Monday, December 28, 2009

California Department of Fish and Game Increases CEQA Filing Fees for 2010

December 23, 2009

Effective January 1, 2010, the filing fees collected by the Department of Fish and Game (DFG) for documents filed pursuant to the California Environmental Quality Act (CEQA) will increase as follows:

- Negative Declarations (ND) changed from $1,993.00 to $2,010.25
- Mitigated Negative Declarations (MND) changed from $1,993.00 to $2,010.25
- Environmental Impact Reports (EIR) changed from $2,768.25 to $2,792.25
- Environmental documents pursuant to a Certified Regulatory Program (CRP) changed from $941.25to $949.50

In addition, the county clerk processing fee will remain up to $50 in 2010, depending on the policy of each county.

The DFG filing fee is due at the time the Notice of Determination (NOD) is filed for a project. If the filing fee is not paid, the project may not be operative, vested or final and any local permits issued for the project may be invalid.

Note that only one filing fee is required per project, even if more than one NOD is filed. For example, because lead agencies typically file a NOD before responsible agencies approve the same project, responsible agencies will generally only have to pay the county filing fee.

Wednesday, December 16, 2009

Ninth Circuit NEPA Case Defines the Narrowness of Project Objectives

National Parks & Conservation Association v. Bureau of Land Management, 586 F.3d 735 (9th Cir. Nov. 10, 2009).

Kaiser Eagle Mountain, Inc. (“Kaiser”) sought to build a landfill on its former mining site near Joshua Tree National Park. Part of the plan involved the exchange of private lands for parcels surrounding the mine site, which were owned by the United States Department of Interior’s Bureau of Land Management (“BLM”). BLM, through the Interior Board of Land Appeals, obtained approval of the land exchange.

The plaintiffs challenged this decision in federal district court, and included claims that the decision violated of the Federal Land and Policy Management Act (“LPMA”) and National Environmental Policy Act (“NEPA”). Specifically with regard to NEPA, the plaintiffs argued that the environmental analysis document, the Environmental Impact Statement (“EIS”), was deficient because it had an unreasonably narrow objective through its “purpose and need” statement and therefore had an improperly narrow “reasonable range of alternatives” that failed to acknowledge the environmental impacts, thus violating the Act.

On the NEPA claim, the Ninth Circuit affirmed the lower court’s decision, finding that the environmental review of the plan by BLM had proposed several alternatives but did not consider them in any detail because each failed to meet the narrowly drawn project objectives of meeting the operator's private needs. The court held that the Plaintiffs properly prevailed on the NEPA “purpose and need” and “reasonable range of alternatives” claims. The EIS failed to include specific discussion of introduction of nutrients into the desert environment. Thus, the EIS was correctly found inadequate on that issue.

This decision may play a role in persuasively advancing CEQA case law for evaluating the narrowness of project objectives and the reasonable range of alternatives. CEQA case law does not address this issue “on-point,” and thus this Ninth Circuit case from a project situated in the State of California could play an important role.

County Required to Prepare EIR For Amendment Redefining General Plan Term

Inyo Citizens for Better Planning v. Inyo County Board of Supervisors, No. E046646 (Cal. Ct. App. Nov. 20, 2009)

(Ordered for publication on December 14, 2009)

Inyo County's issuance of a negative declaration for a general plan amendment was found to violate CEQA when it redefined “net acreage” to permit the subdivision of certain properties over the objections of the neighboring landowners.

The landowners petitioned the trial court for a writ of mandate directing the County to set aside the general plan amendment, set aside the approval of specific tentative parcel maps, and cease processing further tentative parcel maps until it properly began the EIR process for the general plan amendment.

The court found that there was substantial evidence supporting a fair argument that increased density allowed by the amendment would have a significant impact on water resources. Therefore, the County should have prepared an EIR, rather than a negative declaration.

The court directed the trial court to issue a writ of mandate setting aside the general plan amendment's redefinition of “net acreage” and directing the County to begin the EIR process if it wanted to move forward with the proposed amendment to the general plan.

Sunday, December 13, 2009

Two Recent Cases Support Use of Exemptions Under the California Environmental Quality Act

November 12, 2009

Public agencies can use exemptions under the California Environmental Quality Act ("CEQA") to avoid environmental review of their financing actions, according to two opinions published this week by the California Court of Appeal.

The opinions issued by the 2nd District Court of Appeal provide public agencies with further guidance as to under what circumstances a CEQA exemption may be appropriate and when further environmental review may not be necessary. If a project fits within a CEQA exemption, a public agency may be wise to use such an exemption to avoid detailed and extensive environmental review, and thus save money and time in getting a project approved.

In Sustainable Transportation Advocates of Santa Barbara (“Advocates”) v. Santa Barbara County Association of Governments (“County”), the Court of Appeal upheld the passage of Measure A, a retail sales and use tax to fund transportation projects in Santa Barbara County. The County had placed Measure A on the ballot without conducting environmental review by claiming that its action was not a “project” and thus not subject to CEQA (which is a claim that public agencies often consider an “exemption” from CEQA). Under CEQA Guidelines section 15378(b)(4), a “project” for the purposes of CEQA does not include “the creation of government funding mechanisms or other government fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant impact on the environment.”

