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The California Environmental Quality Act can be a challenge for those attempting to operate in accordance with its myriad procedural directives. Frequent legislative updates and shifts in judicial interpretation of its provisions, even seemingly minor ones, can have wide-reaching implications for agencies trying to abide by its mandates, as well as for decisionmakers, project proponents and the public engaging in review of a project’s potential environmental impacts. Staying informed of any CEQA developments is paramount to understanding how to navigate its intricate and varied demands successfully.
The following summaries of some of the most notable CEQA cases from the past year highlight key holdings and decisions worth noting for those involved in any aspect of environmental assessment.
In a challenge to a proposed redevelopment of residential and forested land near Lake Tahoe, petitioners argued the County’s immediate rezoning of the land at issue was inconsistent with the Timberland Productivity Act and the project’s Environmental Impact Report (EIR) ran afoul of CEQA in a number of ways. The Court of Appeals upheld several of the petitioners’ challenges, including the following notable holdings:
Key Takeaways: This lengthy decision offers several notable holdings related to a variety of CEQA issue areas, and its breadth and scope make only a partial discussion practical here. Perhaps most noteworthy for those involved in the preparation of CEQA documents—as well as for those engaged in evaluating those documents for adequacy and statutory compliance—are its discussions of a few CEQA standards that have not always received clear treatment from the courts. Improperly deferred mitigation, for example, will be rejected when, as here, the lead agency fails to provide clear, existing performance standards and guarantees that effectively commit the agency to future achievement of those standards, as required by the CEQA Guidelines. Additionally, a lead agency may not ignore feasible mitigation measures suggested by commenters and others and claim, without providing substantial evidence, that no other feasible mitigation exists, particularly when the only mitigation proposed can promise only limited efficacy. Finally, lead agencies are advised not to neglect full analysis of a project’s energy consumption impacts, specifically the project’s potential to incorporate renewable energy features, even in the absence of a finding that energy consumption impacts are significant. Such analysis, the court held, is a procedural requirement of CEQA and thus its omission amounts to prejudicial error, for which agencies receive none of the deference present in a review of factual determinations.
These related cases concerned an EIR prepared for the Crystal Geyser water bottling plant. On appeals of both the City’s and the County’s cases, both agencies were found to have committed prejudicial error for failing to proceed in the manner required by law.
Key takeaways: In a concise but effective decision, the Court of Appeals emphasized the importance of assuring that even seemingly small, immaterial elements of an EIR are adequately prepared. Rejecting an EIR prepared for a water bottling plant, the court held that its stated project objectives were “so narrow as to preclude any alternative other than the Project.” CEQA requires an EIR to include, within a legally adequate project description, a statement of the project’s objectives which a lead agency must use to help it develop a reasonable range of alternatives for evaluation in the EIR. The process of selecting those alternatives thus begins with establishment of sufficient project objectives. Here, the court found, the EIR’s project objectives simply restated the project as proposed, effectively rendering the proposed project the only viable alternative. “All competing reasonable alternatives would simply be defined out of consideration.” (p. 692.) Thus, the “County ensured that the results of its alternatives analysis would be a foregone conclusion. It also, as a result, transformed the EIR’s alternatives section … into an empty formality.” (Ibid.) By rejecting anything other than the proposed project, the lead agency had “prejudicially prevented informed decision making and public participation,” and, by failing to proceed in the manner required by law, committed prejudicial error.
Finding that, in certain wet years, the Kern River, which had been designated a fully appropriated stream (FAS) for many years, was available in excess of the amount appropriated, the State Water Resources Control Board (SWRCB) in 2010 ordered the river’s previous “fully appropriated stream” designation to be removed while it began allowing applications to appropriate the excess water. The Kern Water Bank Authority (KWBA) filed an application seeking a permit for a water right to divert and store up to 500,000 acre-feet per year of the unappropriated water, which would be limited to high flow wet years when all senior rights holders’ rights had been satisfied. Buena Vista Water Storage District, a Kern River water rights holder, challenged the project’s EIR, asserting that it failed to adequately assess impacts to senior rights holders and on groundwater.
