On May 12, the Third District Court of Appeal belatedly ordered partially published an opinion it had filed on April 20, 2022, reversing the trial court’s judgment upholding the EIR for lead agency Siskiyou County’s approval of Crystal Geyser Water Company’s water bottling plant project.  We Advocate Through Environmental Review, et al. v. County of Siskiyou, et al. (Crystal Geyser Water Company, Real Party in Interest) (2022) ____ Cal.App.5th ______.  The decision followed close on the heels of the Court’s earlier decision in a related CEQA case brought by the same plaintiff and involving the same project in which it held that the City of Mount Shasta, acting as a responsible agency issuing a wastewater permit for the project, had violated CEQA by failing to make the required Public Resources Code § 21081 findings regarding potentially significant effects identified in the EIR.  (My May 16, 2022 post on that earlier case can be found here.)

Continue Reading The Other CEQA Shoe Drops: Third District Reverses Judgment Upholding Siskiyou County’s EIR For Crystal Geyser Bottling Plant Project, Holds (1) Project Objectives Were Too Narrowly Stated And (2) County Should Have Recirculated EIR’s Climate Discussion To Allow Comment On Substantially Higher GHG Emissions Estimate First Disclosed In FEIR

On May 12, 2022, the First District Court of Appeal filed a 108-page published opinion affirming a judgment denying a CEQA writ petition that challenged Marin County’s approval of a 43-lot single-family residential subdivision on a 110-acre parcel atop a mountain overlooking the Town of Tiburon and San Francisco Bay.  Tiburon Open Space Committee v. County of Marin (The Martha Company, Real Party in Interest, and Town of Tiburon, Intervenor and Appellant) (2022) ___ Cal.App.5th ___.  Apart from its factual background of nearly a half-century of intense legal battles over (and effectively blocking) the property’s development – which the Court described as “this woeful record before us” – the decision is notable for its legal analysis of how CEQA applies when a lead agency’s discretion in considering a project for approval is constrained by legal obligations.  While in this case the legal obligations stemmed from stipulated federal court judgments mandating that the County approve a minimum level of development on the property, the Court’s reasoning and holdings that the scope of CEQA adjusts and is limited commensurate with legal limitations on an agency’s discretionary authority will clearly apply to other contexts.  Most obviously, and topically, they plainly will apply to housing development projects when state housing laws impose legal obligations that limit local agencies’ legal authority to disapprove or reduce the density of those projects.  (See, e.g., Gov. Code, § 65589.5 (the “Housing Accountability Act”).)

Continue Reading “This Woeful Record”: First District Affirms Judgment Rejecting CEQA Challenges To Marin County’s Approval of 43-Home Mountaintop Subdivision Opposed For Nearly Five Decades By Neighbors And Town of Tiburon

In an opinion originally filed on February 23, and later modified and ordered published on March 22, 2022, the Second District Court of Appeal reversed the trial court’s judgment invalidating the Kern Water Bank Authority’s (“KWBA”) EIR and approval of its own project to divert unappropriated Kern River waters in certain wet years to recharge its Kern Water Bank (“KWB”).  Buena Vista Water Storage District v. Kern Water Bank Authority (2022) ___ Cal.App.5th _____.  In upholding KWBA’s EIR and reinstating its project approval, the Court addressed CEQA project description, baseline, and impact analysis issues in the context of a water diversion and recharge project involving excess flood waters from the not-fully-appropriated Kern River.

Continue Reading Second District Upholds EIR for Kern Water Bank Recharge Project Involving Diversion of Unappropriated Kern River Water In Certain Wet Years; Rejects CEQA Claims Alleging Inconsistent Project Description, Inaccurate Environmental Setting, And Inadequate Water Supply Impacts Analysis

In an opinion filed on December 16, 2021, and belatedly ordered published on January 13, 2022, the Fourth District Court of Appeal rejected a CEQA challenge to a small multifamily project in the City of Santa Cruz.  Ocean Street Extension Neighborhood Assn. v. City of Santa Cruz (2021) 73 Cal.App.5th 985 (“OSENA”).  The case contains valuable guidance regarding mitigation for biological resources impacts, lays out some common sense principles that may help condense the EIR preparation process, and also provides useful guidance to developers and agencies dealing with water supply issues during the current drought.

Continue Reading Fourth District Rejects CEQA And Municipal Code Challenges To City Of Santa Cruz’s Project Approvals And EIR For Small Multifamily Housing Project

In an opinion filed January 28, and later certified for publication on February 16, 2022, the Third District Court of Appeal affirmed a judgment denying a petition for writ of mandate that challenged on CEQA grounds the El Dorado Irrigation District’s (“EID”) decision to undertake its Upper Main Ditch piping project.  Save the El Dorado Canal v. El Dorado Irrigation District, et al. (2022) ___ Cal.App.5th ___.  The challenged water conveyance project would replace about three miles of EID’s open and unlined earthen ditch system with a buried water transmission pipeline in order to conserve water and improve water quality.  Petitioner alleged the EIR’s project description was inadequate because it omitted the material fact that the ditch section to be abandoned as a water conveyance also served as the watershed’s only drainage system, and that the EIR insufficiently analyzed the abandonment’s impacts on hydrology, biological resources, and wildfires.

