Best Best & Krieger News Feed

2016 CEQA Essentials Workshops

02 Nov 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the Association of Environmental Professionals’ 2016 CEQA Essentials Workshops. These workshops provide a basic understanding of the fundamentals of the California Environmental Quality Act and the State Guidelines, and include intermediate-level practice pointers and case studies. They feature a curriculum developed specifically for people involved in the environmental review process, including consultants, regulators, applicants, and industry professionals, and will benefit those new to the field as well as mid-level practicing professionals.

Topics will include:

Understanding the Statute and Guidelines
Determining the Appropriate Document – Exemptions, Negative Declarations, EIRs
Responsibilities – Trustee Agencies and the Role of the Consultant
Adequacy of Analysis and Mitigation
Findings
Notices

BB&K Speakers:

Sarah Owsowitz
Date: Wednesday, Nov. 2
Time: 8:30 a.m. - 4:30 p.m.
Location: Preservation Park
1233 Preservation Park Way
Oakland, CA 94612

Jennifer Lynch
Date: Friday, Nov. 4
Time: 8:30 a.m. - 4:30 p.m.
Location: Whittier Law School - Room 9
3333 Harbor Blvd.
Costa Mesa, CA 92626

Charity Schiller
Date: Tuesday, Nov. 8
Time: 8:30 a.m. - 4:30 p.m.
Location: Hyatt Place Riverside - Downtown
3500 Market St.
Riverside, CA 92501

For more information or to register through AEP, click here.

LCC Annual Conference

05 Oct 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 League of California Cities’ Annual Conference in Long Beach, Calif.

BB&K Speakers

Ruben Duran: “Understanding Public Service Ethics Laws and Principles (AB 1234 Training)”
Wednesday, Oct. 5
9 - 11 a.m.

Alisha Winterswyk: “Complying with CEQA, Brown Act, and Other Public Noticing Requirements”
Thursday, Oct. 6
8 - 9:30 a.m.

Ryan Baron: “Energy Reliability: Understanding the Natural Gas and Electricity Nexus”
Thursday, Oct. 6
Noon

Gail Karish and Christy Marie Lopez: “The Advance of Wireless Infrastructure”
Thursday, Oct. 6
4:15 - 5:30 p.m.

Isabel Safie and Katrina Veldkamp: “Reducing Pension and OPEB Costs”
Thursday, Oct. 6
4:15 - 5:30 p.m.

Jordan Ferguson: “What Municipalities Can Do About the Coming Drone-pocalypse”
Friday, Oct. 7
10:30 - 11:45 a.m.

When
Wednesday, Oct. 5 - Friday, Oct. 7

Where
Long Beach Convention Center
300 E Ocean Blvd
Long Beach, CA 90802

For more information or to register, click here.

Air Quality District’s CEQA Thresholds Limited

18 Aug 2016 00:00:00 -0800

A significant new decision that could impact lead agencies’ California Environmental Quality Act analysis of toxic air contaminants was handed down this week by a California appellate court. The First District Court of Appeal upheld the CEQA thresholds of significance adopted by the Bay Area Air Quality Management District, which were challenged by a building industry group, but found that the thresholds — as to toxic air contaminants — may be used in only limited circumstances.

The decision comes in the wake of a California Supreme Court decision rendered late last year, which sent the case back to the lower appellate court. In 2010, the District adopted thresholds of significance that set a limit on the level of toxic air contaminants and particulate matter that could be experienced by residents and workers brought to an area as a result of a proposed project (“receptor thresholds”). The California Building Industry Association challenged these thresholds on grounds that CEQA does not require an analysis of an existing condition’s impact on a new project’s occupants.

Last year in California Building Industry Association v. Bay Area Air Quality Management District, the Supreme Court agreed with CBIA, finding that CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users and residents. The Court struck down a portion of State CEQA Guidelines section 15126.2(a) on grounds it was inconsistent with this general rule and therefore unauthorized by CEQA. The Court explained that the rule against requiring analysis of an existing condition’s impacts on a project’s users would not apply where a project could exacerbate existing environmental hazards. The Court remanded the case to the Court of Appeal to determine whether the District’s receptor thresholds were consistent with its decision.

