In a published opinion filed May 18, 2020, the Sixth District Court of Appeal affirmed the trial court’s denial of a historic preservation group’s writ petition that challenged the City of San Jose’s (City) entry into a Streambed Alteration Agreement (SAA) with the California Department of Fish and Wildlife (CDFW), which agreement was needed to implement the City’s pedestrian bridge project involving demolition of the historic Willow Glen Railroad Trestle.  Willow Glen Trestle Conservancy v. City of San Jose (6th Dist. 2020) 49 Cal.App.5th 127.

The City’s project to demolish the 1922 Willow Glen Railroad Trestle and replace it with a new steel truss pedestrian bridge as part of its Three Creeks Trail System was approved with a 2014 mitigated negative declaration (MND), based on City’s finding that the Trestle was not a historical resource.  The City prevailed in earlier litigation challenging that decision on the basis that it should have found the Trestle to be a historical resource; at the time, the Trestle was not listed in the California Register of Historical Resources, and thus was not statutorily mandated to be considered as a historical resource.  (See, Friends of Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457, 466; Pub. Resources Code, § 21084.)  In 2017, however, the Trestle was so listed, over the City’s objection.

In 2018, the term of the City’s SAA for its project having expired, the City submitted a notification to CDFW seeking a new SAA to permit it to implement its project.  The SAA was needed to authorize diversion of Los Gatos Creek during Trestle demolition and bridge construction.  CDFW sent a draft SAA to City with proposed revisions to City’s diversion plan.  City agreed to CDFW’s proposals and signed the final SAA in August 2018; CDFW followed suit by signing in October 2018, finding the project would not have any significant effects on fish or wildlife with measures specified in the 2014 MND and 2018 SAA.

The Conservancy sued the City, initially succeeding in enjoining Trestle demolition, but ultimately having its CEQA writ petition denied by the trial court, which held the City’s actions in obtaining the SAA were not a “new discretionary approval” by the City requiring supplemental CEQA review.  The Conservancy appealed and obtained supersedeas writ relief forestalling Trestle demolition to avoid mooting the appeal, but ultimately lost, with the Court of Appeal affirming the judgment denying the writ.

The Court of Appeal applied Public Resources Code § 21166 and CEQA Guidelines § 15162 to hold that no subsequent discretionary approval triggering a duty on City’s part to conduct supplemental CEQA review had occurred.  The applicable and governing rules are set forth in CEQA Guidelines § 15162(c):

“Once a project has been approved, the lead agency’s role in project approval is completed, unless further discretionary approval on that project is required.  Information appearing after an approval does not require reopening of that approval.  If after the project is approved, any of the conditions described in subdivision (a) [(which mirror the circumstances set forth in Public Resources Code section 21166)] occurs, a subsequent EIR or negative declaration shall only be prepared by the public agency which grants the next discretionary approval for the project, if any.  In this situation no other responsible agency shall grant an approval for the project until the subsequent EIR has been certified or subsequent negative declaration adopted.”

(Emph. Court’s, quoting § 15162(c).)

While the issuance of the SAA by CDFW, a responsible agency, was an “approval,” it was not an approval by the City.  Further, alleged impacts to historical resources were beyond CDFW’s purview as a responsible agency concerned only with environmental impacts to fish and wildlife resources.  The Conservancy sued only the City under CEQA, and its entire CEQA argument rested on characterization of the City’s actions in seeking and obtaining the SAA as an “approval.”  But, under the governing statutory framework of Fish and Game Code §§ 1602 and 1603, the City’s actions did not amount to an approval, and were merely the seeking and acceptance of an approval granted by CDFW.  As far as the City was concerned, its actions were merely steps toward implementing the project it had already approved, and did not require reopening of its project approval under CEQA’s subsequent review rules, which limit the circumstances under which subsequent review may be required in the interests of finality and efficiency.  Per the Court:  “The City’s post-approval actions implementing the project did not constitute an “approval” within the meaning of CEQA Guidelines section 15162(c).”

Further, the Court rejected the Conservancy’s argument that the fact that the project was the City’s own, rather than that of another applicant, made a difference because the City always retains discretion to reconsider, alter or abandon its own project.  The Court held that CEQA’s limits on subsequent review draw no distinction between public and private projects and simply aim to limit subsequent environmental review after finality of the original environmental review.

In sum, the Conservancy failed to challenge the only new “approval,” which was CDFW’s decision to approve the SAA.  This likely wasn’t a mistake, since the Conservancy conceded CDFW’s jurisdiction as a responsible agency was limited to impacts excluding historical resources.  But its CEQA suit against the City provided no legal basis to stop the Trestle demolition, either, because it foundered based on a fundamental defect – the lack of any CEQA trigger due to the absence of any discretionary approval issued by the City as the lead agency.


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