Thursday, April 15, 2010

Lead and responsible agency roles as they apply to environmental review of LAFCO actions

Overview of the roles of a responsible agency with discussion of both the basic law and recent developments

Statutory and categorical exemptions available under CEQA

Determination of Agency Roles

“Lead” Agency “Responsible” Agency “Trustee” Agency

The lead agency lead agency has the “principal responsibility for carrying out or approving a project.”

The lead agency will decide how to proceed under CEQA and has ultimate responsibility for the process.

OPR decides the Lead Agency if there is a dispute per CEQA Guidelines Section 15053

Incorporations and Disincorporations Municipal Service Reviews Sphere of Influence Sphere of Influence AND

Annexation??? (this is a gray area)

A responsible agency responsible agency has some permit authority or other approval power over some aspect of the proposed project.

A responsible agency relies on the lead agency’s environmental document in its decision-making, provides comments to the lead agency in the CEQA process, and ultimately makes its own required findings regarding the analyzed impacts.

Annexations (with prezoning) (CEQA Guidelines 15051 (b) (2))

Annexation AND Sphere of Influence??? (this is a gray area)

A trustee agency trustee agency is an “agency having jurisdiction by law over natural resources affected by a project which are held in trust for the people of the State of California.”

Leading Early CEQA Cases on the Extent to Which LAFCO Decisions Require CEQA Review:

City of Livermore v. LAFCO (1986) 184 Cal.App.3d 531 Bozung v. LAFCO (1975) 13 Cal.3d 263 People ex rel. Younger v. LAFCO (1978) 81 Cal.App.3d

464 Simi Valley Recreation and Park District v. LAFCO

(1975) 51 Cal.App.3d 648 City of Agoura Hills v. LAFCO (1988) 198 Cal.App.3d

480

LAFCO required to prepare an EIR prior to revising existing sphere of influence guidelines governing potential development in municipalities spheres of influence.

New guidelines would have deleted a statement that existing and future urban development areas belong in cities

Court describes this as a “major policy shift that would affect land use throughout the entire region” since such a change could promote urbanization in the county rather than in existing cities

Evidence in the record of potential impacts: greater consumption of land to accommodate same level of population and economic activity; deterioration of existing cities; promotion of growth in unincorporated areas; inability of existing cities to meet their bond obligations; increased net travel resulting in greater energy consumption and pollution; loss of open space and conversion of agricultural land

Court sees advantage to assessing these impacts early and in a cumulative way, instead of waiting and assessing the impact project by project

LAFCO approved the annexation of 677 acres of farmland, and thus transferred planning authority over that land from the county to the annexing city.

County had steadfastly disallowed development, whereas the city had prezoned the site to allow residential, recreational and commercial uses.

Thus, LAFCO approval of the annexation was a necessary step in the chain of events that would culminate in a physical impact on the environment.

Under such circumstances, LAFCO could not approve the annexation without first complying with CEQA.

Even actions that might be disparaged as mere “governmental paper-shuffling” can constitute projects if they “culminate” in physical impacts to the environment.

Where a single development project requires multiple agency approvals, all such approvals should be considered within a single environmental document.

Where a “planning level” decision such as an annexation or rezone will indirectly permit land uses never previously permitted in an area, the environmental document for the planning decision should address those uses.

The decision to put infrastructure on the ground should be accompanied by a generalized analysis of the growth likely to follow.

EIR required for LAFCO approval of proposed de-annexation of property planned for development

De-annexation proposal that would result in termination of services and adoption of new land use plan for affected property is a project under CEQA

Where the application for boundary change is initiated by a private entity, LAFCO may serve as the lead agency

LAFCO approved the detachment of 1,000 acres of undeveloped land from a park district without adopting an environmental document.

Court held that LAFCO’s action was not a project because no change in land use was contemplated.

A discretionary agency action qualifies as a project whenever it is “necessary to the carrying out of some private project involving a physical change in the environment.”

