Seven Lawsuits Filed Challenging the Delta Stewardship Council’s Delta Plan and Environmental Review Document

Seven lawsuits challenging the Delta Stewardship Council’s Delta Plan and final environmental document  were filed by the June 17 deadline.  The groups challenging the Council’s actions represent a range of interests: export contractors, environmental and fishing industry groups, a city, and in-Delta residents.  Links to the parties’ complaints and/or petitions are provided here:

• San Luis & Delta-Mendota Water Authority et al. v. Delta Stewardship Council (Sacramento Co. Case No. 34-2013-80001500)
• City of Stockton v. Delta Stewardship Council (San Joaquin Co. Case No. 39-2013-00298188)
• State Water Contractors et al. v. Delta Stewardship Council (Sacramento Co. Case No. 34-2013-80001530)
• California Water Impact Network et al. v. Delta Stewardship Council (San Francisco Case No. CPF-13-513047)
• North Coast Rivers Alliance et al. v. Delta Stewardship Council (Sacramento Co. Case No. 34-2013-80001534)
• Central Delta Water Agency et al. v. Delta Stewardship Council (San Francisco Case No. CPF-13-513048)
• Save the California Delta Alliance v. Delta Stewardship Council (San Francisco Case No. CPF-13-513049)

The Delta Plan, adopted on May 16, 2013, by the Delta Stewardship Council, was developed in response to legislative mandate in the 2009 Delta Reform Act.  The Council certified its CEQA document, or Final Programmatic Environmental Impact Report (PEIR), on May 16, 2013.  The PEIR was prepared to evaluate the potential environmental impact of the proposed Delta Plan.

Although filed by disparate interests, the various lawsuits assert claims that fall into three general categories: (1) alleged CEQA violations, (2) alleged Delta Reform Act violations, and (3) alleged Public Trust Doctrine violations.  Because cases have been filed in three different counties, a threshold procedural issue will be whether all the cases should be coordinated before a single judge in one county.  

Show me the Water! Presentation

Join KMTG water law attorney Eric Robinson and adjunct professor Jennifer Harder at their upcoming presentation, "Show Me The Water! SB 610, CEQA & SB 221 Compliance Strategies for Development Projects & Urban Planning," sponsored by the Association of Environmental Professionals (AEP).  

The presentation is on Tuesday, June 25, 2013 from 8:00 a.m. to 12:00 p.m. at the West Sacramento Community Center.  For more information and to register, see here.  

"Pattern and Practice" Lawsuit Challenges State’s CEQA Compliance in Permitting Fracking

The oil and gas industry’s increased use of hydraulic fracturing or “fracking” continues to gain attention in California.  Several non-profit organizations recently filed a lawsuit against the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (“DOGGR”) seeking declaratory relief that the Department is violating the California Environmental Quality Act (“CEQA”) in the permitting of oil and gas wells, by failing to consider the environmental impacts of oil and gas development, including the effects of fracking. (Center for Biological Diversity et. al. v. Cal. Dept. of Conservation, Div. of Oil, Gas and Geothermal Resources [Super. Ct. Alameda County, Case No. RG12652054].) The complaint also seeks injunctive relief, to enjoin DOGGR from approving any further permits for oil and gas wells where fracking may occur.

Rather than challenge any specific permit, the complaint raises a fairly novel "pattern and practice" claim, alleging that over a dozen of DOGGR's past permitting actions violated the mandates of CEQA. However, the complaint admits DOGGR prepared and filed CEQA Notices of Exemption or Negative Declarations for each such permit. The normal method to challenge CEQA compliance for any of these actions would have been for these groups to file suit 30 or 35 days after DOGGR took the permitting action and filed notice of such. Accordingly, another reason this case bears watching is to see how this novel "pattern and practice" claim is resolved.

By stipulation, the parties agreed to an extension of the time for DOGGR to respond to the complaint. The DOGGR now has until December 17, 2012, to respond to the complaint.

For additional information regarding this case, visit the court’s website, then enter case number RG12652054 under the "Case Summary" page.

Court Upholds Use of Future CEQA Baseline, Contravening Sunnyvale and Madera

On April 17, 2012, the Court of Appeal for the Second Appellate District upheld the use of a 2030 baseline for an Environmental Impact Report’s (EIR) traffic and air quality analysis in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (April 17, 2012, B232655) __ Cal.App.4th __ (“Neighbors for Smart Rail”).  In so doing, the court expressly declined to follow two 2011 appellate court cases holding that CEQA requires a proposed project to be evaluated against a baseline of existing environmental conditions.

