2/10/2015. AB 52 (Gatto) Native Americans: CEQA AB 1739, SB 1168, SB 1319 Sustainable ab Groundwater Management Act. SB 743 Transportation and Traffic

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1 Bob Brown, AICP Streamline Planning Consultants AB 52 (Gatto) Native Americans: CEQA AB 1739, SB 1168, SB 1319 Sustainable ab Groundwater Management Act SB 743 Transportation and Traffic Lead Agency must, upon request of a California Native American tribe, begin consultation prior to the release of a ND, MND or EIR Applies to projects issuing a Notice of Preparation or Notice of Intent on or after July 1, 2015 Defines a new class of resources under CEQA tribal cultural resource. A tribal cultural resource is defined as a site, feature, place, cultural landscape, sacred place, or object with cultural value to a California Native American tribe, which may include non-unique cultural l resources previously subject to limited review under CEQA. Requires notice to tribes. Lead agencies and tribes may consult on mitigation. Requires mitigation when feasible. Suggests mitigation methods. 100 years ago legislation l managing surface waters. Now last western state to enact groundwater management. Proposition #1 passed; $100 million to implement this act. Has potential impacts to agricultural interests. 1

2 The Act mandates management of California s groundwater on a sustainable basis into the future. Assigns local agencies (counties?) the authority and responsibility to manage groundwater basins upon which they rely. Existing water rights must be respected by local agencies and the state. Groundwater basins ranked in priority. High and Medium groundwater basins shall be governed by June Adoption of plans by Goal is to achieve basin sustainability within 20 years from plan adoption. LOS vs VMT. New CEQA Guidelines in the Works. How long you wait at a traffic stop or how long it takes to commute is not an environmental impact. Lots more happening. No time to discuss Opinion: Not a good idea for rural areas (95% of the state) Friends of the Eel River v. North Coast Railroad Authority Center for Biological Diversity v. Department of Fish & Wildlife Sierra Club v. County of Fresno Citizens for Environmental Responsibility v State ex rel. 14 th Dist. Ag Assn Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist. California Building Industry Assn. v. Bay Area Air Quality Management Dist. City of San Diego v. Trustees of the California State University Berkeley Hillside Preservation v. City of Berkeley 2

3 Does the Interstate Commerce Commission Termination Act (ICCTA) preempt p the application of CEQA? Does the ICCTA preempt a state agency s voluntary commitments to comply with CEQA as a condition of receiving state funds? Did the CA ESA supercede other CA statutes that prohibit take of fully protected species by allowing take if incidental to a CEQA mitigation plan? This case presents issues concerning the standard and scope of judicial review under CEQA. f Holding deferred until Berkeley Hillside Preservation is decided. Does the level of review for the significant effects exception to a categorical exemption rely on substantial evidence or fair argument? 3

4 When a lead agency performs a subsequent environmental review and prepares a subsequent EIR, a subsequent negative declaration or an addendum, is the standard of review one of substantial evidence or fair argument? How does the lead agency determine that the action is a new project? Under what circumstances, if any, does CEQA require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project? In other words does CEQA require an analysis of the impacts of the environment on a project? Does a State Agency, which may have the obligation to make fair share payments for mitigation of off-site impacts, satisfy its duty by stating that it sought funding from the Legislature to pay for such mitigation and further stating that, if the requested funds are not appropriated, it may proceed without the mitigation on the grounds that mitigation is infeasible? Court has deferred briefing on City of Hayward v. Board of Trustees of the California State University, S (207 Cal. App. 4 th 446) until the above case is decided. Did the City properly conclude that the proposed p project (a very large house) was categorically exempt under Class 3 (new construction of small structures) and 32 (infill) and that the unusual circumstances exception under Section (c) did not remove the project from the scope of those categorical exemptions? 4

5 Exemptions Negative e Declarations at Environmental Impact Reports Save the Plastic Bag Coalition v. City and County of San Francisico San Francisco Beautiful v. City and County of San Francisco Court upholds reliance on Class 7 and Class 8 categorical exemptions for adoption of ordinance that Extends existing restrictions on the use of noncompostable plastic bags from just large supermarkets and retail pharmacies to all retail stores Requires stores to charge 10 cents each for a single use checkout bag made of either compostable material or paper with minimum 40% recycled content Institutes outreach and education program for stores and customers Class 7 and 8 exemptions apply to actions taken by regulatory agencies as authorized by State law or local ordinance to assure the maintenance, restoration, enhancement, or protection of (i) a natural resource (15307) or (ii) the environment (15308) Court rejected argument that ordinance adoption was not a regulatory action Court rejected argument that there was a reasonable possibility of a significant impact because of unusual circumstances (15.9 million tourists and hundreds of thousands of commuters) and the impact from paper bags was worse than plastic. Court rejected argument requiring 10 cents a bag was mitigation because the fee was a part of the ordinance since the beginning. 5

