1. CALAFCO 2009 Annual Conference Tenaya Lodge Yosemite CEQA FOR LAFCo COMMISSIONERS & STAFF By Scott Browne Counsel for Butte, Colusa, Lake, Nevada and Solano LAFCos

2. BASIC CEQA CONCEPTS AND TERMS  The California Environmental Quality Act (CEQA) was adopted by the Legislature in 1970  CEQA requires environmental review be done for all discretionary projects carried out or approved by state and local agencies that could affect the environment  Environmental Review can be in three forms:  Categorical Exemption  Negative Declaration of Environmental Impact  Environmental Impact Report  An EIR must be prepared if a project may cause a significant environmental impact

3. BASIC CEQA CONCEPTS AND TERMS  The first agency making a decision on a project is usually responsible for conducting the environmental review—it is called the “Lead Agency” under CEQA.  Other agencies that must also approve the project later, are required to consider the environmental review done by the Lead Agency. They are termed “Responsible Agencies”.  CEQA authorizes individuals or groups to challenge the approval of a project by an agency if the agency failed to comply with the requirement of CEQA in approving the project. If they prevail, the Court orders the project is sent back to the agency to correct the violation and the Court may award legal fees to the challengers under the “Private Attorney General” doctrine.

4. LAFCO AND CEQA LAFCO’s Normal Role as A Responsible Agency LAFCo are usually a Responsible Agency and must rely upon the environmental document prepared by the lead agency unless:  LAFCo is acting as the lead agency for the project; or  Grounds exist to require supplementation of the environmental document pursuant to Section 15162; or  The lead agency failed to allow LAFCo the opportunity to participate in the environmental review before the lead agency and LAFCo believes that the environmental document is inadequate for their purposes. (Section 15052) LAFCo must rely on the lead agency environmental document even where the environmental document has been challenged and litigation is pending PRC § 21167.3)

5. LAFCo’s Role in Reviewing Lead Agency Environmental Document  LAFCo must “review and consider” the environmental document prepared by the Lead Agency (15052)  LAFCo is required to adopt feasible mitigation measures within the agency’s jurisdiction (15041(b), 15096(g)) even if not recommended in the environmental document  LAFCo may deny approval in order to avoid significant adverse environmental impacts (15042)

6. LAFCo’s Role in Reviewing Lead Agency Environmental Document continued Must still make CEQA findings:  Make findings as to each significant impact under Section 15091  Adopt a statement of Overriding social or economic concerns if the EIR identifies significant, unavoidable environmental impacts as required by Section 15092.  Can often use the lead agency findings but the better practice is to have staff tailor findings to fit LAFCo’s role on the project.

7. When Can LAFCo Require that the Environmental Document Be Supplemented? The Rule is Set forth in Section 15162 of the State CEQA Guidelines Requirements are that one of three changes set forth below has occurred with respect to the project that involve new significant environmental effects or a substantial increase in the severity of previously identified significant effects: 1. Substantial changes are proposed in the project itself »Example: LAFCo has determined that additional undeveloped lands need to be added to the annexation to a city in order to avoid the creation of an island or illogical boundary that were not considered by the city in its environmental document.

8. When Can LAFCo Require that the Environmental Document Be Supplemented? 2. Substantial changes occur with respect to the circumstances under which the project is undertaken »Example: Between the time that the EIR was prepared for a major annexation and the time it is submitted to LAFCo, the Regional Water Quality Control Board has issued a cease and desist order ordering the Special District not to issue any more sewer connections

9. When Can LAFCo Require that the Environmental Document Be Supplemented? 3.New information of substantial importance is presented which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified »Example: It is discovered after the City approved a project and annexation that a portion of the proposed project and annexation actually lies in a different county

10. Authority to Request Additional Information under CKH LAFCos have authority outside of CEQA to request additional information regarding a project under their authority under Cortese- Knox-Hertzberg Act.  Can request information that falls within factors set forth in 56668 Example: Can require a vacant land inventory and absorption study for proposed conversion of prime agricultural land in order to comply with the requirements of Section 56377  Requests may be limited if application has been deemed complete by the Executive Officer

