CEQA

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By William W. Abbott

Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal. App. 4th 1059. Troesh Materials, Inc. submitted an application to the County of Santa Barbara (“County”) to operate a new mine within the dry bed of the Cuyama River. The mine would be positioned way from the active streambed, and roughly 1500 feet upstream from an existing, active mine. Potential excavation could proceed to a maximum depth of 90 feet, with an average production of 500,000 cubic yards per year. Petitioner filed a CEQA petition for writ of mandate which was denied by the trial court. The ensuing appeal involved two topical areas: hydrological and water resource (supply/quality) impacts.Continue Reading Court Affirms EIR for 30 Year Mining Operation; erroneous impact conclusion did not invalidate the EIR

By William W. Abbott, Diane Kindermann, Elizabeth Strahlstrom, Katherine J. Hart, Glen Hansen, and Daniel Cucchi

We are pleased to present our cumulative Fourth Quarter CEQA Review for 2012. In addition to being italicized and bolded, the newest decisions issued in this fourth quarter are underlined and preceded by asterisks (***).

In terms of new developments, OPR is moving forward with its CEQA Guidelines implementing SB 226 (infill streamlining). Will cities embrace these new streamlining provisions?Continue Reading 2012 CEQA 4th QUARTER REVIEW

By Katherine J. Hart

In Banning Ranch Conservancy v. City of Newport Beach (2012) ___ Cal.App.4th ___, the Court of Appeal, Fourth Appellate District, considered whether the City of Newport Beach’s (City) proposal to develop the Sunset Ridge Park was reviewed in a piecemeal fashion (separate and apart from the adjacent proposed Banning Ranch project), and whether the environmental impacts of the park (e.g., cumulative traffic and biological resources impacts, growth-inducing impacts, habitat impacts) were sufficiently considered and mitigated by the City in its EIR. The court of appeal affirmed the trial court’s judgment and denial of the writ.Continue Reading Neither A Shared Access Road Nor The Gnatcatcher Stop Sunset Ridge Park Project Under CEQA

By William W. Abbott

Central Basin Municipal Water District v. Water Replenishment District Of Southern California(2012) 211 Cal.App.4th 943. Notwithstanding CEQA’s pervasive application, there are-on rare occasions-circumstances in which agency action is exempt from CEQA compliance. The most recent example involves a declaration of water emergency approved by the Water Replenishment District of Southern California (WRD) in the Central Basin in Southern California. WRD manages groundwater for approximately 4,000,000 residents and 43 cities. In 1991, a trial court entered judgment pertaining to groundwater management in the basin. The judgment authorized WRD to declare a water emergency in circumstances in which the basin resources risked degradation. The judgment also included a “physical solution”, a phrase of art in water law, describing a comprehensive program for groundwater management. A consequence of the declaration of emergency is that the time period for extractors to remove and replenish water would be extended into later years.Continue Reading Declaration of Water Emergency in Furtherance of a Judgment Was Exempt From CEQA

By Glen C. Hansen

For decades, oil and gas producers in California have been engaged in the process of hydraulic fracturing, commonly called “fracking.” That process involves injecting a high pressure stream of water and chemicals deep underground to split rocks and release oil and natural gas. The technique is designed to free oil and natural gas trapped in shale rock. There is a significant amount of such rock in California. For example, the Monterey Shale, which lies under Central California and the southern San Joaquin Valley, could hold up to 15 billion barrels of oil, making it possibly the nation’s largest oil shale formation and almost half of the nation’s total shale oil resources.Continue Reading As Lawsuits Begin In California Over Oil And Gas “Fracking,” The State Issues “Discussion Draft” Regulations For The Process

By Glen Hansen

On June 1, 2012, the County of Madera, the Madera County and Merced County Farm Bureaus, Chowchilla Water District, and other individuals and entities (collectively, “Petitioners”) sued the California High-Speed Rail Authority (“Authority”) on the grounds that the Authority had violated CEQA and the Bagley-Keene Open Meeting Act related to the approval of the approximately 75-mile Merced to Fresno section (“Section”) of the proposed 800-mile public transit project known as the High-Speed Rail project. Petitioners allege that that a significant portion of the Section would “deviate from existing transportation corridors, resulting in the destruction of and interference with thousands of acres of farmland, wildlife habitat, hundreds of homes, may businesses, commercial properties and industrial facilities, existing roads and water delivery facilities.” Petitioners further allege that the final environmental impact report (“FEIR”) for the Section contains “myriad analytical deficiencies,” fails to disclose and analyze “the full scope and severity of impacts,” and improperly defers “impact analysis and mitigation.” Petitioners also allege that the Authority violated the Open Meeting Act by not providing “the required notice for the substantive changes to the analysis of Section impacts and the scope of mitigation measures included in the Errata to the FEIR ….” Continue Reading First Link In High Speed Rail Project Clears Preliminary Injunction Hurdle In CEQA Litigation.

