Everyday Heroes Protect the Air We Breathe and the Water We Drink

CEQA

THIRTY-FIVE YEARS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT

Everyday Heroes Protect the Air We Breathe,the Water We Drink, and the Natural Areas We Prize

About PCL and the Planning and Conservation League Foundation

The Planning and Conservation League Foundation is a nonprofit organization founded in 1972. Its mission isto educate and involve Californians in environmental policy-making. The PCL Foundation publishes handbooks forcommunity action, assists decision-makers in drafting effective policies, and produces action-oriented reports aboutthe California environment.

The PCL Foundation works closely with the Planning and Conservation League, which was founded in 1965 toadvocate on behalf of the California environment in the State Legislature. To learn more about PCL and the PCLFoundation, please visit our website at www.pcl.org.

About the California League of Conservation Voters

The California League of Conservation Voters is the political action arm of California’s environmental move-ment. For thirty-two years, CLCV’s mission has been to defend and strengthen the laws that safeguard the wellnessof our neighborhoods and the beauty of our great state. We work to elect environmentally responsible candidates tostate and federal office who will join us in our mission. And we hold them accountable to a strong environmentalagenda. Please visit our website at www.ecovote.org.

CLCV is joined in our work by the CLCV Education Fund, a community based advocacy organization that worksto expand the universe of Californians who understand and act on the direct connection between the environment,public health, and civic participation. Please visit our Education Fund’s website at www.clcveducationfund.org.

To Order This Report

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Mail to: PCL Foundation921 11th St., Suite 300Sacramento, CA 95814

For additional information:Phone: (916) 444-8726Fax: (916) 448-1789http://www.pcl.orgEmail: [email protected]

Project Manager: Karen DouglasResearch Director and Lead Editor: Matt Vander SluisStaff Writer, Design Manager, and Editor: Ian Douglas

Research and Outreach: Erin Beller

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This publication was made possible by the generous support of Water for California,The Resources Legacy Fund Foundation, Benjamin C. Hammett,

and Bob Williams and Meg Caldwell.

THIRTY-FIVE YEARS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT

Everyday Heroes Protect the Air We Breathe,the Water We Drink, and the Natural Areas We Prize

Everyday Heroes Protect the Air We Breathe,the Water We Drink, and Natural Areas We Prize:Thirty-Five Years of the California Environmental Quality Act

© 2005 by the PLANNING AND CONSERVATION LEAGUE FOUNDATION

AND THE CALIFORNIA LEAGUE OF CONSERVATION VOTERS

921 11th St., Suite 300 1212 Broadway, Suite 630Sacramento, CA 95814 Oakland, CA 94612(916) 444-8726 (510) 271-0900

www.pcl.org www.ecovote.org

Cover photos courtesy of (clockwise, from bottom left): the Mono Lake Committee, the Santa MonicaMountains Conservancy, and Warren H. White (www.NaturalDiscoveriesPhotography.com).

Printed by Alonzo Printing on recycled paper with soy-based ink.

We are very pleased to bring you this publication celebrating the California EnvironmentalQuality Act, California’s premier environmental law. As the title suggests, CEQA hasempowered Californians to protect California in all its diversity: from safeguarding theurban environment to conserving California’s magnificent coasts, forests, mountains,farmland, and more. It has also provided a critical framework for governmentaccountability. No other environmental law has had such broad reach.

We have compiled over 75 CEQA “success stories.” These include not only legalvictories and settlements, but also projects that were improved through public input,mitigations, and alternatives analysis during the CEQA process.

These stories are organized by issue area, including a special section on CEQA and theUrban Environment. Each chapter is introduced with an overview of CEQA’s role withinthat issue area. The case studies that follow provide real-world examples of benefitsachieved through CEQA. The assignment of “success stories” to a particular issue areacan be arbitrary, as many if not most of the case studies had multiple benefits. One ofCEQA’s greatest strengths is that it is a general, catch-all environmental law, addressingthe full range of environmental impacts.

We began this report in the summer of 2004, calling community groups and activists andasking for their stories and thoughts about CEQA. We subsequently organized oursteering committee and reached out to leading practitioners for articles. The responsewas tremendous. In a space of four months, more than 80 people contributed to the 98articles in this report. We would like to thank our steering committee members, authors,and many others whose help and guidance immeasurably improved our work. This reportis literally a community effort.

Further thanks go to the participants in the CEQA stories profiled here, and in countlessothers that we did not cover. The stunning record of environmental achievement underCEQA is also a community effort—the legacy of thirty-five years of vision andcommitment to the values of open government and environmental protection.

CEQA has empowered countless Californians to stand up to the powerful forces drivingenvironmental devastation and protect this great state. This report is dedicated toeveryone who has ever used CEQA to make California better for all of us.

Dear Reader,

Susan SmarttExecutive Director, California Leagueof Conservation Voters

Karen DouglasActing Executive Director, Planningand Conservation League

Iwas born in Pasadena in 1936. In my early years, I remember the “dew point”

warnings that would set thesmudge pots humming. I recallthe yellow sulfurous smog. Iwatched orange groves torndown to be replaced by housingdevelopments. And I watched asfreeways were built over neigh-borhoods then abandoned intheir wake.

Today, I read that wells in theSan Gabriel Valley will beclosed because of perchloratecontamination.

How does one protect oneselfagainst the onslaught of growth,development, and harmfulindustrial practices? How dowe ensure that future genera-tions inherit a cleaner, healthierCalifornia? Answer: By en-forcing the exercise of care.

That’s what CEQA is all about.Care.

The concept behind CEQA is arelatively simple one. It re-quires a careful, public consid-eration of the impact of aproposed project on the envi-ronment. If a fair argument canbe made that such a project mayhave a significant effect on theenvironment, CEQA requiresthe consideration of alterna-tives as well as mitigation ofadverse effects to the extentfeasible.

In these pages you’ll read ofcase after case in which CEQAhas forced care to be taken,resulting in cleaner air, cleanerwater, preservation of habitatfor animals and plant species,and, above all, better planning.

PREFACE:By John Van de Kamp

Tom AdamsBoard President, CaliforniaLeague of ConservationVoters.

Curtis E. Alling, AICPVice President, EDAW, Inc.

Susan Brandt-HawleyPrincipal, Brandt-Hawley LawGroup.

Meg CaldwellDirector, Environmental andNatural Resources Law andPolicy Program, Lecturer onLaw, Stanford Law School,and Chair, California CoastalCommission.

Daniel L. CardozoAdams Broadwell Joseph &Cardozo.

Jan Chatten-BrownChatten-Brown & Associates.

Joseph T. EdmistonExecutive Director, SantaMonica MountainsConservancy.

Cecilia V. EstolanoGibson Dunn & Crutcher LLP.

Caroline FarrellDirecting Attorney, Center onRace, Poverty, and theEnvironment, Delano Office.

SteeringCommittee

Continued on the following page.

P R E F A C E • P R E F A C E • P R E F A C E • P R E F A C E • P R E F

How does one protect oneself against theonslaught of growth, development, and

harmful industrial practices?Answer: By enforcing the exercise of care.

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John Van de Kamp served as AttorneyGeneral of California from 1983 to1991. As Attorney General, Mr. Van deKamp created the Public RightsDivision, giving new emphasis toenvironmental, consumer protection,anti-trust and civil rights enforcement.While in office, Mr. Van de Kamp wasinstrumental in stopping further oildrilling off the California Coast andpreventing development endangeringLake Tahoe.

Norm FletteSenior Deputy GeneralCounsel, Metropolitan WaterDistrict of Southern California.

Carlyle W. Hall Jr.Akin Gump Strauss Hauer &Feld LLP.

Kevin K. JohnsonJohnson & Hanson LLP.

Mary NicholsDirector of the Institute of theEnvironment, UCLA.

Joel ReynoldsSenior Attorney, NaturalResources Defense Council.

Antonio RossmannRossmann & Moore LLP.

Will RostovStaff Attorney, Communitiesfor a Better Environment.

Dan SelmiProfessor of Law, Loyola LawSchool.

E. Clement Shute Jr.Shute Mihaly & WeinbergerLLP.

John Van de KampDewey Ballantine LLP.

Peter WeinerPaul Hastings Janofsky &Walker LLP.

William J. YeatesLaw Offices of William J.Yeates.

Continued from the previous page.

As Attorney General, I encour-aged and authorized lawsuitschallenging expediently pre-pared Negative Declarationsthat allowed planned projects toavoid an evaluation of theirpotential serious environmentalconsequences. My purpose wasnot to defeat projects, but tomake project proponents miti-gate the very real environmentalharm that they would cause. Insome cases it was shownthrough the CEQA reviewprocess that the projects wereso detrimental to the environ-ment that they were eitherdropped by the proponent ordenied.

Example: An order to preparean Environmental Impact Re-port (EIR) caused a company todrop plans to construct a haz-ardous waste incinerator in thecity of Vernon in East LosAngeles (see page 95).

Example: After reading in theEIR about the adverse air ef-fects that would result from theproposed Angeles oil pipeline,then Mayor Bradley went on theoffensive and the project wasdropped.

Much of the good that CEQAdoes receives little notice.

That’s because, after thirty-fiveyears, CEQA has been inte-grated into the planning pro-cess. Most proponents anddesigners now address environ-mental impacts as a matter ofcourse.

Unquestionably efforts willcontinue to be made to modifyCEQA. Some will have selfishorigins and should be disposedof quickly. Others should beconsidered seriously. The bestquestions to be asked whendealing with these proposals:Does it erode or does it ad-vance environmental protec-tion? Is it fair?

The following pages are atestimonial to the wisdom ofthe lawmakers of both partieswho established the CEQAprocess and should compeltoday’s lawmakers to exercisegreat caution before altering it.

F A C E • P R E F A C E • P R E F A C E • P R E F A C E • P R E F A C E

The following pages are a testimonial to thewisdom of the lawmakers of both parties who

established the CEQA process and shouldcompel today’s lawmakers to exercise great

caution before altering it.

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Ana Sánchez-Camacho was shocked when she found out there was a two-cycle, turbo-charged diesel generator spewing exhaust just 150 feet awayfrom her six-year-old’s kindergarten.

Alarmed by scientific reports that linked these generators to increasedcancer risk, Ana and other parents whose children attend the SacramentoWaldorf School joined forces to protest the generator, which the CountyDepartment of Water Quality had been operating illegally for years. Now theDepartment wanted an official permit. The parents won the review of thepermit decision through the California Environment Quality Act (CEQA).

Ultimately, the Department agreed to major reforms, including the installationof advanced pollution control equipment that reduce emissions of dirty airtoxins by 75 to 85 percent.

Ana’s story is just one of many that illustrate how ordinary Californians haverelied on CEQA to battle special interests and polluters in their own back-yards.

Enacted thirty-five years ago, CEQA is a powerful citizens’ tool that givesCalifornians a voice in government decisions that affect their communitiesand their environment. CEQA empowers ordinary people to stand effec-tively against the powerful and well connected. It forces special interests todo their fair share to protect California’s natural resources.

Over the years this premierenvironmental law has beeninstrumental in reviewingcountless projects that wouldhave spewed toxins into our air,contaminated our land, andpoisoned our drinking water.Because of CEQA, ordinaryCalifornians have successfullyprotected our magnificentbeaches, prevented congestionand sprawl, and otherwisesafeguarded the health and wellbeing of their families and theircommunities. The environmentalprotections they’ve helped to

enact have set standards for the nation and the world, contributed to theGolden State’s prosperity and preserved our spectacular natural environ-ment for future generations.

Executive Summary

CEQA Turns Thirty-FiveBy Bill Lockyer,California Attorney General

A Legislative PerspectiveBy Byron Sher,California State Legislator1980-2004

“Like many provisions in the Billof Rights, CEQA does notguarantee a specific outcome;instead it guaranteesprocesses and procedures,and empowers the individualperson to enforce them. CEQAis the bill of rights for anenvironmental democracy.”

“CEQA’s purpose is itsgenius—to foster transparencyand integrity in public decision-making while forcingconsideration of the full scope ofthe impacts developmentactivities have on our naturaland human environments.”

See page 11.

See page 163.

EXECUTIVE SUMMARY • EXECUTIVE SUMMARY • EXECUTIVE

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Ana Sánchez-Camacho poses with her son, Awki,and daughter, Kukuli, in front of a diesel generatorlocated 150 feet from the Sacramento WaldorfSchool. Through their CEQA comments, Ana and otherconcerned parents ensured that the most advancedemissions reduction technology available was in-stalled and that the equipment would be routinelycleaned and maintained.

Ian

Doug

las

This report by the Planning & Conservation League, Planning & Conserva-tion League Foundation, and California League of Conservation Voterscollects 75 “success stories” from the past thirty-five years that show howCalifornians, invoking CEQA, have contributed to an enduring legacy ofenvironmental and public health protections that have shaped our state forthe better.

A Judicial PerspectiveBy Cruz Reynoso, formerJustice of the CaliforniaSupreme Court

Conclusion: Securing theFuture of the Golden StateBy Herb Wesson,Speaker Emeritus of theCalifornia State Assembly“Residents and businesses areattracted to California because ofour quality of life. A healthy envi-ronment is as much a symbol ofCalifornia as the Golden GateBridge or the Hollywood sign.CEQA helps make California thegreat state that it is and, for thatreason, we need to preserve it.After all, we are only stewards ofthis earth. Our job is to safeguard itfor the generations to come.”

“The principles articulated in theseearly CEQA cases have com-pelled parties and courts to takethe environment seriously and totake their obligations underCEQA seriously. The environmentand the State of California havegreatly benefited from the Court’searly, insightful wisdom.”

See page 165.

See page 164.

E SUMMARY • EXECUTIVE SUMMARY • EXECUTIVE SUMMARY

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Ana’s story is just one of many that illustrate howordinary Californians have relied on CEQA to battle

special interests and polluters in their own backyards.

Report HighlightsToppling a Toxic Waste Incinerator in East Los AngelesEAST LOS ANGELES – In 1990, community residents, led by Mothers of EastLos Angeles, successfully defeated a plan by California Thermal TreatmentSystems to build a towering toxic waste incinerator just 7,500 feet fromhomes, churches, hospitals and schools. Local residents waged protestmarches and filed lawsuits under CEQA demanding environmental review ofthe health risks associated with the19,000 tons of ash, dust and otherhazardous waste that the incinerator would have produced. Their persis-tence paid off. The waste incineration company, faced with damaging newinformation about the toxic effects of dioxins released in the burning process,abandoned the project.

Reducing Port PollutionLONG BEACH – The ports of Los Angeles and Long Beach are the singlelargest source of air pollution in Southern California, emitting as much dieselexhaust as 16,000 tractor-trailers idling their engines, non-stop, 24 hours aday. As a result, nearby residents in San Pedro and Wilmington suffer highrates of respiratory illnesses. In 2001, local community members andenvironmentalists used CEQA to successfully challenge the Port of L.A.’sapproval of a 147-acre terminal expansion for China Shipping ContainerLine. Citing the Port’s failure to prepare the required Environmental ImpactReport (EIR), the groups convinced the court to halt all construction on thewharf. A year later, the parties reached a historic settlement that requires thePort to reduce air pollution and industrial blight over the next four years.

Cleaning Up ConocoPhillips’ Oil RefineryCONTRA COSTA COUNTY – When ConocoPhillips proposed to expand itsrefinery in Rodeo by 10,000 barrels a day, Contra Costa County issued aDraft EIR under CEQA that indicated that people in neighboring communi-ties would be at higher risk for cancer if the expansion moved forward.Galvanized by these findings, local residents and labor groups worked withConocoPhillips to implement measures to mitigate the pollution. The chemi-cal company agreed to reduce diesel exhaust during construction and toinstall a device on its cooling tower that would reduce particulate pollutionby over 99 percent.

EXECUTIVE SUMMARY • EXECUTIVE SUMMARY • EXECUTIVE

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Reducing Sewage Overflows:The Mission Bay ProjectSAN FRANCISCO – Environmentaladvocates reached an agreementwith developers of the massive,300-acre Mission Bay project inSan Francisco through the CEQAprocess to avert a looming crisisthat would have increased sewageoverflow into the Bay by 2 milliongallons during the rainy season. Inthe end, CatellusDevelopment Corp.agreed to separate thenew development’sstorm water from theCity’s sewer system,reducing sewageoverflows by about 30million gallons per year. The com-pany also agreed to adopt state-of-the-art storm water filtration sys-tems and to create a wetland habitatalong Islais Creek.

Beating Back SprawlANTIOCH – A commuter townbetween the Bay Area and Sacra-mento, Antioch has doubled inpopulation since 1980, resulting insuburban sprawl and worseningtraffic congestion. In 2002, localresidents successfully blocked amassive 2,700-acre development ofresidential and commercial units in

the south side of town. Peoplerallied against the plan when theylearned from the EIR that that thedevelopment would result in140,000 more car trips on Highway4, destroy a major greenbeltcorridor and expose residents tonearby hazardous sand and coalmines. As a result of the publicoutcry, the Antioch City Councilshelved the plan indefinitely.

Protecting the Bay Area’sVanishing MarshesRICHMOND – In 2002, a San Josedeveloper proposed building acommercial center on 238 acres ofone of the largest remaining marshesin the San Francisco East Bay andthe largest remaining intact coastalprairie in the entire Bay Area.Longtime residents of nearbyParchester Village, a post-WWIIdevelopment that housed African-American shipyard workers,invoked CEQA’s public reviewprocess to raise concerns about airquality, increased traffic congestion,

and the loss of a key linkage to theBay Trail, a 500 mile trail systembeing developed in the Bay Area.The developer dropped the project,and the East Bay Regional ParkDistrict is now looking into purchas-ing the site.

Keeping the Santa MonicaMountains PristineLOS ANGELES COUNTY – When

people in Los Ange-les gaze upon theSanta Monica Moun-tain range, they don’tsee hillsides of tracthomes. There’s areason for that.Thanks to CEQA,

over 20,000 acres of prime habitatand parkland have been preservedfrom the driving interest of bigdevelopers who view the mountainsas the hottest real estate market thisside of Lower Manhattan. Thislong-sighted protection means one-third of all Californians will havenatural areas within touching dis-tance, hopefully forever.

Lakeside: Protecting an All-American River TownSAN DIEGO COUNTY – In Lakeside,a CEQA public hearing became thecatalyst for citizens’ revolt againstproposed heavy industrial develop-ment near the San Diego River,which flows through the center oftown. Residents of this low-incometown of 50,000 people convincedtheir leaders to reject the develop-ment, which threatened to pollutelocal drinking water. They alsosucceeded in raising $15 milliontoward building a river park in placeof the toxic development.

Executive Summary Continued

As we face the challenges ahead, CEQA willplay a vital role in protecting public health andensuring that the state grows in a responsible

and sustainable way, so that our land, air,water, and communities are protected.

Because of CEQA, residents learned that a 2,700 acre sprawl development planned for thislast greenbelt area between Antioch and Brentwood would have resulted in 140,000 more cartrips per year on Highway 4 and exposed residents to nearby hazardous sand and coal mines.The public outcry that followed convinced the city council to shelve the plan indefinitely.

Scot

t Hein

E SUMMARY • EXECUTIVE SUMMARY • EXECUTIVE SUMMARY

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Rethinking the Century FreewayLOS ANGELES COUNTY – At onepoint in the 1970s, LA County’sCentury Freeway, was envisionedas a ten-lane artery that woulddestroy 8,250 moderate incomehousing units and uproot more than21,000 people in the South CentralL.A. area. Thanks to a coalition ofenvironmental and civil rights groupsthat filed a CEQA lawsuit againstCaltrans, the freeway was reducedto eight lanes, with a light rail linerunning right down the middle of it.The settlement also providedhundreds of millions of dollars toreplenish the affordable housingsupply lost to construction, repre-senting 8,500 units.

Preserving California’s Farm-land HeritageCalifornia is by far the nation’snumber one agricultural producerand exporter. However, farmland inthe state is being overrun by devel-opment. California lost approxi-mately 500,000 acres of farmlandto urban development between1988 and 1998. While CEQA hasnot stopped this dramatic landconversion, it has helped protectagricultural and ranch lands bydirecting major developments awayfrom prime farmland and requiringconservation easements to beplaced on some existing farmland.Because of a recent CEQA settle-ment, millions of dollars will bededicated to farmland protection inSan Joaquin County.

ConclusionBy 2010, California’s population is expected to grow to 40 million people.The pressure to develop more housing and expand our industrial economyto accommodate this growth will be enormous. As we face the challengesahead, CEQA will play a vital role in protecting public health and ensuringthat the state grows in a responsible and sustainable way, so that our land,air, water, and communities are protected. Now more than ever, CEQAmust require that special interests do their fair share to prevent environmentaland community harm.

But CEQA’s future is not certain. Every so often, special interests eager tofast-track their projects team up to weaken CEQA to avoid having to dealwith public concerns. As of this writing, sprawl developers have launched anaggressive campaign to take away basic environmental rights that Califor-nians have enjoyed under CEQA for decades.

As they have many times before, we believe that Californians will resistproposals to strengthen special interests at the expense of the public interest.Californians have stood up time and time again to protect their land, air andwater, not only in pristine natural spaces, but also within the cities wheremost of us live. The stories in this report attest to Californians’ deeply heldbelief that the public has a fundamental right to play a role in governmentaldecisions that affect our health, our environment, and our neighborhoods. Inthe words of Senator Byron Sher, the California Environmental Quality Actis the “bill of rights for an environmental democracy.” This is why CEQA’sfuture is inexorably bound with the future of our state.

View from St. Anthony Catholic School overlooking the Chevron refinery in the town of El Segundo.The refinery is among the largest sources of industrial air pollution in Los Angeles County, withdirect impacts on community health. Because of CEQA, Chevron implemented additional measuresto reduce emissions affecting the community.

We believe that Californians will resist proposals to strengthen specialinterests at the expense of the public interest. Californians have stood up

time and time again to protect their land, air, and water, not only in pristinenatural spaces, but also within the cities where most of us live.

