Environmental

On June 10, 2021, the State Water Resources Control Board (“Water Board”) issued a Revised Public Notice that changed certain dates noted in our June 2, 2021 blog post.  The Water Board’s public hearing to receive public comments on the draft Construction Stormwater General Permit reissuance is now scheduled to occur at 9:00 a.m. on August 4, 2021.  The State Board also extended the written comment deadline to August 13, 2021. For more information on how, where, and when to submit comments, please refer to the Water Board’s Revised Public Notice.  Further information on the draft Construction Stormwater General Permit…
In an opinion filed on April 19, and certified for publication on May 4, 2021, the Third Appellate District in Alliance for Responsible Planning v. Taylor (County of El Dorado) held that a citizen-sponsored ballot measure requiring new development to fund all cumulative traffic mitigation prior to construction violated the Takings Clause of the Constitution by requiring new development to pay more than its fair share. The Court’s ruling reaffirms the constitutional principles of nexus and proportionality as applied to general plan policies and mitigation under the California Environmental Quality Act (“CEQA”), and limits the ability of local agencies to…
The State Water Resources Control Board (“Water Board”) is now receiving public comments on its proposed reissuance of the statewide National Pollutant Discharge Elimination System (“NPDES”) Construction Stormwater General Permit (“Construction Stormwater General Permit”). I.     Background The Construction Stormwater General Permit regulates discharges to waters of the United States from stormwater and authorized non-stormwater associated with construction activities that disturb one or more acres of land, or are part of a common plan of development or sale that disturbs one or more acre of land surface.  California’s previous Construction Stormwater General Permit expired in September 2014 but has been…
On May 20, 2021, California Governor Gavin Newsom signed into law Senate Bill 7, known as the Housing and Jobs Expansion and Extensions Act, which extends expedited California Environmental Quality Act (CEQA) judicial review for small-scale housing developments.  In 2011, Assembly Bill 900, known as the Jobs and Economic Improvement Through Environmental Leadership Act, created an expedited judicial review process under CEQA for large, multi-benefit housing, clean energy, and manufacturing projects, provided that they met certain requirements, including provisions related to labor.  Eligible projects were entitled to immediate review in the court of appeal—rather than superior court—and would…
In Jan Dunning et al. v. Kevin K. Johnson, APLC et al., the Fourth District Court of Appeal held that a developer and property owner could pursue its claims against a neighbor and project opponent for malicious prosecution after the developer successfully defended a meritless CEQA lawsuit against its construction of a private secondary school project.  The Fourth District found that the developer established a probability of prevailing on its malicious prosecution claim by presenting evidence that the project opponents in the CEQA action pursued their claim with malice and without probable cause.  This case is a warning shot…
In California Coastkeeper v. State Lands Commission, the Third District Court of Appeal upheld the State Lands Commission’s decision to prepare a supplemental environmental impact report (EIR) for a desalination plant in Huntington Beach, overturning an earlier trial court ruling that invalidated the EIR.  Limited changes to a desalination project were proposed in order to comply with desalination-related amendments to the State’s Ocean Plan.  Because the prior EIR retained informational value, and the proposed changes to the Project were minor, it was appropriate for the Commission, in its capacity as a responsible agency, to prepare a supplemental EIR under the…
On April 20, 2021, the First District Court of Appeal filed its first published opinion interpreting California Senate Bill 35’s streamlining provisions in Ruegg & Ellsworth v. City of Berkeley.  The Court held that the City of Berkeley erred in finding a mixed-use development project ineligible for SB 35 streamlining.  Because the project met the essential qualifications under SB 35, the First District commanded the trial court to issue a writ of mandate directing the City to approve the project without further environmental review.  This marks the first published decision to enforce the State’s new affordable housing laws and is…
Published on February 9, 2021, the Court of Appeal in Organizacion Comunidad de Alviso v. City of San Jose held that the City of San Jose’s (“City’s”) posting of a second, revised Notice of Determination (“NOD”) adequately triggered CEQA’s abbreviated, 30-day statute of limitations despite the fact that the City failed to provide a copy to the Petitioner’s representative as requested. While CEQA requires lead agencies to provide notices to those who have requested them, the Court held that the revised NOD in this instance provided constructive notice sufficient to trigger the 30-day statute and dismiss the case. In this…
In an opinion filed on February 1, 2021, the First Appellate District in Schmid v. City and County of San Francisco found that petitioners challenging the City of San Francisco’s decision to remove a controversial sculpture had failed to exhaust their administrative remedies by not appealing the CEQA determination by the San Francisco Historic Preservation Committee (“HPC”) to the San Francisco Board of Supervisors (“Board of Supervisors”). The challenge involved the unelected HPC’s decision to remove a sculpture facing criticism for “displaying a racist attitude towards Native Americans,” a dispute that the court described as “a local version of the…
On December 11, 2019, the California Supreme Court granted review of the Third District’s decision in County of Butte v. Department of Water Resources, dismissing a CEQA challenge to DWR’s relicensing application to the Federal Energy Regulatory Commission (FERC) for the Oroville Dam on the basis that the claim was preempted by federal law. The Court of Appeal held the Federal Power Act (FPA) exclusively occupies the field of dam licensing and preempts state regulation, and accordingly found that it had no jurisdiction to consider the case. The Court of Appeal’s decision came on the heels of a lengthy and…