CEQA's Balancing of Project Approval Finality and Public Comment

Environmental/Land Use Alert (June 5, 2020)

A lead agency’s post-approval actions to implement a project do not necessarily constitute an approval triggering CEQA review, held the Sixth District Court of Appeal in Willow Glen Trestle Conservancy v. City of San Jose, issued May 18, 2020.

In 2014, the City of San Jose (City) adopted a mitigated negative declaration (MND) for and approved the demolition of the Willow Glen Railroad Trestle (Project). The City’s Project would replace the Trestle with a new steel truss pedestrian bridge to serve the City’s trail system. The City’s finding in the MND that the Trestle was not an historical resource led to litigation, in which the City ultimately prevailed. In 2014, the City was also issued a Streambed Alteration Agreement (SAA) by the California Department of Fish & Wildlife (CDFW); however, the SAA expired in 2017. Therefore, in 2018, the City again notified CDFW of streambed alteration in connection with the Project and was issued a second SAA by CDFW. The Willow Glen Trestle Conservancy and Friends of the Willow Glen Trestle (Conservancy) sued the City alleging a CEQA violation on the basis that the City’s actions in connection with the SAA – i.e., the City’s seeking and accepting of the SAA – required supplemental environmental review.

The Court rejected the Conservancy’s argument that the City’s entering into the SAA was the final discretionary approval for the Project, requiring supplemental environmental review. The Court analyzed CEQA Guidelines section 15162(c), which provides:

“Once a project has been approved, the lead agency’s role in project approval is completed, unless further discretionary approval on that project is required. Information appearing after an approval does not require reopening of that approval. If after the project is approved, any of the conditions described in subdivision (a) [(which mirror the circumstances set forth in Public Resources Code section 21166)] occurs, a subsequent EIR or negative declaration shall only be prepared by the public agency which grants the next discretionary approval for the project, if any. In this situation no other responsible agency shall grant an approval for the project until the subsequent EIR has been certified or subsequent negative declaration adopted.” (italics in opinion)

To arrive at its holding, the Court balanced CEQA’s purposes and interests in finality and efficiency and the policy of encouraging public comment. The interests in finality prevailed in this instance. “If every action had to be considered an ‘approval,’ each and every step that the City took toward implementing an approved project would necessarily constitute another ‘approval on’ the project, thereby endlessly reopening the City’s long-final consideration of the project’s environmental impacts.” The Court relatedly did not agree with the Conservancy’s argument that the City’s choice not to abandon the Project constituted project approval justifying further CEQA review. Instead, the City’s 2018 submittal of the streambed alteration notification to CDFW and acceptance of the SAA were actions toward implementation, consistent with the Project’s implementation process described in the MND adopted by the City in 2014. The only new approval was CDFW’s, but that approval was not challenged by the Conservancy.

This decision highlights the importance of a lead agency’s evaluation of each post-approval action related to an approved project. If the action is seeking and accepting an approval by another agency, such action likely is not the type of a discretionary action requiring supplemental environmental review under CEQA, but instead is a step toward project implementation that falls within CEQA Guidelines section 15162(c) and Willow Glen Trestle Conservancy v. City of San Jose.

[This case alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]