The approval of boundary adjustments by LAFCO where the adjustment does not accommodate or otherwise presage a change in the type of extent of use of the land involved is not a project subject to CEQA

No CEQA review necessary for LAFCO denial of city’s application to expand its sphere of influence

Action was not a project because no change in land use resultedLAFCO’s decision to approve a city’s sphere of influence that was

in most respects coterminous with the city’s existing municipal boundaries was not a project because such action did not entail any potential effects on the physical environment

Holding may no longer be consistent with Gov. Code section 56428, added in 1988 and amended in 2001, which provides that “[a]ny person or local agency may file a written request . . . requesting amendments to a sphere of influence or urban service area adopted by the commission . . . After complying with [CEQA], the executive officer shall place the request on the agenda of the next meeting of the commission for which notice can be given

Lead Agency shallshall consult with Responsible Agencies beforebefore preparing document – (CEQA Section 21080.3)

Responsible Agency shallshall specify to the Lead Agency the scope and content of environmental information that it needs (CEQA Section 210808.4(a))

The information specified by the Responsible Agency shallshall be included in the EIR (CEQA Section 21080.4(a))

During public review, Responsible Agency may identify significant impacts and propose mitigation measures (CEQA Guidelines Section 15204(f))

Responsible Agencies have limited ability to conduct their own environmental review outside the process initiated and managed by the lead agency. (CEQA section 21167.3; Guidelines section 15096)

Responsible Agency relies on the lead agency’s environmental document in acting on whatever aspect of the project requires its approval.

The Responsible Agency must, however, issue its own findings regarding the feasibility of relevant mitigation measures or project alternatives that can substantially lessen or avoid significant impacts (CEQA Guidelines section 15096) and are related to the responsible agency’s statutory mission (Riverwatch v. Olivehain Water District (2009) 170 Cal.App.4th 1186).

Furthermore, a Responsible Agency must issue its own statement of overriding considerations and mitigation monitoring and reporting program. (CEQA Guidelines section 15096, 15097)

Riverwatch v. Olivehain Municipal Water District ( 2009) 170 Cal.App.4th 1186

Fall River Wild Trout Foundation v. County of Shasta (1999) 70 Cal.App.4th 482

Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359

Save San Francisco Bay Assn. v. San Francisco Bay Conservation and Development Commission (1992) 10 Cal.App.4th 908

City of Sacramento v. State Water Resources Control Board (1992) 2 Cal.Ap.4th 960

City of Redding v. Shasta County LAFCO (1989) 209 Cal.App.3d 1169

Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433

Bakman v. Department of Transportation (1979) 99 Cal.App.3d 665

San Diego County was embroiled in a San Diego County was embroiled in a lawsuit over the Gregory Canyon Landfill.lawsuit over the Gregory Canyon Landfill.

EIR was invalidated and the County was in the process of revising it.

The water district entered into an The water district entered into an agreement with the landfill operator to agreement with the landfill operator to provide water to the landfill.provide water to the landfill.

No FEIR yet completed.The agreement provided that the operator would be responsible for complying with CEQA.Water district did not consider CEQA before entering into the agreement.

The Court set aside the agreement.

The agreement was clearly part of the landfill project being considered by the County.

The agreement precluded the District from considering mitigation or alternatives to the project.

As a responsible agency, the District was obligated to consider a Final EIR before approval of the project.

Local lead agency’s failure to send a copy of its mitigated negative declaration to a trustee agency was a prejudicial abuse of discretion.

Express language of the Guidelines requires the lead agency to provide a notice of intent to trustee agencies to allow trustee agencies to participate in the environmental review process. (CEQA Guidelines section 15072)

Also explained the lead agency’s duty to consult with and send proposed negative declarations to trustee agencies.

Court held that, because the initial study identified a potential impact to wildlife under the jurisdiction of DFG, lead agency was required to consult with DFG as a potential trustee agency during the initial study phase and to send the environmental document to state and regional clearinghouse.

Agency did not need to send to USFWS because only state or local agencies can be public agencies within the meaning of CEQA and only a state agency can be a trustee agency.

Court found that failure to send negative declaration to DFG was a prejudicial abuse of discretion, but declined to determine whether it was so prejudicial as to require invalidation since the court had already struck down the negative declaration on other grounds.

Addressed the adequacy of an EIR for purposes of a responsible agency’s approval of a permit within its jurisdiction.

Challenge to issuance of a permit by responsible agency that had received previous approval by lead agency.

Petitioner challenged responsible agency’s reliance on the alternatives analysis in the lead agency’s EIR .

Lead agency has a duty to produce a comprehensive document that could be relied upon by the responsible agency .

EIR considered a full range of alternatives that could feasibly attain the project objectives.

Responsible agency’s findings revealed that it had examined a wide range of alternatives and did not merely “rubber stamp” the city’s analysis.

