Welcome to
CEQA News You Can Use, a quarterly production of Brownstein Hyatt Farber Schreck, LLP’s Natural Resources lawyers. This publication provides quick, useful bites of CEQA news, which we hope can be a resource to your real-time business decisions. That said, it is not and cannot be construed to be legal advice. Enjoy!
CEQA can’t stop, won’t stop regional board permit
Does CEQA prevent a Regional Water Quality Control Board from issuing its own permit under state water quality law? In
Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) 59 Cal.App.5th 199, the First Appellate District answered “no,” holding that CEQA does not bar a regional board from imposing additional requirements on a flood control project, even after the project’s final environmental impact report (FEIR) was certified. To protect against Berryessa Creek flooding, the Army Corps of Engineers designed a flood control project and named the Sa
On February 18, 2021, the First Appellate District issued an opinion in
Sweeny et al. v. California Regional Water Quality Control Bd., San Francisco Bay Region et al. (Case No. A153583) (“
Sweeny”). The opinion is much anticipated given its relevance to the continued validity of the State Water Resources Control Board’s recently adopted State Procedures for Discharges of Dredged and Fill Material (“Procedures”). The Appellate Court reversed the lower court in the entirety, substantially deferring to the actions and prosecutorial discretion of the State Water Resources Control Board (“State Water Board”) and San Francisco Bay Regional Water Quality Control Board (“Regional Water Board”, collectively, “Water Boards”) based on application of a revised standard of review. Importantly, according to the court, the appropriate interpretation of the Porter-Cologne Water Quality Control Act’s (“Porter-Cologne Act”) definition of waste provides the Water B
To embed, copy and paste the code into your website or blog:
On December 17, 2020, the Sacramento County Superior Court substantially limited the scope of waters to which the State Procedures for Discharges of Dredged and Fill Material (“Procedures”) apply through its decision in
San Joaquin Tributaries Authority v. State Water Resources Control Board (Case No. 34-2019-80003133). According to the Court, the State Water Resources Control Board (“State Water Board”) exceeded its policy-making and water quality control plan development authority, resulting in the restriction of the Procedures to those waters regulated under the Federal Water Pollution Control Act or Clean Water Act (“CWA”) and State “ocean waters.” The Court’s decision significantly narrows the delta between the discharges of dredged and fill material regulated exclusively under the Procedures, and those that will now be regulated under both federal and state water quality control laws. However, bec
In an opinion filed on December 29, 2020, the First Appellate District in
Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board upheld a Responsible Agency’s imposition of additional mitigation more than a year after it had issued an initial approval for the project. Although the court was careful to say that it was addressing “unique circumstances” that would “seldom arise,” the decision is potentially problematic for project proponents, and especially for public agencies trying to pursue necessary public-infrastructure projects.
In January 2016, the Santa Clara Valley Water District (the “Water District”) certified an environmental impact report (EIR) under the California Environmental Quality Act (CEQA) for a flood-control project on Berryessa Creek (the “Project”) that would, among other things, provide protection for a new BART station that was under construction. Under pressure from a State congressional delegation
In
Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board, No. A157127, 2020 WL 7706795 (Cal. Ct. App. Dec. 29, 2020), the court ruled that CEQA does not constrain an agency’s authority to enforce the laws it administers, including those authorizing imposition of mitigation requirements. The court held that, after an EIR for a project has been certified, a regional water quality control board, acting as a responsible agency, can impose mitigation on the project through waste discharge requirements issued under the Porter-Cologne Water Quality Control Act, even though those measures were not described in the lead agency’s EIR. The court’s decision raises significant questions about the limits on a responsible agency’s ability to depart from CEQA’s requirements when deciding whether and how to approve a project.