By Katherine J. Hart

In Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899 (Rialto Citizens), the City of Rialto (City) and Walmart appealed a trial court’s grant of writ of mandate invalidating the City’s approval of a 230,000-square-foot commercial shopping center to be anchored by a 24-hour Walmart Supercenter. In its decision, the Court of Appeal, Fourth Appellate District, discussed public interest standing to challenge a CEQA project, the import of defective notice of a public hearing, whether the approval of the development agreement missing a general/specific plan consistency finding was valid, and a myriad of other CEQA issues such as the adequacy of (1) the project description, (2) cumulative impact analyses on traffic and air quality, (3) the greenhouse gas analysis, and (4) mitigation measures for biological impacts, and whether the City properly rejected the reduced density alternative as infeasible.Continue Reading Multiple Harmless Errors Do Not Require Project Approvals Be Overturned Unless Prejudice Is Shown

By William W. Abbott

In case you missed the recent legal tremor, be advised that land use practitioners are looking at two appellate districts in conflict with one another over the application of CEQA to a citizen sponsored land use measure. In Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.) (October 30, 2012, F063849) ___Cal.App.4th ___, the facts involve the efforts of Wal-Mart to seek an expansion of an existing store in the City of Sonora. An EIR was prepared by the City, and the Planning Commission recommended approval. Before the matter was considered by the City Council, an initiative was filed, the effect of which would change the land use regulations on the Wal-Mart parcel, and dispense with the need for a discretionary permit. Once the city determined that the initiative petition contained the requisite number of signatures, the City Council had two basic choices: enact the measure as its own without modification or place it on the ballot. With the belief that CEQA did not apply, the City Council chose the former option and enacted the initiative measure as its own. Litigation challenging the approval ensued, including a claim that the City Council was required to complete the CEQA process first. The City and Wal-Mart demurred to the petition/complaint, which the trial court sustained. Petitioners then filed a writ petition with the Fifth Appellate District which granted the writ as to the CEQA claim, effectively reinstating the claim at the trial court.Continue Reading Appellate Court Draws Line In Sand Requiring CEQA Review Before City Council Enactment of Land Use Measure

By William W. Abbott

Roseburg Forest Products Co. operates a wood veneer processing facility in Weed, California. In 2008, the County of Siskiyou approved a permit for the purpose of installing a biomass-fueled cogeneration power plant. The project included a steam-driven cogeneration system, turbine, cooling tower and substation (communications tower and building.) Source fuel included waste wood from the veneer plant operation, along with fuel from forest management activities. The County processed an EIR. In September 2008, the Siskiyou County Planning Commission certified an EIR and approved the use permit. Mount Shasta Bioregional Ecology Center (“MSBEC”) and others appealed the Commission’s decision. The Board upheld the permit in November of 2008. MSBEC and another organization then filed a CEQA challenge. In March, 2010, the trial court denied the writ petition.Continue Reading Co-Gen EIR With Limited Range Of Alternatives Upheld

In Chung v. City of Monterey Park (October 23, 2012, B233859) ___Cal.App.4th ___, the City Council directed staff to prepare a ballot measure that would require the City to seek competitive bids for trash service when the current contractor’s contract was complete in 2017, and provide a new bidding opportunity every five years thereafter. Chung, a resident of the City and signatory to the ballot arguments against the measure, filed suit to remove the measure from the ballot arguing the City violated the California Environmental Quality Act (CEQA) by failing to perform environmental review and because the Council “had deemed Measure BB a voter ‘initiative,’” but failed to follow the initiative measure requirements for a petition and thus, unconstitutionally restricted the actions of future City Councils.Continue Reading No Commitment, No “Project”