Joe Lyou, California Environmental Rights Coalition

TABLE OF CONTENTS • TABLE OF CONTENTS • TABLE OF C

Introduction

• Preface, John Van de Kamp ........................................................................................................... 1• Executive Summary .......................................................................................................................... 3• Introduction: CEQA Turns Thirty-Five, Bill Lockyer ...................................................................... 11• The Legislative History of CEQA, Tom Willoughby ...................................................................... 13• Key Concepts of CEQA, PCLF Staff ............................................................................. 14, Sidebar• CEQA and Judicial Review, Daniel P. Selmi ................................................................................. 15• Nuts & Bolts: The CEQA Guidelines, Norm Hill ........................................................................... 17

Chapter 1: Air Quality ................................................................................................................... 20

• CEQA and the Air We Breathe, Mary Nichols & Gail Ruderman Feuer ..................................... 21• Breathing Easier in Bakersfield: Activists Use CEQA to Reduce

the Air Impacts of Sprawl, PCLF Staff .......................................................................................... 23• China Shipping and the Port of LA, Gail Ruderman Feuer ........................................................... 25• Mega-Dairies and Agricultural Air Pollution, Caroline Farrell ........................................................ 27• Diesel Generator next to Sacramento School, Daniel L. Cardozo .................................................. 29• CEQA Cleans Up California’s Power Plants, Marc Joseph ............................................................. 31• CEQA and the Building Trades, Bob Balgenorth ............................................................. 32, Sidebar• Building Better Ethanol Plants, Caroline Farrell & Richard Drury .............................................. 33• Reducing Construction and Mobile Source Emissions, Tanya A. Gulesserian ................................ 35

Chapter 2: The Urban Environment ..................................................................................... 38

• CEQA Protects the Urban Environment, Louise Renne ................................................................. 39• CEQA and the Urban Park Movement, Robert García & Jan Chatten-Brown ............................ 41• The Staples Center Arena and Its Neighbors:

A Community Benefits Agreement, Jerilyn López Mendoza ........................................................... 43• Forester Creek to Be Restored! Suzanne M. Michel ..................................................................... 45• Damping Down Construction Dust, PCLF Staff ............................................................................. 46• Infill, Housing Costs, and Public Health, Rajiv Bhatia .................................................................... 47• Preserving Affordable Housing, Protecting Community, Margaretta Lin ........................... 47, Sidebar• Blocking Oil Drilling on California’s Coast, Carlyle W. Hall, Jr. ..................................................... 49• The Union Blowout and Offshore Drilling, PCLF Staff ..................................................... 49, Sidebar• CEQA Protects San Francisco Bay Marshland, Regional Bay Trail, PCLF Staff ............................. 51• CEQA Brings Community Benefits to Hollywood and Highland, Roxana Tynan ............................. 53• Reducing Dangers from Hazardous Chemicals, PCLF Staff ............................................................ 55

Table of Contents

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Chapter 3: Planning ....................................................................................................................... 56

• CEQA Improves Planning, Tal Finney .......................................................................................... 57• CEQA and the Coastal Act, Meg Caldwell ...................................................................... 57, Sidebar• Setting the Precedent: CEQA Applies to Sprawl, Carlyle W. Hall, Jr. ............................................ 59• CEQA Slows the March of Sprawl in Antioch, Seth Adams ............................................................ 60• Protecting the Grassland Ecological Area through Better Planning, Daniel L. Cardozo .................... 61• Working for Waterfowl and Habitat Conservation at Grassland, Douglas T. Federighi .... 62, Sidebar• Saving the San Diego Backcountry, PCLF Staff ............................................................................. 63• The Problem with Rural Subdivisions, Robert Johnston ................................................... 63, Sidebar• CEQA, Fringe Area Growth and the LA County General Plan, Carlyle W. Hall, Jr. ....................... 65• Modesto’s Cutting-Edge Use of the General Plan Master EIR, Patrick Kelly ................................. 67

Chapter 4: Wildlife, Habitat, and Farmland ...................................................................... 70

• CEQA Protects California’s Natural Heritage, William J. Yeates .................................................... 71• California’s Ecological Richness, Kim Delfino .................................................................. 71, Sidebar• Golf Course Threatens Bighorn Sheep Habitat, Wayne Brechtel .................................................... 73• A Vision of Many Californias, Steve McCormick .............................................................. 73, Sidebar• Innovative Solutions for Habitat Protection in South Sacramento County, Mike Eaton ..................... 75• Bahia Marsh: A Tale of Two Developments, PCLF Staff ................................................................ 77• CEQA and the Santa Monica Mountains, Joseph T. Edmiston ...................................................... 79• Protecting Potrero Valley, Mary L. Hudson .................................................................................... 81• Carnegie Foundation and the Tiger Salamander, PCLF Staff .......................................................... 82• CEQA and California’s Forests, Tom Lippe & Matt Vander Sluis ................................................ 83• CEQA and Farmland Protection, Ed Thompson ............................................................................ 85• Preserving Agriculture in Orange County, Kevin K. Johnson & Jared P. Hanson .......................... 87

Chapter 5: Environmental Justice .......................................................................................... 90

• CEQA Promotes Environmental Justice, Alan Ramo ...................................................................... 91• Editor’s Note, PCLF Staff ............................................................................................................ 92• Hazardous Waste Incinerator in Kettleman City, Luke Cole ............................................................ 93• Lancer and the Vernon Incinerator: Protecting Communities from the

Projects that “Have to Go Somewhere…”, Joel R. Reynolds ........................................................ 95• ConocoPhillips and Paramount: CEQA and Oil Refinery Expansions, Richard Drury ..................... 97• CEQA: Protecting Communities, Will Rostov ................................................................... 97, Sidebar

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CONTENTS • TABLE OF CONTENTS • TABLE OF CONTENTS

Chapter 6: Toxics .......................................................................................................................... 100

• Toxic Substances, CEQA, and the Choices We Make, Ed Lowrey ............................................... 101• Toxics at Hercules Bayfront Boulevard, Richard Drury ............................................................... 103• Labor and the Environment, Aram Hodess ..................................................................... 103, Sidebar• Dow Chemical Plant Expansion, Will Rostov & Catherine Engberg .......................................... 105• Pesticides Discovered in the Soil at Site of Future San Diego Homes,

Kevin K. Johnson & Jared P. Hanson ...................................................................................... 106

Chapter 7: Infrastructure ........................................................................................................ 108

• CEQA and Large-Scale Infrastructure Projects, Felicia Marcus .................................................. 109• New Directions: CEQA and the Century Freeway, Carlyle W. Hall, Jr. ........................................ 111• Improving Public Transit: The San Francisco Ferry Expansion Plan, Stuart Flashman .................. 113• Protecting California’s Small Towns: The Somis Intersection Widening, PCLF Staff ...................... 114• Hatton Canyon Saved from Unnecessary Freeway, Rachel Hooper ............................................. 115

Chapter 8: Water Policy ............................................................................................................ 118

• CEQA Redefines California Water Law, Antonio Rossmann ....................................................... 119• CEQA Protects Water Supply Reliability, Roger B. Moore ........................................................... 121• Toward Collaborative Water Supply Planning, Randele Kanouse ................................... 122, Sidebar• Planning and Conservation League v. Department of Water Resources:

Putting a Stop to Paper Water, Antonio Rossmann ..................................................................... 123• The Monterey Amendments, PCLF Staff ....................................................................... 123, Sidebar• Land Use Decisions after PCL v. DWR:

SCOPE and Newhall Ranch, Lynne Plambeck .............................................................. 124, Sidebar• CEQA and the Restoration of Mono Lake, Richard Roos-Collins .............................................. 125• Los Angeles and the Owens Valley: CEQA Rewrites Water History,

Antonio Rossmann & Theodore Schade .................................................................................. 127• From Gridlock to Agreement: The Sacramento Water Forum Story, Curtis E. Alling ................... 129

Chapter 9: Water Quality ......................................................................................................... 132

• CEQA and the State’s Evolving Efforts to Protect California’s Water Quality, Andy Sawyer .......... 133• Learning by Example: Implementing Innovative Water Solutions

through CEQA Compliance, Frances Spivy-Weber ..................................................................... 134• The Mission Bay Project: New Stormwater Mitigations Reduce Sewage Overflows

in San Francisco Bay by 30 Million Gallons Each Year, Mike Lozeau ............................................ 135• Changing Course: CEQA Review Confirms Massive Water Contamination at the Port of LA;

Port Joins in Suit Against Polluters and Clean Up Begins, Daniel Cooper ..................................... 137

TABLE OF CONTENTS • TABLE OF CONTENTS • TABLE OF C

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• CEQA and the San Joaquin Reservoir Conversion: Keeping Sewageout of Newport Bay, Kevin K. Johnson & Jared P. Hanson ...................................................... 139

• Equestrian Estates in Silverado Canyon:Protecting Orange County’s Water Quality, Frank P. Angel & Ed Grutzmacher ......................... 141

Chapter 10: Groundwater ....................................................................................................... 144

• CEQA and Groundwater: California’s “Invisible” Natural Resource, David Beckman ................... 145• Groundwater Overdraft in Rohnert Park, John E. King ............................................................... 147• CEQA, The Carmel River, and September Ranch, Fran Farina .................................................. 149• Lakeside: All-American River Town, Suzanne M. Michel ............................................................ 150• The Keller Canyon Landfill: How CEQA Mitigations Prevent

Groundwater Contamination through Improved Design, John Thelen Steere ................................ 151

Chapter 11: Historical and Cultural Resources ............................................................. 154

• CEQA Preserves California’s History, Susan Brandt-Hawley and Anthea Hardig .................... 155• Saving Saint Vibiana’s Cathedral: CEQA and the Revitalization of

LA’s Historic Downtown, Jack H. Rubens .................................................................................. 157• Fit For Retrofit: Inventor’s Historic Mansion Protected, Susan Brandt-Hawley ........................... 158• CEQA Protects Tribal Heritage Resources, Courtney Coyle ........................................................ 159• Saving the Little Valley, Carmen Lucas .......................................................................... 159, Sidebar

Chapter 12: Perspectives ......................................................................................................... 162• CEQA: A Legislative Perspective, Byron Sher ............................................................................. 163• CEQA: A Judicial Perspective, Cruz Reynoso .............................................................................. 164• Conclusion: Securing the Future of the Golden State, Herb J. Wesson, Jr. .................................... 165

PROFILES:

Justice Stanley Mosk .................................. 13Gordon Nipp .............................................. 23Noel Park .................................................. 25Teresa de Anda .......................................... 27Ana Sánchez-Camacho .............................. 30Doreen Caetano-Jungk ............................... 33Raul Macías ............................................... 41

Lizette Hernández ....................................... 44Whitney Dotson .......................................... 51Frances Spivy-Weber ............................... 126Sam Wasson ............................................ 127Ray Chandos ............................................ 142David Tam ................................................ 152

10

CONTENTS • TABLE OF CONTENTS • TABLE OF CONTENTS

In the upcoming decades, weCalifornians will confront manyenvironmental challenges stemmingfrom burgeoning growth. Ourchallenge will be to accommodatethe necessary expansions of ourinfrastructure—housing, roads, andprisons, for example—while at thesame time protecting our unique andirreplaceable natural resources, ourquality of life and our health.

As Attorney General, Iam committed tohelping ensure that all ofthe competing interestsare balanced responsi-bly. The continuedgrowth and prosperityof our great statedepends largely on our success inprotecting and enhancing our naturalresources. After all, it is California’sunique environmental attributes andspecial qualities that make this statean attractive place to live and work.

For the past thirty-five years, theCalifornia Environmental QualityAct has been a critically importantand powerful tool for protectingCalifornia’s environmental legacy.CEQA’s purpose is its genius—tofoster transparency and integrity inpublic decision-making at the sametime it forces consideration of thefull scope of the impacts develop-ment activities have on our naturaland human environments.

As a tool for tackling environmentalproblems, CEQA is an ideal vehiclefor examining an individual develop-ment project’s effects on our overallenvironment. Fortunately, the

Legislature provided that theAttorney General take an activerole in enforcing CEQA, requiringevery private action filed under thestatute to be lodged with theAttorney General’s Office.

Like former Attorney General JohnVan de Kamp, I have made CEQAenforcement a key component ofthe actions I undertake as thestate’s chief law officer. Under our

Constitution and state statutes, theAttorney General has broad author-ity to take actions independent ofother state agencies to protect theenvironment. When I assumed thisoffice in January 1999, I made it agoal to vigorously enforce Cal-ifornia’s environmental laws, with aparticular emphasis on CEQA.

My goal for CEQA enforcement isto ensure that there is full disclosureof a project’s environmental impact,consideration of all feasible alterna-tives and, where possible, mitigationof environmental effects. Here arejust a few examples of CEQAenforcement undertaken by myoffice:

• We have filed comments andbriefs in cases where the CEQAdocumentation has not adequatelyinformed the public about increasedair pollution from a project, or

where the proponents have notestablished adequate control for theincreased emissions generated bythe project. One of these casesinvolved a massive new dockingfacility, being built to service part ofthe expanding U.S. trade with Asia,at the Port of Los Angeles (pg. 25).

The Port took a single project,improperly split it into three phasesand committed to all three phases at

once, but prepared anEnvironmental ImpactReport (EIR) for onlythe first phase. We filedlegal arguments with theCourt of Appeal arguingthat the project, and thepotentially huge in-

creases in diesel truck and shipemissions it would cause, must allbe examined together and beforeany construction could proceed,since the commitment to the entireproject was being made at onceand together. The court not onlyagreed with us, but quoted aportion of our brief discussing theimportance of CEQA. Since thatdecision, the Port of Los Angeleshas gone on to adopt ground-breaking new techniques for reduc-ing ship emissions while in port, andis proposing to develop more suchtechniques. That would not havehappened without CEQA.

• My office also fights to ensure thatthe federal government fulfills itsresponsibilities under CEQA andthe parallel National EnvironmentalPolicy Act (NEPA) to be honestwith the public about the air pollu-tion—and its public health effects—

Introduction: CEQA Turns Thirty-FiveBy Bill Lockyer

CEQA’s purpose is its genius—to foster transparency and integrity inpublic decision-making while forcingconsideration of the full scope of the

impacts development activities have onour natural and human environments.

INTRODUCTION • INTRODUCTION • INTRODUCTION • INTROD

11

that may result from federal deci-sions that affect California’s envi-ronment, and to preserve our rightto enforce our own environmentallaws. In the case of Cemex, Inc. v.United States of America, cur-rently pending before the federalNinth Circuit Court of Appeals, myoffice argued that the settlement of adistrict court case over a federalpermit to mine gravel could not alsodeclare that the EIR prepared byLos Angeles County for the gravelmine satisfied CEQA, when thepublic had not had the chance toexamine, comment on, or contestthat EIR. We will continue to insistthat the air pollution that will resultfrom the twenty-year operation ofthis huge proposed mine must befully studied and fully disclosed tothe California public, and that everystep CEQA requires to mitigate thatair pollution, and any other signifi-cant environmental harm from themine, is taken.

• My office has filed several CEQA“friend of the court” briefs in landuse planning matters, most notablyin: United Water ConservationDistrict, et al. v. County of LosAngeles, where we successfullyargued that the County had failed toadequately review the environmen-tal impacts of the Newhall Ranchhousing development project onwater availability and endangeredspecies and other wildlife resources(pg. 124); and Save Our Forestsand Ranchlands v. County of SanDiego, where we helped to per-suade the court that the County hadfailed to consider feasible mitigationfor its proposal to rezone and allowthe clearing and grading over nearly200,000 acres of significant habitatin the San Diego County “back-country” (pg. 63). In each of thesecases, the court, in a ruling specifi-

cally referring to Attorney General’sarguments, ordered that additionalenvironmental review and consider-ation be completed.

• In 1999, my office filed suitagainst Tulare County (People v.Tulare County, et al.) because thecounty had approved or was in theprocess of approving the siting andexpansion of five major dairies andone feedlot—all without the prepa-ration of EIRs or consideration ofhow adding hundreds of new cattlethat generate tons of waste to thearea would cumulatively affect theenvironment. Fortunately, the caseswe filed were settled promptly,resulting in much more comprehen-sive review and public disclosureregarding these projects.

• My office filed a brief in the“Chinatown Cornfields” case (pg.41) in support of a broad coalitionof Los Angeles environmental andcommunity groups challengingapproval of a proposed massivewarehouse project near the LARiver without a full environmentalreview. The parties have settled thematter, agreeing to cooperate inseeking funds to create an urbanpark adjacent to the river; the parkwill serve a diverse communitywhich currently does not haveaccess to parkland and will be partof a larger effort to restore the LARiver and its adjacent lands.

As these cases and many othersillustrate, CEQA has been andcontinues to be a vital tool forassuring the continued health andvitality of California’s environmentalheritage. And we can only expectthat CEQA’s next thirty-five yearswill be as productive and useful tothe state as the first.

Californians reelected BillLockyer as their thirtiethAttorney General in Novem-ber 2002. Mr. Lockyer contin-ues working to protect thepeople’s personal, civil andeconomic rights, thus furtheringthe goal that no one is deniedthe tremendous opportunitiespromised by the CaliforniaDream.

Notwithstanding Mr. Lockyer’sno-nonsense approach tofighting crime, his view of theAttorney General’s job isbroader than being the state’s“top cop.” Mr. Lockyer’s toppriorities have been solvingcrimes through DNA technol-ogy; preventing and punishingelder abuse; developing con-sumer protection initiatives;expanding enforcement of stateenvironmental protection laws;and fighting for stronger civilrights protections.

Prior to becoming attorneygeneral, Mr. Lockyer served inthe state Senate (1982-1998)and the state Assembly (1973-1981). He earned his lawdegree from McGeorge Schoolof Law in Sacramento whileserving in the State Senate. Heis also a former teacher andserved on the San LeandroSchool Board (1965-1972).

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UCTION • INTRODUCTION • INTRODUCTION • INTRODUCTION

Justice Stanley Mosk wrotethe first California SupremeCourt decision interpretingCEQA, Friends of Mammothv. Board of Supervisors.

Noting that “the environmenthas been repeatedly violatedby those who are oblivious tothe ecological well-being ofsociety” Justice Mosk estab-lished the cardinal principlesof CEQA that continue to beapplied to this day.

Ruling that CEQA should beinterpreted to provide thefullest possible protection forthe environment, Justice Moskdecided that CEQA applied notjust to public works projects,but also to private projectsneeding a government permit.No other California courtdecision has been so benefi-cial for California’s environ-ment.

Justice Mosk, served on theCalifornia Supreme Court for37 years, longer than anyother justice. Appointed as aNew Deal progressive byGovernor Pat Brown, JusticeMosk exercised a keen inde-pendent mind that made hisdecisions impossible to label.Justice Mosk died in 2001.

The California Environmental Quality Act, one of today’s best known and most

comprehensive environmental laws,began its statutory career as amodest and largely unheraldedproduct of the 1970 legislature.

CEQA’s political roots actuallytrace back to the 1968 elections,which had produced a slim majorityof Republicans in the State Assem-bly. That majority ensured aRepublican Assembly Speaker,moderate Bob Monagan of Stock-ton, and a Republican agenda forthe next two years.

As the 1970 elections approached,the Assembly Republicans strat-egized on steps they could take tomaintain their majority. One strata-gem was to establish Republicanbona fides—and hopefully sup-port—with an emerging “environ-mental constituency.” To this end,Speaker Monagan set up a special“Select Committee on the Environ-ment” and charged it with formulat-ing proposals that would helpsafeguard the state’s environment.

The National Environmental PolicyAct (NEPA) had recently gone intoeffect and the committee decidedthat a California version of thatstatute might go over well. Signifi-cantly, the debate on this idea neverproceeded much beyond the idea ofa “little NEPA.” Nevertheless, theidea was incorporated into a bill,

along with bits and pieces of NEPAlanguage. The bill failed to definepivotal terms such as “project” oreven “environment.”

During CEQA’s journey through thelegislature, the issue of its applica-tion to the private sector was neverseriously debated. It was generallyassumed that CEQA would applyonly to the construction of publicworks. One lobbyist for therealtors did point out that CEQAmight potentially be applied toprivate projects, but even among hisprivate sector colleagues thesecautionary observations fell on deafears. In the end, there was noconcerted opposition to the legisla-tion, and the modest measurepassed without difficulty.

In the initial months after they beganto implement the law, city attorneys,county counsels, and attorneys forpublic agencies were virtuallyunanimous in the view that CEQAapplied only to proposed publicworks. The administration ofGovernor Ronald Reagan held asimilar view.

The landmark Friends of Mam-moth decision by the CaliforniaSupreme Court in 1972 dramati-cally altered this “business as usual”perspective by stating unequivocallythat CEQA did indeed apply toprivately sponsored projects thatare subject to a government ap-proval. Opponents predicted dire

The Legislative History of CEQA

By Tom Willoughby


13

economic consequences as a resultof stalled and backlogged pro-jects—from housing developmentsto office buildings. Public agenciesfeared bureaucratic gridlock froman avalanche of EnvironmentalImpact Reports (EIRs) that mightbe required for even the mostinconsequential and ministerialpermits (e.g., dog licenses).

In all likelihood, a good bit of thepublic outcry was an effort to sparkan outright repeal of CEQA. But achanged political landscape madethis an unlikely option. One moti-vating factor for enacting CEQAhad been to help the Republicans inthe 1970 elections. Whateverboost CEQA might have provided,it wasn’t enough. Democrats hadregained a majority of seats in theAssembly in the 1970 elections.And, as 1972 elections ap-proached, it appeared that theDemocratic majority would increasewhen the new session convened for1973—with little desire to dismantleCEQA.

The political landscape after theMammoth decision offered fewoptions to opponents of the newlyexpanded statute. Only weeksremained in the 1972 legislativesession. Support for reversing theeffect of Mammoth was scant (andeven less for repealing CEQA itself)but the incoming 1973 legislaturewould likely be even less sympa-thetic to any such efforts.

Consequently, CEQA opponentsdecided to negotiate legislativechanges that would fill in some ofthe blanks in the Supreme Court’sdecision and at least provide for a

uniform, statewide approach toadministering CEQA.

CEQA’s original author, Assembly-man John Knox, made a bill avail-able for that purpose, and thenegotiations began. They producedmuch needed procedural uniformityincluding: a statute of limitations forchallenging decisions, a widelyaccepted “reasonableness” test forevaluating CEQA decisions, astatutory exemption for ministerialacts of public agencies, the ability ofthe state Resources Secretary toestablish specific categories ofactivities to which CEQA would notapply, and the concept of “leadagency” to prepare an EIR onprojects that involved permits fromseveral public agencies. Finally,there would be a six month morato-rium on implementing CEQA whiledetailed, uniform ground-rules wereprepared.

The final version of Knox’s billpassed with widespread supportand the moratorium period endedon April 5, 1973. It was then thatCEQA began to be applied uni-formly throughout the state andbegan its transformation into whatwe recognize it as today, the state’smost comprehensive, pre-eminentenvironmental law.

Fair Argument Standard: An Environmental ImpactReport (EIR) is required if thereis a fair argument based onsubstantial evidence that theproject may have a significanteffect on the environment. AnEIR is a detailed statement thatdescribes and analyzes thesignificant environmentaleffects of a project and dis-cusses ways to mitigate oravoid the effects.

Project Description: CEQA requires a completedescription of the project.

Alternatives: CEQA requires that an EIRconsider a range of feasiblealternatives that meet most ofthe objectives of the project.

Mitigation Measures: CEQA requires that the signifi-cant effects on the environmentbe mitigated to the extentfeasible.

Cumulative Effects: CEQA requires that an EIRdisclose the cumulative envi-ronmental effects of a projectincluding the effects of otherpast, present, and reasonablyforeseeable projects.

Public Participation: CEQA requires that the publichave notice and an opportunityto comment on any negativedeclaration, mitigated negativedeclaration, or EIR preparedunder CEQA. If an EIR isprepared, the lead agency mustprepare written responses tothe comments.

Tom Willoughby, now retired, was chiefconsultant to Assemblyman JohnKnox’s Local Government Committeeduring the passage of CEQA and thepost-Mammoth legislation. Mr.Willoughby was subsequently ChiefConsultant to the Assembly Energy andNatural Resources Committee, beforemoving to the private sector where hemanaged PG&E’s state governmentalprograms.