On remand, the District acknowledged — and the appellate court agreed — that a lead agency cannot require a project proponent to obtain an EIR or implement mitigation measures based solely on the impact the existing environment would have upon future users or residents. Nonetheless, the District argued that the receptor thresholds did not need to be set aside because there were legitimate circumstances in which they could be utilized. The Court of Appeal ruled on each circumstance raised:

The voluntary use of receptor thresholds must be limited to an agency’s proposed projects, and cannot be imposed on third party project proponents.
Receptor thresholds can be applied to any new project to determine whether it would worsen existing conditions and thus affect future users of the project.
Receptor thresholds can be used by a school district acting as a lead agency to assess such hazards.
A lead agency charged with CEQA review of a project governed by certain housing development exemption provisions can apply the receptor thresholds to determine whether air quality posed a health risk to future occupants of such a qualifying housing project.
While the District argued the receptor thresholds could be used to determine whether a particular project is consistent with a general plan and the Court did not rule out the possibility, it declined to make such a determination because the District did not provide the Court with a concrete example of such a use.

For the above reasons, the Court concluded that a lead agency may rely on the receptor thresholds in certain circumstances. The Court remanded the case to the trial court with instructions to partially grant CBIA’s petition for writ of mandate, thereby invalidating that portion of the District’s CEQA Guidelines that suggest that lead agencies should apply the thresholds to “routinely assess the effect of existing environmental conditions on future users or occupants.”

If you have any questions about this opinion or how it may impact your city agency, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Preliminary Discussion Draft of CEQA Guidelines Amendments Released

13 Aug 2015 00:00:00 -0800

The California Office of Planning and Research has issued a preliminary discussion draft of revisions to nearly 30 different sections of the CEQA Guidelines. This marks the first time since the late 1990s that such a comprehensive update to the Guidelines has occurred.

The proposal package would revise the Appendix G environmental checklist to remove redundant questions and, in compliance with recent legislation, identify new questions related to tribal cultural resources, transportation and wildfire. There are also proposed revisions relating to tiering of environmental documents, the transit-oriented development exemption, and the so-called “existing facilities” exemption.

Of particular note, the proposed revisions would also provide that:

Environmental impact reports must include energy impact analysis addressing building design, transportation, equipment use, and location.
A lead agency may not apply significance thresholds in a way that precludes consideration as to whether, despite compliance with the threshold, there may still be a significant environmental effect.
Where a lead agency demonstrates, with substantial evidence, that use of an existing conditions baseline for measuring a project’s impacts would be either misleading or without informative value, an agency may use a different baseline.
A lead agency must show that it has met four requirements before deferring specific mitigation details, namely that it has: 1.) fully evaluated the significance of the impact and explained why it is not feasible to formulate mitigation presently; 2.) commits to mitigation; 3.) lists mitigation options; and 4.) adopts specific performance standards.
A lead agency may provide a general response to an EIR comment when the comment does not contain or specifically refer to readily available information, or does not explain the relevance of evidence submitted with the comment.

The proposal package does not address transportation analysis regarding vehicle miles traveled – instead, OPR is finalizing a separate proposal for these changes in compliance with SB 743. The package also does not propose changes related to the analysis of greenhouse gas emissions, or changes clarifying whether CEQA requires analysis of impacts of the environment on a project. OPR notes that cases touching on these issues are currently pending before the California Supreme Court.

OPR is accepting public comments on the proposed revisions to the Guidelines through Oct.12 at 5 p.m. Comments may be submitted electronically to CEQA.Guidelines@resources.ca.gov.

For more information about how the proposed amendment package could affect your agency, or for assistance in drafting a comment letter on the proposed amendments, please contact one of the attorney authors of this legal alert listed at right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Uncertainty of Legislative Earmarks Not Enough to Deem Mitigation Infeasible

07 Aug 2015 00:00:00 -0800

State agencies cannot declare mitigation infeasible for construction projects on the grounds that the California Legislature has not — and may not in the future — earmark funds specifically for fair-share off-site mitigation costs, the California Supreme Court has held.

Earlier this week, the Supreme Court issued its opinion in City of San Diego v. Board of Trustees of the California State University. The case stems from the California State University Board of Trustees’ campus master plan for San Diego State University. To accommodate proposed growth of more than 11,000 new students and more than 1,200 new faculty and staff members, the master plan proposes a suite of major campus expansion construction projects.

The environmental impact report for the project identified myriad near- and long-term traffic impacts at off-campus locations within the City of San Diego. For each affected location, the Board identified the improvements that would mitigate the impacts and estimated the project’s fair-share contribution of the mitigation costs. However, relying on dicta in the Supreme Court’s 2006 opinion in City of Marina v. Board of Trustees, the Board concluded that committing to paying those funds was infeasible. Specifically, the Board concluded that the availability of such funds was necessarily conditioned upon requesting and obtaining funds from the California Legislature. Because the decision to earmark such funding was out of the Board’s hands, the Board concluded that mitigation was infeasible and the traffic impacts were significant and unavoidable.