CEQA requires that an EIR, “include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced . . .”  (CEQA Guidelines, § 15125, subd. (a).)  “Normally” this setting “constitute[s] the baseline physical conditions by which a lead agency determines whether an impact is significant.”  (Id.)  A number of cases have held that “the impacts of a proposed project are ordinarily to be compared to the actual environmental conditions existing at the time of CEQA analysis, rather than to allowable conditions defined by a plan or regulatory framework.”  (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 320-321 (“CBE”).)

In Neighbors for Smart Rail, supra, the Exposition Metro Line Construction Authority proposed to build the second phase of a high capacity, high frequency transit service.  The agency based the traffic and air quality impacts analysis on a 2030 baseline, finding, “the existing physical environmental conditions (current population and traffic levels) do not provide a reasonable baseline for the purpose of determining whether traffic and air quality impacts of the Project are significant.”  (Opinion, p. 13.)  The agency explained it was “necessary to evaluate future projected traffic and air quality conditions with and without the project ‘so that the public and the decision makers may understand the future impacts on traffic and air quality of approving and not approving the project.’” (Opinion, p. 14.)

The court upheld the use of the future baseline, finding the decision to do so was supported by substantial evidence. The court reasoned:

“As a major transportation infrastructure project that will not even begin to operate until 2015 at the earliest, its impact on presently existing traffic and air quality conditions will yield no practical information to decision makers or the public. . . An analysis of the project’s impacts on anachronistic 2009 traffic and air quality conditions would rest on the false hypothesis that everything will be the same 20 years later.”

(Opinion, p. 15.)

The court related its decision to prior cases’ discussion of baseline. The Neighbors for Smart Rail court explained that its decision was consistent with CBE’s rejection of the use of a hypothetical baseline.  CBE involved the expansion of a petroleum refinery.  The refinery had four boilers which never operated at the same time, yet the environmental analysis used permitted operations – all four boilers operating at the same time – as the baseline.  The CBE court stated, “By comparing the proposed project to what could happen, rather than to what was actually happening, the District set the baseline not according to, ‘established levels of a particular use’  but by ‘merely hypothetical conditions allowable’ under the permits.”  (CBE, supra, 48 Cal.4th at p. 322.)  This approach provided “an illusory basis for a finding of no significant adverse effect.”  (Ibid.)  Neighbors for Smart Rail distinguishes the illusory baseline at issue in CBE from the 2030 baseline used for the Metro Line, explaining, that while assuming four boilers running at once is an illusory baseline because it never had or would occur, “[a] decision to measure environmental effects of a long-term project by looking at those effects in the long term is neither hypothetical nor illusory. It is a realistic and rational decision.”  (Opinion, p. 16.)

The court went on to distinguish and disapprove of Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (“Sunnyvale”) and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 (“Madera”) which relied on CBE to hold the use of future baselines inadequate.  Sunnyvale held that CEQA ”requires the impact of any proposed project to be evaluated against a baseline of existing environmental conditions, which is the only way to identify the environmental effects.”  Madera relied on Sunnyvale stating that an EIR must “reflect existing physical conditions” and “lead agencies do not have the discretion to adopt a baseline that uses” future conditions. (Madera, supra, 199 Cal.App.4th 48 89-90.)  The Neighbors for Smart Rail court found this interpretation unsupported and inconsistent with the regulatory text and with CEQA’s objective to provide informed decisionmaking. “Nothing in the use of a baseline of future projected conditions, not ‘hypothetical allowable’ conditions, has been shown to be inconsistent with the provisions of CEQA or its purpose.”  (Opinion, p. 19.) 

Neighbors for Smart Rail provides the most practical solution to the question of what baseline to use, giving lead agencies discretion to determine – based on the particulars of each project – what baseline would best provide informed decisionmaking as to potential environmental effects. Given the different interpretations espoused by the Second, Fifth, and Sixth District Court of Appeals, the issue is prime for review by the California Supreme Court. 

For more information regarding this matter, please contact Leslie Z. Walker or Hanspeter Walter or the KMTG attorney with whom you normally consult.

Court Affirms Agency Discretion in Selection of Project Baseline Under CEQA

Pfeiffer v. City of Sunnyvale, a November 28, 2011, decision by California's Sixth District Court of Appeals, has added to the ongoing debate over the proper baseline from which to analyze project impacts under the California Environmental Quality Act (CEQA).