Key Conceptsof CEQA

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When first adopted by the Legisla-ture in 1970, the purpose of theCalifornia Environmental QualityAct, modeled after the federal Na-tional Environmental Policy Act,was to institutionalize the consider-ation of environmental values in theday-to-day decisions of Californiapublic agencies.

The task of fleshing out the law’srequirements was left largely (al-though not exclusively) to thecourts. Thus, the judicial role inCEQA’s development undeniablyhas been important. Below I iden-tify eight themes that have recurredin the CEQA case law or in thedevelopment of CEQA overthe thirty-five years since theAct’s passage. I also arguethat, on balance, the courtshave played a positive role inCEQA’s development.

The Interpretive FrameworkThe case law, largely through a se-ries of California Supreme Courtdecisions, has established a generalinterpretive framework for the con-sideration of issues arising underCEQA. In the seminal decisionFriends of Mammoth v. Bd. ofSupervisors, 8 Cal. 3d 247(1972), the court held that CEQAshould be interpreted to accord “thefullest possible protection to theenvironment within the reasonablescope of the [Act’s] language.” Id.at 259. The court utilized the prin-ciple in determining that CEQA’srequirements apply to public agencyapprovals of private developmentapplications.

This interpretative principle hasbeen a guiding force for partiessubject to CEQA. It has also ledlower courts interpreting the law todecide close questions in favor ofCEQA’s applicability, and over theyears the courts have been consis-tent in employing the principle. Forexample, seventeen years afterFriends of Mammoth, a CaliforniaSupreme Court with vastly changedpersonnel decided Laurel HeightsImprovements Assn. v. Regents,47 Cal. 3d 376 (1989). In thatdecision, the court refused to coun-tenance a truncated discussion ofalternatives and required analysis oflonger-range impacts. In doing so,

it cited the key “fullest possible pro-tection” interpretive principle. Id. at390.

Patterns in the Case LawOver the years, court decisionshave fallen into recognizable pat-terns that provide important guid-ance to practitioners. For ex-ample, the courts have established alow threshold for the preparation ofEnvironmental Impact Reports(EIRs), refusing to allow agencies toskirt the EIR process when impor-tant environmental consequencescould result from a project. SeeFriends of “B” Street v. City ofHayward, 106 Cal. App. 3d 988(1980) (EIR required wheneverthere is a “fair argument” concerningsignificant environmental impacts).

This decision served notice to agen-cies that they could not “short-cut”the CEQA process by finding thatimpacts would not occur, and there-fore that no EIR was needed, whenthis conclusion was subject to con-flicting evidence.

The Commenting DialogueThe courts have emphasized thepublic nature of CEQA by authoriz-ing the public to comment on theenvironmental consequences ofprojects and requiring public agen-cies to respond specifically to thosecomments. See People v. Countyof Kern, 62 Cal. App. 3d 761

(1976). The result has been anew kind of dialogue betweenthe agency and members of thepublic on environmental issues.The dialogue has been an im-portant tool for resolving incon-sistencies, clarifying impacts,

and ensuring agency accountability.

If an agency tries to brush off thecomments through vague responses,the courts have not hesitated toinvalidate the project approval.See, e.g., Cleary v. County ofStanislaus, 18 Cal. App. 3d 348,357 (1981). Furthermore, sisterpublic agencies also comment onproposed projects, thus assuringthat resource agencies will be heardduring consideration of thoseprojects.

Judicial Deference TowardEnvironmental AnalysisWhile the courts have broadly inter-preted the Act, they have notproven overly receptive to environ-

CEQA and Judicial ReviewBy Daniel P. Selmi


15

CEQA can and has made sure thatthe environmental voice—the voicethat cautions against precipitous

action without thinking through theconsequences—is heard.

mental nitpicking. They will applythe usual substantial evidence testand, absent some indication ofpatent inadequacy or bad faith, willdefer to the agency’s decision abouthow much discussion of an environ-mental impact is needed. See, e.g.,San Francisco Ecology Center v.City and County of San Fran-cisco, 48 Cal. App. 3d 584, 594(1975). Perfection is not required,and the standard of review for judg-ing the adequacy of EIRs favors theproponent and the public agency.Nor have courts been overly recep-tive to arguments that subsequent orsupplemental EIRs are needed.

Open and TransparentPublic DecisionsIn CEQA cases, the courts havepromoted openness and transpar-ency in public decisions. Whereagencies appear to be hiding impor-tant facts, the courts have steppedin. For example, the promotion ofopenness and transparency is evi-dent from the series of decisionsover the efforts by the City of LosAngeles to increase the transfer ofwater out of the Eastern Sierra Ne-vada Mountains and Mono Lake toSouthern California. By continuallychanging the project description, theCity rendered the exact nature of itsproject unclear. The courts wouldnot countenance what seemed to bedeliberate imprecision in describingthe project, especially where thatimprecision could have maskedlarge differences in the project’senvironmental effects. See, e.g.,County of Inyo v. City of LosAngeles, 124 Cal. App. 3d 1(1981).

Calendar Priority in LitigationThe Legislature has ordered thatCEQA cases receive priority on

judicial calendars. See Cal. Pub.Res. Code § 21167.1. The pur-pose, of course, is to delay projectsas little as possible if the plaintiffslose. The evidence, mostly anec-dotal, indicates that the courts havestrived to give CEQA cases priorityboth at the trial and appellate levels.Like any other litigation, CEQAlitigation takes time—but not asmuch time as typical civil litigation.

Autonomy in the Exercise ofSubstantive DiscretionWhile some observers initiallyfeared that CEQA would undulyconstrain the agency’s substantivediscretion in approving projects,that has not happened. There arealmost no cases overturning aproject approval on the groundsthat the agency’s substantive deci-sion—as opposed to the agency’scompliance with the procedural EIRrequirement—was arbitrary, or thatits balancing of environmental ver-sus economic benefit was errone-ous. In short, the courts have in-sisted that agencies adhere toCEQA’s procedure in project ap-proval but have deferred to publicagencies on the correctness of theactual decision. As a result, thesetypes of claims are rarely raised byplaintiffs challenging a project.

Forum for SettlementsFinally, to an extent not widely rec-ognized, CEQA has provided aforum for settling land use disputes.CEQA requires parties to conveneat a “CEQA Settlement Confer-ence” and determine whether thedispute underlying the litigation maybe settled. Some busy practitionersgroan about attending the confer-ence. But when you ask them ifthese conferences have led tosettlements, they will agree that the

process has proved useful in a fairnumber of cases.

ConclusionIn sum, over the last thirty-fiveyears the courts have tried to carryout the legislative intent of the Act,and by doing so they can be ac-cused of “favoring” the environ-ment. On the whole, however, thecase law has been relatively even-handed and consistent. There are,of course, the one or two CEQAcases that every practitioner,whether representing plaintiffs ordefendants, will cite as an exampleof a wrongly decided case. (Usu-ally, it is a case that they lost). Butthe case law is not polarized orheavily politicized.

In short, CEQA has ensured thatboth project proponents and publicofficials who have little concernabout the environment cannot ig-nore environmental effects. IsCEQA perfect? No. Few laws are.Moreover, as a broad law con-cerned about environmental effectsover a wide range of public agencydecisions, CEQA can never attainthe precision of implementation thatis characteristic of much narrowerlaws applicable to public agencies.However, it can and has made surethat the environmental voice—thevoice that cautions against precipi-tous action without thinking throughthe consequences—is heard. Andin doing so, I submit that CEQAhas, in the best sense, served thedistinctly Californian value of con-cern about harming the vast envi-ronment entrusted to our care.

Daniel P. Selmi is a Professor of Law atLoyola Law School in Los Angeles, CA.

16


The CEQA Guidelines, adopted bythe Resources Agency, weredesigned to be a single source forpublic agencies and the public touse in following the requirements ofCEQA. The Guidelines describerequirements from the CEQAstatute, codify interpretations fromState courts, and describe prin-ciples from federal interpretations ofthe National Environmental PolicyAct that state courts could beexpected to follow. The Guidelinesfill in details absent from the CEQAstatute.

The Legislaturedirected the StateResources Agencyto adopt guidelines inthe 1972 amend-ments to CEQAresponding to theState Supreme Court’s Friends ofMammoth decision, 8 Cal.3d 247,(1972). Developed in cooperationwith the Governor’s Office ofPlanning and Research (OPR), theGuidelines were adopted by theSecretary of the Resources Agencyon an emergency basis in early1973. All public agencies weredirected to adopt their own CEQAimplementing procedures consistentwith the Guidelines within sixtydays.

The Legislature required the Guide-lines to include criteria for evaluatingprojects, preparing EnvironmentalImpact Reports (EIRs), and deter-mining whether a project wouldhave a significant effect on the

environment. Pub. Res. Code sec.21083. The Guidelines were alsorequired to contain a list of classesof projects that the Secretarydetermined would not have asignificant effect on the environment.These classes of projects thenbecame exempt from CEQA as“categorical exemptions.” Pub. Res.Code sec. 21084.

The Guidelines needed to defineterms used in the statute such as“project,” “approve,” “discretion-

ary,” and “ministerial.” For thesedefinitions, OPR and the ResourcesAgency looked to California caselaw and paraphrased language fromappellate court decisions.

Where the statute was not specific,the Guidelines followed the lead ofthe Friends of Mammoth decisionand looked to the National Environ-mental Policy Act and the federalNEPA guidelines for principlesapplying to CEQA. This led to theGuidelines’ inclusion of featuressuch as draft EIRs, negative decla-rations, and public involvement.Over time the Legislature graduallypicked up these and other termsfrom the Guidelines and put theminto the statute.

Unusual for state regulatory efforts,the Guidelines contain mandatory,advisory, and permissive elements.14 C.C.R. sec. 15005. This blendof elements has led to a debate asto whether the Guidelines areregulations. The Guidelines wentthrough the procedures for adoptingregulations and declare that they areregulations. 14 C.C.R. 15000. TheOffice of Administrative Law treatsthem as regulations. District Courtsof Appeal have taken differentviews of whether the Guidelines are

binding or merelyadvisory. TheCalifornia SupremeCourt declined tolabel the Guidelinesas regulations butdeclared that “at aminimum, [courtsshould] afford them

great weight . . . except when aprovision is clearly unauthorized orerroneous.” Laurel HeightsImprovement Association v.Regents of the University ofCalifornia (1988) 47 Cal.3d 376,391, fn.2. This is remarkably closeto the standard of review foradministrative regulations.

Perhaps the most important functionof the Guidelines was codifyingcourt interpretations of CEQA.This approach enabled publicagencies and people without legaltraining to follow the Guidelines witha high degree of assurance that theywould meet all legal requirements.In turn, the Guidelines gave thepublic a relatively clear picture of

Nuts & Bolts: The CEQA GuidelinesBy Norm Hill


17

Perhaps the most important function of theGuidelines was codifying court interpretations of

CEQA. This approach enabled public agenciesand people without legal training to follow the

Guidelines with a high degree of assurance thatthey would meet all legal requirements.

the standards which the publicagencies needed to meet.

The Guidelines were amended atleast annually for their first ten yearsto keep them up to date withlegislative changes and new courtinterpretations. In the late eighties,the Guidelines went through aperiod of inattention and failed tokeep up with changes in the statuteand court decisions. More recentlyamendments started occurring againbut more work needs to be done tomake the Guidelines a reliable guideto safe harbors.

Although the courts have generallyshown deference to the Guidelines,the courts have not given a blankcheck to the Resources Agency. InCommunities for a Better Envi-ronment v. California ResourcesAgency (3rd Dist. 2002) 103 Cal.App. 4th 98, the court reviewed achallenge to a package of amend-ments and rejected some as beinginconsistent with the statute andcase law. Among other points, thecourt rejected:

(1) a “de minimus” standard thatwould avoid cumulative impactanalysis when a project made avery small contribution to a severecumulative condition;

(2) a limitation on including prob-able future projects in cumulativeimpact analysis that would scaleback existing requirements fromcase law;

(3) making a project that compliedwith an existing standard not have asignificant effect even if a fairargument with supporting evidence

showed a likely significant effect;and

(4) allowing an agency to avoid anEIR where the only reason for theEIR was to address an unavoidablesignificant effect identified in aprevious EIR.

On the last point, the court said thatthe guideline would have allowedagencies to avoid the public ac-countability provided in a statementof overriding considerations. Thecourt would not accept an effort toundo judicial interpretations throughadministrative regulations. Therejected guideline amendmentswere sent back to the ResourcesAgency for further consideration.In 2004, the Resources Agencyadopted new amendments tocomply with the court’s ruling.

The importance of the Guidelines asa single source statement of therequirements of CEQA has gradu-ally diminished over time. PrivateCEQA handbooks and legaltreatises have become available toperform the same function. But theGuidelines continue to need amend-ments to reflect some existingprovisions of the statute and impor-tant interpretations from the courts.Where discretion is available to theResources Agency, there is stillroom for identifying ways to im-prove the administration of the act.

Norm Hill served as Assistant Secretarywith the Resources Agency with staffresponsibility for CEQA. Mr. Hillworked in the legal office of theDepartment of Water Resources andretired as Chief Counsel of the Depart-ment of Forestry and Fire Protection.

To learn more about how theCEQA process works, take alook at the Community Guideto CEQA, authored by J.William Yeates, Esq. Avail-able in English or Spanish, theCommunity Guide is one ofthe most popular publicationsproduced by PCL Foundation.It explains CEQA’s proceduraland substantive provisionssimply and clearly, includingrequirements for preparingEnvironmental Impact Reports(EIRs) and reducing theharmful environmental im-pacts of projects (mitigation).It also provides a usefulglossary of terms.

For information on orderingthe Community Guide toCEQA, go to www.pcl.org orcall 916-444-8726.

Another important resource isthe CERES website at http://ceres.ca.gov/ceqa/. CERESis an electronic informationsystem developed by theCalifornia Resources Agency.The site provides the full textof CEQA and the CEQAguidelines, information onCEQA case law, a directory ofCEQA judges, an interactiveflowchart of the CEQA pro-cess, and much more.

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continues on sidebar, page 5

CHAPTER 1Air Quality

See Pg...25

See Pg...27

See Pg...31

See Pg...35

CEQA and the Air We BreatheMary Nichols & Gail Ruderman Feuer ..................... 21

Breathing Easier in Bakersfield: Activists Use CEQA toReduce the Air Impacts of Sprawl

PCLF Staff ................................................................... 23

China Shipping and the Port of LAGail Ruderman Feuer ................................................. 25

Mega-Dairies and Agricultural Air PollutionCaroline Farrell ........................................................... 27

Diesel Generator next to Sacramento SchoolDaniel L. Cardozo ........................................................ 29

CEQA Cleans Up California’s Power PlantsMarc Joseph ................................................................. 31

CEQA and the Building TradesBob Balgenorth ............................................................ 32

Building Better Ethanol PlantsCaroline Farrell & Richard Drury ............................. 33

Reducing Construction and Mobile Source EmissionsTanya A. Gulesserian .................................................. 35

AIR

QU

ALIT

Y

20

A IR QUALITY • A IR QUALITY • A IR QUALITY • A IR QU

California has the unfortun-ate distinction of havingthree of the ten smoggiest

regions in the country within itsborders. On top of that, manyregions in California, including theSan Joaquin and South Coast AirBasins, are plagued by unhealthfullevels of tiny soot particles, or“particulate matter.” Californiansalso face some of the highest cancerrisks in the country from the air theybreathe; 70 percent of this cancerrisk comes solely from dieselexhaust.

While the federal Clean Air Actcontains provisions designed toensure that new industrial projects,such as a refinery or power plant,“offset” any projected increases inthe emissions of the two chemicalprecursors to smog—volatileorganic compounds (VOCs) andoxides of nitrogen(Nox)—as well asparticulate matter, theAct does not protectagainst increases inemissions from othersources, such ashousing and commer-cial developments,distribution centers, and portexpansion projects. Thus, there areno provisions under the FederalClean Air Act, or even the Califor-nia Clean Air Act, to protect thepublic from the health hazardsposed by an increase in emissionsfrom additional vehicle trafficassociated with a 10,000 unithousing development, the increaseddiesel truck traffic from a new “big

box” warehouse or distributioncenter, or the increased pollutionfrom the ships, trucks, trains, andequipment that will move containersat a new port shipping terminal.

These indirect sources of pollutionare the products of a land-useplanning and permitting system thatrelies on local governments, whohave every incentive to competewith each other for new develop-ment, and few if any tools toanalyze, much less mitigate theregional impacts. While local andstate air agencies may comment onthe impacts of the largest projects,they have no legal authority toprevent the local land use agencyfrom issuing the necessary develop-ment permits.

Further, while the Federal andCalifornia Clean Air Acts control

the levels of pollution that may beemitted by a particular source, theselaws typically do not distinguishbetween sources based on theirlocation; thus, a chrome-platingfacility will typically face the samelimits on its emissions regardless ofwhether it is sited next to an el-ementary school or industrialfactory. This problem was high-lighted in the late 1990’s when

children at Suva Elementary Schoolin Bell Gardens in Los AngelesCounty experienced serious (anddeadly) health impacts from highlevels of toxic chemicals emitted bya chrome-plating facility sited nextto the school. While the facility metall applicable air quality regulations,its emissions were unsafe forchildren spending the day immedi-ately adjacent to the facility.

Only through the CEQA processcan neighboring communities, citizengroups and concerned agenciesaffect the land use decisions thatcan make or break California’sefforts to ensure that regions withair quality problems reduce theirpollution levels to meet federal cleanair standards. Indeed, without thisprotection, the dramatic growthprojected for California will meanmore, not less pollution over the

upcoming decades. InSouthern Californiaalone, the SouthernCalifornia Association ofGovernments projectsthat the region willexperience a 25 percentincrease in populationover the next twenty

years. This means ever increasingpressure for more housing, morecommercial developments, andmore warehouses and distributioncenters. Similarly, California portsare currently projecting a doublingor tripling of container trafficthrough the ports over the nexttwenty years. These containers willbe moved by diesel ships and cargohandling equipment, and carried to

CEQA & the Air We BreatheBy Mary Nichols and Gail Ruderman Feuer

Only CEQA protects the public from thehealth hazards posed by the increasedvehicular emissions associated with a

new 10,000 unit housing development,warehouse distribution center, or port

shipping terminal.

21

UALITY • A IR QUALITY • A IR QUALITY • A IR QUALITY

their destinations by polluting trucksand trains.

CEQA addresses these pollutionsources by requiring public agenciesbefore they approve a project toanalyze the impacts on air quality.Specifically, CEQA directs theagency to consider all adverseenvironmental changes resultingfrom the project, including on land,air, water, minerals, flora, fauna,ambient noise, and objects ofhistoric or aestheticsignificance. If theagency finds substantialevidence that theproject may have asignificant impact on air quality, thenan Environmental Impact Reportmust be prepared, which analyzesthe impacts and mitigation measuresthat would reduce these impactsbelow a level of “significance.”

Most regional air quality agencies inCalifornia have developed guide-lines for when an air quality impactis considered significant. Forexample, in the Sacramento region,if a project’s operation wouldincrease emissions of VOCs orNox by more than sixty-five poundsper day, these levels are consideredsignificant. High emissions ofcancer-causing or other toxic aircontaminants can also render aproject’s emissions significant. Forexample, an increase in cancer riskof more than ten additional cancercases out of 1 million peopleexposed is considered significantunder guidelines adopted by theSouth Coast Air Quality Manage-ment District.

CEQA’s teeth come from theobligation of the agency to mitigateall significant environmental impactswhere “feasible.” This is a central

provision when it comes to airquality impacts because typicallythere are measures that can beimplemented that are feasible andwould reduce the project’s environ-mental impacts. These “solutions”include mitigation of the project’straffic impacts (for example bystructural changes to roads andintersections or the provision ofpublic transit options) and adoptionof control technologies to reduceemissions, such as requirements for

the use of cleaner trucks andequipment and cleaner fuels.

Moreover, CEQA requires consid-eration of more environmentallybenign alternatives as well as the“no project” alternative. Withrespect to air quality, these alterna-tives can make a big difference. Forexample, a change in the design orsize and intensity of a project canoften dramatically impact theemissions from car and truck trafficassociated with the project. Localpermitting authorities often chooseto make controversial projectsmore acceptable to surroundingneighborhoods by requiring mea-sures to reduce traffic impacts.Without the analysis and disclosurerequired by CEQA, these officialswould generally lack the knowledgeof a project’s impacts and the toolsneeded to devise feasible mitigationmeasures.

For many years, a parade ofdistinguished California business-leaders, planners, and environmen-talists have recommended strength-ening state planning laws in waysthat would encourage what is

typically called “Smart Growth.”As early as 1982, the Governor’sOffice of Planning and Researchproduced an Urban Growth Strat-egy that called for regional plansthat would discourage loss of openspace and link transportation, airquality and other environmental andpublic health goals to “infill” devel-opment in urban centers. An effec-tive growth management systemwould address many of the airquality burdens currently dealt with

by CEQA on aproject-by-projectbasis.

Until California enactsmeaningful growth managementlegislation, however, CEQA remainsthe only effective tool for assuringthat the hard-won gains in air qualitythat have been brought about bytough regulations on industry andmotor vehicles are not wiped out bythe unchecked sprawl of housingand commercial developmentserving our growing population.

Gail Ruderman Feuer is a seniorattorney in the NRDC’s Los Angelesoffice. Prior to this, Ms. RudermanFeuer served as a deputy in theenvironment section of the CaliforniaAttorney General’s office. Ms.Ruderman Feuer has successfullylitigated a broad range of environmen-tal cases, and specializes in air quality,energy, transportation, toxics andCalifornia’s Proposition 65.

Mary Nichols recently joined UCLA asDirector of the Institute of the Environ-ment. Prior to this, Ms. Nichols servedas Secretary of Resources for the Stateof California, Assistant Administratorof the U.S. EPA under PresidentClinton, and Secretary for Environmen-tal Affairs under former Gov. Edmund G.(Jerry) Brown.

CEQA’s teeth come from the obligation ofthe agency to mitigate all significant

environmental impacts where “feasible.”

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Breathing Easier in Bakersfield:Activists Use CEQA to Reduce

the Air Impacts of Sprawl

Gordon Nipp, a recentlyretired math professor at CalState Los Angeles, knew thathe wanted to dedicate moretime to the Kern-KaweahChapter of the Sierra Club.But it wasn’t until he saw astack of negative declarationsfor proposed housing devel-opments that he decided toreally get active and protecthis community’s air quality.

“They said there were nocumulative impacts to airquality, traffic, and biologicalresources from development,but of course there are. Thisis one of the most rapidlygrowing parts of the state,and there are profoundimpacts. So I took it uponmyself to learn all I couldabout how to use CEQA toprotect the community. Anumber of the developerswere willing to work with usbecause they too realized theimportance of clean air.”

As a retiree, Gordon is espe-cially concerned about thequality of the air he breathes.“If we’re going to have adecent quality of life thensomething has to be done.People are getting sick fromthe air. They’re developingemphysema and cardiovas-cular disease just from goingoutside. I live here. I have tobreathe this stuff. It’s an issuewhose time has come.”

