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2nd District Upholds Judgment Upholding CEQA Water Code Exemption, Dismisses Plaintiff’s Try and Lengthen Necessities of CEQA’s Assessment and Findings to Regional Water Board Approval of Water Discharge Permits waste | JD Supra

On February 27, 2023, the Second District Court docket of Appeals (Division One) filed its determination printed in Los Angeles Waterkeeper v. State Water Management Committee (2023) ___ Cal.App.fifth ___, a case primarily centered on water regulation but in addition has some important CEQA implications. In brief, the signatory Los Angeles Water Keeper tried to bypass a authorized limitation on CEQA overview by means of an motion that, if profitable, would have resulted within the imposition of further substantive and procedural environmental overview necessities on sure initiatives for which no EIR is required. As defined beneath, the Second District declined this invitation to increase the attain of CEQA.

Factual and procedural context

The case concerned the Los Angeles Regional Water High quality Management Board’s (“RWQCB”) renewal of wastewater discharge permits for 4 publicly owned therapy crops (“POTW”) that discharge hundreds of thousands of gallons of handled wastewater into the Los Angeles River after which into the Pacific Ocean.

Petitioner and appellant Los Angeles Waterkeeper, an environmental advocacy group, filed a lawsuit difficult the issuance of the permits. His fundamental allegation was that Article X, Part 2 of the California Structure and Sections 100 and 275 of the Water Code imposed an obligation on RWQCB and the State Council to stop losing water from POTWs, which it concerned a requirement to research whether or not they may recycle extra of the handled wastewater as a substitute of dumping it into the river.

The petitioner additionally lodged complaints with CEQA, arguing that the RWQCB and the State Council had an obligation to research whether or not there have been viable options to POTW discharge ranges and whether or not there have been any cumulative impacts from the 4 permits. RWQCB had relied on Water Code part 13389 to ascertain that its issuing of waste dumping permits was exempt from the CEQA, however the petitioner argued that the exemption applies solely to that a part of the CEQA which pertains to environmental impression reviews (chapter 3) and never the half coping with the coverage underpinning the CEQA (chapter 1).

The RWQCB and the State Council objected to the CEQA’s claims, arguing that part 13389 fully exempted dumping permits from CEQA overview. The Court docket of First Occasion agreed, on the understanding that the statute expressly refers solely to Chapter 3 of the CEQA and the necessities. The court docket examined the Clear Water Act’s complete exemption from NEPA overview for wastewater discharge permits and concluded that Water Code Part 13389 was supposed to parallel that provision. The trial court docket additionally cited case regulation and Part 3733 of Title 23 of the California Code of Rules to assist its determination that allows have been absolutely exempt from CEQA whatever the statute’s sole reference to chapter 3. v. RWQCB (however not towards the State Council, regardless that the judgment towards the State Council was overturned on attraction), the petitioner appealed.

The holding and evaluation of the Court docket of Attraction

Relating to the CEQA problem, the main focus of the Court docket of Attraction’s opinion was whether or not Chapter 1 of the CEQA imposes any substantive and procedural necessities or obligations on lead businesses that may be enforceable by mandamus. Because the Court docket said:

Particularly, Waterkeeper argues that Part 21002 of the Public Sources Code, situated in Chapter 1 of the CEQA, requires the regional council, in Waterkeeper’s phrases, “to establish whether or not the mission has important and unavoidable impacts, together with cumulative impacts arising from a number of approvals of [waste discharge requirements] for POW[s]and, in that case, whether or not there are viable options or mitigation measures that may considerably scale back these impacts.

As part 21002 was the one CEQA provision which the petitioner claimed to have violated, the Court docket restricted its overview to the specifics of this part, which reads within the related half:

The Legislature notes and declares that it’s State coverage that public businesses mustn’t approve initiatives as proposed if possible options or possible mitigation measures can be found that may considerably scale back the numerous environmental results of such initiatives, and that the procedures required by this division is meant to help public businesses in systematically figuring out each important results of proposed initiatives and possible options or possible mitigation measures that may keep away from or considerably scale back these important results.

Certainly, the petitioner argued that part 21002 imposes separate and separate obligations on lead businesses from the opposite necessities of the CEQA overview, i.e., no matter an exemption from the requirement to organize an EIR, a lead company nonetheless needed to analyze and render CEQA outcomes towards a proposed “mission”. The Court docket disagreed, relying partly on the language of the Water Code Part 13389 exemption. That language reads within the related half: “Neither the state council nor the regional councils are required to adjust to the provisions of chapter 3 (beginning with part 21100) of division 13 of the general public sources code earlier than the adoption of any discharge requirement some waste ….” Because the Court docket famous, Chapter 3 of Division 13 of the Public Sources Code is the a part of the CEQA that governs EIRs Subsequently, because the Court docket concluded, Part 13389 of the Water Code clearly exempts discharge permits from ‘be topic to overview in an EIR.