11. CEQA AND LAFCO Key Cases Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 529 P.2d 1017; 118 Cal. Rptr. 249 (CEQA applies to LAFCo annexation decisions. Contains the memorable phrase: “This is not the case of a rancher who feels that his cattle would chew their cuds more contentedly in an incorporated pasture.”) City Of Livermore V. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, 230 Cal.Rptr. 867 (Revision of LAFCo Sphere Guidelines is subject to CEQA) Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065 [230 Cal.Rptr. 413] (Decision of agency not to prepare a supplemental EIR will be upheld if supported by substantial evidence) City of Redding v. Shasta County Local Agency Formation Commission (1989) 209 Cal.App.3d 1169 (LAFCo may not be sued for relying on CEQA document of the lead agency, even where that document is being challenged) Laurel Heights Improvement Association v. Regents of the University of California (1993) 6 Cal.4th 1112 [26 Cal.Rptr.2d 231] (commonly referred to as Laurel Heights II) (Establishes standards for requiring supplementation of an EIR approving CEQA Guideline 21162) Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 87 Cal.Rptr.2d 702; 981 P.2d 543 (Reconsideration request not required before challenging LAFCo decision in court)

12. LAFCOs and CEQA Discussion Problem The City of San Garbanzo prepared an EIR in connection with a regional commercial project “Big Box Mall” to be located on land proposed to be annexed to the city. The City duly notified LAFCo of the proposed environmental document. LAFCo commented extensively on the project, noting concerns regarding agricultural conversion, regional traffic impacts, and impacts on other public services. LAFCo also pointed out that the County is also proposing a similar project just outside the City limits.

13. The City ’ s EIR provided minimal responses to the LAFCo comments. With respect to agricultural impacts, the EIR noted that the project land had contained mature walnut orchards, but these had been cut down in the last year immediately prior to the application for entitlements. The land was designated with a soil classification of II on the USDA Natural Resources Conservation Service land use capability classification.

14. However because the property was no longer under active agricultural production and the area was designated for urban development under the City General Plan, the EIR concluded that the land was not prime agricultural land and that conversion would not generate a significant environmental impact. The EIR concluded that impacts on adjacent agricultural operations would be mitigated below the level of significance because the City would be adopting a “ Right to Farm ” ordinance.

15. The EIR identified significant unavoidable impacts on traffic, and air quality. It did note that the wastewater treatment plant was close to capacity but that City staff had determined that there was adequate capacity to serve the project and that plans were in process to upgrade the plant.

16. The EIR has been challenged in court by a local environmental group “No Big Boxes”. They are opposed to the commercial development. The project has also been challenged by the developer seeking to build a competing big box mall in the County. The litigation is pending at the time the City has brought forward the annexation to LAFCo.

17. Shortly after the annexation application was filed with LAFCo, the front page of the San Garbanzo Herald carried an article indicating that the Regional Water Quality Control Board had issued a cease and desist order to the City and fined the City $850,000 for repeated spills. The order limited the inflows into the wastewater plant to an amount equal to existing average flows until major improvements were made to the facility. The S&%t Has Finally Hit the Fan!

18. LAFCO Process LAFCo proceeds to public hearing on the project. At the hearing the local irrigation district manager complains that they were never notified of the EIR for the project even though detachment from the district is part of the annexation proposal. He points out that the project is immediately adjacent to a major district irrigation canal and that storm drainage from the project is proposed to be drained into the canals. He also argues that the City will be pumping more groundwater to supply water for the project, reducing the supply for farmers. He demands that LAFCo mitigate these impacts

19. Public Hearing Issues The No Big Boxes Group also testifies in opposition to the annexation. They assert that LAFCo should deny the annexation because of lack of sewer capacity or at least require a supplemental EIR to address that issue and the multiple other impacts inadequately addressed in the City’s EIR. They also claim that the EIR failed to address the production of green house gases that would be generated to power the project and the cars that would travel to the mall.

20. WWYD? (What Would You Do?) You are a LAFCo Commissioner considering this project. What would you propose that the Commission do to comply with CEQA and Cortese-Knox-Hertzberg with respect to this project ?

21. Issues to Consider : Do you rely on the City’s EIR? Should you require that the EIR be supplemented? How do you address the concerns raised by the Irrigation District? How do you address your obligations under CKH to preserve and protect agricultural lands? If you do rely on the EIR, what findings do you need to make? Do You See Any Other Issues that Need to Be Considered?