“How do you tell your daughter that she can’t go out and play becausethe air is too dirty?” – Bakersfield resident and activist Renee Nelson

Bakersfield, California would like to be known for its historic downtown andits lush agricultural setting. Unfortunately it has become increasingly identifiedwith something much less appealing; Bakersfield’s residents suffer fromsome of the worst air pollution in the United States.

According to a 2004 report by the American Lung Association, Bakersfieldhas the third highest levels of smog and particulate pollution in the country. Awealth of data confirms what local residents know; as the city grows, airquality gets worse. “Bakersfield is building 5,000 houses a year. That’s a lotof houses when you think about local air quality,” says recently retired CalState professor and Sierra Club member Gordon Nipp.

New developments spring upprimarily at the edge of the city,meaning more commuting to get todowntown jobs. In fact, the numberof vehicle miles traveled in KernCounty has grown at twice the rateof population since 1981. Combinecar travel, fireplaces, gas lawnmowers, construction emissions anda host of other pollutant sources,with the natural bowl shape of thelocal topography, which traps bad air in the city, and it’s no surprise thatresidents endure an average of twenty-five “Save the Air” days per year.

While every new housing development contributes to worsening air quality,not every developer had to mitigate these impacts until the local chapter ofthe Sierra Club got involved. As Sierra Club member Harry Love explains,most new developments are between 50-300 homes. Because of theirrelatively small size, developers asserted that air quality impacts from theirprojects were insignificant, averting mitigation requirements. The Sierra Clubused its right to litigate under CEQA to push the City and local developersto mitigate the impact of all new development on air quality.

When the city approves a project that fails to mitigate for its contribution toair pollution, the Club takes the city to court, asserting that the project mustaddress cumulative impacts of air pollution. In nine consecutive casesdevelopers have agreed to revise their projects and implement air qualitymitigations, including landscaping with drought resistant plants, solar panelson model homes and a per unit air quality mitigation fee.

The Brookings Institute found in a 2001 studythat Bakersfield was the worst sprawling cityin California. As the city grows, residents suf-fer from worsening levels of air pollution.

23


To determine the fee, Sierra Club member Gordon Nipp uses a computerprogram developed for the public by the California Air Resources Boardcalled URBEMIS 2002 (Urban Emissions Model). URBEMIS is an on-line,user-friendly program that estimates air pollution emissions in pounds perday or tons per year for various land uses, construction projects, andproject operations. By entering data about a proposed project, such as theestimated number of car trips per family and the construction schedule, Nippcan estimate the amount of air pollution generated by each additional unit ofhousing.

What does it currently cost for a housing development in Bakersfield tooffset its impact on air quality? “$1,200 per unit,” says Gordon Nipp. All thefees collected from the settlements will go to local air mitigation projects.

The Sierra Club doesn’t want to continue using the courts to make suredevelopers respect Bakersfield’s air, but until the city decides to address thecumulative impacts from small development projects, it will. And already,there are signs that the Club’s legal actions are providing the needed impetusto help motivate the city to step in and provide more comprehensive leader-ship to protect air quality.

Before retiring as Bakersfield’s Development Services Director in Decemberof 2004, Jack Hardisty worked hard to draft a city-wide voluntary zero-emissions policy for new development. Although the plan was not adopted,it did signal the willingness of local government to listen to concerned com-munity members and begin thinking creatively about the city’s growth.

In early 2005, at the direction of a City Council committee, new Develop-ment Services Director Stan Grady convened an air quality task force tofigure out how to improve air emissions to satisfy CEQA requirements. Thetask force consists of representatives from the City, the County, the BuildingIndustry Association, developer’s consultants, the Central Valley Air District,and the Sierra Club.

Gordon Nipp acknowledges CEQA’s role in empowering the people andlocal government to clean up his city’s air. “It’s in the best tradition ofAmerican justice that the ordinary citizen can have this sort of attention fromthe government and from the development community. We’re not wide-eyedradicals. We’re asking for clean air.”

For more information on URBEMIS or to download a free copy see:www.arb.ca.gov/planning/urbemis/urbemis2002/urbemis2002.htm

Bakersfield AirQuality Facts

Written by PCLF staff.

“It’s in the best tradition of American justicethat the ordinary citizen can have this sort ofattention from the government and from the

development community.”

The American LungAssociation’s State of theAir Report (2004) gaveBakersfield agrade. It found that the city:

• Ranked Third in thenation for having the highestlevels of short-term and year-long particle pollution.These tiny, airborne particlescan lead to heart attacks,cardiac arrhythmias (irregu-lar heartbeat), asthma,slowed lung function growthin children and teenagers,and premature death.

• Ranked Third in thenation for having the highestlevels of ozone pollution.(The Regional Air QualityBoard has updatedBakersfield’s ozone statusfrom Severe to Extreme.)Ozone attacks lung tissueand can cause pulmonaryinflammation and asthma.

The Brookings Institutionfound that Bakersfield wasthe Worst-Sprawling Cityin all of California, fourth inthe entire nation (2001).

In 1999, 13,000 Bakersfieldresidents participated inVision 2020, an unprec-edented 18-month effort todraft a picture of the area’sfuture. Their number oneconcern was air pollution.Sprawl ranked second.

Failing

****

****

24


CHINA SHIPPINGCHINA SHIPPINGCHINA SHIPPINGCHINA SHIPPINGCHINA SHIPPING& THE PORT OF L& THE PORT OF L& THE PORT OF L& THE PORT OF L& THE PORT OF LAAAAA

By Gail Ruderman Feuer

Despite the availability of technology to cut pollution, major seaportsevery year emit ever-larger amounts of toxic diesel exhaust andother contaminants that damage public health, disrupt local commu-

nities, and harm marine habitats. For example, the ports of Los Angeles andLong Beach are the single largest source of air pollution in Southern Califor-nia, emitting as much diesel exhaust as 16,000 tractor-trailers idling theirengines twenty-four hours a day. As a result, residents of San Pedro andWilmington are plagued by acute and chronic respiratory illnesses, such asasthma and bronchitis, and suffer some of the highest cancer risk in the region.

In June 2001, after decades of expansion by the Ports of Los Angeles andLong Beach without mitigation of the environmental impacts, local communitymembers joined forces with the Natural Resources Defense Council andCoalition for Clean Air to challenge the Port of L.A.’s approval of a 174-acreterminal expansion for the China Shipping Container Line. According to portdocuments, as many as 250 of the world’s largest container vessels plannedto call at the terminal, with cargo being moved by as many as 1 million truckson local streets every year.

Despite the clear impact on the localcommunities, the port and city choseto rely on prior environmental docu-ments prepared for other relatedprojects, and refused to prepare anEnvironmental Impact Report (EIR)that would focus specifically on theimpacts of this terminal expansion.None of the other environmentalreviews revealed to the public thetrue impact the China Shipping

project would have on its neighbors and the region nor did they provide anyreal mitigation for those impacts.

The groups filed suit under CEQA, challenging the failure to prepare an EIR.After an eighteen-month-long legal battle, in October 2002 the Court ofAppeal permanently enjoined further construction and operation of theterminal until the port and city prepared a full environmental review in fullcompliance with CEQA.

The three-judge panel unanimously rejected arguments by the port and citythat the project had been reviewed years ago in prior environmental docu-ments, and held that these documents failed to address “any site-specificenvironmental issues related to the China Shipping project.”

Noel Park has lived in thetown of San Pedro, adjacentto the Port of Los Angeles,for thirty-five years. He runsa car parts company anddrives a pick-up truck. Formost of his life he assumedthat the Port was lookingafter the needs of the com-munity. “It’s the largest Portin the US, with giant ships,diesel trucks and hundredsof thousands of shippingcontainers. But I never gotinvolved. I was interested inthe same things everyoneelse is, my kids, my house,my cars.”

That is, until his Home-owners’ Coalition received acopy of the Port’s Environ-mental Impact Report (EIR)for China Shipping. “I delvedinto the EIR and what I readthere made me so angry Ibegan attending hearings,testifying and writing lettersalong with other members ofthe Coalition. The documentwas dishonest and disin-genuous, calling majorimpacts insignificant ormaking declarations ofoverriding considerations.They were in essencesaying that the money theywere going to make was


25

Over 100 people gather to protest excessiveair pollution at the Port of Los Angeles.

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After the court decision halted all construction and operation of the project,the parties returned to the negotiating table to see if a settlement could bereached. Five months later, the parties reached an historic settlement thatallowed the first almost completed wharf to open pending completion of theEIR, but in exchange provided dramatic mitigation of both the China Ship-ping project and impacts from prior projects that had never been mitigated.

Among other things, the settlement requires the Port to spend $50 millionover the following four years on the reduction of air pollution and industrialblight in the bordering communities of San Pedro and Wilmington, and inaddition to implement specific significant mitigation measures at the ChinaShipping terminal that will make it a “green” terminal. The other “green”measures include a requirement that 70 percent of the ships using the berthsplug into electric power while at berth instead of running their diesel engines,100 percent of the yard tractors run on cleaner alternative fuels like natural

gas or propane, 100 percent ofother yard equipment to installpollution controls and usecleaner diesel fuels, andinstallation on the second wharf

of “low profile” cranes that are half the height of traditional cranes and thuswill have less of an aesthetic impact on the local community.

In June 2004, China Shipping’s first vessel docked at the new terminal, andplugged into dockside power—the first container ship in the world to do so.Every time a ship plugs in to electric power at the terminal, this technologywill mean three fewer tons of smog-forming nitrogen oxides and 350 fewerpounds of diesel particulate matter will be spewed into the air. Communityand environmental leaders are hopeful that the China Shipping saga will leadto more complete environmental reviews of new port projects and “greener”terminals at the ports in the future.

more important than ourhealth.”

Noel questions the image ofthe Port as an engine of theeconomy. He cites a 2004study by the non partisanPublic Policy Institute ofCalifornia, which claimsthat the Port may actuallycost the state of Californiamore each year in healthcosts from air pollution thanit generates in jobs andeconomic activities.

The Coalition’s success inchallenging the EIR hingedon a single phone call. “Oneof our friends had read anarticle about the NationalResources Defense Coun-cil so we contacted themand got their help. Theywere unbelievable. Theydeserve the real praise,”says Noel.

“The Port spent nearly $10million dollars trying todefeat us. It’s hard to standup to that sort of pressure.When the AttorneyGeneral’s office filed a briefin support of our cause, itwas a new supply ofconfidence.”

Noel knows that the battle isnot over. “This recentsettlement covers about 5percent of the Port. We’vestill got 95 percent that isgoing along with businessas usual and fifteen EIRs inthe cue. But I’m hopeful.We’ve woken up out of ourthirty year slumber andwe’re finally taking a stand.”

Gail Ruderman Feuer is a senior attorney in the NRDC’s Los Angeles office. Prior tothis, Ms. Ruderman Feuer served as a deputy in the environment section of theCalifornia Attorney General’s office. Ms. Ruderman Feuer has successfully litigated abroad range of environmental cases, and specializes in air quality, energy, transpor-tation, toxics and California’s Proposition 65. Ms. Ruderman Feuer is a graduate ofHarvard Law School and former law clerk to federal Judge A. Wallace Tashima.

A cargo ship plugs into the new elec-tric power station at the Port of LosAngeles. Because of CEQA, ChinaShipping will be one of the first“green” terminals in the state andwill include a number of other mea-sures intended to minimize its nega-tive impacts on nearby communities.

NRDC

NRDC

26

Continued from the following page.


Mega-DairiesMega-DairiesMega-DairiesMega-DairiesMega-Dairies& Agricultural Air Pollution

By Caroline Farrell

Teresa de Anda knowsfirsthand what it is like to nothave clean air. A long timeresident of the agriculturaltown of Earlimart in the SanJoaquin Valley, she sufferedsevere health problems whena nearby vineyard accidentallyreleased pesticides into theair near her home in 1999.

Teresa helped form El Comitèpara el Bienestar de Earlimartto address such communityhealth concerns. She nowworks for Californians forPesticide Reform, advocatingfor breathable air in agricul-tural towns like her own.

One of Teresa’s most reward-ing experiences was organiz-ing community support for SB700 by Senator Florez. “Wegathered a bus load of CentralValley residents and broughtthem to Sacramento. Many ofthem were children withasthma. From pesticide driftvictims to families living bydairies, these residentsunderstood that agricultureshould not be exempted fromclean air standards.”

Teresa is motivated by theknowledge that her children’sand grandchildren’s health isat stake. “It’s horrible being amother and you can’t evenprotect your kids,” she ex-plains. “It feels good to bedoing something about it.”

In recent years, the Central Valley has seen an influx of dairies movingin from Southern California’s Chino Basin. As stronger water and airregulations come into effect in the rapidly developing Chino area,

dairymen are selling their farms to housing developers and buying largetracts of land farther north to relocate and expand their operations. Be-tween 1998 and 2002, one such proposal stirred up a great deal of contro-versy in Bakersfield and helped lay the foundation for statewide change.

George and James Borba, two cousins with dairies in the Chino Valley,applied to build two 14,400 cow dairies on adjacent pieces of property inKern County, in effect creating a 28,000 cow dairy. The County quickly

approved theseproposals withoutCEQA review,stating that therewould be no poten-tial adverse environ-mental impact fromthese dairies. Fearingthat unregulateddairies of this sizecould have far-

reaching environmental consequences, the Center on Race, Poverty & theEnvironment (CRPE) challenged the County’s avoidance of an environmen-tal analysis. When the initial analysis failed to adequately analyze the dairies,the Sierra Club joined with CRPE in another suit against the County.

After a protracted legal battle in which the courts ruled three times in favorof the environmental organizations, a new Environmental Impact Report(EIR) and supplemental analyses for the Borba dairies were finally pre-pared. These documents painted a radically different picture of dairy farm-ing, demonstrating that dairies do have significant and unavoidable impactson the environment, particularly on the air. The findings surprised everyone.“We thought that the greatest impacts would be on water quality from theanimal waste-laden runoff. Although there was clear evidence that manurewastewater could seep into the ground, eventually contaminating groundwa-ter supplies, it turns out that the greatest impact was on air quality fromreactive organic gases, particulate matter, ammonia, hydrogen sulfide, andmethane” explains Brent Newell, staff attorney for CRPE.

California’s largest dairies hold 14,000 cows at a single site.The CEQA review of the Borba proposals revealed the impacts ofthese “mega-dairies” on California’s air quality.

Ken Midkiff

27


The primary sources of airpollution from agriculturalpractices are manure fromconfined animal facilities andexhaust from diesel equipment.

A November 2004 report by theCalifornia Senate Office ofResearch found that large dairyoperations and their wastespose an immediate threat to airquality, emitting large quantitiesof toxic and greenhouse gases,including reactive organiccompounds, particulate matter,ammonia, hydrogen sulfide, andmethane.

California’s largest dairies hold14,000 cows at a single site.Toxic airborne chemicalsemitted from lagoons of manureat these sites can causeinflammatory, immune, andneurochemical problems inhumans.

Of the nearly 200,000 pieces ofagricultural equipment currentlyin operation in California, morethan half are so old that noemission standards existed atthe time the equipment waspurchased.

Agricultural equipment is thefourth largest source of dieselparticulate pollution in the state.Diesel particulate has beenlinked to low birth weight,sudden infant death syndrome,and other health problems.

Elimination of manure lagoonsand the application of stricterdiesel emission standardscould prevent thousands ofasthma attacks and prematuredeaths each year.

Agriculture& Air Quality

Based on the informationdisclosed during the Borbapermit process, the effects ofdairies began to gain local andstatewide attention. Localpapers, including the Bakers-field-Californian and theFresno Bee, began publishingeditorials critical of dairiespractices.

Kern County agreed to re-examine its “by right” policy for dairies, whichallowed the county to grant permits without any public hearing or additionaloperating conditions if the proposed dairy met certain basic siting require-ments. In addition, Kern County and neighboring counties in the air basinrealized that they needed to prepare an EIR for each new dairy or adopt aprogram EIR for all dairies. While these new EIR requirements helped stemthe tide of unregulated “mega-dairies,” even larger improvements lay ahead.

The accumulating data on emissions from San Joaquin Valley dairies calledinto question California’s exemption of agriculture from the Clean Air Act.Up until 2003, nearly all air pollution caused by agricultural practices inCalifornia, including diesel irrigation pumps and livestock facilities, escapedthe oversight common to other industries. Because of the growing concerns

of valley residents and the Federal Environmental Protection Agency,Senator Dean Florez sponsored SB 700 in September of 2003. The pas-sage of SB 700 removed the agricultural exemption from air quality laws andinstituted substantive permitting requirements for agricultural pollutionsources. Were it not for the information generated in the Borba Dairies casesand the public outcry that followed, this historic improvement to air qualityand public health in the Central Valley may never have occurred.

Caroline Farrell is the directing attorney of the Delano Office for the Center onRace, Poverty, & the Environment (CPRE). CRPE continues to work with CentralValley communities for regulation of the dairy industry.

Were it not for the information generatedin the Borba Dairy CEQA cases and thepublic outcry that followed, California’s

agricultural industry might still be exemptfrom the Clean Air Act.

28

Growing data on emissions from San Joaquin dairiescalled into question California’s exemption of agri-culture from the Clean Air Act.


Diesel exhaust from backup diesel generators is a leading threat to public health. This is because diesel exhaust is a potent humancarcinogen, and because backup diesel engines usually have abso-

lutely no pollution control equipment. In addition, backup diesel engines areoften located very close to where people live, work or attend school.

In late 2003, the Sacramento County Department of Water Quality (“De-partment”) applied to the Sacramento Metropolitan Air Quality ManagementDistrict for a permit to operate a backup diesel generator 150 feet from theSacramento Waldorf School, a K-12 school with 420 students and 50toddlers enrolled in pre-school. The generator was a two-cycle, turbo-charged, diesel powered internal combustion engine.

The Department hadactually been operatingthe engine illegally,without a permit, sinceNovember 1999. Thiswas a violation of boththe Federal and StateClean Air Acts. Thepublic notice of thepermit action raisedcommunity awarenessof the diesel generator,which was of signifi-cant public concern,especially amongparents of children atthe Waldorf School.

Parents of children at the Waldorf School organized the Concerned Parentsof Waldorf Children and sought out legal assistance to help them understandthe environmental risks posed by the diesel engine.

The California Air Resources Board (CARB) has concluded that stationarybackup diesel engines pose one of the greatest threats to human health ofany common source of pollution. (See CARB fact sheet “California’s Plan toReduce Diesel Particulate Matter Emissions” Oct. 2000).

Diesel GeneratorDiesel GeneratorDiesel GeneratorDiesel GeneratorDiesel GeneratorNext to Sacramento School

By Daniel L. Cardozo

Though diesel backup gen-erators (BUGs) produce up to100 times more pollution thanconventional power plants,they are often clustered nearwhere people live, work, andgo to school.

A person’s lifetime cancer riskincreases by 50 percent if heor she lives near a single one-megawatt diesel generatorthat runs for as little as 250hours annually.

Diesel exhaust is responsiblefor more than 70 percent ofthe air toxin cancer risk in theUS, ten times higher than allother pollutants combined.

Diesel exhaust also hasnumerous serious noncancereffects—involving the respira-tory, neurological and immu-nological systems—andcontains smog precursors.

Fine particles in diesel ex-haust have been linked toasthma, cardiovascular andrespiratory problems, strokes,and heart attacks.

Diesel BUGs are far morelikely to be located near lowincome, elderly, and minoritypopulations.

A study of four CA schooldistricts (South Coast, SanDiego, San Joaquin ValleyUnified, and SacramentoMetro) estimates that morethan 150,000 children in theseregions may be exposed tounacceptably high diesel BUGemissions.

The Troublewith BUGs

29

Ana Sánchez-Camacho, her son, Awki, and daughter, Kukuli,pose in front of a diesel generator located 150 feet from theSacramento Waldorf School. Through their CEQA comments,Ana and other concerned parents ensured that the most ad-vanced emissions reduction technology available was installedand that the equipment would be routinely cleaned and main-tained.

Ian Douglas


Expert analysis indicated that the emissions from the diesel engine created acancer risk comparable to some of the largest pollution sources in NorthernCalifornia, including several of the Bay Area refineries. For example, thelargest pollution source in the Sacramento Metropolitan Air Quality Man-agement District database creates a cancer risk of 9 per million, and thecancer risk posed by Bay Area refineries ranges from 6 to 9 per million.The diesel engine that the Department was operating next to the SacramentoWaldorf School created a cancer risk of between 5.6 and 16.7 per million.

The Parents and the Coalition for Clean Air filed comments urging CEQAreview of the permitting decision and requesting installation of “best availablecontrol technology” (BACT) under the Federal Clean Air Act.

The CEQA process provided a forum for the provision of extensive expertcomments analyzing the project’s risks and proposing mitigation measures.Ultimately, the Department agreed to install advanced pollution controlequipment called a “BUGtrap” in order to make the backup generator saferfor the schoolchildren who would be exposed to diesel fumes.

The BUGtrap is capable of achieving a minimum reduction in emissions of75 percent for particulate matter; 85 percent for hydrocarbons; and 85percent for carbon monoxide. The manufacturer of this technology, CleaireAdvanced Emission Controls, donated the pollution control equipment.

The Department also agreed to conduct all routine maintenance and testingduring non-school hours to avoid exposing children even to the controlledemissions of the diesel engine.

This agreement was based on the requirement under CEQA that the projectproponents implement “all feasible mitigation measures.” In this case, thisrequirement proved stronger than requirements of the Clean Air Act be-cause the Air District would have been able to argue that the BUGtrap wasbeyond best available control technology required by the Clean Air Act.

BACT is defined by U.S. EPA and various air districts, and does not yetinclude the BUGtrap, since it is a very new and advanced technology forback-up diesel generators. However, the technology meets CEQA’s“feasible mitigation measures standard” because it is currently available, hasbeen used in practice on hundreds of diesel engines, and is cost-effective.

Ana Sánchez-Camacho, amother with a six-year-oldson and a nine-year-olddaughter at the SacramentoWaldorf School, was one ofthe main organizers ofWaldorf parents. “We didn’tknow that there was afunctioning diesel generatorsixty feet from where ourchildren were playing in thekindergarten yard.”

Many parents were shocked.“I think they expected theschool and the county to bevigilant in taking care of theirhealth and safety. Soon alarge number of parentsbecame concerned and gotengaged.”

“Our first major hurdle wasthat the Air Quality Manage-ment District didn’t have avenue to receive commentsfrom concerned citizens.They said we had to pay a$1,000 fee. Finally, ourlawyers helped us get thefee waived. Their expertiseand knowledge of the pro-cess was essential to us.”

Ana considers the installa-tion of new pollution controltechnology to be a victory forthe school. She hopes thatother communities neardiesel generators will learnfrom this example and useCEQA to demand the bestavailable technology toprotect their health.

Daniel L. Cardozo is a partner at Adams Broadwell Joseph & Cardozo. Mr.Cardozo’s firm provided pro bono representation to the Waldorf School Parents.

The California Air Resources Board has concluded thatstationary backup diesel engines pose one of the greatestthreats to human health of any common source of pollution.

