Archives: February 2022

FIRST DISTRICT HOLDS RESIDENTIAL DEVELOPMENT PROJECT THAT IS CONSISTENT WITH SPECIFIC PLAN AREA IS EXEMPT FROM FURTHER ENVIRONMENTAL REVIEW

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In Citizens’ Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th 460, the First District Court of Appeal upheld the city’s determination that a residential project within a specific plan area was exempt from further environmental review under Government Code section 65457, which provides an exemption from CEQA for housing development proposals that follow a city’s specific plan.

Background

In 2010, the city certified an environmental impact report (EIR) for a specific plan. The specific plan allowed for development of up to 1,260 residential units, and a golf course and related facilities spread across identified subareas (Areas 3 and 4). Area 4 contained wetland habitat for the salt marsh harvest mouse, a state-protected species. After petitioners filed suit under CEQA, the trial court found several deficiencies with the EIR.

In response, the city prepared a recirculated EIR (REIR), which stated that it was a program-level analysis of the impacts related to development of housing and the golf course in Areas 3 and 4 because the final design of those components was not yet known. In March 2015, the city certified the final REIR and re-adopted the 2010 specific plan.

In 2019, the developer submitted a proposed subdivision map for approval of 469 residential lots, omitting the golf course that was previously authorized by the specific plan.

The city prepared a checklist to determine whether the REIR adequately analyzed the environmental impacts of the proposed subdivision map and concluded that the project was consistent with the specific plan and that there were no changed circumstances or new information that might trigger additional environmental review. Accordingly, the city determined the project qualified for the statutory CEQA exemption under Government Code section 65457.

Petitioners challenged the city’s determination, arguing that a subsequent EIR was required due to changes in the project showing that it would have new significant impacts on the endangered harvest mouse.

Court of Appeal’s Decision

To qualify for the Government Code section 65457 exemption, a project must be for residential development, must be consistent with a specific plan for which an EIR was previously certified, and circumstances requiring subsequent environmental review (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) must not be present.

Petitioners alleged that three changes to the project created new significant impacts triggering the requirement for a subsequent EIR:

(1) Fill of only uplands and not wetlands inhibited wetland migration;

(2) Omission of the golf course deprived the harvest mouse of escape habitat; and

(3) Use of riprap on the banks of elevated upland increased predation of the harvest mouse.

The court disagreed, finding that substantial evidence supported the city’s conclusion that none of the changes significantly increased the impacts on the harvest mouse beyond what the REIR analyzed, i.e., the impacts of the complete development of all of Area 4. The court noted that the project as approved would develop fewer total acres and include far fewer residential units than analyzed in the REIR.

In regard to petitioners’ specific arguments of new impacts, the court held the REIR addressed the impact of loss of upland escape habitat and found that the impact would be less than significant because the uplands did not provide high quality transitional habitat as they were regularly used for agriculture. The project would develop less upland than previously analyzed, meaning the project would eliminate less, not more, upland escape habitat. Additionally, because of the low value of upland habitat, the REIR’s less-than-significant determination did not depend on the golf course continuing to provide upland habitat. Accordingly, the elimination of the golf course did not affect that determination.

While the REIR did not discuss the use of riprap to stabilize the slopes of the filled and raised development areas, the court found this did not require subsequent environmental review because the REIR already examined the issue of rat predation on the harvest mouse and petitioners cited to no evidence that the riprap would substantially increase the severity of predation effects. The court acknowledged that there could be some potential increase in predation due to riprap but recognized that the Section 65457 exemption sets a higher threshold for environmental review. Like other statutory exemptions, the court said, Section 65457 reflects the Legislature’s determination that the interest promoted, which here was to increase the housing supply, was important enough to justify foregoing the benefits of environmental review.

The court also rejected petitioners’ claim that changed circumstances and new information related to sea level rise triggered subsequent review. Petitioners argued that the city was required, due to new scientific insights concerning the amount and rate of sea level rise, to analyze whether the project would exacerbate the effects of sea level rise because of how the project would interact with wetlands in the area (e.g., wetland migration). Even assuming wetland migration must be analyzed under CEQA, the court found that it was mentioned in the original 2010 EIR and the REIR assumed that all developable areas would be impacted. Accordingly, the court concluded that petitioners should have raised this argument in response to the REIR, or even the 2010 EIR.

Finally, the court rejected petitioners’ claim that an adaptive management approach to sea level rise was impermissibly deferred mitigation. The court held that the city’s adaptive responses were not mitigation because sea level rise is not an environmental impact caused by the project that needs to be analyzed under CEQA.

