attorney General alleged that the EIR failed to comply with the requirements of CEQA in its analysis of greenhouse gas emissions, climate change, and diesel engine exhaust emissions. The parties reached a settlement that allows the updated General Plan to remain in effect, but requires that San Bernardino County amend the plan within the next 30 months. Read More

Alternative Approaches to Analyze Greenhouse Gas Emissions and Global Climate Change in CEQA Documents, Association of Environmental Professionals

In response to the lack of legislative or executive guidance on how to evaluate climate change impacts in CEQA documents, the Association of Environmental Professionals (“AEP”) prepared a paper suggesting seven different approaches to the problem. Read More

Physical Takings

Yamagiwa v. City of Half Moon Bay (N.D. Cal. 2007) 2007 U.S.Dist.LEXIS 22573

While compensation for regulatory takings remains elusive for California landowners, recovery of monetary damages for physical takings is established jurisprudence. In a stunning reminder of the physical/regulatory taking dichotomy, a federal court awarded over $36 million dollars in damages against the City of Half Moon Bay whose assessment district project created wetlands on private property. The plaintiff’s case was based on theories of inverse condemnation, trespass and nuisance. Read More

Indirect Regulation of Economic Competition

Hernandez v. City of Hanford (2007) 41 Cal.4th 279

On June 7, 2007, the California Supreme Court addressed head-on the issue of whether or not cities may use their planning and zoning powers to directly impact economic competition. This case affirmed the ability of cities to impact economic competition in a direct and intended manner because it allows just such an impact so long as the primary purpose of the zoning action is to achieve a valid public purpose and not simply to serve an impermissible anti-competitive private purpose. Read More

Draft Policy for Maintaining Instream Flows in Northern California Coastal Streams, State Water Resources Control Board (December 2007)

The SWRCB draft policy in instream flow was released on December 28, 2007, and the comment period will close on February 19, 2008. The draft policy will implement section 1259.4 of the Water Code, which was enacted in 2004. The policy only applies, however, if the site is within a specified geographic area and type of action. Read More

EPA and Corps Jointly Issue Rapanos Guidance

On June 5, 2007, the EPA and the Army Corps of Engineers jointly issued guidance consistent with the Supreme Court’s decision in Rapanos. This document is entitled “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States and Carabell v. United States. The issue in Rapanos was whether a wetland or tributary can be defined as a “water of the United States” and thus be subject to jurisdiction under the Clean Water Act. Because the Court issued five separate opinions, it was unclear whether certain types of waters were jurisdictional. The document establishes several categories of waters and discusses whether or not the agencies may assert jurisdiction. Read More

Endangered Species Rulings Reversed

On November 27, 2007, the U.S. Fish and Wildlife Service reversed seven rulings on endangered species that it found were improperly influenced by former Deputy Assistant Secretary of the Department of Interior Julie MacDonald. The review began after questions were raised concerning the scientific information used and whether the appropriate legal standards were followed. Read More

U.S. EPA Refuses to Grant California a Waiver under the Clean Air Act

Under Clean Air Act section 209(a), a state may not regulate motor vehicle emission standards. However, section 209(b) allows the Environmental Protection Agency to waive this limitation if the state adopted standards for the control of emissions prior to March 30, 1966, and the state finds its standards at least as protective of public health and welfare as the applicable federal standard. California applied to the EPA for such a waiver so that it could enforce its stricter vehicle emission standards. The EPA denied the request, asserting it wanted to avoid a piecemeal approach to the regulation. California joined by 15 other states filed suit challenging this decision in the U.S Court of Appeal for the Ninth Circuit. Read More

Exhaustion of Remedies

Schutte & Koerting, Inc. v. Regional Water Quality Control Board, San Diego Region (December 20, 2007) 2007 Cal.App.LEXIS 2146

The doctrine of exhaustion of local remedies requires that a petitioner appealing a governmental agency’s determination or order must exhaust all of the remedies available through that agency before appealing to the courts. The Court of Appeal, Fourth Appellate District has now made it easier for petitioners appealing a determination of a regional water quality control board to exhaust their local remedies. In Schutte & Koerting v. Regional Water Quality Control Board, San Diego Region (December 20, 2007) 2007 Cal.App.LEXIS 2146, the appellate court held that anyone appealing the determination or order of a regional board must only request a hearing before the State Water Resources Control Board in order to exhaust his or her local remedies. Read More

By Rob Hofmann

The California Coastal Commission (“Commission”) lacks the statutory authority required to declare a property an ‘environmentally sensitive habitat area’ (“ESHA”) when it hears an appeal from a local government’s grant of a coastal development permit (“CDP”) to develop the property. Such action infringes upon powers that the Legislature expressly allocated to local government. Security National Guaranty v. California Coastal Commission (2008) Cal. App. LEXIS 131, January 25, 2008.

Continue Reading Coastal Commission Out of Bounds with ESHA Determination

By Cori M. Badgley

Exhaustion of local remedies is a well-known doctrine among those who have attempted to appeal an administrative decision. The doctrine requires that a petitioner appealing a governmental agency’s determination or order must exhaust all of the remedies available through that agency before appealing to the courts. The Court of Appeal, Fourth Appellate District has now made it easier for petitioners appealing a determination of a regional water quality control board (“regional board”) to exhaust their local remedies. In Schutte & Koerting v. Regional Water Quality Control Board, San Diego Region (2007) Cal.App.LEXIS 2146, the appellate court held that anyone appealing the determination or order of a regional board must only request a hearing before the State Water Resources Control Board (“State Board”) in order to exhaust his or her local remedies.

Continue Reading Petitioners Only Run to State Water Resources Control Board Before Exhaustion Kicks In