In rejecting the petitioner’s argument, the Court docket clarified that EIRs are how CEQA insurance policies are literally carried out; the coverage statements on which the petitioner relied weren’t self-executable or independently executable. The Court docket said: “Part 21002 will not be in itself a directive to conduct an environmental overview impartial of the EIR course of. Relatively, it’s a coverage assertion to be carried out by means of the EIR course of. In different phrases, part 21002 informs the EIR course of, however doesn’t impose necessities separate from the EIR course of. The Court docket strengthened this conclusion by inspecting the language of sections 21002.1 and 21081 of the Public Sources Code, the latter utilized by Mountain Lion Basis v. Fish & Sport Com. (1997) 16 Cal.4th 105, 134. Each of those statutory provisions converse by way of making use of CEQA coverage by means of the preparation of EIRs, additional strengthening the conclusion that part 21002 merely units out the coverage somewhat than the substantive necessities and procedures that lead businesses should comply with. Whereas the petitioner argued that the purported mandate of Part 21002 could possibly be met within the allowing course of by making inquiries into info already obtainable to related businesses, the Court docket rapidly dismissed this argument noting that there have been no requirements by which such efforts could possibly be assessed individually the substantive and procedural necessities of Chapter 3 of the CEQA itself, which it had simply declared not relevant. The Court docket additional famous that, though environmental issues have been additionally a part of the allowing course of itself, this was solely on account of necessities beneath the Water Code, not the CEQA.

The Court docket additionally argued how instructive the case of County of Los Angeles v. State Water Sources Management Bd. (2006) 143 Cal.App.4th 985, which argued that the substantive environmental overview provisions in CEQA chapter 3 are how the environmental overview course of is carried out, whether or not or not one other chapter of CEQA—the chapter 2.6 — establishes “generalization necessities” for the drafting of EIRs.

Lastly, the Court docket turned to the applicant’s argument that the case was related Pesticide Motion Community North America v. Division of Pesticide Regulation (2017) 16 Cal.App.fifth 224, in line with which, whereas Part 21080.5 of the Public Sources Code exempted licensed regulatory packages from sure features of CEQA overview, specifically EIR necessities, the regulation nonetheless mandated the identical substantial requirements. In rejecting this competition, the Court docket wrote:

Licensed regulatory packages are exempt from EIR procedures beneath CEQA chapters 3 and 4, however solely as a result of the environmental audit procedures of these packages meet the necessities of one other part of CEQA, part 21080.5, and are thought of the practical equal of EIR procedures. Subsequently, the legislator didn’t exempt licensed regulatory packages from CEQA overview, however merely supplied an alternate technique to conduct such overview by means of CEQA compliant environmental overview procedures of packages.

This was clearly completely different from the scenario with the RWQCB waste water discharge permits, which aren’t issued beneath an authorized regulatory program and which, in line with the Court docket, take pleasure in full authorized exemption from CEQA necessities and audit procedures.

Consequently, the Court docket upheld the judgments of the Court docket of First Occasion on the CEQA’s claims. (Relating to the non-CEQA claims that have been the first focus of the opinion, the Court docket overturned the one a part of the judgments on which appellant prevailed by holding that the Council of State had no constitutional or statutory obligation to stop the alleged waste of water POTW which was repairable by peculiar mandamus.)

Conclusion and implications

Whereas the Los Angeles Water Keeper case at first look seems to current a reasonably discrete downside of decoding a specific statutory exemption from the CEQA, a broader perspective reveals that the Court docket has rejected a proposed methodology for decoding the CEQA and associated exemptions which might have led to a major broadening of the scope of the CEQA. Had the Court docket upheld the petitioner’s argument, initiatives that are expressly exempted by regulation from CEQA’s EIR necessities – similar to RWQCB’s waste dumping permits – may nonetheless be required to attract conclusions towards options and to cumulative analyzes beneath the broad politics provisions. Such a consequence wouldn’t solely contravene the clear language of the Water Code and CEQA exemption, because the Court docket concluded, however would seem to impose new substantive and procedural necessities not expressly contained within the CEQA, which the CEQA itself clearly prohibits. (Pub. Sources Code, § 21083.1.) Thus, whereas the choice doesn’t break new floor, it does serve to delimit the scope of CEQA and demonstrates a completely acceptable judicial refusal to increase CEQA past its expressly prescribed statutory limits.

Author: ZeroToHero

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