30

Ian

Doug

las


CEQA Cleans Up California’sPOWER PLANTS

Modern power plants are less damaging to the environment than older

plants, but they still create numerousenvironmental impacts that can andshould be avoided. To centralizeefforts to protect Californiansagainst the ongoing effects ofpollution from power generatingfacilities, the state legislature estab-lished the California Energy Com-mission, a regulatory body thatoversees permitting for all newpower plants with generatingcapacity of at least fifty megawatts. As the CEQA lead agency, theCalifornia Energy Commission(CEC) is responsible for evaluatingall of the environmental impacts of aproposed power plant or plantexpansion, from the constructionstages to the daily operation andeventual plant retirement. TheCEC’s process invites communitymembers and organizations such as

California Unions for ReliableEnergy (CURE) to help identifypotential impacts and suggestnecessary improvements. Air qualityis often the largest area of concern. The authority derived from CEQAenables the CEC to require mitiga-

tion for significant air qualityimpacts of construction,including dust fromearthmoving and exhaustfrom constructionequipment. For example, theCEC now routinely requiresextensive watering to reducePM10 emissions duringconstruction and the use ofultra-low sulfur diesel andsoot filters on constructionequipment. These measuresgreatly reduce the impacts toair quality from the construc-tion process itself, and thereis usually no authority otherthan CEQA to limit theseimpacts.

The CEC can also ensurethat stack emissions, whichalmost always presentsignificant adverse impacts on thephysical and human environment,are mitigated. Some of these air

quality impacts often would not beaddressed by any otherregulations. For example, in caseswhere power plants fully complywith the requirements of the local airdistrict, there are still chances thatthe plants will generate air pollutionin neighborhoods outside of that

specific air district. Yet because ofthe CEQA process, the EnergyCommission can require the projectproponents to pay for emissionsoffsets near the pollution source andnear affected populations. Thisprocess helps to protect localcommunities from impacts that theair district may be unable toprevent. For example, when Midway PowerLLC, proposed the Tesla PowerPlant just inside the boundaries ofthe Bay Area Air Quality Manage-ment District, that Air District onlyspecified that required offsets forthe power plant had to be within the

By Marc Joseph

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When Midway Power proposed the TeslaPower Plant, CEQA protected air qualitydownwind in the Valley when no other

regulatory process was available.


Bay Area. CEQA analysis showedthat emissions would primarilyimpact downwind communities inSan Joaquin County, part of the SanJoaquin Valley Unified Air PollutionControl District (SJVAPCD).Because of its authority underCEQA, the CEC required thatoffsets be implemented in theaffected areas outside of the localair district’s jurisdiction. CEQAprotected air quality in the Valley

when no other regulatory processwas available. CEQA also allows the CEC toprotect fresh water supplies and themarine environment. Power plantscan require large amounts of waterfor cooling. This can deplete freshwater supplies and lower ground-water levels, which directly affectsother water users such as nearbyagricultural operations. Using itsauthority under CEQA, the EnergyCommission has started to requirepower plants to utilize reclaimedwater and sometimes a dry aircooling process, rather than thenormal fresh water cooling process.In the case of the Three MountainPower Plant, the CEC includedCURE’s request for a better coolingprocess design that reduced theplant’s groundwater consumptionby 80 percent. The CEC alsosometimes requires plants to use“zero discharge” cooling systemsthat both minimize water use and

Marc Joseph is a partner at AdamsBroadwell Joseph & Cardozo. Mr.Joseph’s firm represents CaliforniaUnions for Reliable Energy (CURE).

The Building Trades have seenwhat happens when environ-mental issues are not ad-dressed. During the late eight-ies, air quality was so bad inparts of the state that there wasa moratorium on large con-struction projects. The Clean AirAct requires withholding fundsfor highway projects if clean airstandards are not met. Somecommunities have reacted toenvironmental problems byprohibiting new development.Construction workers lose jobswhen the environment is notprotected. CEQA is one of themain tools for achieving sus-tainable growth in California. Bymitigating the effects ofprojects, CEQA protects theopportunity for sustainablegrowth.

Also, emissions from construc-tion are a direct danger to thehealth of construction workers.These emissions are not nor-mally regulated by air districts.CEQA is often the only protec-tion for construction workersand nearby residents. By requir-ing that the impacts be miti-gated, the health of constructionworkers, the people most atrisk, is protected.

Robert Balgenorth is president ofthe State Building and ConstructionTrades Council of California, AFL-CIO. The Council, representingmore than 200 local unions andregional councils, works to improvethe economic condition, health, andjob safety of approximately 400,000working men and women in thestate’s construction industry.

By Bob Balgenorth

CEQA & theBuilding Trades

prevent discharge of pollution intosurface water supplies. Through theexamination of cooling policies, theCEC has lessened the impacts oncoastal wetlands and fisheriescaused by the traditional “oncethrough” cooling process design.

CEQA also empowers the CEC toaddress the risks that toxic andhazardous materials pose to theenvironment and to worker health

and safety. Such was the case at theHigh Desert Power Plant, whereCEC required that the plant use lesshazardous aqueous ammonia toavoid the dangers of highly concen-trated anhydrous ammonia. Thisprotected the public and workersfrom the risk of an accidentalrelease of deadly concentrations ofammonia. Again, the only authorityfor the CEC’s requirement wasCEQA. From mandatory local air qualityoffsets to increased protection fromtoxic chemicals, none of theseessential improvements would bepossible without the tools providedby CEQA.

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From mandatory local air quality offsetsto increased protection from toxicchemicals, none of these essential

improvements would be possible withoutthe tools provided by CEQA.


Doreen Caetano-Jungk isgetting ready for anotherGRAPE (Goshen ResidentsAgainst Polluting the Environ-ment) meeting in her livingroom. “Goshen is a primarilylow-income community,” sheexplains. “We don’t have themoney to mail a newsletter.We walk from door to doorinstead.”

CEQA first entered Doreen’svocabulary when she at-tended a public hearing for aproposed slaughterhouse atthe edge of town. After thehearing, she and other resi-dents gathered to discusstheir concerns. When thosesame residents met withCaroline Farrell from theCenter on Race, Poverty andthe Environment, they de-cided to form GRAPE andhave been actively research-ing and speaking out ontopics of concern since then.

Soon after the County ap-proved the slaughter house,Doreen’s husband Ron toldher about the proposedethanol plants. Ron’s unionhad just hired a Berkeleyprofessor to write expertcomments on the proposedPixley ethanol plant, thirtymiles south of Goshen.

In early 2004, several companies proposed the construction of ethanol plants in the Central Valley. All of the plants were designed to produce ethanol from corn distillation to be used as a gasoline additive. Ethanol

makes gasoline burn more cleanly and also replaces toxic MTBE, which hasbeen banned due to groundwater contamination problems. A good productin many respects, the production of ethanol does, however, create emissionsof its own.

While there are currently no operating ethanol plants in California, manymid-western ethanol plants have been identified as major sources of airpollution and odors. For example, many ethanol plants built in the Midwestprior to 2000 had exceeded their air permits by hundreds of tons, and

nearby residents brought numerous nuisance suits because of odors fromthe plants. The United States Environmental Protection Agency suedseveral of the plants under the Clean Air Act to force them to install bestavailable control technology (BACT).

Tulare County prepared Negative Declarations for two new ethanol plantsin the summer of 2004. A “Negative Declaration” is a written statementbriefly describing the reasons that a proposed project will not have a

By Caroline Farrell and Richard Drury

Building BetterEthanol Plants


Construction continues on the Western Milling ethanol plant in Goshen, CA. The Pixelyplant will be built just thirty miles south.

Ronny Jungk

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When the ethanol plant pro-posal for Goshen came beforethe county, she helped orga-nize GRAPE members, metwith county officials, attendedpublic meetings, and preparedcomment letters.

Doreen found that her degreesin Special Education andAgricultural Sciences paid offwhen trying to decipher theEnvironmental Impact Reports.

“What really amazed methough, was that when Ishowed the planning staffexactly where the problemswere in their environmentaldocuments they thanked meand submitted the samedocuments to the countywithout any changes. I had tokeep attending public meetingsto make sure the agenciesfinally followed through. Didthey expect me not to keepshowing up?”

Several public agenciesclaimed they weren’t respon-sible. “We had to work hard toensure accountability. We toldthem in essence, the buckdoes stop here. It stops herewith you.”

The CEQA process openedDoreen’s eyes to the role of thepublic in civic life. “I’ll never beable to just sit in my yard andgarden and not be concernedanymore. I was naively thinkingthat the government would bebalancing all the issues. Now Iknow someone needs to bewatching to see that thoseissues are taken care of.”

significant effect on the environment and does not require the preparation ofan Environmental Impact Report (EIR).

This prompted attorneys representing Goshen residents and a consortium ofunions to file extensive legal and technical CEQA comments challenging theappropriateness of the Negative Declaration.

The commenters provided extensive expert comments on the environmentalimpacts of the ethanol plants and proposed feasible measures to reducethose impacts. After receiving the comments and holding several publichearings, the County urged the proponents of the plants and the commentersto attempt to resolve the environmental issues raised in the hearings andcomment letters.

Ultimately, theparties reached anagreement thatresulted in numerousmitigation measuresto reduce projectimpacts. Of particu-lar importance, theplants agreed toretain an independentconsultant to monitorvolatile organiccompounds (VOCs)from the wet mash orwetcake produced atthe plants. If volatileorganic compoundsare found to exceedtwo pounds per day, the companies agreed to install best available controltechnology to reduce emissions below that level. No emission factor cur-rently exists for these emissions and they would have gone unanalyzed andunmitigated under the County’s Negative Declaration.

The companies also agreed to implement measures to reduce particulatematter emissions during project construction. Because of CEQA, the plantswere allowed to proceed, while addressing their impacts on local air quality.

Caroline Farrell is an attorney with the Center on Race, Poverty and theEnvironment. Ms. Farrell represented GRAPE and other Central Valley residents intheir challenge to the Goshen ethanol plant.

Richard Drury is an attorney with Adams Broadwell Joseph & Cardozo. Mr. Druryrepresented Plumbers and Pipefitters Local 246 and the International Brotherhoodof Electrical Workers Local 100 in their challenge to the Pixley ethanol plant.


In the CEQA settlement agreement, the plant owners agreedthat if VOCs are found to exceed two pounds per day the plantwill install best available control technology to reduce emis-sions below that level.

Ronny Jungk

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CEQA has provided the onlymechanism to control constructionand mobile source emissions inCalifornia. Construction sitesexpose workers,nearby residents,and children toelevated concen-trations of dust anddiesel exhaust.Mobile sources,including vehiculartraffic, street sweeping, garbagepick-up and landscape maintenance,increase emissions after a project isbuilt, affecting air quality and publichealth in the local community.

These emissions are a seriouspublic health concern. Inhala-tion of particulate matter hasbeen linked to a range ofserious health problemsincluding an increase in respi-ratory symptoms and disease,lung damage, cancer, andpremature death. These healthimpacts are particularlyadverse for the most vulner-able segments of our popula-tion: the elderly, children, andpeople with respiratoryillnesses.

The CEQA process has beenextremely effective in minimizing airquality and public health impactsfrom construction and mobile sourceemissions associated with residen-tial, commercial, and industrialprojects. For example, in 2003, the

City of Richmond issued a Miti-gated Negative Declaration (MND)under CEQA to analyze a residen-tial project proposing severalhundred homes. A coalition of

labor unions and their membersreviewed the MND, submittedextensive comments on the projectand proposed additional mitigationmeasures to reduce the project’simpacts.

Expert analysis indicated that theproject would cause significantadverse public health impacts fromincreased dust and diesel exhaustemissions. These emissions wouldincrease the cancer risk in thesurrounding community, including anearby school. The project would

also expose workers and residentsto hazards associated with adjacentrailroad tracks and industrialfacilities. Feasible mitigationmeasures were proposed to reduce

these impacts.

Based on informa-tion disclosedduring the CEQAprocess, thedeveloper, the

City, and the unions reached anagreement to implement numerousadditional measures to reduce theproject’s impacts. The developeragreed to use ultra-low sulfur dieselfuel in all construction equipment to

reduce emissions duringconstruction. The developeralso agreed to apply water ordust palliatives and installgravel pads to minimize duston and off the constructionsite. The agreement alsorequired the developer toinstall high-efficiency particu-late air filters on all residencesin the project to improveindoor air quality. To reduceemissions from operation ofthe project, the developer

agreed to install EPA-certifiedfireplace inserts and to requirelandscape companies to use elec-tric-powered equipment. As aresult of the CEQA process, theproject will provide much neededhousing, while minimizing air qualityand public health impacts on thelocal community.

By Tanya A. Gulesserian

Reducing Construction andMobile Source Emissions

CEQA has provided the only mechanismto control construction and mobile source

emissions in California.

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Mobile sources, including vehicular traffic, street sweeping,garbage pick-up and landscape maintenance, increase emis-sions after a project is built, affecting air quality and publichealth in the local community.


The CEQA process has also beeneffective in minimizing air quality andpublic health impacts associatedwith construction and operation ofindustrial projects. In 1997, thePort of Oakland proposed toexpand its facilities tomeet the anticipateddemand for transportationservices in northernCalifornia and to servemarkets across the U.S.However, expansion ofthe Port facilities wouldincrease construction andmobile source emissionsin the already pollutedOakland area due toincreased ship, rail, andtruck traffic.

The Port and the U.S.Navy issued a DraftEnvironmental Impact Statement /Environmental Impact Report(DEIS/EIR) to analyze the project.Oakland area neighbors, repre-sented by Alan Ramo at the GoldenGate Environmental Justice LawClinic, submitted comments on theDEIS/EIR. However, the Portapproved the program withoutmajor changes, andthe case ended up incourt. Ultimately,the Port and com-munity membersreached a settlementin which the Portagreed to fund thehiring of an expert and to analyzespecific air quality issues in futureenvironmental review of specificprojects under the program.

In 1998, the Port issued a DEIRunder CEQA for construction offour berths planned in the expan-

sion. Expert analysis indicated thatconstruction of the berths andincreased truck and cargo trafficwould result in adverse public healthimpacts in the surrounding commu-nity. After extensive negotiations,

Oakland area neighbors and thePort reached an agreement toimplement additional measures toreduce the air quality and publichealth impacts from the project.

The Port agreed to use low-sulfurdiesel fuel to reduce diesel exhaustemissions from construction equip-

ment. The Port also agreed tocommit over $6.5 million dollars tosubsidize retrofit of diesel truckengines, cargo-handling equipment,and a tugboat with new enginesmeeting higher emission standards,or to add-on exhaust treatmentdevices to reduce particulate matter

and toxic emissions. In addition tomitigating a variety of other opera-tional features of Port facilities, theagreement included a commitmentto subsidize retrofit of diesel engineson some transit buses that operate

in West Oakland in orderto reduce cumulativeimpacts from increaseddevelopment in the area.For air quality mitigationmeasures for which thePort did not have theauthority to require imple-mentation, the Port allo-cated $7.5 million toencourage voluntary actionthrough financial subsidiesand similar incentives. Asa result of the CEQAprocess, the Port ofOakland will meet increas-ing demands for transpor-

tation services, while minimizing airquality and public health impacts onthe local community.

As these examples demonstrate, theCEQA process has been an invalu-able tool for controlling constructionand mobile source emissions andminimizing air pollution and public

health impacts inCalifornia.

Tanya A. Gulesserian is an attorney atAdams Broadwell Joseph & Cardozo.The firm represented constructionunions in the City of Richmond examplediscussed in this article.

Because of CEQA, the Port of Oakland willmeet increasing demands for transportation

services, while minimizing air quality andpublic health impacts on the local community.

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Construction sites expose workers, nearby residents, and children toelevated concentrations of dust and diesel exhaust.

CHAPTER 2The Urban Environment

See Pg...43

See Pg...51

See Pg...53

See Pg...55

CEQA Protects the Urban EnvironmentLouise Renne ................................................................ 39

CEQA and the Urban Park MovementRobert García & Jan Chatten-Brown ........................ 41

The Staples Center Arena and Its Neighbors:A Community Benefits Agreement

Jerilyn López Mendoza ................................................ 43

Forester Creek to Be Restored!Suzanne M. Michel ...................................................... 45

Damping Down Construction DustPCLF Staff ................................................................... 46

Infill, Housing Costs, and Public HealthRajiv Bhatia ................................................................. 47

Preserving Affordable Housing, Protecting CommunityMargaretta Lin ............................................... 47, Sidebar

Blocking Oil Drilling on California’s CoastCarlyle W. Hall, Jr. ..................................................... 49

CEQA Protects San Francisco BayMarshland, Regional Bay Trail

PCLF Staff ................................................................... 51

CEQA Brings Community Benefits to Hollywood and HighlandRoxana Tynan .............................................................. 53

Reducing Dangers from Hazardous ChemicalsPCLF Staff ................................................................... 55

TH

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THE URBAN ENVIRONMENT • THE URBAN ENVIRONMENT •

When we think of the California environment, it is all too easy to think

of our state's unique and beautifulnatural heritage: our magnificentcoastline, scenic bays, glaciatedmountains, towering forest cano-pies, rugged deserts, and more.

However, while Yosemite Valley orthe Big Sur coast may leap to mindas obvious symbols of California'senvironment, more than 70 percentof Californians live in highly urban-ized areas. For this reason, protec-tion of the urbanenvironment iscritical both to theeconomic future ofthis state and thequality of life of itsincreasingly urban-ized population.

What are urban environment issues?What makes California's citieshealthy and attractive places to live?Some answers to these questionsare obvious. The air quality in cities

needs to be healthy for families.We should be able to swim in ourpublic waters, especially close tourban centers. The residents ofCalifornia's cities should have cleanwater to drink and green spaces intheir neighborhoods for recreation.

Contaminated urban brownfieldsneed to be recycled to productiveuse, without exposing neighbors totoxic chemicals during the cleanupand removal of contaminants. Thetransportation of toxic chemicals tobusiness customers must be safe.

Residential areas should be bufferedfrom the negative health and otherimpacts of commercial and indus-trial activities, including idling dieseltrucks and ships, and emissionsfrom incinerators and refineries.Where large facilities are sitedwithin or adjacent to residentialareas, residents should have theability to ensure that the develop-ment will be done in such a way thatit minimizes negative impacts on the

community and, ideally, that it alsobrings direct benefits to the commu-nity that it impacts.

Urban Californians spend muchtime in their cars. Horrendoustraffic congestion has become a part

of everyday life, not only in LosAngeles and the Bay Area, but alsoin every urban area throughoutCalifornia. As people are choosingto move further and further fromurban centers where many jobs are,driven in part by housing prices butalso in search of a cleaner, quieter

environment, commute times havebecome almost intolerable.

Mass transit is onesolution, and it shouldgrow exponentially inour urban centers.Mass transit provideslow income residentswith critical mobility to

access jobs, schools, shopping, andother opportunities. It reducestraffic congestion, improves airquality, and should help manyCalifornians spend less time in theircars and more time with theirfamilies.

CEQA Protects theUrban Environment

By Louise Renne

We have to attract people back toCalifornia’s urban centers by protectingand improving the urban environment.

CEQA has been an essential tool for thosededicated to creating and preserving greenspaces within urban neighborhoods. Readmore on page 41.

A CEQA settlement for the Los Angeles Cen-tury Freeway created the city’s first metroline, and required the construction of afford-able housing. Read more on page 111.

Centtury Housing

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• THE URBAN ENVIRONMENT • THE URBAN ENVIRONMENT

Another critical solution is toprovide more housing opportunitieswithin urbanized areas. Our state isexpected to grow by 18 millionmore residents by 2025. Already,sprawling development is consum-ing important habitat and agriculturallands at an unsustainable rate. Thissprawl imposes its own costs onresidents,including longercommutes anddegraded air andwater quality. Ifwe are topreserve thequality of life for urban residentsand the natural heritage of our state,we have to attract people back toCalifornia's urban centers. To dothis, we must protect and improvethe urban environment.

Our urban areas still include naturalareas such as bays and estuariesthat are not only scenic, but alsoserve significant environmentalvalues. We have many great urbanparks, and the urban parks move-ment is growing. Urban creeksand streams, long neglected, arenow the objects of a growingrestoration effort.

We have laws in California toencourage sound urban planning;and we have many public servantswho are dedicated to protectingand enhancing the urban environ-ment. Yet, there is only one statutethat requires a systematic examina-tion of the environmental impacts ofprojects proposed for urban areas.That statute is and has been CEQA.

CEQA will examine the effects of aproject on urban parks, on baysand estuaries, on air quality, onwater quality, on exposure to toxicchemicals, on transportation oppor-

tunities, and on other issues ofimportance in urban communities.It gives communities an opportunityto be heard. Most importantly, theCEQA process will examine waysto mitigate the harmful effects ofprojects and to redesign projects tobe more environmentally friendlyand compatible with communityneeds.

The application ofCEQA in theurban contextcould not be moreimportant. If weare to succeed in

channeling our growing populationinto urban communities, those futureresidents will want an attractiveurban environment. Success in thatchallenge is critical not only forthose future residents and for theurban environment, but it is alsoessential if we are to have any hopeof protecting the great naturalheritage of California that is outsidethe cities.

Louise Renne was City Attorney of SanFrancisco from 1986 to 2001. Ms.Renne served as a deputy AttorneyGeneral from 1967 to 1978 and was amember of the Environmental Unit. Shewas appointed to the San FranciscoBoard of Supervisors in 1978 andserved on the Board until she becameCity Attorney. Ms. Renne is currently apartner at the San Francisco law firm,Renne Sloan Holtzman & Sakai.

CEQA has been an important tool for preserv-ing affordable housing in San Francisco. Readmore on page 47.

Robin Doyno

Historic St. Vibiana’s Cathedral (above), indowntown LA, was saved from demolition byCEQA. It will be adaptively reused as a per-forming arts venue. Read more on page 157.

Luis

Sinc

o, LA

Tim

es

CEQA empowered a Northeast LA community to stop the construction of an industrial develop-ment at the old Taylor rail yard (left). Instead, the site is to become part of the 103 acre StatePark at Taylor Yard (right), a project that will revitalize the neighborhood and contribute to thegreening of the LA River. Additional community input ensured that the park would meet theneeds of an urban community by providing both natural areas and recreational facilities liketennis courts and soccer fields. Read more on page 41.

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There is only one statute that requires asystematic examination of the environmentalimpacts of projects proposed for urban areas.

That statute is and has been CEQA.


Raul Macías, founder ofNortheast LA’s non-profitAnahuak Youth Soccer Asso-ciation, provided criticalcommunity support in the fightagainst industrial developmentat Taylor Yard. By mobilizingthe 1,400 Anahuak soccerplayers, ranging in age fromfour to seventeen years, heensured that the concerns ofthose living in the neighbor-hoods around Taylor Yardwould be heard. Further, asthe only community-basedorganization to join the CEQAlawsuit against the proposedwarehouse complex, Macíasand Anahuak let the state’selected officials know that theneeds of young people inurban LA could not be ignored.

