By Katherine J. Hart

Charles Conway Jr v. State Water Resources Control Board (March 30, 2015, B252688) ___ Cal.App.4th ___.

Functionally equivalent CEQA documents can be tiered in a manner similar to a regular EIR. This new CEQA decision involved a basin plan amendment (BPA) establishing a total maximum daily load (TMDL) of pollutants allowed in McGrath Lake. The BPA/TMDL was adopted by the Regional Water Quality Control Board (Regional Board) and approved by the State Water Resources Control Board (State Board) and U.S. Environmental Protection Agency (EPA). Landowners who own a portion of the lake were allocated a load under the TMDL, which would make them responsible for remediation of the lake pollution. The landowners challenged the Boards’ adoption of the TMDL on two grounds: first, that the Regional Board improperly set load allocations for concentrations of pollutants contained in the lake bed sediment, and that a TMDL can only regulate the movement of pollutants in the water column; and (2) that the Regional Board failed to comply with CEQA. The trial court denied the plaintiffs’ claims and the appellate court affirmed.Continue Reading First Tier Functionally Equivalent CEQA Document Upheld for Adoption of Basin Plan Amendment and TMDL Standard

By William W. Abbott, Diane G. Kindermann, Katherine J. Hart, Glen Hansen and Brian Russell

Welcome to Abbott & Kindermann’s 2015 1^st Quarter CEQA update. This summary provides links to more in depth case discussions located on the firm’s blog.

While there were only five published decisions in the first quarter of 2015, it was certainly noteworthy for the California Supreme Court’s decision in Berkeley Hillside, a decision which clarifies and incrementally advances the use of exemptions. As explained in our article, the battle for the heights in Berkeley is far from over. However, the appellate courts in turn wrestled with setting the baseline after an emergency project (Creed 21), tiering for functionally equivalent documents (Conway) and EIR sufficiency for Sacramento’s downtown entertainment and sports complex (Saltonstall). Finally, the court upheld the level of detail and range of alternatives in the EIR prepared by the California Department of Fish and Wildlife on its stocking, fishery and urban fishing program (CBD). 

We also include a summary of all of the CEQA cases pending at the California Supreme Court. To review our 2014 CEQA Annual Summary click here.Continue Reading 2015 CEQA 1st QUARTER REVIEW

By William W. Abbott

Saltonstall v. City of Sacramento (2015) 234 Cal.App.4th 549 (Saltonstall II)

The court of appeal affirms sufficiency of EIR for downtown entertainment and sports complex and concludes that the city had not pre-committed itself through eminent domain proceedings prior to EIR certification.Continue Reading Home Team Wins In Overtime CEQA Matchup

By William W. Abbott

Center for Biological Diversity v. Department of Fish and Wildlife (2015) 234 Cal.App.4th 214.

For over 100 years, the State of California has operated fish hatcheries. In the last twenty years, concerns have developed over the potential impacts of stocked fish on native and wild animals. Evidence suggested that amphibians in high altitude lakes were particularly vulnerable. Beginning in 2001, the then Department of Fish and Game begin performing surveys of high altitude lakes, completing over 16,000 surveys. The surveys formed the basis of management plans for 27 watershed areas. The Department also began working on hatchery genetic management plans, a planning tool under the Federal Endangered Species Act of 1973. (As of January 2010, none of these plans had been adopted.) In 2006, the Center for Biological Diversity (CBD) filed suit, claiming that the hatchery and stocking efforts were not exempt from CEQA review. In 2007, the court granted the writ of mandate compelling CEQA compliance, but did not suspend the hatchery and restocking program. The Department did not appeal, and proceeded with an EIR. In 2008, the Department moved to extend the deadline to complete the EIR, based in part that program funding was in part federal, and that the EIR would be combined with an EIS. In early 2010, the Department certified a program EIR, covering not only the state’s hatchery and stocking program, but Fishing in the City, Aquarium Education Project and fish stocking practices by private stocking companies working in private and public water. The EIR concluded that there were impacts to amphibians, and developed a new protocol requiring pre-stocking surveys. Based upon an evaluation by a biologist, if potential impacts could occur then no stocking could take place until the Department developed and implemented an aquatic biodiversity management plan. If no impacts were anticipated, then stocking could proceed, a decision valid for five years. The EIRs analysis was based upon a baseline of 2004-2008, which included hatchery and stocking practices. As mitigation for impacts to wild salmon and steelhead populations, the Department committed to the hatchery genetic management plans, including federal approval. Additional mitigation measures were developed and applied to private stocking permit operators.Continue Reading Appellate Court Affirms Programmatic EIR For Fish Hatchery And Stocking Program; Holds That Mitigation Measures Applicable To Private Parties Adopted By California Fish & Wildlife Must Be Adopted As Regulations

Court Upholds Use Of Post Emergency Construction Conditions As Baseline For Project Description

By William W. Abbott

CREED-21 v. City of San Diego (2015) 234 Cal. App.4th 488.

As reflected in the recent decision in CREED-21 v. City of San Diego, a lead agency can validly “reset” the baseline for CEQA analysis to the post-emergency condition, even in circumstances in which the lead agency had previously considered undertaking the construction and post-construction work in non-emergency conditions.Continue Reading Appellate Court Harmonizes “Its All About That Bass” (Baseline That Is)