Archive for October, 2012


On October 23, 2012, the Second District Court of Appeal issued its decision in Chung v. City of Monterey Park (2012))       Cal.App.4th     (Case No. B233859).  The court held that a city council’s approval of a ballot measure seeking voter approval of a competitive bidding process for residential trash service was not a “project” within the meaning of the CEQA.

Factual and Procedural Background

The Monterey Park City Council voted to place Measure BB on the March 8, 2011 municipal ballot without performing any type of environmental review under CEQA.  No initial study was prepared, and there was no Notice of Exemption.  Measure BB requires that the City seek competitive bids for trash service when the City’s current contract expires in 2017, and thereafter requires that the City competitively bid for trash service every five years.  Opponents of Measure BB argued that the measure was a “project” under CEQA and that environmental review was required before the measure could be placed on the ballot.  Measure BB, among other things, would require the City Council to award the residential solid waste franchise to a single franchisee, but the City Council would also have the discretion to award the commercial solid waste franchise to up to three franchisees.  Therefore, Measure BB raised concerns about air quality, noise pollution and road damage that would likely result from an increase in the size of the solid waste contractor fleet serving the City. On March 8, 2011, City voters approved Measure BB, with over 71 percent voting in favor of establishing a competitive bidding process. 

Wing Chung, a city resident, filed a petition for writ of mandate, alleging that Measure BB was a “project” subject to CEQA, and that the City violated CEQA by failing to make any decision as to whether Measure BB would have a significant impact upon the environment, failing to consider any alternatives or mitigation measures, and failing to conduct the requisite informed decision-making under CEQA. 

The trial court disagreed and determined that Measure BB was not a “project” within the meaning of CEQA and therefore the measure did not require environmental review before being placed on the ballot.  

Court of Appeal’s Decision

The Court of Appeal began its analysis by navigating through the statutory definition of a “project” and the extensive case law on the subject. Citing CEQA Guidelines section 15378, subdivision (b)(4), the court noted that the definition of a  “project” 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 physical impact on the environment.” The court determined that placing the ballot measure on the ballot fit within that definition. The ballot measure merely established a competitive bidding process for future waste services contracts, and the new manner of awarding such contracts is a fiscal activity that does not involve a commitment to a specific project. As such, the measure is not a project within the meaning of CEQA.

The court placed emphasis on distinguishing the seminal case Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, where the City of West Hollywood conditionally agreed to allow a private developer to redevelop property for senior housing predicated on future compliance with CEQA. There, the fatal flaw in the City of West Hollywood’s decision was that the city had “committed itself to a definite course of action regarding the project before fully evaluating its environmental effects.” (Id. at p. 142.) The court explained that this case was different because the City has not committed itself to any particular course of action. Measure BB does not require the City to select more than one service provider and does not preclude the City from providing solid waste services by itself. 

In addition, the court noted that Measure BB requires the City Council to hold one or more public hearings before deciding whether to grant one or more solid waste franchises.  Thus, at the time Chung filed the lawsuit it was unknowable which companies would bid on the contract, what additional trucks would be required (if any), or what significant impacts the City’s choice of service provider(s) may have in 2017.  The court held that, at this juncture, environmental review of Measure BB would be meaningless because there is simply not enough specific information about the various courses of action available to the City to warrant review at this time.

On October 24, 2012, the Third District Court of Appeal upheld the trial court’s ruling in Albert Garland v. Central Valley Regional Water Quality Control Board (2012) __Cal.App.4th__ (Case No. C067130). The case involves the question of whether the discharge of stormwater with sediment from a residential construction into adjacent ephemeral drainages encompassing swales, ditches, and culverts that eventually connected to waters of the United States was sufficient to trigger Clean Water Act violations under the federal Clean Water Act.

The trial court denied a petition for writ of administrative mandate challenging a $250,000 administrative civil liability (ACL) order issued against petitioner by the Central Valley Regional Water Quality Control Board (Board) for permit violations of the Clean Water Act (Act). The court affirmed the judgment, holding that the order was authorized even under the view in Rapanos v. United States (2006) 547 U.S. 715 that most narrowly reads the Act’s jurisdiction. In issuing the ACL order against petitioner, the Board found that the ephemeral drainages, into which petitioner discharged the construction site stormwater runoff, were tributaries to downstream navigable waters.

