June 2008

By Katherine J. Hart

In Moss v. County of Humboldt, et al (2008) 162 Cal.App.4th 1041, the Court of Appeal (1st Appellate District) held that a project previously studied under CEQA need not undergo supplemental CEQA review upon reapplication of the same project unless new information (supported by substantial evidence in the record) indicates there will be potential environmental impacts.

Continue Reading Re-Approval of Expired Entitlements Can Track Prior CEQA Documentation, Subject to the Substantial Change Doctrine

By Janell M. Bogue

In the case of Ebbetts Pass Forest Watch v. California Department of Forestry and Fire Protection (May 22, 2008) 2008 Cal.Lexis 6207, the California Supreme Court discussed several issues important to those who deal with CEQA. The Court held that the Department of Forestry and Fire Protection (“Department”) properly approved several timber harvest plans (“THPs”) for land located in Tuolumne County. In doing so, the Court examined the requirements for cumulative impacts analysis and the analysis of foreseeable actions. 

Continue Reading California Supreme Court Upholds THPs; Discusses Cumulative Impacts and Foreseeable Actions

By Leslie Z. Walker

CEQA practitioners have spent the last year anxiously anticipating the Governor’s Office of Planning and Research (OPR) advice to local agencies on the evaluation of greenhouse gas (GHG) emissions and their effect on climate change in the CEQA process. On June 19, 2008, OPR offered a peek at its perspective by issuing the Technical Advisory CEQA and Climate Change: Addressing Climate Change Through California Environmental Quality Act Review.

Continue Reading OPR on CEQA and Climate Change: Local Agencies Continue to Bear the Heat

By Cori M. Badgley

In Ocean Harbor House Homeowners Association v. California Coastal Commission (2008) 163 Cal.App.4th 215, the California Coastal Commission (“Commission”) imposed a $5.3 million mitigation fee on a homeowner’s association that needed a permit to build a seawall to protect residences that would otherwise fall into the ocean. Attempting to find relief from the fee, the homeowner’s association sued the Commission, but the court denied all relief and upheld the fee.

Continue Reading A Detailed Record Can Make All the Difference: Court Upholds Commission’s Imposition of $5.3 Million Fee

By Janell M. Bogue

In the case of Sierra Club v. City of Orange (April 30, 2008) 2008 Cal.App.Lexis 814 (publication status changed from unpublished to published on May 30, 2008), the Court of Appeal, Fourth Appellate District upheld a combined supplemental environmental impact report (“SEIR”) and environmental impact report (“EIR”) for a large mixed use development. In its opinion, the court covered a wide range of CEQA issues, including timely filing of a lawsuit after a notice of determination, the exhaustion doctrine, project baselines, and alternatives. 

Continue Reading Appellate Court Reviews CEQA Compliance for Supplemental Environmental Impact Report

By William W. Abbott

The Delta, the confluence of the Sacramento and San Joaquin rivers, is ground zero in the debate over California water. It seems like everyone has a dog in the fight, including farmers inside and outside of the Delta, municipalities, water contractors, the sport fishing industry and environmentalists. It is a scenario in which it is improbable, if not impossible, to make everyone happy when it comes to the topic of water management. In 1994, CALFED was born as a consortium of 18 federal and state agencies. CALFED’s task was to develop a Delta water management strategy which would positively respond to the multiple competing interests and concerns. In 2000, CALFED certified a programmatic EIR/EIS. Following a timely legal challenge, the trial court in the case entitled In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2005) 133 Cal. App. 4th 154 upheld the adequacy of that environmental document. (See the Abbott & Kindermann Land Use Law Blog article on that opinion.) The Court of Appeal ruled otherwise, concluding that the EIR was inadequate because of the failure to evaluate an alternative with reduced water exports, the failure to identify future potential sources of water, and the lack of detail on the Environmental Water Account, a program within CALFED. The Supreme Court subsequently granted review and on June 5, 2008, issued an opinion. In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (June 5, 2008) 2008 Cal. LEXIS 6737. In this opinion, the Supreme Court affirmed the legal adequacy of the programmatic document.

Continue Reading California Supreme Court affirms the legal adequacy of the CALFED EIR; provides guidance on evaluation of alternatives and level of detail for first tier EIRs

Bill Abbott, a partner with the firm, will be speaking on the Subdivision Map Act for the City of Fortuna staff on June 20, 2008. This class will cover the Subdivision Map Act from exemptions to mergers and certificates of compliance. 

Bill Abbott will also be speaking at the Lorman Real Estate Development From Beginning To End seminar on July 21, 2008, in Sacramento CA. This class will provide updated information on all aspects of real estate development, including subdivision and title review. For more information, including RSVP details, visit the Lorman website.

By Janell M. Bogue

On March 31, 2008, the EPA and the Corps issued a new final rule on compensatory mitigation for impacts to waters of the United States under Section 404 of the Clean Water Act. This final rule was published in the Federal Register on April 10, 2008 at 73 Fed.Reg. 19,593

Continue Reading Army Corps of Engineers and EPA Issue Final Rule on Compensatory Mitigation