Macías, who emigrated fromMexico over thirty years ago,began promoting youth soccerin 1994, after a group ofneighborhood kids asked him,as a local business owner, todonate $30 a week to helpthem pay for referees andother expenses. He agreedon one condition: that theyouths come by each week totell him the results of thegame.

The California EnvironmentalQuality Act has been acritical tool for the urban

park movement that is transformingthe Los Angeles region into a moresustainable, democratic, and justcommunity. The movement hasengaged in strategic campaigns tocreate a thirty-two acre state parkin the Chinatown Cornfield in theheart of downtown Los Angeles, aforty acre state park in Taylor Yardalong the Los Angeles River as partof a planned 100 acre park, and inthe Baldwin Hills as part of a twosquare mile park that will be thebiggest new urban park in theUnited States in over a century.

The history of the State Park in theCornfield demonstrates the impor-tance of CEQA to the urban parkmovement. Initially, the City of LosAngeles and developers proposed awarehouse project on the aban-doned rail yard in the Cornfield, thelast, vast open space in downtownLos Angeles, with significant tax-payers’ subsidies for the developersand without full environmentalreview.

A diverse alliance stopped thewarehouse project and persuadedthe State to buy the land and createa park instead. The alliance usedCEQA as part of a strategic cam-paign that included a collective vi-sion for parks, playgrounds,schools, and transportation; coali-tion building drawing on the diversevalues at stake; public educationand advocacy outside the courts;strategic media campaigns;multidisciplinary research and analy-ses on public finance, demograph-

ics, history, and law; and litigationas a last resort.

Advocates secured the support ofthe community, a Cardinal of theCatholic Church, GuatemalanNobel Peace Laureate RigobertaMenchú, a Cabinet member in theClinton administration, GovernorGray Davis, and the state legislativeleadership to make the dream of apark come true. The Center forLaw in the Public Interest organizedthe civil rights challenge that claimedthe warehouse project was the re-sult of discriminatory land-use poli-cies that had long deprived minorityneighborhoods of parks and recre-ation. The community within fivemiles of the Cornfield is 68 percentHispanic and 30 percent live inpoverty.

When the alliance was not able topersuade the City to require fullenvironmental review on the ware-house project, members of the alli-ance filed a CEQA suit in statecourt and an administrative com-plaint under federal civil rights andenvironmental laws. In response,then-HUD Secretary AndrewCuomo refused to provide any sub-sidies for the warehouses withoutfull environmental review that con-sidered the park alternative and theimpact on communities of color andlow income communities.

This prompted the developers tostrike a deal with the alliance, set-tling the litigation. If the alliancecould persuade the state to buy theCornfield for a park, the developersagreed to withdraw the warehouseproposal. If not, the alliance would

By Robert García and Jan Chatten-Brown

CEQA and the Urban Park Movement


Nobel Peace Laureate Rigoberta Menchú is hon-ored at the Tournament of Liberty and Peace bychildren of the Anahuak Association with (left toright) director Raul Macías; Robert García,Executive Director of CLIPI; and LA City Council-man Antonio Villaraigosa.

41


withdraw their opposition to thewarehouses. In a win-win victoryfor all the people of the Los Angelesregion, the alliance persuaded thegovernor and state legislature to buythe site for a park using funds frombonds passed in 2000.

In addition to creating playing fieldsand open space in a neighborhoodthat has none, a park in the Corn-

field will help improve the quality oflife, create quality jobs, increasetourism, increase property values,promote economic revitalization ofthe community and preserve invalu-able cultural and historic resourcesat the birthplace of Los Angeles.

The Los Angeles Times called theCornfield victory “a historic monu-ment” and “a symbol of hope.”

Drawing on the lessons of theCornfield, a community coalitionstopped an industrial/retail projectin Taylor Yard. Members of thecoalition filed a successful CEQAsuit demanding a full EnvironmentalImpact Report as part of a strategiccampaign. The court agreed aftertrial, leading to a settlement in whichthe state bought the site for a statepark as part of the greening of thefifty-one mile Los Angeles River.

An imminent CEQA suit over aproposed sixty-five acre develop-ment in the Baldwin Hills resulted inthat parcel becoming part of theplanned two-square mile park in thehistoric African-American heart ofLos Angeles. The Center has alsoled efforts to stop a power plantand a garbage dump in the park.

Easily accessible to millions ofpeople, and with stunning views ofthe Los Angeles basin, the PacificOcean and surrounding mountains,the Baldwin Hills offers an extraor-dinary opportunity to create aworld-class park and natural space.A remarkable variety of nativeplants and wildlife persist withinsight of downtown Los Angeles,with more than 160 bird species,

and fox, raccoon, and other wildlife.The park in Baldwin Hills will bebigger than Golden Gate Park andCentral Park.

Fundamental, democratic valuesunderlie CEQA and the urban parkmovement: the need for informationso people can understand the im-pact of public policy decisions ontheir lives, and full and fair publicparticipation for people to decidethe future of their community forthemselves and future generations.Los Angeles is park poor, and thereare unfair disparities in access toparks based on income, race,ethnicity, and access to cars.CEQA is helping the urban parkmovement ensure the fair distribu-tion of parks, recreation, and otherpublic goods for all.

Macías eventually took overcoaching the team: “They keptlosing,” he says, “week afterweek. They were goodplayers but they needed acoach. They needed some-body to push them to dothings right, to show themhow to be winners.”

As one team grew into twoand then three, the Anahuakorganization was born.Macías realized that he’d beenpresented with a real opportu-nity: “I wanted to give thesekids an alternative to drugsand gangs and crime. I coulduse soccer as a hook to keepchildren off of the streets,children whose families can’tafford to pay for league feesand equipment.”

Macías joined the Coalition fora State Park at Taylor Yardbecause he recognized it assimilar opportunity: “In theend, it had nothing to do withsoccer fields,” he says.“These parks, they’re aninvestment, an investment inour community and in ouryoung people. We can teachour children about nature, torespect nature, to love openspaces, fresh air, and trees.”

“The people,” he continues,“are excited—the real people,who never believed it waspossible, the gardeners andmechanics. They feel veryhappy. ‘It’s a dream,’ they say.‘We’re going to have a parkright here. I don’t believe it.’”

Robert García is Executive Director ofthe Center for Law in the PublicInterest in Los Angeles, CA(www.clipi.org). The Center hasworked and published extensively onthe urban park movement.

Jan Chatten-Brown is the principal ofa small, public interest oriented lawfirm (cbaearthlaw.com) specializing inland use, environmental, and naturalresource law.


Fundamental, democratic values underlieCEQA and the urban park movement.

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The Staples Center Arena & Its Neighbors:A Community Benefits Agreement

By Jerilyn López MendozaLiving Wage Jobs:70 percent of new jobs will beunionized and/or pay a livingwage.

Local Hiring / Job-Training:50 percent of new jobs will behired locally through a commu-nity-run job-training and place-ment center funded with$100,000 from the developer.

Affordable Housing:A minimum of 20 percent ofhousing units must be afford-able to low income people. Inaddition, the developer willprovide a $650,000 revolvingloan fund at 0 percent interesttowards the building of newaffordable units by communitynon-profits.

Parks and Recreation:The developer will provide$1 million for parks and recre-ation facilities within a one mileradius, and between $50,000and $75,000 to involve com-munity members in siteidentification and planning.

Environmental Planning:An ongoing Coalition AdvisoryCommittee will address suchissues as construction, traffic,pedestrian safety, wastemanagement, air quality, and“green” buildings.

Parking:The developer will help toestablish preferential parkingand pay resident parking costsfor five years.

The STAPLES CENTERCommunity BenefitsAgreement provides:

From the SAJE.net website.

In spring 2000, the developer of the Staples Center in Los Angeles, home to the Lakers, Clippers and Kings, presented the outline of a proposal for a Sports and Entertainment District to the Los Angeles

City Council. The massive, twenty-seven acre project included plans for twohotels, a 6,000 seattheater, up to 800market-rate housingunits and thousands ofsquare feet of officeand retail space.

For many residents inthe surrounding neigh-borhood, the presenta-tion was not cause forcelebration. Theyworried that while theywould suffer thenegative consequences of such a massive undertaking—air pollution fromconstruction equipment, displacement from nearby affordable housing,increased traffic and decreased pedestrian safety, and more security prob-lems—they would see few of the benefits.

After several months of talking to each other about the project, the predomi-nantly low-income neighboring residents and community leaders cametogether through the Figueroa Corridor Coalition for Economic Justice. Theyapproached the developer and asked for the opportunity to present theirconcerns directly, as well as their ideas of how the development couldbenefit them to offsetthe burdens of thedevelopment.

As those informaldiscussions began,the Coalition alsobegan drafting aformal response tothe Draft Environ-mental Impact Report(DEIR) the developerhad prepared for theexpansion. Environ-

Residents from the surrounding, predominantly low-incomeneighborhoods feared that they would disproportionately sufferthe impacts from the massive sports and entertainment facility.

Robin Doyno

The Staples Center project included plans for two hotels, a6,000 seat theater, 800 market-rate housing units andthousands of square feet of office and retail space.

Robin Doyno

43


Lizette Hernández works forStrategic Action for a JustEconomy (SAJE), coordinatingthe implementation of theCommunity BenefitsAgreement (CBA).

“When the Staples projectcame up for CEQA review, itcaused nearby residents toask, ‘Will our livelihoods bethreatened? Will employeeshave a living wage? Will thehousing be affordable to ourfamilies?’ It broadened thespectrum of how a project canbenefit our community,” sheexplains.

CEQA was essential in mobi-lizing support for the CBA. “ForFigueroa residents, especiallythe low-income tenants whowere going to be displaced byeminent domain, having anavenue to express the needsof their community inspiredthem to create the visionbehind the Agreement.”

The tangible benefits of theAgreement are already evidentin the CBA-funded FigueroaCorridor Jobs Program - aSAJE pilot program promotinglocal hiring.

Lizette speaks highly of hercounterparts on the StaplesCenter Staff. “We think thattheir professionalism withregards to the CBA isoutstanding. People feel theirown sense of power when thislevel of accountability exists intheir community.”

mental Defense’s Environmental Justice Project, a Coalition member, tookthe lead in coordinating the comments. The document included traditionalenvironmental issues, such as worries about air pollution and its link to localresidents’ health and suggestions for the inclusion of green building prin-ciples. Beyond those concerns, the comments incorporated Coalitiondiscussion of the expansion’s impact on redevelopment plans and affordablehousing for the area, thus combining the environmental and economic justiceissues together. Most importantly, the Coalition’s DEIR comments high-lighted the DEIR’s failure to address energy concerns at all. As this wasearly 2001, during California’s “rolling blackout” energy crisis, it seemed aglaring omission.

Faced with a united community front and a potentially legally deficient DEIRthat could lead to both political and legal opposition to the project, thedeveloper began a formal, five-month negotiation process with the Coalitionthat resulted in a comprehensive Community Benefits Agreement, a legally-binding legal settlement requiring a broad range of community benefits to beincluded in the project. In exchange, the Coalition members agreed to notsue the developer over the expansion plan unless the commitment to benefitswas not met. In this way, the developers met with over twenty-nine commu-nity and other organizations simultaneously, enabling them to plan for allobstacles up front and deal with problems as a package, and the impactedresidents were assured of specific benefits from the agreement.

The result was that the Sports and Entertainment District sped through thedevelopment process, winning approval and public support in record time.Meanwhile, community residents will see more parks and open space, morequality jobs, and more affordable housing than in any project before in LosAngeles.

The negotiations were mutually beneficial, according to Ted Tanner, Vice-President for Real Estate Development at AEG. “Our goal…was to win truesupport and advocacy for the project,” Tanner told the Los Angeles Times.“Their goal was the same—to see if we could make this project better andimprove benefits for the community.”

Jerilyn López Mendoza is an attorney and Policy Director for EnvironmentalDefense’s Environmental Justice Project Office. Working with community groups andother stakeholders, Ms. Mendoza coordinated the coalition’s comments to the draftEIR for the Staples Arena expansion.

By working with the community to prepare a benefitsagreement, the Sports and Entertainment District sped

through the development process, winning approval andpublic support in record time. Meanwhile, community

residents will benefit from the resulting parks and openspaces, quality jobs, and affordable housing.

44


At first glance, Forester Creek in Santee, California looks like one of many abandoned creeks in our suburbs, with putrid, cloudy water, trash, and exotic plant infestation. However in the springtime, life

somehow finds its way to this seemingly blighted area of the city. Cliffswallows travel thousands of miles from South America every year to forageand live in the creek.

In 2002, the City of Santee and the Federal Highway Administration pro-posed to convert this haven for swallows to a sterile concrete channel.Concrete channelization was the once preferred choice of creek manage-ment in Southern California. Transportation agencies converted waterwaysinto concrete channels and drained adjacent wetlands to allow shorter, lessexpensive bridges over creeks, and easy flood control near freeways.

However, channelization leads to its own set of problems. Channelization ofForester Creek upstream of Santee, in the City of El Cajon, resulted inincreased flooding and pollution in the downstream cities of Santee and SanDiego. Nevertheless, the February 2002 Environmental Impact Report(EIR) for the “Forester Creek Improvement Project” proposed completingconcrete channelization of Forester Creek through Santee down to itsdischarge point, the San Diego River. The primary reason for channelizationwas a proposed freeway project crossing the creek.

This time, however, the San Diego Regional Water Quality Control Boardresisted a proposal to destroy another wetland in the name of cost-effective-ness. The Board refused to release the requested $4.8 million dollars ofProposition 13 water quality bond funds for the project. Santee residentsalso weighed in on the EIR, insisting on restoration of the creek instead ofchannelization, and citing the success of the City’s recently completedriverpark project for the San Diego River.

Ultimately, the City of Santee and the Federal Transportation Agency re-examined the EIR, and in May 2003, a creek park and bike path systemthat would connect with the San Diego River Park became the preferredalternative. Given the tremendous support for creek restoration by Santeeresidents, City of Santee planners are examining other abandoned creeks inthe City for restoration potential. Even Santee’s Mayor Randy Voepel, whostrongly supported concrete channels and freeways in streambeds, is now anenthusiastic fan of creek restoration.

Suzanne M. Michel holds a Ph.D. in water resources geography. Currently Ms.Michel is an adjunct faculty of the Department of Marine Science and Environmen-tal Studies at the University of San Diego, where she teaches environmental lawand policy.

Forester Creek To Be Restored!

“Would a restoredForester Creek Parkwith California Sycamoresand migratory bird species

encourage visitorspending in Santee?

Would a creek with runningwater and cool shadeservices provided by

wetland vegetation reducelocal energy costs

during hot summer daysand increase private

property values?Would a well-planned bike

path in Forester Creekbring a sense of

community pride tothe city of Santee? Numer-ous Santee residents andbusiness owners wouldanswer yes to these

questions.”

By Suzanne M. Michel

- From an editorial in the San DiegoUnion Tribune, by Suzanne M. Michel.

Residents enjoy a walking path along theSan Diego River. Thanks to CEQA, theFederal Highway Administration aban-doned plans for concrete channelizationof nearby Forester Creek. Community in-put has resulted in plans for a park andbike path system along the creek, con-necting to the San Diego River Park.

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In California, construction dust poses a serious threat to human health and the environment.

Typical releases of construction dustoccur during the grading, excava-tion, demolition, road building, andother earthmoving activities onconstruction sites, as well as duringnormal travel by constructionequipment on unpaved roads. Amajority of construction dust isclassified as Particulate Matter 10(PM10), particles equal to orsmaller than ten micrometers, whichincludes aerosols and fine to coarsedust particles. Such particles cancontain compounds of nitrogen,sulfur, and asbestos which traveldeep inside our breathing passage-ways and can eventually enter thebloodstream.

Construction activities are usuallylimited in duration, but even tempo-

rary dust emissions from construc-tion can provoke asthma and lungillnesses. Chronic bronchitis,emphysema, and heart disease canbe triggered by prolonged exposureto the PM 10 content ofconstruction dust. TheHealth Effects Institute,jointly supported by theU.S. EnvironmentalProtection Agency andIndustry, has conductedmany studies showing theassociation of PM10with increased mortalityand morbidity rates in theUnited States.

According to the BayArea Air Quality Man-agement District (BAAQMD),particulate emissions from construc-tion activities can reduce visibility,impair breathing, and soil exposedsurfaces, posing a significant nui-sance concern to nearby sensitivereceptors.

CEQA is one tool for addressingconstruction dust impacts at aproject or plan level. Many local AirDistricts in California have devel-oped CEQA guidance documentsto provide lead agencies withfeasible control measures foraddressing construction dustimpacts, such as watering all activeconstruction areas, limiting con-struction hours, planting vegetation,using soil stabilizers, and othererosion control techniques. Cities,counties and other CEQA leadagencies often use their authority

under CEQA to implement thesePM10 control measures. CEQA isoften the only basis that theseagencies have to limit dust fromconstruction.

As Suzanne Bourguignon of theBAAQMD explains, “Our commit-ment is to achieve clean air toprotect the public’s health and theenvironment. CEQA provides uswith the opportunity to review localprojects and plans and to provideguidance to lead agencies on howbest to mitigate potential air qualityimpacts of those projects and plans.Through the implementation of ourmitigations-based approach tocontrolling construction dust, leadagencies have been able to signifi-cantly reduce the localized impactsof PM10 from construction activi-ties and their associated healthrisks.”

Damping Down Construction DustDamping Down Construction DustDamping Down Construction DustDamping Down Construction DustDamping Down Construction Dust


CEQA is often the only measure that pro-tects workers from health hazards relatedto construction dust.

Fine dust particles from construction sites can triggerchronic bronchitis, emphysema, and heart disease. CEQAhas been used to ensure that developers employ propermitigation strategies, minimizing the health risks faced byworkers and nearby residents.

46


Today, many propose infill develop-ment as an antidote to urbansprawl. Infill development can limitenvironmental costs resulting fromthe inevitable population andeconomic growth of our cities andprovide an alternative to dep-endence on automobiles. Yet, infilldevelopment also raises importantissues about fairness and the well-being of established central cityneighborhoods.

If done right, development can meetthe needs of both the environmentand central city communities bring-ing new housing, jobs, and publicrevenues and addressing long-standing economic isolation. How-ever, if decision-makers do notaccount for the needs of establishedresidents, development may createnew vulnerabilities for health and theenvironment.

An importantrelationship existsbetween thedevelopment ofcentral citycommunities andthe adequacy of housing. In manyplaces, communities are facingsignificant shortages both of verylow and moderate-income housing.For example, in San Francisco, only7.3 percent of households canafford the median sale price of ahouse, and the fair market rent for atwo bedroom apartment is $1,904,affordable only to those who make90 percent of the average family’smedian income of $86,100.

Unmet housing needs result fromboth new development and eco-

nomic factors. Because of de-industrialization, many new employ-ment opportunities provide lesssecurity, poorer wages, and fewerbenefits than the jobs they replace.At the same time, younger profes-sionals and “empty nesters” arecreating new housing demands andsupporting higher housing costs.Developers do respond to this newdemand, but typically only for thosewho can afford market-ratehousing.

Rising housing costs have importantconsequences for health and wellbeing. Low-income populationsmust make difficult choices amongrent, food, clothing, and medicalcare. Low-income householdstypically work longer hours or atmultiple jobs to afford rent, reduc-ing time for sleep, recreation, and

family. Somelow-incomehouseholdsaccept unsafe orcrowded condi-tions, resulting inexposure to coldor heat, lead

based paint, inadequate ventilation,and mold.

Because of a combination ofincome gaps, housing costs, anddemolition or conversion of rentalunits, infill development can causecommunity displacement, withadditional costs to health. Dis-placement results in psychologicalstress, which can affect the humanimmune and endocrine systems andincrease infection rates. For chil-dren, relocation can lead to emo-tional and behavioral problems.

Infill, Housing Costs, and Public HealthBy Rajiv Bhatia

Infill development can bebeneficial, but it may dis-place the poor and disruptlong-standing communities.

For example, one proposednew development in WestOakland would provide 1,600new market-rate housingunits along with commercialuses. However, it woulddemolish part of a historicTrain Station and displacelow-income residentsthrough market forces. The16th & Wood Train StationCoalition, led by Just CauseOakland and the Coalition forWest Oakland Revitalization,is seeking inclusion ofaffordable housing and otherchanges to the project.

CEQA has provided a valu-able process for communityresidents to organize, voicetheir concerns, and holddecision-makers account-able. In this way, CEQA hashelped us carry out ourmission of alleviating sys-temic roots of poverty andinjustice.

Margaretta Lin is Director ofCommunity Economic Develop-ment for the East Bay CommunityLaw Center. Ms. Lin provides legalrepresentation for grassrootsefforts on land use and develop-ment justice, including the 16th &Wood Train Station Coalition.

By Margaretta Lin

PreservingAffordable Housing,

Protecting Community

If decision-makers do notaccount for the needs ofestablished residents,

development may create newvulnerabilities for health and

the environment.

47


High housing costs and forceddisplacement can result a loss ofsocial networks which providematerial and emotional support,buffer stressful situations, preventdamaging feelings of isolation, andcontribute to a sense of self-esteemand value. Displacement alsocontributes to segregation byconcentrating poor families in poorneighborhoods, increasing thepopulation at risk for failure atschool, teenage childbearing,tuberculosis, cardio-vascular disease,poor mental health,homicide, and pre-mature mortality.

Recognizing the high health costs ofunmet housing needs, in 2002, theSan Francisco Department ofPublic Health began to conductHealth Impact Assessments ofdevelopment projects and neigh-borhood land use plans. Theseefforts challenged city planningofficials to analyze a broader set ofhuman impacts through the CEQAprocess.

The first application of HIA in-volved a proposed 1600 unit high-rise residential development indowntown. Project proponentsargued that the project met bothCity housing needs and smartgrowth objectives; however, theproposed housing units would beaffordable to few of the City’sworking households. Furthermore,new commercial and retail uses andcity services might increase housingdemands for low wage workerswho would not be able to afford tolive in the new development. In ouranalysis, we described the healthand environmental consequences ofdisparities between housing costsand income, including longer

commutes, increased air pollutionand roadway congestion, and thehuman costs of unmet housingneeds. City Planning Commission-ers ultimately approved the project,but an elected official used ouranalysis in successfully negotiatingfor additional developer-fundedaffordable housing.

In a second application, we cri-tiqued a proposal to demolish andreplace an apartment complex with

367 rent-controlled units withmarket-rate condominiums. Be-cause the demolition involved a netincrease of housing units, officials atthe Department of City Planningfirst determined that it would nothave adverse impacts on populationor housing. According to oneplanning official, CEQA requiredanalysis of only the project’sphysical changes—that is thebuildings themselves—and not thepeople who occupied them.

Both apartment residents andsupportive community organizationsvigorously challenged this position,arguing that displacement wouldmean difficulty for residents infinding replacement housing and theloss of a cohesive community. TheDepartment of Public Healthprovided an analysis of the healthand social costs of displacement inwritten comments. We also pub-lished a technical report, whichreviewed the health impacts ofhousing affordability and residentialdisplacement and impact assess-ment best practices for assessingimpacts on housing costs and

residential displacement. Based onour research, planning officialsrequired the developer to considerthe project’s impacts on residentialdisplacement in the EIR. Ultimately,the project developer, faced withcriticism of the project by commu-nity organizations and politicalleaders as well as new EIR require-ments, offered lifetime leases to thecurrent residents at current rents attheir present rates. He also offeredto delay demolition until the re-

placement unitswere built.

