From the quick fix solutions for the Delta to CEQA analysis on mitigation deferral, impact fees and the feasibility of alternatives, to the scope of the Corps permitting authority, the following legislation, regulations, and cases from 2009 (listed first by type of document, then in chronological order) will have the most impact on water supply, water quality, and land use and entitlement practice (e.g., development) in California in the coming years. And remember, you read it here first!

Subdivision Map Act Extensions under Assembly Bill 333

Effective July 15, 2009, AB 333, sponsored by the Building Industry Association, this bill protects tentative subdivision maps scheduled to expire before January 1, 2012, by statutorily extending them by 24 months.  Read more on Assembly Bill 333.

State Water Board’s Issuance of the Revised General Construction NPDES Permit

On September 2, 2009, SWRCB adopted a new NPDES General Permit for storm water discharges associated with construction and land disturbance activities (the “Permit”). The Permit will become effective on July 1, 2010. The adoption of the new Permit is significant because it represents a large shift in storm water management practices – moving from a builder-developed Storm Water Pollution Prevention Plan (“SWPPP”) or Best Management Practices (“BMPs”) to quantitative standards to ensure compliance with CWA – resulting in a higher cost of compliance.  Read more on the new NPDES General Permit.

Water Bills Passed by California Legislature and Signed by Governor Schwarzenegger

On November 4, 2009, the California Legislature passed a package of five post-regular session bills (SBX7 1, SBX7 2, SBX7 6, SBX7 7, and SBX7 8) in an extremely controversial effort to address a safe and reliable drinking water supply for Californians living in the central and southern portions of the state, as well as protection of the Sacramento-San Joaquin River Delta ecosystem. These bills are significant because it is the first time the Legislature has attempted to comprehensively address the water supply and water quality issues in the Delta, and because the intent of the bills (especially the peripheral canal proposal) will not likely ever be carried out given the extraordinary costs and litigation that will ensue. Read more about SBX7 1, SBX7 2, SBX7 6, SBX7 7, and SBX7 8.

Greenhouse Gas Guidelines Adopted by Resources Agency

On December 30, 2009, the Natural Resources Agency adopted guidelines on GHG emissions proposed by the Office of Planning & Research in April 2009, and amended by the Resources Agency in July 2009. The new guidelines will become effective 30 days after they are transmitted to the Secretary of State by the Office of Administrative Law, and require CEQA lead agencies to “describe, calculate or estimate the amount of greenhouse gas emissions resulting from a project” (Proposed Guideline § 15064.4(a).), among other things. Read more about the Greenhouse Gas Guidelines.

California Oak Foundation v. County of Tehama, et al. (2009) 174 Cal.App.4th1217

The court held that the disclosure of documents to the real party in interest by agency counsel does not waive the attorney-client privilege when the disclosure of documents is necessary to accomplish the purpose of defending the CEQA lawsuit.  Read more on California Oak Foundation v. County of Tehama.

White Tanks v. Strock (9th Cir. 2009) 563 F.3d 1033

The Ninth Circuit held the Army Corps of Engineers (“USACE”) improperly confined the geographic scope of its environmental analysis under the National Environmental Policy Act (42 U.S.C. § 4321 et seq.) (“NEPA”) to the permit it issued under Section 404 of the Clean Water Act (33 U.S.C. § 1251 et seq.) (“CWA”). The court held that because the feasibility of the whole project depends upon the Corps granting a Section 404 permit, the entire project is within the purview of the Corps and thus subject to environmental review under NEPA. Read more on White Tanks v. Strock.

The California Native Plant Society Cases

  • California Native Plants Society v. County of El Dorado (2009) 170 Cal.App.4th 1026. The court struck down a mitigated negative declaration for a congregate care project with a number of mixed uses in holding that an existing mitigation fee for a sensitive plant species did not provide adequate mitigation.
  • California Native Plants Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603. The court upheld various performance standards for mitigation measures in the EIR, but held that the City failed to comply with its general plan when it merely “consulted” with the USFWS. The court also barred certain CEQA claims for failure to exhaust administrative remedies.
  • California Native Plants Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957.  The court upheld an EIR for the master plan of a greenbelt project against an attack on the range of alternatives and findings of infeasibility of those alternatives.

Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912

The court held that the EIR for a grocery superstore adequately addressed project alternatives, project segmentation, energy impacts and mitigation for extraterritorial traffic impacts, and that petitioners did not properly exhaust their administrative remedies as to some issues, barring them from pursing selected claims.  Read more on Tracy First v. City of Tracy.         

Planning and Conservation League v. Castaic Lake Water Agency (2009) ___ Cal.App.4th ___ (Dec. 17, 2009)

The court found that the Kern-Castaic Agreement and the Monterey Agreement were two separate and distinct projects, and Castaic Lake Water Agency complied with CEQA by adequately evaluating the impacts of the Kern-Castaic Agreement and its various alternatives.

Sunset Sky Ranch Pilots Association v. County of Sacramento (2009) ___ Cal.4th ___ (Dec. 28, 2009).

Reversing the appellate court, the California Supreme Court held that the denial of a conditional use permit renewal is not a project under CEQA.  Read more on Sunset Sky Ranch Pilots Association v. County of Sacramento.

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.