The Court rejected the Board’s position and stressed that “mitigation is the rule,” regardless of whether the Legislature appropriated funds for the mitigation specifically, and regardless of whether the relevant impacts are on- or off-site. Any holding otherwise, the Court reasoned, would result in off-site mitigation being found infeasible for many, if not all, state projects. Ultimately, the Court directed the Board to prepare a new EIR citing the tenet that “CEQA does not authorize an agency to proceed with a project that will have significant, unmitigated effects on the environment … unless the measures necessary to mitigate those effects are truly infeasible.”

In support of the City of San Diego, Best Best & Krieger attorneys filed an amicus brief in this case. BB&K is also counsel to a public agency client in a similar matter against the Board, which is now pending review in the California Supreme Court.

For more information on how this decision may impact your public agency, please contact one of the attorney authors of this legal alert listed at right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

AB 52: CEQA’s New Perspective on the Environment and Tribal Cultural Resources

15 May 2015 00:00:00 -0800

I. INTRODUCTION

Assembly Bill 52, one of the most significant additions to the California Environmental Quality Act (“CEQA”) in recent years, will, un-deniably, impose significant new obligations on public agencies.1 While at first blush, AB 52’s large number of new requirements and definitions could appear to add unnecessary new layers to complying with CEQA, a close reading of the statute confirms that, carefully implemented, it can be a mechanism for strengthening CEQA documents by treating cultural resources in a comprehensive manner from the outset of the environmental review process.

Beyond the new obligations, the AB 52-required processes provide real benefits to public agencies. CEQA is a disclosure statute, meant to inform the public and decision-makers about the environmental impacts of a project so that decision-makers can make a considered balancing of a project’s impacts benefits before considering any approvals. One of the most troublesome aspects of CEQA for public agencies is preparing a document, confident in its adequacy, only to learn, after publication of a draft environmental report or a draft negative declaration, and often after the expenditure of considerable time and resources, that there may be an important piece of information or subject missing from the document. But now, through the AB 52 consultation process, the public agency would learn at the beginning of the CEQA process, rather than close to the end, whether there might be significant Tribal issues that could be addressed via mitigation, project design modification and/or outreach.

The following overview of AB 52 details how this new statute can help public agencies to provide a full picture to the public and decision-makers of a project’s potential to impact a Tribal Cultural Resource from the outset—a practice that, despite the undeniable implications regarding cost and time, will hopefully add certainty to the CEQA process as well as aiding in the protection of significant pieces of California’s cultural heritage.

…

To read the entire article in the Spring 2015 Public Law Journal, click here. First published in the Public Law Journal, a quarterly publication of the Public Law Section of the State Bar of California. Reprinted with permission.

BB&K Partner Charity Schiller Honored as a Woman of Distinction

27 Mar 2015 00:00:00 -0800

RIVERSIDE, Calif. - Best Best & Krieger LLP Partner Charity Schiller was among the 20 women honored by Assemblymember Jose Medina with the annual “61st Assembly District Women of Distinction” Award, presented Saturday during a luncheon ceremony. Schiller was lauded for the leadership role she has taken in the legal community with regard to environmental and sustainability issues, as well as her work teaching environmental law at her alma mater, the University of California, Riverside. The Assemblymember also noted Schiller’s involvement with several civic and philanthropic organizations in the City of Riverside, where she lives.

Schiller, 37, assists private companies and public agencies to comply with all aspects of the California Environmental Quality Act, the National Environmental Policy Act and other environmental laws. Schiller’s practice includes not only advising clients regarding the analysis and approval of renewable energy projects, sustainably themed transportation improvements and regional land use plans, but also includes representing clients before trial and appellate courts across California.

Environmental law is rapidly evolving on local, state and national levels, with California at the forefront. Schiller is an emerging leader in environmental law because she has built her practice on a deep understanding of the complex issues, laws and interplay of regulations in this area. With a graduate degree in biochemistry and molecular biology, Schiller puts her education to work by coaching public agencies and private developers on complex strategies to reduce greenhouse gas emissions, meet state-wide transportation sustainability requirements, develop Climate Action Plans to reduce greenhouse gas emissions on a jurisdiction-wide basis, and meet increasingly stringent requirements for site-specific and sustainable development in local communities.