The Court agreed that Measure A did not qualify as a “project” under that section. Although Measure A did contain a list of potential transportation projects that could be funded by the revenues that it would provide, Measure A did not actually approve any specific transportation projects. While the petitioner in this case argued that the environmental impacts of the listed transportation projects should have been analyzed, the Court held that Measure A was simply a financing mechanism in light of the fact that Measure A did not constitute a commitment by the County to actually implement any of the listed projects.

In Bus Riders Union (“Bus Riders”) v. Los Angeles County Metropolitan Transportation Agency (“MTA”), the Court of Appeal upheld the use of a statutory exemption to CEQA when the MTA approved a fare increase to pay for operational expenses. The MTA reasoned that under CEQA section 21080(b)(8), environmental review was unnecessary in this instance. That section exempts an agency from performing CEQA review for the setting of “rates, tolls, fares or other charges," which “the public agency finds” are for the purposes of meeting operating expenses, purchasing supplies and equipment, meeting financial reserve needs and obtaining funds for capital projects necessary to maintain service within existing service areas. Based on the detailed resolution that specified the reasons for the fare increase and the uses for the fare revenue, along with other documents – including past and future budgets that showed how revenue streams were used – the Court found that there was substantial evidence in the administrative record to support MTA’s use of the statutory exemption.

Public Agency Consultant’s Failure To Timely Prepare EIR Does Not Create Liability for Developer's Damages

November 3, 2009

In a decision that affects those involved in the preparation of environmental impact reports (EIR) pursuant to the California Environmental Quality Act (CEQA), a California Court of Appeal recently held that a consultant who fails to prepare an EIR for a public agency in a timely fashion cannot be held liable to the developer for losses arising from that failure. The decision affirms strong protections for public agencies and their consultants that perform work under CEQA.

In Lake Almanor Associates L.P. v. Huffman-Broadway Group Inc., No. A122563 (Ct. App. 1st Dist. Oct. 30, 2009), the developer was to reimburse the county for the consultant’s work. The consultant failed to meet the developer’s deadlines for the project and, as a result, a second consultant was needed to prepare the EIR. The developer suffered economic losses from the delay. The county sought reimbursement from the developer for the work performed by both consultants. The developer then sued the first consultant for negligence, negligent interference with prospective economic advantage and breach of contract alleging that the developer was a third-party beneficiary of the consultant’s contract with the county.

The court found that the developer was not a beneficiary of the consultant’s contract with the county. The developer was not owed a legal duty for preparing the EIR in a timely fashion and the county’s performance of its statutory obligations to prepare the EIR did not create a contractual obligation to the developer. On the contrary, the county’s only duty was related to releasing a proper EIR to the public, not the developer. Furthermore, the provisions in the consultant’s contract requiring that the developer receive a copy of the EIR did not create liability to the developer for breach of the contract. Because no duty was owed to the developer, the court similarly found that the consultant was not liable to the developer under a negligence theory.

The court did not directly address CEQA’s timing provisions, but instead found that the developer “point[ed] to nothing in CEQA that authorizes [a developer] to bring an action against a public entity for failure to complete an EIR on time.” The court found that such claims against consultants would be contrary to the policies in CEQA because they would undermine the consultants’ independence and objectivity, and affect their availability and fees charged.

California Natural Resources Agency Issues Proposed CEQA Guidelines Amendments Relating to Greenhouse Gas Emissions

October 27, 2009

The California Natural Resources Agency, following a public comment period that ended August 20, has issued several proposed revisions to the draft CEQA Guidelines amendments. These revisions clarify the requirements of an adequate global warming analysis.

The latest revisions state that any greenhouse gas mitigation measures imposed must be supported by substantial evidence and be subject to monitoring. Furthermore, the new set of revisions state that environmental impact reports (EIRs) should evaluate the risks of locating a project in an area subject to hazardous conditions such as those that may be attributed to global warming, including flooding, rising sea levels and wildfires. Under the revisions, public agencies would also be able to use regional or statewide benefits, such as greenhouse gas emission reductions, as project benefits for the purposes of supporting a Statement of Overriding Considerations.

Separate and apart from the issue of global warming impacts, the threshold of significance in Appendix G of the Guidelines dealing with a project’s traffic impacts would be revised to shift the focus of analysis from whether capacity would be exceeded to whether the project would be consistent with measures of effectiveness established in a plan, policy or ordinance. We believe that this reflects an emphasis on the discretion of the public agency to determine what levels of service constitute a significant impact in that jurisdiction, rather than focusing solely on the capacity of the transportation system.

The public review period for these revisions began on October 23 and the Agency will accept written comments until 5:00 p.m. on November 10. After the comment period closes, the Agency will prepare a response to public comments before finalizing and adopting the text for the Guidelines. The Guidelines are scheduled to be adopted by January 1, 2010.