6 Court upholds City s reliance on Class 3 categorical exemption for approval of AT&T s Lockspeed Project which would upgrade existing fiber optic system by installing 726 utility cabinets on sidewalks throughout the City. Class 3 categorical exemption consists of (i) construction and location of limited numbers of new, small facilities or structures and (ii) installation of small new equipment and facilities in small structures. Court rejects argument that t second clause only refers to new equipment in existing structures, noting that the project included some new structures. Court rejects argument that the project didn t meet Clause 1 limited number because the project met Clause 2 requirements. Court rejects argument that there were unusual circumstances ( Berkeley Hillsides case deciding the proper legal test where the large size of a house was considered unusual circumstances is being decided by CA Supreme Court). Project is in an urban landscape and utility boxes were not unusual. No fair argument that pedestrian safety, aesthetics, graffiti and public urination and blocking drivers views would kick project out of categorical exemption. The basis was context. And no evidence that anti-social behavior would increase from what currently occurs. Court rejected argument that a cumulative impact would occur. Court rejected argument that there was mitigation as the City relied on generally applicable regulations such as excavation permits in right-of-ways Trend in these two cases and Wollmer (proposed a left turn lane as part of project), is that it was found that components of a proposed project does not define them as mitigating into a categorical exemption. Picayune Rancheria v. Brown The egovernor o is not otan agency Tuolumne Jobs & Small Business Alliance v The Superior Court Initiative measure submitted to the City Council and enacted by legislative body are not subject to CEQA. Project was an expansion of an existing Wal-Mart. Practice Tip: No discretion= No CEQA. Citizens for the Restoration of L Street v. City of Fresno Rominger v. County of Colusa 6

7 Court invalidates adoption of Mitigated Negative Declaration and approval of demolition permits for a 28-unit townhome o project requiring demolition o of two existing structures which may be historic. The City s administrative process for reviewing and approving demolition permits violates CEQA because the Municipal code gives the Historic Preservation Commission final authority on the merits of such permits but gives the development Department and ultimately the City Council, on appeal, authority for CEQA compliance for the permits. Practice Tip: CEQA needs to be approved prior to decision on project. Careful of staff/committees/ commissions actions Also Fifth Appellate District affirms its earlier precedent holding that fair argument does not apply to the question of whether particular cultural resources are historic resources within the meaning of CEQA (Valley Advocates v. City of Fresno 2008). The point being that one needs substantial evidence that the structure is historic (if not on a list, what evidence is there of it being a historic resource?). If there is substantial evidence that it is a historic resource then a fair argument can be made that t the project would impact that resource. Court rejects the argument that historic resources should be considered the same as habitat of an endangered plant or animal because language added regarding historic resources is specific ( ). County adopted negative declaration approving subdivision of 4 agricultural parcels into 16 agricultural l parcels (but zoned for Industrial). No development was anticipated. Subdivision was a project. Neg Dec circulated 27 days instead of 30 (Labor Day weekend). Not prejudicial, no harm done so argument rejected. Court rejected argument that subdivision of agricultural l land needed d to be analyzed for ultimate development. Lawyer waiving arms brought up issues related to agricultural, odors, noise air quality, GHG, water supply. Did not constitute a fair argument. Conversion of farm land is not an automatic significant impact; County had discretion to apply a significance threshold. No evidence in record that it was significant. However there was a fair argument of traffic impacts in that the County did not include foreseeable trip generation from future development, triggering a need for an EIR. 7

8 Lotus v. Dept. of Transportation Friends of the Kings River v. County of Fresno Cleveland National Forest Foundation v. San Diego Association of Governments Sierra Club v. County of San Diego Paulek v. Department of Water Resources Citizens for a Sustainable Treasure Island California Clean Energy Committee v. City of Woodland Richardson Grove project EIR. The Court found that the EIR compressed the analysis of impacts and mitigation measures into the project description (avoidance measures) it therefore failed to provide a meaningful discussion of potential significant impacts in its analysis and an analysis of the sufficiency of its mitigation measures. The EIR failed to disclose its analytical l trail and state the threshold levels in its analysis. It should have discussed the significance of impacts apart from the mitigating techniques. The EIR failed to consider whether other mitigation measures would have been more effective. Practice Tip; If you use avoidance measures in your project description then also describe them as part of your analysis and how the project would be different without them. Then throw them in as mitigations as well. Project is a 100-yr mining permit on 1500 acres in the Sierra Nevada foothills. The court rejected the claims that the project violated SMARA, was not consistent with the General Plan and that the EIR failed to sufficiently disclose all of the environmental impacts. The portion of the case published was the adequacy of mitigation measures for the permanent conversion of agricultural lands. 8

9 Program EIR for its SCS is set aside for not analyzing impacts past 2020, it lacked meaningful mitigation measures Though it addressed 7 alternatives it did not include one that reduced VMT It lacked discussion of impacts to agricultural l lands of less than ten acres Practice Tip: At the general plan level do not add mitigation measures or plan implementation measures that may not be able to be met. Failure to meet these could require the General Plan to be set aside or required to act on its promises. Dam upgrade project. Practice ce Tip: Questions s raised by people e during the public comment period can be understood to be objections and need to be responded to in the FEIR. General comments only need general responses. If you remove a portion of the project due to environmental concerns and propose it for a separate CEQA analysis be careful about potential segmentation mistakes. Practice Tip: A project EIR and a programmatic EIR are the same if the impacts are analyzed sufficiently. A court defers to lead agency where there is disagreement between experts. Considering a range of alternatives and reasons for discounting them at the outset may reduce the need to respond to public generated alternatives. A condition requiring compliance with regulations is a common and reasonable mitigation measure where reasonable to expect compliance. This is not deferred mitigation. 9

10 Project was a regional scale shopping mall. Court found it did not adequately address urban blight even though several mitigation measures were proposed to address this concern. Furthermore the EIR failed to address Appendix F (Energy Conservation). Practice Tip: If you are dealing with a project that has urban blight issues read this case to determine adequate mitigation measures. There is a right way of doing it. 10