Schiller and the other honorees were recognized in conjunction with Women’s History Month. “I am proud to honor these leading women of the Inland Empire,” Medina said. “They serve as distinguished members of the community and role models and educators for youth in the region.”

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Best Best & Krieger LLP is a national law firm that focuses on environmental, business, education, municipal and telecommunications law for public agency and private clients. With nearly 200 attorneys, the law firm has nine offices nationwide, including Riverside, Los Angeles, Sacramento, San Diego and Washington, D.C. For more information, visit www.bbklaw.com or follow @BBKlaw on Twitter.

California Department of Fish and Wildlife Increases CEQA Document Filing Fees

18 Dec 2014 00:00:00 -0800

The California Department of Fish and Wildlife will increase its filing fees for all CEQA Notices of Determination filed on or after Jan. 1.

As was the case in 2014, no DFW fee will be assessed for the filing of Notices of Exemption in 2015. Please note, however, that a local clerk’s processing fee may be charged for the filing of any NOD or NOE, depending on local county policy.

DFW Fee Schedule

NOD Pertains To:	2014 Fees	Fees Effective January 1, 2015
Negative Declaration or Mitigated Negative Declaration	$2,181.25	$2,210.00
Environmental Impact Report	$3,029.75	$3,069.75
Environmental Document Pursuant to a Certified Regulatory Program*	$1,030.25	$1,043.75

*Including, but not limited to, timber harvesting plans and other state agency regulatory programs. (Public Resources Code, § 21080.5; State CEQA Guidelines, § 15251).

The DFW fee may be charged only once per project. In the event that a project requires the filing of multiple NODs by lead or responsible agencies, the DFW fee is required at the time the lead agency files the first NOD. If a copy of the DFW fee receipt for the filing of the first NOD can be shown, subsequent NODs for the same project will not be charged any additional DFW fees.

Should you have any questions regarding theses changes, please contact one of the attorney authors of this legal alert listed at right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

Office of Planning and Research Seeks Input on Proposed Changes to State CEQA Guidelines

03 Jan 2014 00:00:00 -0800

The Governor’s Office of Planning and Research (OPR) recently released a preliminary list of topics and possible changes for inclusion in the 2014 update to the State CEQA Guidelines. The topics being considered can be found on OPR’s website.

Specifically, OPR is seeking the following input: “1. Are these topics appropriate for the CEQA Guidelines Update? 2. Are there any important topics that we missed and that should be addressed? 3. If you have not already provided specific suggested language, do you have any that we should consider?”

A few topics of potential interest include:

alternative methods to the Level of Service standard for determining a project’s traffic impacts,
clarification concerning designation of a lead agency by agreement,
explanation for applying regulatory standards to determine the significance of an impact,
clarification of requirements regarding findings on project alternatives and feasibility, and
guidance for determining whether a project is “within the scope” of a program EIR.

Should your agency wish to submit input to OPR on the proposed updates to the State CEQA Guidelines, send comments by 5:00 p.m. on February 14 either electronically to CEQA.Guidelines@ceres.ca.gov, or by mail or hand delivery to:

Christopher Calfee, Senior Counsel
Governor’s Office of Planning and Research
1400 Tenth Street
Sacramento, California 95814

If your agency would like assistance preparing and/or submitting comments to OPR, please contact one of the attorney authors of this legal alert listed at right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

California Department of Fish and Wildlife Increases CEQA Document Filing Fees

10 Dec 2013 00:00:00 -0800

Effective January 1, 2014, the California Department of Fish and Wildlife (DFW) has increased its filing fees for all CEQA Notices of Determination (NOD) filed on or after January 1, 2014, as set forth below.

As was the case in 2013, no DFW fee will be assessed for the filing of Notices of Exemption (NOE) in 2014. Please note, however, that a local clerk’s processing fee may be charged for the filing of any NOD or NOE, depending on local county policy.

NOD Pertains To:	2013 Fees	Fees Effective January 1, 2014
Negative Declaration or Mitigated Negative Declaration	$2,156.25	$2,181.25
Environmental Impact Report	$2,995.25	$3,029.75
Environmental Document Pursuant to a Certified Regulatory Program*	$1,018.50	$1,030.25

*Including, but not limited to, timber harvesting plans and other state agency regulatory programs. (Public Resources Code, § 21080.5; State CEQA Guidelines, § 15251).

Should you have any questions regarding theses changes, please contact one of the attorney authors of this legal alert listed at right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.