Petitioner further argued that because the project underwent substantial changes while under the responsible agency’s review, a subsequent or supplemental EIR should have been prepared.

Lead agency had prepared a memo analyzing the effects of the modified project, concluding that the impacts would not change and no further review was required.

Responsible agency made a similar finding and court upheld these conclusions.

Addressed the criteria that distinguish a lead agency from a responsible agency.

Considered whether Department of Food and Agriculture or Regional Water Quality Control Board was lead agency for the annual preparation, approval and implementation of rice pesticide plans.

Court found that DFA, as author of each plan, would be the first in time to consider the plan’s environmental effects.

In contrast, the Regional Water Board approved the plans, but did not formulate them or carry them out.

DFA’s responsibilities extend beyond water pollution to include the total environment and because the underlying purpose of an EIR is to analyze and inform regarding adverse impacts to the environment as a whole, DFA would be in the best position to make such an assessment.

Analyzed the extent of a responsible agency’s duty and ability to prepare environmental analysis beyond that produced by the lead agency.

Court enforced the statutory mandate requiring responsible agencies to treat lead agencies’ environmental document as legally adequate even when such documents are the subject of pending litigation against the lead agency.

Case also describes the circumstances under which responsible agencies may or must prepare their own environmental analysis.

City of Redding sued both the City of Anderson and Shasta County LAFCO over Anderson’s proposals to prezone and annex certain property.

Anderson had prepared a negative declaration before prezone and submitted its proposal to LAFCO.

LAFCO relied on the document in granting its approval. Redding argued LAFCO had a duty to prepare its own EIR because LAFCO

was the lead agency, or in the alternative, that Anderson’s submission of an inadequate negative declaration required LAFCO to prepare its own adequate EIR

The court rejected both arguments, concluding that Anderson was the lead agency because it prezoned the land to be annexed

LAFCO had no choice but to treat the negative declaration as legally adequate

Redding’s lawsuit challenging Anderson’s reliance on the negative declaration did not prevent LAFCO from relying on the document.

Public Resources Code section 21167.3 creates a presumption that even challenged documents are adequate and prohibits responsible agencies from taking steps to prepare additional analysis

Where a responsible agency believes that a lead agency has improperly relied on a negative declaration or has prepared a deficient EIR, the responsible agency is limited to three options under CEQA Guidelines section 15096:

1. Take the matter to court within the applicable statute of limitations period;

2. Prepare its own “subsequent EIR” if permissible under CEQA Guidelines section 15162; or

3. Assume the role of lead agency if permissible under section 15052.

Court rejected claim that Caltrans, as a responsible agency, was required to prepare its own EIR before approving a permit submitted by the lead agency city.

Petition asserted that Caltrans’ decision to approve the city’s airport permit application was invalid because it had not prepared or approved an EIR for the permit application.

Court held that the city’s department of transportation, and not the state agency was the lead agency and Caltrans was responsible agency.

Caltrans was therefore not required to prepare an EIR for its approval of the application.

Even though Caltrans had not formally approved an EIR, it had actually reviewed and considered the city’s EIR, so its approval did not violate CEQA.

Is the project “exemptexempt”?

Certain types of projects are

statutorilystatutorily or categoricallycategorically exempt from CEQA

Created by statute, not regulation; Generally apply regardless of the level of

environmental impact; Major examples are:

Ministerial actions Actions necessary to prevent or mitigate an

emergancy Closing of public school or the transfer of

students to another school of resulting physical changes would be categorically exempt

Created by regulation to Resources Agency pursuant to statutory authority;

Apply to “classes” of discretionary agency actions supposed generally not to result in significant environmental effects

Subject to “exceptions” that can defeat the exemption

Project will be carried out in a “sensitive sensitive environmentenvironment”

Cumulative Impacts Cumulative Impacts will result over time from successive projects of same type in same place

Significant impacts will result due to “unusual unusual circumstancescircumstances”

Project my result in damage to scenic resourcesscenic resources Site is on a state list of contaminated sitescontaminated sites Project may cause substantial adverse change

to a historical resourcehistorical resource

Even if the project does not fall within a statutory or categorical exemption, CEQA does not apply if: ““it can be seen with certainty that there is no it can be seen with certainty that there is no

possibility that the activity in question may possibility that the activity in question may have a significant effect on the have a significant effect on the environment.”environment.”

(CEQA Guidelines, section 15061(b)(3).)

Use of this exemption requires supporting evidence