The discharge in question encompassed 641,000 gallons of sediment-laden stormwater flowing off the sides of a residential subdivision construction site being developed by Garland. The Board showed that a $250,000 ACL order could have been based on as little as 25,000 gallons of polluted discharge under Water Code, section 13385. The stormwater flowed into ephemeral drainages adjacent to the construction site, which are tributaries of the Feather River and the Thermalito Afterbay.

The board argued that regardless of whether the ephemeral drainages at issue constituted waters of the United States, Garland should remain liable for discharging pollutants into waters of the United Stated under the alternative rationale for the ACL order that the discharge traveled through point sources to waters of the United States. The District Court of Appeal concluded that the Board acted properly in issuing the ACL order against Garland on that basis.

On October 18, 2012, the Third District Court of Appeal ordered publication of its decision in Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) __ Cal.App.4th __ (Case No. C064930). The appellate court affirmed the trial court’s judgment denying the petition for writ of mandate and found the majority of the petitioners’ arguments were simply a difference of opinion with the lead agency. Although the EIR for the cogeneration power plant project contained small discrepancies relating to the project’s air quality impacts and water usage, the court held these inaccuracies did not prejudice the environmental review process. 

In 2006, Roseburg Forest Products Co. proposed expanding its existing wood veneer manufacturing facility to accommodate a biomass-fueled cogeneration power plant that would generate electricity for resale. The project involved installing new equipment on one acre of the 300-acre Roseburg facility near the town of Weed, as well as trucking in additional fuel for the cogeneration system. On December 6, 2006, the Siskiyou County Planning Commission determined that the project fit within a categorical exemption under CEQA and approved a conditional use permit for the project. After this decision was appealed, Roseburg withdrew its initial application and submitted a new application. On June 29, 2007, Siskiyou County issued a Notice of Preparation for an EIR for the project, and released a draft EIR in April 2008. On September 30, 2008, the Planning Commission approved the project and certified a final EIR. Mount Shasta Bioregional Ecology Center and Weed Concerned Citizens filed a petition for writ of mandate against the county and board of supervisors, alleging various CEQA violations. The trial court denied the petition. 

After a thorough discussion of the standard of review, the Court of Appeal addressed the alternatives analysis of the EIR. The court found that the EIR was adequate even though it only considered the “No Project” alternative in detail because the county had dismissed three other alternatives as not potentially feasible during the scoping phase. The court rejected the petitioners’ challenge to the alternatives analysis because they failed to show that there was no substantial evidence to support the county’s rejection of the three alternatives during the scoping phase. 

Next, the court considered the plaintiffs’ arguments regarding the project’s air quality impacts. The court found that a comment letter cited by the plaintiffs was not properly part of the record because the letter was submitted the day before the hearing on the plaintiffs’ appeal of the Planning Commission’s decision and not five days before as required by county hearing rules. Nonetheless, the court addressed the merits of the plaintiffs’ challenge and concluded that a small discrepancy of 7 percent between actual and approximate emissions of steam production from the facility did not result in prejudicial error. 

The court then turned to the project’s noise impacts. The court dismissed each of the plaintiffs’ assertions, noting the plaintiffs appeared confused about the difference between average sound level readings for 15-minute periods at various times during the day (Leq) and average sound levels for a 24-hour period (Ldn). The court found, among other things, that substantial evidence in the record supported the finding that mitigation measures could reduce noise impacts to less than significant levels, the discussion of noise from the turbine generator was adequate, and there was substantial evidence in the record that the project’s predicted noise increase of less than 1.1 dB was not cumulatively considerable. 

Finally, the court addressed the petitioners’ challenge to the EIR’s discussion of the project’s impacts to water. The court found that defendants could not cite anything in the record to support the EIR’s assertion that the project’s water usage would be 120,000 gpd when a Roseburg consultant’s conflicting estimate was around 230,400 gpd. Despite acknowledging that the draft EIR might have understated the overall water usage, the court held it was not a prejudicial abuse of discretion because the petitioners did not cite evidence the higher level of water usage would have a significant environmental impact. The court also found the argument that the EIR’s project description was inaccurate because it failed to discuss blow down water was “simply a difference of opinion” with the county over the EIR’s conclusion that there will be no water discharges.  (Elizabeth Sarine)

On October 4, 2012, the Third District Court of Appeal in Voices for Rural Living v. El Dorado Irrigation District (2012) ___ Cal.App.4th ___ (Case No. C064280), affirmed the trial court’s judgment voiding the El Dorado Irrigation District’s approval of an agreement to provide water to a casino on tribal land. The appellate court held the irrigation district’s approval of the agreement did not qualify for the small projects categorical exemption because the project triggered the unusual circumstances exception, and the record contained evidence upon which a fair argument could be made that the project could have significant environmental impacts during a drought. The appellate court reversed the judgment in part and directed the trial court to order the irrigation district to conduct further California Environmental Quality Act (CEQA) proceedings because the trial court should not have mandated the irrigation district to prepare an environmental impact report (EIR). 