– Nina Berglund

The Future of Wetlands and Waters of the United States: U.S. Supreme Court Grants Review of Sackett v. EPA

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On January 24, 2022, the United States Supreme Court granted review of Sackett v. U.S. EPA (No. 21-454) to consider whether the Ninth Circuit Court of Appeals set forth the proper test for determining whether wetlands constitute “waters of the United States” under the federal Clean Water Act. (33 U.S.C. § 1362(7).) The Supreme Court’s second grant of certiorari marks a pivotal development in a long-running legal battle between the Sacketts—an Idaho couple seeking to build a home near Priest Lake—and the EPA, which has maintained that the Sacketts’ property contains wetlands subject to federal jurisdiction and permitting.

Factual Background

The Sacketts own a residential lot in Bonner County, Idaho, that lies just north of Priest Lake. To prepare for construction of a house, the Sacketts filled part of their lot with dirt and rock. Several months later, the Sacketts received a compliance order from the EPA stating that the lot contained wetlands that were adjacent to Priest Lake, which was a “navigable water” within the meaning of section 502(7) of the Clean Water Act (CWA) and constituted “waters of the United States” within the meaning of 40 C.F.R. § 232.2. The compliance order found that the Sacketts violated the CWA by impermissibly discharging pollutants into navigable waters. The order directed the Sacketts to remove the fill and restore the lot to its original condition, or be subject to civil penalties.

March 2012: Initial Lawsuit & Supreme Court Decision

The Sacketts sought, but were denied, an administrative hearing before the EPA. The Sacketts thus filed suit in the U.S. District Court of Idaho, contending that the compliance order violated the Administrative Procedure Act and the Sacketts’ due process rights. The petition alleged the EPA acted arbitrarily and capriciously by issuing the compliance order, and deprived the Sacketts of life, liberty, or property without due process of law in violation of the Fifth Amendment. The District Court dismissed the action due to lack of subject-matter jurisdiction. The Ninth Circuit affirmed, finding that the CWA precluded pre-enforcement judicial review of compliance orders, and that such preclusion does not violate the Fifth Amendments’ due process guarantee.

In 2012, the Supreme Court granted review of the Ninth Circuit’s decision to consider whether the EPA’s compliance order constituted a “final agency action” that could be subject to judicial review. The Supreme Court unanimously held in favor of the Sacketts, finding that the order had “all the hallmarks of APA finality.” In an opinion authored by the late Justice Scalia, the court held that the EPA’s order “determined” the “rights or obligations” of the Sacketts by imposing “legal consequences” that “flowed” from noncompliance with its terms. Because the EPA denied them an administrative hearing, the Sacketts possessed “no other adequate remedy in a court” so as to challenge the nature and scope of the order and administrative penalties therein.

August 2021: The Ninth Circuit’s Decision on Remand

On August 16, 2021, the Ninth Circuit issued its opinion on the merits of the Sacketts’ claims. The court of appeal held that the EPA reasonably determined that the Sacketts’ property contained wetlands. The court explained that Justice Kennedy’s interpretation and understanding of “significant nexus” in his concurring opinion in Rapanos v. United States (2006) 547 U.S. 715, provided the standard for determining when wetlands are regulated under the CWA. Applying that test, the panel held that the standard was satisfied because evidence in the record supported EPA’s conclusion that wetlands on the Sacketts’ property were adjacent to a jurisdictional tributary and that, together with a similarly situated wetlands complex, they had a significant nexus to Priest Lake, a navigable water that is regulated under the CWA.

January 2022: The Supreme Court’s Second Grant of Certiorari – Implications

Since the Supreme Court’s decision in Rapanos, most lower courts have relied on Justice Kennedy’s “significant nexus” test as the governing standard. Nevertheless, the split of opinion in Rapanos, coupled with the lack of executive rulemaking to clarify the scope of the EPA’s CWA jurisdiction, has created confusion. As such, the Supreme Court’s second grant of certiorari could mark a momentous step in the ongoing debate about the appropriate “WOTUS” test.

The Supreme Court will consider “whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. § 1362(7).” The Sacketts urge the Court to adopt the four-justice plurality’s test in Rapanos, which, unlike the “significant nexus” test, would allow regulation of wetlands only when they have a continuous surface water connection to regulated waters of the United States. In contrast, the EPA maintains that a rule divergent from the significant nexus test would deprive the agency of “authority to protect wetlands separated from a navigable river by a small dune or other natural barrier, even if overwhelming scientific evidence showed that the wetlands significantly affect the river’s ‘chemical, physical, and biological integrity.’”