Key Takeaways: Reiterating the language found in CEQA Guidelines Section 15151, the court affirmed that perfection and exhaustive analysis aren’t required in an EIR but rather adequacy and a good faith effort to disclose all that reasonably can be disclosed. Specifically, a water diversion project like the one at issue that sought only to use surplus and unappropriated water didn’t need to provide an overly detailed quantification of existing water rights to show an adequate project description and baseline analysis, particularly because, as the court pointed out, the project applicant could not receive a permit to appropriate water that was already spoken for by other rights holders and its diversions would be limited to only water that was available in excess of existing rights approximately 18 percent of the time. Ruling that KWBA’s numerous preexisting operational commitments and monitoring programs would ensure that the project would not result in changes to groundwater levels or adversely impact nearby wells or land uses, the court stated that “preexisting operations are not mitigation measures designed to reduce a project’s impact. Rather they are part of the ongoing baseline operations.” (Citing Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn. (2015) 242 Cal.App.4th 555, 570-571.)
The City of Livermore approved an EIR for a residential development in the Garaventa Hills adjacent to a wetland preserve which provides habitat for numerous special-status species. Following several revisions and downsizing, the City published a Reissued Final EIR (RFEIR), which petitioners challenged for failure to consider significant environmental impacts, failure to adequately investigate and evaluate the no-project alternative, and failure to mitigate significant environmental impacts.
Key Takeaways: In a fiercely contested case involving a proposed residential development on a site containing wetlands and habitat for numerous special-status species, the Court of Appeals’ holdings were largely driven by the case’s unique facts and circumstances. Of note, however, is the court’s ruling regarding the adequacy of conservation easements as mitigation for habitat or agricultural land lost as the result of a project. The court first rejected petitioner’s argument that the site on which the project proponent proposed to place a permanent conservation easement was inadequate because it was already protected open space under local law, and that preserving an existing site without actually creating new resources cannot adequately mitigate under CEQA for permanent habitat loss. The site, the court reasoned, was, in fact, adequate because the local law referenced by petitioners amounted to general plan goals and policies with aspirations to preserve the site, not the “perpetual legal restraint on development” promised by the RFEIR. The court next rejected petitioner’s argument, in reliance on King & Gardiner Farms LLC v. County of Kern (2020) 45 Cal.App.5th 814, 875-876, that conservation easements are categorically inadequate as mitigation because they do not result in any new resources to offset or compensate for the habitat permanently lost to the project. The court indicated that its rejection of petitioner’s reliance on King & Gardiner Farms was due to the significantly greater magnitude of impacts in that case (approximately 7,450 acres of agricultural land stood to be converted, compared to nearly 32 acres here), and because CEQA does not require impacts to be completely eliminated by proposed mitigation measures, but allows for measures that would substantially lessen those impacts. It is worth noting that, although this case appears to be a setback for proponents of more robust and effective mitigation for losses to habitat and agricultural land uses, compensatory mitigation required land preservation at a 2.5:1 to 3:1 ratio for the entire project site, and the court was confronted with facts indicating that proposed compensatory mitigation would assure permanent preservation of land previously protected only in theory.
The Yolo County Board of Supervisors adopted a mitigated negative declaration and issued a conditional use permit for a bed and breakfast and commercial event facility on land zoned for agricultural purposes. Opponents filed suit, alleging that the mitigated negative declaration (MND) was inadequate under CEQA. Though it rejected most of the petitioners’ claims, the trial court found that substantial evidence supported a fair argument that the project may have a significant impact on three special-status species, and as a remedy (1) ordered the County to prepare a “limited EIR” addressing only the project’s impacts on the three species, and (2) allowed the project to continue operations pending further environmental review. Petitioners appealed, arguing the court’s remedy violated CEQA.
Key Takeaways: Principally reaffirming the well-established CEQA mandate that an EIR must be prepared whenever a project may have any significant environmental effect, the Court of Appeals reversed the trial court’s puzzling decision to order lead agency Yolo County to prepare a “limited EIR,” a document, the court noted, that does not exist for the purposes of CEQA, in which the County was directed to address only project impacts on three species of concern (tricolored blackbird, valley elderberry longhorn beetle, and golden eagle). The trial court, meanwhile, allowed the project approval and MND to remain in effect and cleared the way for project operations to continue pending compliance with its order. Neither CEQA nor case law interpreting it, the Court of Appeals pointed out, authorize a “limited EIR” or allow a court or agency to disregard CEQA’s statutory procedural mandates and split a project’s impact analysis across two types of environmental review documents such as the deficient MND and the “limited EIR” ordered by the trial court. Even where substantial evidence is found to support only a fair argument that a single aspect of the project may have a significant effect, an EIR for the project is still required in accordance with the CEQA statute and Guidelines.
For a deeper dive into select water-related CEQA cases, look at our reviews of key 2022 decisions here and here.
For further information or questions regarding CEQA, land use law, water law, or issues involving environmental review, please contact Kendra Hartmann at firstname.lastname@example.org.
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