Our Departmentcontinues to worktowards an ac-

counting within the CEQA processof the health consequences ofimpacts on housing, transportation,and public infrastructure such asschools, community centers, parks,and public spaces. We are alsoworking to train and supportcommunity organizations to engagewith planning analysis and to buildsupportive and trusting relationshipswith city planners, business leaders,and sponsors of developmentprojects.

This work reflects the simplepremise that all public policy makingshould take into account direct andindirect impacts on human health.Overall, our efforts in San Fran-cisco suggest that such accountingmay significantly influence urbanland use policy. CEQA has pro-vided us with one tool for beginningto make this happen.

Rajiv Bhatia, MD, MPH, is the Directorof Occupational & EnvironmentalHealth at the San Francisco Depart-ment of Public Health.

This work reflects the simple premise that all publicpolicy making should take into account direct and

indirect impacts on human health. CEQA has providedus with one tool for beginning to make this happen.

48


In 1969, Union Oil’s Platform Aexperienced an uncontrolledblowout in the Dos Cuadrasfield, approximately five milesfrom the Santa Barbara coast.Currents carried the spill—which lasted twelve days andamounted to 80,000-100,000barrels of crude oil—primarilywest, toward the SantaBarbara. Eventually, it spreadover 800 square miles ofocean, coating thirty-five milesof coastline with up to sixinches of oil.

Clean-up efforts began almostimmediately. Because thedamage was so extensive,the local community providedan unprecedented level ofassistance. People of all agesand backgrounds helped inany way possible: using strawto absorb the oil as it washedonto shore, scrubbing rocksand seawalls, and attemptingto save oil-soaked birds athastily set-up rescue stations.

While the ecological impact ofthe Union oil blowout wascatastrophic, the public’sgenerous and impassionedresponse to the spill inaugu-rated an era of heightenedenvironmental awareness,both in California and nation-wide. This change in attitudehad profound consequencesfor offshore drilling in thestate, including:

• The creation of the CaliforniaCoastal Commission bystatewide initiative;

Shortly after the Supreme Court’sseminal CEQA decision in Friendsof Mammoth was issued in Sep-tember 1972, the City of LosAngeles was presented with one ofthe first tests regarding whetherlocal governments would have thepolitical will to comply with thenewly announced EnvironmentalImpact Report (EIR) requirements.The test involved a proposed“wildcat” oil drilling exploration atthe edge of Santa Monica Bay nearWill Rogers State Beach.

CEQA at the state level. Theentire purpose of these statutes wasto ensure that, before such riskypotentially environmentally damag-ing activities are pursued, adequatestudies must first be undertaken toensure that environmental consider-ations are at the forefront of anagency’s decision and that allfeasible mitigations are imposed.

Yet now, shortly after Friends ofMammoth ruled that local govern-ments must prepare EIRs before

making decisions that maysignificantly impact theenvironment, Los Angeleswas proposing to allowOccidental Petroleum to setup exploratory drilling rigs ata beach location just a fewmiles south of the SantaBarbara disaster. It seemedinconceivable to the leadersof No Oil, Inc. that the Citycould approve the proposeddrilling without an EIR.

Going to court for No Oil,lawyers with the Center for

Law in the Public Interest (CLIPI)showed that the oil drilling wouldtake place immediately east ofPacific Coast Highway at the baseof a highly unstable cliff with four-teen active landslides, including thenotorious “killer slide” that hadkilled a Caltrans engineer who wasattempting to remediate it. Both thelocal Board of Zoning Appeals andthe Planning Department’s hearingexaminer had recommended against

The Union Blowoutand Offshore Drilling

Blocking Oil Drillingon California’s Coast

By Carlyle W. Hall, Jr.


Just a few years earlier, the infa-mous “blowout” and extensiveensuing environmental destructioncaused by oil drilling operations offthe Santa Barbara coastline hadgalvanized the environmentalmovement to declare that similarenvironmental horrors should neverhappen again. The political mo-mentum created by these unfortu-nate events led directly to passageof NEPA at the federal level and

49

The City of LA approved oil drilling exploration nearWill Rogers State Beach (above) without an EIR. TheCA Supreme Court determined that the case was an“excellent example” of the type of situation where anEIR would provide valuable information about the po-tential environmental impacts.

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• A State Land Commissionban of offshore drilling thatlasted for sixteen years, untilintervention by the ReaganAdministration;

• The strengthening offederal and state regulationsgoverning oil drilling.

Still, the contentious issue ofoffshore drilling in Californiahas not yet been put to rest.The Bush Administration hasconsistently endeavored toerode the traditional defer-ence given to state agencieswith regards to the environ-mental impacts of drilling andother activities along theircoasts, giving greater influ-ence to federal agencies.After twice failing to overturna district court decisionupholding the Coastal ZoneManagement Act, a lawgranting states the authorityto review federal actions thatmay impact their coasts, theadministration has begunattempts to fundamentallyalter the CZMA.

Public opinion in California isfirmly opposed to the idea ofoff-shore drilling, as is theDemocratically-controlledState Legislature. Further, inhis bid for office, GovernorSchwarzenegger spokeunequivocally against drillingin the State’s coastal waters.

provide valuable information to thecitizenry and decision-makers aboutthe potential environmental impactsof a controversial project. The

Court also described the type ofcareful preliminary process bywhich public agencies should makethe initial determination whether toprepare an EIR or a written Nega-tive Declaration.

Following the Supreme Court’s NoOil decision, Occidental Petroleumkept a fence around its oil drillingequipment at the site for manyyears. Meanwhile, controversycontinued to rage. Mayor TomBradley, whose opposition to thedrilling was a key plank in hissuccessful run for the first of his fourterms as Mayor, was later pleasedto discover that his then rival,former Mayor Sam Yorty, who hadstrongly pushed the Oxy drillingapplication through the City’sbureaucracy, admitted to acceptingfavors from Occidental. Ultimately,Occidental agreed to deed the siteto the City, and the City thereuponincorporated the land into theadjacent Palisades Park.

the drilling because the risks, suchas blowouts and landslides, weretoo great. Further, if Oxy’s explor-atory drilling found supplies of oilextending under SantaMonica Bay, both state andfederal governments mightfind it necessary to allow off-shore drilling in order toprevent their reserves frombeing depleted by Oxy’ssubsequent production.Nonetheless, followingstormy public hearings, theCity Council had narrowlyvoted eight to seven to approve thedrilling.

Rushing to beat the effective date ofProposition 20 (the Coastal Act),Occidental began construction of itsdrill rigs just one day prior to thedate by which the Act wouldrequire a permit from the newCoastal Commission. CLIPI’sattorneys filed an emergency appealto the California Supreme Courtseeking a stay of the drilling. The

Court granted the petition in early1973 and Occidental then haltedconstruction.

Two years later, the case found itsway back to the Supreme Court fora ruling on the merits. The Courtdetermined that the case presentedan “excellent example” of the typeof situation where an EIR would

For more information about theSanta Barbara oil spill, see:The Santa Barbabra Oil Spill,A Retrospective, by K. Clarke andJ. Hemphill.


Carlyle W. Hall Jr. is a Partner at AkinGump Strauss Hauer & Feld. Mr. Hallrepresented the plaintiffs in this case.

David

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Davidson Library Special Collections, UCSB

Written by PCLF Staff.


On cool mornings you can see and hear the marsh birds swooping and chattering. Gentle waves lap lazily along the shoreline. Hikers and bikers pass bird watchers on a multi-use trail, heading to the nearby

regional park. Because of CEQA, this idyllic scene may soon become areality for the citizens of Richmond and the entire San Francisco Bay Regionon a parcel of land called the Breuner Marsh.

The Breuner property is a unique combination of upland prairie and coastalmarsh located on the south eastern edge of the San Pablo Bay in the City ofRichmond. It sits just across the railroad tracks from the historic African-American community of Parchester Village, developed after World War II toprovide housing for shipyard workers who were restricted from buyinghouses elsewhere in the area. Community leader Whitney Dotson explains,“Prior to Parchester Village being built in 1949 there was an understandingthat Breuner marsh would remain open space. It was part of an agreementbetween the developer, the African American community leaders, and the Cityof Richmond in exchange for their help in recruiting members of their congre-gations to move to the neighborhood. Unfortunately, those commitments areconstantly being challenged.”

The 238 acre property contains one of the largest remaining marshes in thenorthern section of the San Francisco East Bay, along with the largest remain-ing intact coastal uplandprairie in the entire BayArea. It also provides theonly possible path for theBay Trail, a 500 milenetwork of paths beingdeveloped to link all nineBay Area counties and theadjacent Point PinoleRegional Park, a 2,315acre park that has been aprimary recreation area inWestern Contra CostaCounty since the 1970s.When a San Jose develop-ment company proposed building a commercial center that would cut off trailaccess to the regional park, the community responded in full force, advocatingfor preservation of the site and developing a campaign to purchase the land.

In 2002, the developer, Davis & Associates, sought approval from theRichmond city planning department to build a commercial center called theEdgewater Technology Park on the Breuner Marsh property. They also

CEQA Protects San Francisco BayMarshland, Regional Bay TrailWhitney Dotson (pictured

on the following page) isintimately familiar withBreuner Marsh. His father,the late Reverend RichardDaniel Dotson, was one ofthe earliest residents ofParchester Village and oneof the first advocates for thepreservation of the area.Whitney, now fifty-nine, hasfollowed in his father’sfootsteps. A communityleader and ParchesterVillage resident, he has ledefforts to protect the Breunermarsh.

The marsh has been a defacto park for the communityfrom its earliest days.Whitney remembers swim-ming and fishing there as achild in the early 1960s.Even after some of thechannels were illegally filledin the 1970s, Parchesterresidents still crossed therailroad tracks to enjoy thissacred nearby open space.

Since the late 1960s, Dotsonhas seen repeated attemptsto develop the land, first asan airport and later forindustrial uses and housing.Each time, the communityrallied to stop the develop-ment plans. In recent CEQAhearings over the EdgewaterTechnology Park, the com-munity coalesced into aunified force, advocating forpermanent protection of thisspace.

For Dotson, CEQA and theprinciples of environmental


The Breuner property lies between San Pablo Bay to theWest, Point Pinole Regional Park to the North, andParchester Village to the East. CEQA allowed the public toexpress their concerns with the Edgewater Technology Parkproposal for this marsh and upland area.

Bruce Beyaert

51


proposed a for-profit wetland mitigation bank, where other developerscould fund restoration activities to offset the impacts of their own projects.Unlike other shoreline developers, Davis and Associates excluded a con-necting spur to the Bay Trail, effectively creating a half mile break in theTrail, even though pre-existing city plans called for a Bay Trail connection.

The Richmond planningdepartment received volumi-nous comments on the Envi-ronmental Impact Report(EIR) from over nineteengroups, including the East BayRegional Park District, theTrails for Richmond ActionCommittee (TRAC), the SierraClub, Communities for aBetter Environment, and theParchester Village Neighbor-hood Council. The residents

of Parchester Village made it clear that the negative effects of the project,including increased noise levels, decreased air quality, traffic in surroundingcommunities, obstruction of panoramic views of San Francisco Bay, and theloss of this valuable community resource were unacceptable.

Responding to public comment, City of Richmond planningstaff reversed their original approval of the project andrecommended that the city council set up a taskforce andspecial review body to re-examine the EIR.

With the community united to preserve the land, the devel-oper decided not to pursue the project. The East BayRegional Park District is considering purchasing the landwith the help of the North Richmond Shoreline Alliance, acommunity group formed during the EIR process. Locallegislators are looking at ways to secure funding for thispurpose.

As Bruce Beyaert of TRAC explains, “Since 1989, BayArea governments have been working together to build theBay Trail. Yet, Point Pinole Regional Shoreline, which is thelargest shoreline park in the entire Bay Area, has remainedisolated without any Bay Trail connections. Breuner Marshrepresents one of the last steps in a fifteen year process.Thanks to CEQA we were able to express those concernsto our local government. This was a victory for Richmondand the entire San Francisco Bay Region.”

justice have been essentialtools to demonstrate theeffects of a development onadjacent communities ofcolor.

“Exhaust fumes from carson the Breuner property sitewould blow right into ourcommunities, where wealready have some of thehighest asthma rates in thestate. We would also havethe most to lose if the BayTrail was blocked, since wewould be the most frequentusers of that section. WithCEQA we had a legitimatepublic process to addressthese concerns and now itlooks like the marsh mayfinally be protected.”


Written by PCLF staff.The Edgewater Technology Park would have cut off accessto the Bay Trail, a network of paths connecting all nine BayArea counties.

Association of Bay Area Governments

Whitney Dotson, a leader of the Parchester VillageNeighborhood Council, explains the importance ofBreuner Marsh to local students.

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CEQA Brings Community Benefitsto Hollywood and Highland

By Roxana Tynan

Over the last twenty-five years, several projectswere proposed for the

northwest corner of the HollywoodBoulevard and Highland Avenueintersection. The first project,proposed in the eighties by MelSimon, met with significant andjustified community opposition.Community members filed a lawsuitvia CEQA, which eventually helpedto kill the project. The idea for amajor new commercial project thenlay dormant until the mid-nineties.

At that point, Jackie Goldberg wasthe Councilmember for the area.She had come to office determinedto ensure that new developmenthappened—if it brought with itmajor community benefits such asquality jobs, local hiring, job train-ing, housing and neighborhoodservices. When she was firstelected, the business community inthe neighborhood of Hollywoodwas nervous that Jackie wouldstand in the way of new projects.She made it clear, however, that ifthe business community understoodthat new development had to lift allboats, she would fight hard to makeit happen.

Towards the end of Jackie’s firstterm, she was approached byDavid Malmuth, representing thereal estate behemoth, Trizec-Hahn.Malmuth had a vision for theproject that made sense, and hewas willing to negotiate a packageof community benefits. This projectwould represent the first experiment

in that kind of negotiation. Malmuthunderstood that a project of thissize—over 675,000 square feet ofcommercial space—would requiresignificant community support inorder to win approvals.

The project was designed to have aregional draw, and also to be aplace to capture the imaginations oftourists. The Hollywood Chamberof Commerce had completed atourist survey, which found thatmost tourists were extremely

disappointed by their Hollywoodexperience. As a result, the Citywas not capturing many of thosedollars, as there were few placesfor tourists to spend outside of ahandful of T-shirt shops.

Malmuth was true to his commit-ment to engage all community

members impacted by the project.He met and negotiated with all ofthe hillside homeowner associations,and he met with local residentsinterested in ensuring that theproject would provide quality jobs.He also met with a team of localarchitects and designers appointedby Goldberg to influence the designof the project. The developersorganized community meetings inaddition to those already requiredby the City to ensure that everyonehad an opportunity to weigh in onevery aspect of the project.

As a result, the project Environ-mental Impact Report was com-pleted and approved in roughly 6months—an astonishing record forthe City of LA. The developeragreed to a number of communitydemands: that all the jobs on theproject be governed by a localhiring agreement with a goal that 30percent of the jobs would go toresidents nearby. For the construc-tion jobs, they reached 20 percent,and for the permanent jobs, theyreached above 60 percent of hirescoming from the zip code in whichthe project was located.

The developer also agreed that anydirect or subcontracted employees,such as security guards, janitors,parking lot attendants, or workersin the Kodak Theater, would becovered by the City’s Living WageOrdinance. The agreement in-cluded money for job training, and acommitment to bring in retail tenantswho paid a living wage. Of particu-

53

CIM

Gro

up, I

nc.

The Hollywood and Highland project was designedto capture the imagination of tourists. CEQA en-sured that the surrounding community benefitedas well.


Roxana Tynan works for the LosAngeles Alliance for a New Economyon the question of holding developersaccountable to the communities inwhich they build.

lar importance, the developersagreed not to interfere with work-ers’ rights to organize, as a result ofwhich the hotel workers, janitors,parking lot attendants and theaterworkers hired locally are coveredby union contracts with good wagesand health benefits.

In addition to all the job conces-sions, the developer agreed to alengthy series of environmental

mitigations and design changes.One of the environmental mitiga-tions included installing a new trafficlight system at over 100 intersec-tions in Hollywood in order to easetraffic. The developer also createda program to subsidize publictransportation for employees at theproject.

What made the project differentwas that, for the first time, issues ofeconomic justice were beingaddressed in addition to environ-mental issues. In many ways,CEQA paved the way for this newreality by reframing the debateabout development. It’s not justabout profits, it’s also about people.Including the economic and socialissues in the development process isthe next logical step.

CEQA provides a process bywhich developers can undertake tooutreach to the community which,by building support for their project,can help them win necessaryapprovals. Developers that do notengage constructively in the CEQA

process can suffer delays or moresignificant setbacks to their projectif they encounter organized commu-nity opposition. In this case, thedeveloper took the high road andreceived approvals in record time.

We clearly have further to go. Thedevelopment process remainsconfusing and opaque for mostcommunity members. We needmuch more transparency in that

regard. We also need to institution-alize setting standards for develop-ments which cover economic aswell as environmental issues.

****

Epilogue: Trizec-Hahn lost moneyon the project due to constructioncost overruns and the impact ofSeptember 11th on the touristeconomy (the project opened inNovember of 2001) and the projectis now owned by the CIM Group.The City of LA, however, is alreadyreaping significant tax benefits, andthe environmental and economicmitigations have ensured that thecommunity benefited also. Thosemitigations played no part inTrizec’s losses.

Photos courtesy of CIM Group, Inc.

Hollywood & Highland SiteBefore Construction

Early Construction

Final Buildout

The Completed RenaissanceHollywood Hotel

54

For the first time, issues of economic justice werebeing addressed in addition to environmental issues.

In many ways, CEQA paved the way for this newreality by reframing the debate about development.

It’s not just about profits, it’s also about people.


Ammonia is a toxic chemi-cal used for a variety of industrialand agricultural purposes, includingpollution-control equipment onrefineries and power plants. Inhalingammonia can cause severe respira-tory injuries and can burn the skinand eyes. It is fatal in large concen-trations. Although the liquid form,called aqueous ammonia, limitsthese risks, many commercial userscontinue to request the moredangerous anhydrous ammoniawhich can create low-hanging toxicclouds when accidentally released.

Every year trucks carrying thou-sands of gallons of anhydrousammonia travel across California’sfreeways, passing by commercialdistricts and residential neighbor-hoods. For example, a single powerplant near Bakersfield requires thedelivery of 750,000 pounds ofanhydrous ammonia per year from asupplier halfway across the state inStockton. Delivery routes can crossareas with population densities of3,000 individuals per square mile,creating large vulnerable popula-tions far removed from the site ofusage.

A number of studies have found thattransportation of anhydrous ammo-nia poses a significant risk to thecommunities that border thesesupply routes. In addition to explo-sions from collisions and accidents,anhydrous ammonia bearing trucksare occasionally susceptible tosupply line leaks and hose failurewhich can slowly release thepressurized gas for several minutes.

Reducing Dangers fromHazardous Chemicals

Although the chances of a cata-strophic accident are small, theaffected area can stretch for nearlysix miles.

Because the CEQA processrequires an assessment of toxicchemicals, more and more industrialsites are switching to aqueousammonia to limit the risk to theirworkers, neighbors, and the envi-ronment. In 2000, the Elk HillsPower Plant agreed to substituteanhydrous ammonia using aqueousammonia with a concentration ofless than 20 percent and develop asafety management plan for deliver-ing ammonia. After substantialtestimony from environmental riskconsultants, the Sunrise power plantagreed to a similar plan the follow-ing year. Without CEQA, therewould have been no regulatorybasis to require switching to thesafer form of ammonia.

Of course, while the switch fromanhydrous to aqueous ammonia hasreduced hazards, CEQA review isalso needed to address the hazardspresented by aqueous ammonia.

Hydrogen fluoride(or hydrofluoric acid) is a highlycorrosive acid used at some oilrefineries, in a process that boostsgasoline octane, and in the manu-facturing of refrigerants and othercompounds. HF vapors are knownto form dense, fuming cloudscapable of etching glass and causingsevere damage to human skin and

lung tissue, and even death. Ac-cording to state health officials, HFis so toxic that the release of ateaspoonful in a 500 square footroom would immediately cause arisk to life and health.

In 1987, an explosion and fire at theMobile Oil Refinery in Torranceresulted in the accidental release ofHF. That same year, an HF acci-dent at the Marathon Refinery inTexas City, TX, sent over a thou-sand people to the hospital andcaused the evacuation of approxi-mately 4,000 people in the sur-rounding, predominantly low-income and minority communities.These accidents underscore thedangers of HF use to those living innearby neighborhoods.

In subsequent years, CEQA studiesfor multiple refinery modernizationprojects (Mobil’s in Torrance,Ultramar’s in Wilmington, andPowerine/CENCO’s in Santa FeSprings) and a pesticide manufac-turing plant expansion (at the DowChemical facility in Pittsburg)examined the potential impacts ofHF transportation, storage and use.CEQA-related public comments forthese projects highlighted the risksof HF, often leading to the imple-mentation of important mitigationmeasures. Indeed, aside from onethat shut down, all of the facilitieshave since phased out HF entirely,or have adopted measures thatreduce HF risks.


55

CHAPTER 3Planning

See Pg...57

See Pg...61

See Pg...63

See Pg...67

CEQA Improves PlanningTal Finney .................................................................... 57

CEQA and the Coastal ActMeg Caldwell ................................................. 57, Sidebar

Setting the Precedent: CEQA Applies to SprawlCarlyle W. Hall, Jr. ..................................................... 59

CEQA Slows the March of Sprawl in AntiochSeth Adams ................................................................... 60

Protecting the Grassland Ecological Areathrough Better Planning

Daniel L. Cardozo ........................................................ 61

Working for Waterfowl and Habitat Conservation at GrasslandDouglas T. Federighi ..................................... 62, Sidebar

Saving the San Diego BackcountryPCLF Staff ................................................................... 63

The Problem with Rural SubdivisionsRobert Johnston ............................................. 63, Sidebar

CEQA, Fringe Area Growth and the LA County General PlanCarlyle W. Hall, Jr. ..................................................... 65

Modesto’s Cutting-Edge Use of the General Plan Master EIRPatrick Kelly ................................................................. 67

PLA

NN

ING

56

P L A N N I N G • P L A N N I N G • P L A N N I N G • P L A N

Through planning, communities have the opportunity to identify and resolvecommunity issues about growth, determine appropriate use of water andland resources, anticipate future demands for services, avoid potentialproblems, and establish the vision for a community’s future. Good planningcan only develop with the active participation of those who live and work ina community and the various agencies responsible for land use and resourcedecisions.

General Plans are the foundation for all local land use planning in California.Other more specific land use plans, zoning ordinances, and resource policiesflow from a community’s general plan.1

Although California has an elaborate system for planning in statute, there islittle funding available to implement comprehensive, front-end planning bylocal government agencies. As a result, many general plans throughoutCalifornia are considerably out of date or have so frequently been amended

that the original vision isno longer intact.