Continue Reading Third District Rejects CEQA Challenges To El Dorado Irrigation District Ditch Piping Project, Holds EIR’s Project Description And Analysis Of Potential Hydrology, Biological Resources, and Wildfire Impacts Were Adequate

In a published opinion filed December 15, 2021, the First District Court of Appeal (Div. 5) affirmed a trial court’s judgment entered after sustaining a demurrer to a writ petition in a CEQA action without leave to amend.  Mission Peak Conservancy, et al. v. State Water Resources Control Board (Christopher George, et al, Real Parties in Interest) (2021) 72 Cal.App.5th 873.

Continue Reading First District Holds SWRCB Small Domestic Water Use Registration Is CEQA-Exempt Ministerial Act: “CEQA Does Not Regulate Ministerial Decisions – Full Stop.”

In an opinion filed November 15, and later ordered published on December 14, 2021, the Sixth District Court of Appeal reaffirmed the basic CEQA principle that required environmental review and analysis must precede project approval, and it applied that principle to invalidate the California Coastal Commission’s (Commission) approval of a Coastal Development Permit (CDP) for a residential subdivision project in Monterey County. Friends, Artists and Neighbors of Elkhorn Slough v. California Coastal Commission (Heritage/Western Communities, Ltd., et al., Real Parties in Interest) (2021) 72 Cal.App.5th 666. While the dispositive rule is a simple one, the case’s more complex facts and procedural history make it interesting – and somewhat disturbing – on a number of levels.

Continue Reading Sixth District Holds Coastal Commission’s Post-Approval Analysis of Coastal Development Permit’s Environmental Impacts Violates CEQA

Against the backdrop of another severe drought, water supply and impact issues continue to be points of contention for water agencies, water users, conservation groups, and the state.  And, of course, litigation over water is not limited to water rights and usage, but extends to related environmental review under CEQA.  On September 22, 2021, the Third District Court of Appeal issued a published opinion in Central Delta Water Agency v. Department of Water Resources (2021) 69 Cal.App.5th 170, disposing of several consolidated cases and analyzing operation of the state’s massive State Water Project (SWP) through a CEQA lens.  While the case does not break any new legal ground, it applies well-recognized CEQA principles to a lengthy and complex fact pattern involving multiple rounds of lengthy litigation, settlement, and EIR preparation.

Continue Reading Third District Affirms CEQA And Attorneys’ Fees Judgments In Favor Of Department Of Water Resources In Monterey Agreement And Amendment Litigation

In a published decision filed August 17, 2021, the Fifth District Court of Appeal affirmed the trial court’s judgment directing issuance of a writ of mandate ordering Inyo County to vacate three resolutions of necessity that authorized its condemnation of three Owens Valley landfill properties, including appurtenant water rights, owned by the Los Angeles Department of Water and Power (LADWP).  Los Angeles Dept. of Water & Power v. County of Inyo (2021) 67 Cal.App.5th 1018. The County operates three landfills on the properties pursuant to leases from LADWP.  In the published part of the opinion, the Court of Appeal held that CEQA’s issue exhaustion requirement did not apply to LADWP’s challenge to the County’s exemption determinations because the County failed to provide adequate notice of them, thus depriving LADWP of an opportunity to be heard on the issue.  As a matter of law, the Court also held the County improperly relied on the existing facilities exemption for the project.

Continue Reading Fifth District Holds Issue Exhaustion Not Required Where Agency Gave No Notice of Intent To Rely On CEQA Exemption Prior to Hearing, And Existing Facilities Categorical Exemption Does Not Apply to Unlined Landfills As A Matter of Law

In a lengthy opinion filed April 8, and ordered published on May 7, 2021, the Third District Court of Appeal affirmed a judgment rejecting a number of CEQA challenges to the California State Land Commission’s (Lands Commission) supplemental EIR for and related approval of a lease modification to facilitate a desalination plant in Huntington Beach.  California Coastkeeper Alliance v. State Lands Commission (Poseidon Resources (Surfside) LLC, Real Party in Interest) (2021) 64 Cal.App.5th 36.  In holding that the Commission properly elected to prepare a supplemental (rather than subsequent) EIR, did not err in refusing to assume lead agency status, and did not unlawfully piecemeal environmental review, the Court provided guidance on a number of significant CEQA issues.

Continue Reading Third District Affirms Judgment Upholding State Lands Commission’s Supplemental EIR For Desalination Plant Lease Modification, Rejects CEQA Claims That Commission Piecemealed Review And Should Have Assumed Lead Agency Status And Prepared A Subsequent EIR