Summer Shorts
(It's that time of year)
June 2015
In This Issue
"Fair Argument" Test
Berkeley Hillside Decisions
AB 52 Guidelines for Impacts to Tribal Cultural Resources
Final Rule on "Waters of the U.S."
Who is Douglas Herring & Associates?


Rather than dedicating this issue of our periodic informative newsletters to a lengthy subject, this time we provide relatively brief summaries of a number of different recent developments related to environmental planning. Each of the topics is listed in the Contents section on the left.


As regular readers may have noticed (I hope!), I typically populate these missives with photos of nature that I

have taken around the Bay Area or elsewhere in California. The photos in this issue are a change of pace. They're not very good photos, but they were a treat to shoot, showing an abundance of sea life observed while kayaking on Elkhorn Slough (north of Monterey). We're blessed to live so close to the wonderful natural world here in California!


As always, let us know if there is anything we can do to help move your project forward from concept to reality, or otherwise lighten your work load.



Doug Herring, AICP

Archives:  Our previous eAlerts are now archived at:  DHA eAlerts Archive   
Photography by Doug Herring  

"Fair Argument" Test    


As most of you are well aware of, the requirements of the California Environmental Quality Act (CEQA) have been substantially revised and refined over the years by legal cases involving challenges to how CEQA has been implemented in specific circumstances. A recent decision by the Sixth District Court of Appeal seems likely to be a case with far-reaching implications on the practical implementation of CEQA. One of the fundamental provisions of CEQA is what is known as the "fair argument test." It holds that if it can be fairly argued that a project may have a significant effect on the environment, based on substantial evidence in light of the whole record before the lead agency, then an environmental impact report (EIR) must be prepared for the project. 



Application of the "fair argument" standard, established by cases in the 1980s and early 1990s, has frequently turned on substantial evidence provided by expert opinion. However, in Keep Our Mountains Quiet v. County of Santa Clara (6th Dist. 2015 Cal.App.4th), a challenge to a proposal to host weddings and other outdoor events on a ranch property in the Santa Cruz Mountains (Santa Clara County), the court ruled factual non-expert opinion can form the basis for the fair argument test. Neighbors to the property in question provided testimony on the level of noise disturbance they experienced during previous unpermitted events. The court concluded that these statements constituted substantial evidence supporting a fair argument that the proposed use would cause significant noise impacts on neighboring residents, even though the project would comply with the County noise ordinance, and affirmed the trial court's order for the County to prepare an EIR. There's more to this interesting case; the decision can be downloaded at: Keep Our Mountains Quiet.



Berkeley Hillside Decision


A decision on another high-profile case invoking the fair argument standard was rendered by the California Supreme Court in March. The case was Berkeley Hillside Preservation v. City of Berkeley (60 Cal. 4th 1086), a challenge to a categorical exemption for a very large residence (6,478 square feet) plus 10-car garage on a steep site in the Berkeley hills. The City of Berkeley had determined that the project was categorically exempt from CEQA review under Class 3 (new construction or conversion of small structures) and Class 32 (in-fill development projects) exemptions. The plaintiffs claimed that CEQA's "unusual circumstances" exception to categorical exemptions applied to the project due to the substantial grading of the site that would be required to reduce seismic risk to the proposed structures. The heart of this case turned on whether the "fair argument" test or the "substantial evidence" test should be applied to the consideration of whether the "unusual circumstances" could create a reasonable possibility that the project could have a significant adverse effect on the environment, thus requiring preparation of an EIR or Mitigated Negative Declaration (MND).

he trial court upheld the City's reliance on a categorical exemption and the decision was appealed by the plaintiffs. The Court of Appeal ruled that if a proposed activity may have a significant effect on the environment, that in itself constitutes an "unusual circumstance," rendering use of a categorical exemption invalid. The Court of Appeal set aside the approved use permit and ordered the City to prepare an EIR.


The Supreme Court found the Court of Appeal's reasoning in error, and in settling the case, the Court rendered a two-prong decision. It concluded that the more rigorous "substantial evidence" standard applies to the question of whether the "unusual circumstances" exist, but once they have been deemed to exist, the lower-threshold "fair argument" standard applies to the question of whether the unusual circumstances create the possibility that the project could have a significant impact on the environment.


Thus, the impact of this case on the application of CEQA has mixed ramifications. It defers to lead agencies in making a determination as to whether unusual circumstances exist, thus strengthening their ability to rely on the use of categorical exemptions. However, if unusual circumstances are found to apply to a project, opponents will face a lower threshold for arguing that the unusual circumstances could result in a significant effect on the environment, and therefore an EIR or MND must be prepared.


The court's decision can be read at:Berkeley Hillside.



AB 52 Guidelines for Impacts to Tribal Cultural Resources


In 2014 the California legislature enacted Assembly Bill (AB) 52, which requires lead agencies to formally consult with local Native American tribes when they are conducting CEQA review on proposed projects. Although the law goes into effect on July 1st of this year, the Office of Planning and Research (OPR) has until July 1, 2016 to adopt revised CEQA Guidelines incorporating the new consultation requirements. While this leaves lead agencies are on their own in the meantime for determining how to comply with AB 52, last month OPR issued a draft technical advisory document that defines "consultation" and provides a timeline and flowchart for compliance. The guidelines recommend that lead agencies apply the following question during the environmental review of a project: Would the project cause a substantial adverse change in the significance of a tribal cultural resource, as defined in Section 21074 of the Public Resources Code? The guidelines can be downloaded here: AB 52 GuidelinesIn addition, two well-known CEQA experts, Terry Rivasplata and Ron Bass (both now with ICF International), have issued an excellent white paper on the requirements of AB 52, which can be downloaded here: AB 52 White Paper.






Final Rule on "Waters of the U.S."

The federal Clean Water Act (CWA) regulates activities that may affect "Waters of the United States," leading to a lengthy and potentially costly permitting process for certain projects. Broadly speaking, "waters of the United States" are defined as all "navigable waters," but they include wetlands, ponds, and intermittent streams, among others. Last month the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) collectively issued a final rule that expands the definition of "tributary" and categorically includes all waters adjacent to tributaries. The rule defines "adjacent" as "bordering, contiguous, and neighboring;" thus, a water body needn't be hydrologically connected to a navigable water to fall under regulation pursuant to the CWA. In fact, they can be up to 1,500 feet away or within the 100-year floodplain of a tributary. These waters are now defined as "jurisdictional by rule," which substantially expands the reach of the Corps when it comes to requiring CWA permits for proposed projects. Although the rule has not yet been published in the Federal Register, you can read a pre-publication version of the rule here:  Waters of the U.S.

Who Is Douglas Herring & Associates?

Douglas Herring & Associates (DHA) works with public agencies, developers, and other businesses in California to expertly obtain the environmental and planning approvals needed to move projects from the conceptual stage to physical, benefit-generating reality in an efficient and cost-effective manner.  Since 1997, DHA has helped dozens of California cities and counties and scores of other businesses and organizations save money while obtaining high-quality planning and legally defensible environmental analysis services necessary to get their projects expeditiously approved and built. Learn more on our website:  Douglas Herring & Associates.
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