Several recent cases involving challenges to traffic analyses had suggested that a lead agency must use existing conditions as the baseline in all circumstances. In Pfeiffer, however, the Sixth District reaffirmed that lead agencies have some discretion to select the baseline or baselines, so long as the selection is supported by substantial evidence and furthers CEQA's goal of providing accurate environmental impact analysis and full public disclosure. Importantly, the case also reaffirms CEQA's requirement that challengers must do more than simply attack the chosen baseline method as flawed by providing evidence and explanation for why the selected baseline could distort the analysis of a proposed project's environmental effects. This should end the cookie-cutter baseline challenges that have been increasing since the new line of CEQA cases suggested that only existing conditions may serve as the baseline.

Pfeiffer also found that the lead agency's use of several baselines to represent current and future conditions was not erroneous because it provided the best assessment and disclosure of the full traffic impacts of the proposed project, and the lead agency had clearly explained its choice. In upholding the lead agency's choice, the court injected some reasonableness into what had begun to appear to be a rigid and inflexible approach to CEQA baseline selection. Such an inflexible approach was unsuited for particularly complex, unique, or other novel circumstances. CEQA practitioners should still be wary when selecting a baseline that differs from existing conditions.  Nonetheless, Pfeiffer provides support for selection of a different method when circumstances warrant, so long as that selection is explained, supported in the administrative record, and designed to lead to a full and accurate analysis and disclosure of the potential impacts of a project.

The court's opinion may be found here.

For more information regarding this matter, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.

North Coast RWQCB CEQA Scoping Meeting and Workshop Scheduled for November 8

The North Coast Regional Water Quality Control Board has scheduled a CEQA scoping meeting and workshop for November 8, 2011, to consider a proposed amendment to add an Aquatic Ecosystem Restoration Policy ("AERP") to the Water Quality Control Plan ("Basin Plan") for the North Coast Region.

Regional Board staff is a proposing a Basin Plan amendment that will demonstrate the support of the Regional Board for the use of aquatic system restoration as one of several existing tools to be used in the restoration and maintenance of the chemical, physical, and biological integrity of the region’s waters. Staff has proposed the AERP to set forth eligibility criteria and provide a description of the process for obtaining (1) an exemption from certain discharge prohibitions and/or (2) authorization for discharges that may cause temporary exceedances of certain water quality objectives.

The November 8 workshop will be held from 9:00 a.m. to 11:00 a.m. at the Trinity Public Utilities District Office located at 26 Ponderosa Lane, Weaverville, California.

The deadline for comments on the CEQA scoping document is November 18, 2011. Comments must be mailed to:

North Coast Regional Water Quality Control Board
5550 Skylane Blvd., Suite A
Santa Rosa, CA 95403
Attn: Alydda Mangelsdorf

Comments may also be sent by email to: AMangelsdorf@waterboards.ca.gov.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related documents:

• Water Quality Control Plan for the North Coast Region 
• Policy for Aquatic Ecosystem Restoration CEQA Scoping Document 
• Revised Notice of Public Workshop and CEQA Scoping Meeting For the Proposed Aquatic Ecosystem Restoration Policy

Court Invalidates EIR For Failing To Disclose Legal Uncertainty Affecting Availability Of Water To Serve Development Project

Where the United States questions whether a federal water supply contract may be used to serve a proposed urban development project, that project’s environmental impact report (“EIR”) must disclose the government’s position and address the resulting uncertainty in the project’s water supply. 

The Fifth District Court of Appeal reached that holding in a September 13, 2011, opinion in Madera Oversight Coalition v. County of Madera (App.Case No. F059153).  The opinion affirms a Superior Court judgment setting aside the EIR for a 5,200-unit mixed-use development project located in unincorporated Madera County.

The Court of Appeal addressed several recurring CEQA issues, including: (1) preparation of CEQA administrative records and challenges to trial court rulings on record augmentation motions; (2) compliance with CEQA’s requirements for analyzing and mitigating effects to cultural, historical, and archaeological resources; (3) use of the existing environmental conditions versus projected future conditions as the baseline for assessing the significance of project impacts; (4) cumulative impact analysis; and (5) analysis of water supply availability.

Of particular interest is the appellate holding that the water supply adequacy determination in Madera County’s EIR violated CEQA’s mandate for full disclosure and informed decisionmaking by failing to disclose key factors affecting the availability of a federal “holding contract” water supply that the project’s SB 610 Water Supply Assessment (“WSA”) and EIR identified to serve the proposed project.  Although the WSA and EIR determinations were based on a legal opinion concluding that the holding contract water may be used to serve the proposed project, neither that opinion, the WSA nor the EIR disclosed and addressed evidence indicating that the holding contract supply might not be available to serve the project absent a contract amendment.