Though the Court will likely hear this case in October 2022, with a decision to follow in early 2023, it remains to be seen how the pending outcome will affect the EPA’s current implementation of, and revisions to, the “WOTUS” rule. Either way, the scope of federal jurisdiction in regulating and protecting the nation’s wetlands and navigable waters will be decided by our highest court yet again, hopefully yielding greater clarity on the issue rather than further muddying the waters.

– Bridget McDonald

Christina Berglund

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Christina Berglund

Senior Associate

Ms. Berglund joined the firm in 2016 as an associate. Her practice focuses on land use and environmental law, including handling all phases of the land use entitlement and permitting processes, administrative approvals and litigation. She has extensive experience in preparing NEPA documents and managing the NEPA process, as well as long-range planning and zoning analysis. She has helped entitle millions of square feet of development in California, affordable housing projects, mixed-use development, warehouses, and regional medical facilities.  Her practice centers on CEQA and NEPA, state and federal endangered species, air and water quality, and other related land use statutes such as the Subdivision Map Act, Outdoor Advertising Act, and Planning and Zoning Law.

Ms. Berglund’s representative matters include:

  • Associate counsel defending the City of Los Angeles in litigation challenging various development projects.
  • Associate counsel representing the City of Newport Beach in litigation challenging the Federal Aviation Administration’s approval of the Southern California Metroplex Project.
  • Associate counsel representing Waste Management in litigation challenging the Alameda County Waste Management Authority’s approval of an organics recycling facility.

Prior to joining the firm, Ms. Berglund worked as a consultant for WSP | Parsons Brinckerhoff advising public agency clients on all elements of the procurement and contract drafting processes for large alternative delivery projects. She was a key member of the consultant team advising on the first phase of the California High-Speed Rail Project in the Central Valley.

Ms. Berglund has been a member of the American Institute of Certified Planners since 2008.  She also has several years of experience as a community and environmental planner.

Education

  • J.D., University of St. Thomas, Minneapolis, 2007 (cum laude)
  • Master of Urban and Regional Planning, University of Minnesota, Minneapolis, Humphrey School of Public Affairs, 2002
  • B.A., Geology, Carleton College, Northfield, 2000 (cum laude)

Professional Affiliations

  • State Bar of California, Environmental Law Section
  • California State Courts
  • Sacramento County Bar Association
  • Asian/Pacific Bar Association of Sacramento
  • American Planning Association
  • U.S. District Court, District of Minnesota
  • California Land Use Law and Policy Reporter, Editorial Board, 2019-2020
  • Selected for inclusion as Super Lawyer for 2021-2022
  • Minnesota State Courts

Community Involvement

  • Secretary of the Sacramento County Bar Association Environmental Law Section (2022)
  • Vice President of Rio del Oro Rapids Parent Board (2022)

Nathan O. George

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Nathan O. George

Partner

Mr. George joined the firm in 2016 as an associate. Mr. George’s practice focuses on land use and environmental law, handling all phases of the land use entitlement and permitting processes, including administrative decision-making and litigation. His practice includes the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), the State Planning and Zoning Law, as well as administrative and municipal law, including compliance with the Ralph M. Brown Act.

During law school, Mr. George served as a Board Member for the Journal of International Law and Policy, and as a Board Member for the Environmental Council of Sacramento. Prior to joining Remy Moose Manley, LLP, Mr. George worked as an associate at David Allen & Associates, and clerked for the California Environmental Protection Agency, Air Resources Board, the Office of the Attorney General, Public Rights Division, and the Placer County District Attorney’s Office, Public Integrity Unit.

Mr. George teaches CEQA courses and seminars or lectures for such organizations as the Association of Environmental Professionals, CLE International,  and the California Continuing Education of the Bar program.

Selected Published Cases:

  • Westsiders Opposed to Overdevelopment v. City of Los Angeles (2018) 27 Cal.App.5th 1079
  • Martis Camp Community Association v. County of Placer (2020) 53 Cal.App.5th 569
  • League to Save Lake Tahoe Mountain etc. v. County of Placer (2022) 75 Cal.App.5th 63

Education

  • J.D., University of California, Davis, King Hall School of Law, 2014 (Environmental Law and Public Service Certificates)
  • B.S., Graphic Design, California State University, Sacramento, 2006 (with honors)

Professional Affiliations

  • State Bar of California, Environmental Law Section
  • Sacramento County Bar Association
  • Admitted to all California State Courts
  • U.S. District Court, Eastern District of California
  • Selected for inclusion in the Rising Stars sections of the 2020-2024 Northern California Super Lawyers® magazine

PUBLICATIONS

  • Author, Proper Notice, Feature Article, Los Angeles Lawyer Magazine (March 2023).