In 1987, the Shingle Springs Band of Miwok Indians and the El Dorado Irrigation District entered an annexation agreement to bring 160 acres of tribal land into the district’s service area. In 1989, the El Dorado County Local Agency Formation Commission (LAFCO) conditioned its approval of the annexation by restricting the land to residential uses and authorizing the district to supply only enough water for 40 residential lots or less. Subsequently, the tribe proposed building a casino and hotel on the annexed land. After deciding that the LAFCO conditions were invalid, the irrigation district approved an agreement on May 28, 2008, to provide the tribe with more water than LAFCO had authorized. The district then issued a notice of exemption stating the project was categorically exempt under the class 3 exemption for new construction or conversion of small structures. Voices for Rural Living challenged the approval of the agreement and alleged violations of CEQA and the LAFCO Act. The trial court granted the petition for writ of mandate and ordered the district to set aside its approval and to prepare an EIR. The tribe and Voices for Rural Living appealed the trial court’s judgment, raising different arguments. 

The appellate court first reviewed the irrigation district’s determination that the project did not trigger the unusual circumstances exception to the class 3 categorical exemption. As a preliminary matter, the court applied the de novo standard of review and concluded the project did present unusual circumstances because providing water to a casino and hotel greatly differed from providing water to a single family residence, the type of project typically covered by the class 3 categorical exemption. 

Then the court applied the fair argument standard to the question of whether there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances, despite acknowledging a split of authority as to whether the less deferential fair argument standard or the more deferential substantial evidence standard should be employed. The court found there was evidence in the record upon which a fair argument could be made that the project may exacerbate the environmental consequences of a drought. The court noted that the irrigation district had failed to consider the effect of climate change on possible shortages during a drought. Additionally, the court found the record lacked sufficient information regarding how the irrigation district would, during a drought, be able to meet its customer demands as well as new in-stream flow requirements, imposed by the Federal Energy Regulatory Commission on a portion of the American River from which the district is entitled to receive water. 

Finally, the court held the irrigation district must comply with the LAFCO conditions because the irrigation district was not vested by the California Constitution or by statute with the authority to determine the validity or constitutionality of LAFCO’s annexation conditions. The court explained that even if the LAFCO conditions were unconstitutional and preempted by federal law, they must be deemed valid and binding until a proper court of law enjoins their enforcement.  (Elizabeth Sarine)

On Tuesday, October 2, 2012, the United States Fish and Wildlife Service (FWS) issued a proposed rule in the Federal Register that would remove the Valley Elderberry Longhorn Beetle from the list of species protected by the Endangered Species Act.

The Valley Elderberry Longhorn Beetle is endemic to California’s Central Valley. This subspecies is a wood borer that is dependent on its host plant, the elderberry.  When the beetle was first included on the list in 1980, it was only known to exist at three locations in Merced, Sacramento, and Yolo County. Currently, the beetle is known to exist in over twenty six places, including the San Joaquin and Sacramento Valleys from Shasta to Kern County. The beetle lives in elderberry bushes in riparian forest and in upland vegetation along river corridors in the Central Valley.

In California, over 21,000 acres of land are designated as protected habitat for the Valley Elderberry Longhorn Beetle.

If the proposed rule is made final, it will both remove the beetle from the List of Endangered and Threatened Wildlife, and remove the designation of critical habitat for the subspecies.

The proposed rule has a sixty two day comment period which ends on December 3, 2012. The FWS will conduct a public hearing upon request, although no hearing is currently planned.

The proposed rule can be found in the Federal Register at: https://www.federalregister.gov/articles/2012/10/02/2012-23843/endangered-and-threatened-wildlife-and-plants-removal-of-the-valley-elderberry-longhorn-beetle-from#h-8

 (By Holly Roberson)