The EIR process failed to disclose and address a letter by the U.S. Bureau of Reclamation questioning whether the water available under the holding contract could be used to serve commercial, industrial and other urban uses approved as part of the new development project.  The EIR process also failed to disclose and address a recent superior court ruling, arising from separate litigation, that questioned the availability of water supplies to serve a different development project under a different, but similar, federal holding contract.

The Court of Appeal rejected arguments that the WSA and EIR determination of water supply adequacy should be upheld as supported by substantial evidence.  Focusing on the failure to disclose and address the Bureau of Reclamation letter and separate court ruling, the Court of Appeal held that the question of full EIR disclosure presents “a question of law.”  The appellate court explained:

Ultimately, this case comes down to whether the discussion in the EIR regarding the project’s water supply is adequate despite the nondisclosure of information concerning uncertainties surrounding the proposed use of Holding Contract No. 7 as the project’s source of water.

From there, the appellate court reasoned that those omissions:

[R]esulted in the public and decisionmakers being deprived of a full disclosure of the uncertainties related to the project’s water supply.  The basis for this conclusion is relatively simple.  Would two objectively reasonable persons – one presented with only the water supply assessment and the other presented with both the water supply assessment and the [Bureau of Reclamation’s] letter – come to the same conclusion as to the level of uncertainty of the project’s water supply?  We conclude they would not and, thus, the water supply assessment did not provide a full disclosure of relevant information.

The case serves as a reminder that a comprehensive and detailed water supply availability analysis is critical to preparing legally defensible CEQA documents for proposed development projects.

KMTG will publish a Legal Alert with a more detailed analysis of the opinion's broad CEQA holdings.  In the meantime, a copy of the court's opinion may be found here.

For more information regarding this matter, please contact Hanspeter Walter, Andrew Tauriainen, Eric Robinson, or the KMTG attorney with whom you normally consult.

Trial Court Decertifies EIR For Marin County Desalination Project

A Marin County Superior Court judge has ruled that further environmental review is required before a new desalination plant may be constructed to improve water supply availability in San Rafael, Mill Valley and other communities within the Marin Municipal Water District service area.

The August 16, 2011, ruling in North Coast Rivers Alliance et al. vs. Marin Municipal Water District Board of Directors (Case No. CV094809) grants a petition for a writ of mandate setting aside the water district's certification of an Environmental Impact Report (EIR) for a proposed desalination plant that would transform water from San Rafael Bay into drinking water to alleviate chronic water reliability issues during drought periods. 

The lengthy court ruling resolves a wide range of claimed deficiencies in the water district's EIR, rejecting some claims and embracing others.  The ruling finds that the district violated the California Environmental Quality Act because its EIR inadequately addressed environmental impacts with respect to: entrainment of aquatic life at the plant intake; visual impacts from a new water storage tank; consistency with local land use planning designations; seismic effects; noise impacts from construction; energy impacts; and greenhouse gas impacts.  The ruling found the EIR to be adequate with respect to many claims, including: effects from discharging brine through an existing municipal wastewater outfall; air quality; drinking water quality; and growth inducement.

A complete copy of the trial court's ruling may be found here.

If you have any questions regarding this decision, please contact Hanspeter Walter or the KMTG attorney with whom you normally consult.

KMTG Legal Alert: CEQA Does Not Work In Reverse To Require Environmental Impact Report Where The Environment Will Have An Effect On A Project

In South Orange County Wastewater Authority v. City of Dana Point, (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., June 30, 2011), a court of appeal considered whether the California Environmental Quality Act (“CEQA”) works in reverse to require an environmental impact report (“EIR”) where the environment would have an impact on a project instead of the other way around. In this case, the environment consisted of an existing sewage treatment plant that would impact an adjacent mixed use development project with its bad smells and noise. The court of appeal held CEQA does not require an EIR where it is proposed that the environment needs to be cleaned up for a project instead of vice versa.

For a detailed discussion of the facts of this case, and the rationale behind the court's ruling, please see the full KMTG Legal Alert here.

If you have any questions concerning this topic, please contact Jeffrey L. Massey, Daniel J. O'Hanlon, or Jon Goetz from our office, or the KMTG attorney with whom you normally consult.