Citizen participation in thedevelopment of generalplans is a requirement ofState law. However, as isoften the case with limitedfunding for planning,citizen participation maywell be less than optimum.Visioning processes,

workshops, and other popular means of improving community involvementin planning are costly and staff intensive and many do not survive whenbudgets are tight. The “minimum-required” approach to citizen participationin the planning process, forced on many local governments by fiscal re-straints, also undermines the value of the outcome of a planning process.

The lack of local government funding for planning has not slowed develop-ment. Instead, developers have filled the fiscal void, proposing and advocat-ing for specific plans or amendments to outdated general plans in order topermit proposed new developments. While California forbids developers topay for general plans, state law permits developer reimbursement for spe-cific planning. As a result, the system of deliberative, community-based localplanning envisioned by state planning law has become strongly influenced bythe interests of property owners seeking to develop their land.

Implementing California’scoastal protection program isnot easy. Land use planningand regulation are fundamen-tal to the California CoastalAct, the organic law thatgoverns the state’s premiercoastal management pro-gram. In carrying out the law,the California Coastal Com-mission (CCC) is subject toCEQA and must make com-pliance findings though it isnot responsible for Environ-mental Impact Reports(EIRs). The Commission’sprogram has been certified as“functionally equivalent”because of the analyses andfindings required pursuant tothe Coastal Act.

While the CCC does not do orrequire EIRs, its environmen-tal stewardship work benefitsgreatly from them, as well asfrom mitigated negativedeclarations. CEQA docu-ments provide invaluableinformation that the twelveperson CCC relies on in itsdecision-making. Especiallyimportant are comments from

CEQA and theCoastal Act

CEQA Improves PlanningBy Tal Finney


By Meg Caldwell

57

N N I N G • P L A N N I N G • P L A N N I N G • P L A N N I N G

The price of this lack of community-based planning is evident all aroundus—longer commutes because housing opportunities are insufficient close toworkplaces, increased air pollution resulting from long commutes, limitedinvestment to create adequate transit choices, substantial stress on watersupplies, and losses in agricultural lands and habitat at the edges of urbanareas.

In the face of this breakdown in comprehensivecommunity planning, CEQA has come to play anincreasingly important role as a backstop whereplanning fails to address and resolve the real issuesfacing Californians today. General plan adoption andamendment are subject to the California Environ-mental Quality Act (CEQA), as is the approval ofmost planning and development projects. CEQArequires analysis of the environmental impacts ofdevelopment projects, both at the project level andin terms of larger programs, such as specific plans for development in part ofthe community or regional plans for infrastructure. In particular, CEQA’scumulative impact analysis requirement has become a surrogate for compre-hensive, community-wide planning in many cities and counties. CEQA hasalso become the vehicle to ensure coordination between local governmentagencies with land use authority and resource agencies responsible forprotection and management of natural resources.

CEQA requires that the impacts of plans and projects be analyzed anddisclosed to the public. More importantly, from the perspective of cash-strapped local governments, CEQA requires that environmental reviewdocuments be paid for by the project proponent. Thus, CEQA is a criticalavenue for funding the development of information about proposed projects,their environmental impacts, mitigation options, and alternatives. By provid-ing a means for the disclosure of project information and alternatives, and areal avenue for public participation, CEQA strengthens the hand of bothlocal governments in ensuring that proposals take community needs andinterests into account, and resource agencies in helping projects considergood stewardship of natural resources in project decisions. It also empow-ers communities and revenue-generating businesses by giving them a voicewhen local funds are insufficient to ensure a meaningful process pursuant toplanning law.

other public agencies and thepublic, providing valuable dataand highlighting issues CCCstaff had not thought of.Additionally, the level of detailand graphics are often muchbetter in CEQA documentsthan the CCC can produceespecially relative to issuessuch as visual impacts, aswell as historical and ar-chaeological resources.Technical data, includingappendices to EIRs, ofteninclude information critical toCoastal Act review. Ex-amples include data associ-ated with dredging and habitatrestoration projects.

A great number of projectsbefore the CCC have beenimproved or changed to avoidadverse environmental im-pacts identified through theCEQA review process. In arecent case involving redevel-opment of Los AngelesInternational Airport, CEQAdocumentation was pivotal inthe CCC’s ability to protectenvironmentally sensitivesand dune habitat. Similarly,expansion of the SantaBarbara airport resulted inimportant wetland restorationand protection measuresidentified through the CEQAprocess. Indeed, CEQA hasproved to be an invaluable toolin coastal conservation.

Meg Caldwell is the Chair of theCalifornia Coastal Commission.Ms. Caldwell is also a Lecturer onLaw, Stanford Law School, and theDirector of Stanford Law School’sEnvironmental and Natural Re-sources Law and Policy Program.

Tal Finney, a partner in the law firm of Dongell Lawrence Finney LLP, has workedextensively on land-use issues and policy in both the private and public sectors.Mr.Finney served as the state’s chief planner in his capacity as Director of theGovernor’s Office of Planning and Research from 2001-2003, served as the Directorof Policy to the Governor’s Office from 1999-2002, and served a short stint as theDirector of the Office of Administrative Law, the state’s chief regulator, among otherposts before returning to the private sector to focus on land-use, environmental,energy, and corporate law.

Footnote: 1Zoning ordinances in charter cities are an exception, though most chartercities follow the consistency practice.


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The California SupremeCourt’s six to one decisionin Bozung v. Ventura

County Local Agency FormationCommission (LAFCo) nullified theannexation of the 677 acre BellRanch to LAFCo activities.

Without preparation and consider-ation of an Environmental ImpactReport (EIR), the VenturaCounty LAFCo had ap-proved the annexation ofprime agricultural land for theproposed development of a10,000-person “mini-city.”The City of Camarillo and theLAFCo argued that an EIRwas not required at that earlystage in the land use planningprocess, that the information in itwould only be repeated in laterEIRs, and that an EIR before theLAFCo would be “wasteful anduninformative.”

Representing the plaintiffs, lawyersfrom the Center for Law in thePublic Interest (CLIPI) contendedthat the LAFCo decision whether toapprove an annexation is a keypoint in the land use decision-making process and can haveimportant environmental conse-quences. In its 1975 ruling, theSupreme Court agreed with CLIPIobserving, “The purpose of CEQAis not to generate paper, but tocompel government at all levels tomake decisions with environmentalconsequences in mind.”

Two years later, the proposedannexation application returned to

the Ventura LAFCo, this time with afull EIR. The EIR showed that theproposed urbanization of the BellRanch would:• Replace hundreds of acres of“highly productive” and “economi-cally viable” prime agricultural landwith urban residential uses, depriv-ing Ventura County of jobs and taxrevenues averaging about $1.2

million annually, and contributing tothe deterioration of adjacent agri-cultural lands.• Require very heavy publicexpenditures for construction ofnew schools, sewage systems,roads and fire and police facilities.• Many alternative developmentsites within the existing Camarillocity limits presented far feweradverse environmental impacts andno necessity for developing newfringe area infrastructure.

When the proposed Bell Ranchannexation came before the LAFCoagain in 1977, residents from allover the County used the EIR todocument their case against theproject. Several LAFCo Commis-sioners recognized the importanceof the EIR in their decision. Onenoted that information of the sort

marshaled in the EIR required theCommissioners to look at the factsobjectively, “not as politicians,” andto vote in accord with the purposeof the laws. The final vote againstthe annexation was unanimous.

Besides its obvious importance instopping a dramatically large urbansprawl project, the Bozung decision

has had an enormous influ-ence in the way LAFCos goabout making their decisions.As the regional agencyauthorized to approve ordisapprove city and specialdistrict formations andannexations, LAFCosexercise very importantpowers. CEQA provides

them with information about themany ways those decisions mayhave very practical (albeit indirect)environmental and infrastructureimpacts.

Beyond this, the Bell Ranch annex-ation was one of the first successfulefforts by Ventura County agricul-tural and environmental interests toband together to combat wide-spread proposed urbanizationwithin the agricultural areas of thatCounty. More recently, this alliancehas seen its SOAR initiative andother efforts dramatically reduceurban development intrusions intothe County’s agricultural regions.

Setting the Precedent:CEQA Applies to Sprawl


Carlyle W. Hall, Jr. is a partner in thelaw firm of Akin Gump Strauss Hauerand Feld. In 1971, Mr. Hall co-foundedthe Center for Law in the PublicInterest (CLIPI), where he was the leadattorney in the Bozung litigation.

59

“The purpose of CEQA is not togenerate paper, but to compel

government at all levels tomake decisions with environ-

mental consequences in mind.”

– From the CA Supreme Court’s1975 Bozung Ruling


Specific Plan would have eliminatedthe greenbelt that separated Antiochfrom Brentwood, in effect blendingthe two towns and forever destroy-ing the existing wildlife corridors.Traffic problems would be magni-fied, with some estimates as high as140,000 more car trips a dayeventually funneling onto Hwy 4.

The plan would have turned therugged Higgins Ranch area into asubdivision, exposing residents tothe hazards of nearby sand and coalmines as well as potential landslidesand high fire risks. In spite of thesedangers, the city was prepared toallow the requested zoning changes.When the Draft EnvironmentalImpact Report (DEIR) was re-leased for public review, it gener-

CEQA Slows the March ofSprawl in Antioch

Located on the eastern edge of the Bay Area, within commuting distance of the

Bay Area and Sacramento, Antiochhas been the site of rapid suburban-style growth for the last forty years.It has doubled in population since1980 to over 100,000 residents,leading to severe reductions of openspace, damage to endangeredspecies habitat and some of theworst traffic congestion in the statealong Highway 4.

As these quality of life concernsgrew, and the development propos-als continued, the citizens of Antiochbegan to demand an end to sprawl.Because of the public processprovided by CEQA, the city councilrecently abandoned one of theworst sprawl development propos-als in Antioch in recent years: theSand Creek Specific Plan.

In 2002, the city council of Antiochwas presented with a proposal for amassive 2,700 acre development atthe southern edge of town ofapproximately 4,900 residential andcommercial units. The push south-ward described in the Sand Creek

ated intense community interest.The city council received extensivepublic comments on the DEIR fromcommunity based organizations andlocal agencies, including the EastBay Regional Park District, de-scribing the harmful effects of thenew expansion.

Citing “significant budgetary con-straints” and a change in the City’spriorities, the city council suspendedthe processing of the Sand CreekSpecific Plan indefinitely.

According to David Reid ofGreenbelt Alliance, the abandon-ment of the plan marks a majorvictory. “CEQA brought muchneeded attention to this sprawlproposal. It opened people’s eyes.We must continue our vigilance tomake sure the city protects itselffrom more poorly planneddevelopment.”

Seth Adams is Director of LandPrograms at Save Mount Diablo, whichhas acquired land and responded todevelopment proposals around the SanFrancisco East Bay’s Mount Diablosince 1971.

By Seth Adams

Higgins Ranch seen from Black Diamond Mines Regional Preserve. Only one quarter of the 2,700 acre project area is visible. According toDavid Reid of Greenbelt Alliance, “CEQA brought much needed attention to this sprawl proposal. It opened people’s eyes. We must continueour vigilance to make sure the city protects itself from more poorly planned development.”

Scott Hein

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Higgins Ranch was slated for development un-der the Sand Creek Specific Plan.

Scott Hein


Standing at the eastern end ofPacheco Pass in 1868 on hisinitial trek to Yosemite, John

Muir described the plain that laybefore him as knee-deep in “onecontinuous bed of honey-bloom.”The San Joaquin’s meanderingriparian forest offered the only relieffrom the flowery carpet of Muir’scelebrated “bee-pastures.” Afterarriving at the forest’s edge, Muirwalked for miles under a greatcanopy of cottonwood, sycamore,willow, box elder and valley oak.Crossing the river at its confluencewith the Merced, Muir marveled atthe “fine jungle of tropical luxuri-ance” as he proceeded east on hisportentous journey.

The landscape that inspired Muir’slyricism now lies within the 180,000acre Grassland Ecological Area(GEA) in western Merced County,encompassing California’s largestremaining freshwater marsh com-plex. The GEA includesseveral federal and statewildlife refuges, a statepark and the largestblock of privately ownedand managed wetlands inCalifornia. The privatelands are managedprimarily for migratory waterfowland other wildlife by the approxi-mately 200 hunting clubs thatoperate within the GEA.

Today the GEA serves as a majorwintering ground for Pacific Flywayspecies. Its diverse and intercon-nected habitats support large nativemigratory and resident wildlifepopulations, including a substantial

and growing number of threatenedand endangered species. The U.S.Fish and Wildlife Service andinternational treaties formallyrecognize the GEA as a resource ofnational and internationalsignificance.

Apart from its biological impor-tance, the GEA provides substantialeconomic and employment benefitsto Merced County and surroundingcommunities. A recent study jointlysponsored by the Grassland WaterDistrict, the Great Valley Center

and the Packard Foundation foundthat direct expenditures by publicand private land managers in theGEA, combined with expendituresrelated to hunting and other recre-ational uses, contribute almost $50million annually to the localeconomy and account for 800 jobs.

Despite its importance, perennialproposals to develop lands within

the GEA or the critical buffer zoneadjacent to the core habitat continu-ally imperil the restoration effort.Habitat fragmentation and degrada-tion from encroaching urban devel-opment remain the greatest threat tothe long-term viability of theresource.

Five separate planning and permit-ting jurisdictions have adoptedspheres of influence or projectedgrowth boundaries that directlyconflict with the GEA boundary orthat extend into the sensitive transi-tional lands. No regional planningprocess or state regulation guides orcoordinates local land use decisionsor otherwise protects the GEA fromincompatible development.

CEQA is the only mechanism forcomprehensive and coordinatedland use and resource planning inthe GEA. It has played an indis-pensable role in enabling the resto-

ration of the resource byinforming and influencingdecision-making on a longseries of developmentproposals in or adjacentto the GEA. Even moreimportant for the long-term, the CEQA process

is shaping relevant General Planpolicies to take into account theprotection of the GEA.

Beginning in the mid 1980s, large-scale residential developmentproposals appeared for the firsttime in this formerly remote region.More recently, rural subdivisions,industrial and institutional develop-ment, a local airport and a high

Protecting the Grassland Ecological AreaThrough BETTER PLANNING

By Daniel L. Cardozo

The last twenty years have clearlydemonstrated that land use planning

informed by meaningful CEQA review isour only hope of preserving this uniquelegacy of California’s native landscape.

CEQA has been critical in protectingCalifornia’s largest freshwater marsh fromencroaching development.

Daniel Cardozo

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speed rail line and station have beenproposed in the GEA. Severalprojects proposed east of LosBanos within a narrow biologicalcorridor linking the northern andsouthern refuge lands have been ofparticular concern.

The assessment of these projectsunder CEQA has served essentialplanning objectives. It has allowedfor consultation between the agen-cies responsible for resourcemanagement within the GEA andthe agencies responsible for landuse planning and permitting. It hasprovided local jurisdictions withlimited staff and financial resourcesaccess to sophisticated scientificand expert analysis from a variety ofsources. It has created a forum forprivate refuge managers, waterfowlhunting and habitat conservationgroups, agricultural interests andother stakeholders to inform localdecision-makers of the biological,economic, and recreational signifi-cance of the GEA, an area thatlocal planning authorities had largelyignored.

The original research and technicalanalysis presented in the successiveCEQA project assessments hasproduced a detailed portrait of theGEA and its needs. It has alsoidentified the significant and un-avoidable effects that would resultfrom urban encroachment. Thecumulative impact analysis preparedwith these assessments has effec-tively bridged a fragmented localplanning process by requiringconsideration of projects outside ofthe lead agency’s jurisdiction and byensuring that the needs of the largerGEA ecosystem are taken intoaccount.

As a direct result of the informationdisclosed though CEQA, everymajor development proposal in theGEA biological corridor or in thetransitional agricultural lands hasbeen either rejected by local land-use decision-makers, abandoned byapplicants or deferred for furtherstudy. These CEQA studies havealso fostered a greater understand-ing and appreciation of the GEA’sbroader importance by localdecision-makers, which in turn isinforming long-range planningdecisions.

In 1999, the City of Los Banossubstantially revised its General Planto establish a new eastside urbanlimit line and to redirect urbanexpansion away from the GEA.CEQA’s mandate for integratedplanning and environmental reviewalso enabled the City, through theGeneral Plan Environmental ImpactReport, to develop a number ofspecial policies designed to protectthe natural resources that lie justbeyond the City boundary.

The GEA is a remnant of a vastCentral Valley wetland ecosystemthat once covered 4 million acres.With 95 percent of this habitat lostto urban and agricultural develop-ment, the continued restoration andprotection of the GEA is criticallyimportant. The last twenty yearshave clearly demonstrated that landuse planning informed by meaningfulCEQA review is our only hope ofpreserving this unique legacy ofCalifornia’s native landscape.

I have been hunting in thegrasslands of Merced Countyfor more than 50 years. Overmy lifetime I have seen wildlifehabitat and hunting groundseliminated one after the otherthroughout northern California.

The Grassland Ecological Areaprovides one of the last re-maining major waterfowlconservation and huntingareas in the state. My fellowlandowners and I have in-vested our private dollars andworked with public resourcemanagement agencies topreserve and enhance thisarea.

Our labors are finally showingresults in the diversity of ducksand other wildlife and in theincreasing recognition of theimportance of this resource.

If our sport hunting tradition isto survive in this state, wemust protect the grasslandsfrom the same fate suffered byso many of California’s formerwild places.

Daniel L. Cardozo is a partner withAdams Broadwell Joseph & Cardozo.Mr. Cardozo has represented theGrassland Water District on land useand environmental matters since 1989and has served as its General Counselsince 1997.

Douglas T. Federighi is a memberof the Ducks Unlimited NationalConservation Programs Committee,a Director of the Grassland WaterDistrict, and a long-time Grasslandhunter.

Working for WaterfowlHabitat Conservation at

Grassland

By Douglas T. Federighi

62


SAVING the San DiegoBackcountry

Low-density rural residenceson the outskirts of cities wereoriginally a method of lettinglandowners get some eco-nomic return for their landswhile awaiting urbanization.This concept is still valid, aslong as the density is keptvery low, so that these proper-ties can be efficiently re-subdivided later, when neededfor urban uses. Parcels ofeighty or even forty acres, canserve this purpose of tempo-rary income for landowners.

The problem is that thisconcept has been misunder-stood and/or politically com-promised over the years,beginning after World War II.Now many local governmentspermit rural residential par-cels in sizes between a halfand twenty acres. Theseproperties then are too valu-able to be re-subdivided intoefficient sizes for small-lotsingle-family dwellings and formulti-family uses, so they getskipped over. The resultingmix of land use types anddensities is very inefficient toservice and to provide withtransit, or even roads. Low-density sprawl con-sumes significantly more landper capita than efficientsubdivisions. Thus, lowdensity rural subdivisions leadto conversion of habitat and

The Problem withRural Subdivisions

September 18, 2001 should be remembered as the day when the San Diego County

backcountry breathed a sigh ofrelief. That morning, the San DiegoCounty Board of Supervisors calledoff a five-year campaign to zonenearly 200,000 acres of ruralbackcountry for ranchettes and“intensive agriculture” without anymeaningful environmental review.Thanks to the accountability createdby CEQA, this land no longer facesthe threat of development.

In 1996, San DiegoCounty proposed toredesignate in theCounty’s GeneralPlan about 200,000acres of land for“intensive agricul-ture” and to imposean exceptionallysmall eight acreminimum parcel sizewest of the CountyWater Line. Agri-cultural grading andclearing would haveimpacted all of this sensitive habitat.Development of small-parcelfarming and ranchettes would haveaffected water quality and furtherencroached upon San Diego’sscarce water supplies. Worst of all,concerned citizens feared that thesesmall parcels would quickly beconverted from farm land to sprawl-ing residential development.

The General Plan Amendmentproposal, referred to as GPA 96-03, sparked an avalanche of oppo-sition from local and statewideenvironmental groups, led by Save

Our Forest and Ranchlands(SOFAR). SOFAR and otherenvironmental groups pointed outthat the environmental review forthis proposal was deficient, but theCounty pressed forwardunconcerned.

When the County approved thedeficient Environmental ImpactReport (EIR) for the land usechanges, SOFAR took the Countyto court. The Superior Court foundthe EIR legally inadequate under

CEQA and ordered the County tore-do its analysis. The court alsoplaced a subdivision moratorium onthe affected lands, removing allpermitting authority from the Countyand designating SOFAR as interimland use authority.

Five years passed, and the Countyfinally attempted to correct the EIR.However, because the analysis wasstill defective, in 2000 SOFARreturned to court. The case quicklydrew national attention when itattracted the interest of the AttorneyGeneral of the State of California

By Bob Johnston


Morning congestion on Highway I-5 in San Diego. Concernedcitizens feared that GPA proposal 96-03 would have exacerbatedthe region’s severe traffic problems.

Duncan McFetridge

63


agricultural lands at a muchfaster rate. Households onrural parcels and large-loturban parcels make moretrips per day and travel moremiles per trip, generatingmore pollution. Parcel sizesof a half up to about five acrescause the worst runoff andwater pollution conditions, asthe runoff cannot be treatednaturally by the plants andsoils. It is currently tooexpensive to capture andtreat runoff at thosedensities. Permitting the majorityof development at or beyondthe urban edge, rather thanrebuilding the inner cities, alsocreates worse conditions forhouseholds and businessesin the older central cities, asinvestment drops in thoseareas. This pattern, of course,differentially affects poor andminority households andbusinesses. Sprawl alsotends to lead to greatersegregation of households byincome and unequal schoolsystems and tends to weakenthe economies of both theinner cities and the suburbs.

In addition, there is nowevidence that sprawl, with itsauto-oriented lifestyle, createshealth risks due to lack ofwalking.

and the Environmental ProtectionAgency (EPA). The AttorneyGeneral filed an amicus brief insupport of SOFAR, stating that"[t]he potential clearing and gradingof vast amounts of natural habitat inSan Diego County without anyfurther environmental review willimpair or destroy the state's biologi-cal resources, damaging habitatsutilized by numerous sensitive plantand animal species."Like SOFAR, theAttorney General wasparticularly critical ofthe EIR’s failure toidentify mitigationscommon in otheragricultural counties.

Other environmentalorganizations alsofiled an amicus briefin support of SO-FAR. These groupsincluded CaliforniaNative Plant Society,California OaksFoundation, Center for BiologicalDiversity, Environmental HealthCoalition, Mountain DefenseLeague, San Diego AudubonSociety, San Diego Baykeeper,Sierra Club, and SurfriderFoundation.

After expedited litigation, theSuperior Court ultimately agreedwith the arguments of SOFAR andits amici, and ordered the Countyto rescind its planning approvals.The County was prohibited fromproceeding with the project pendingits compliance with CEQA.

As a result of this court action, theCounty finally relented and pre-pared more rigorous environmentalreview. Importantly, in a newgeneral plan amendment, theCounty required the implementation

of mitigation for the project’simpacts on biological resources,including the adoption of a gradingordinance. This ordinance limits theamount of open space available forconversion to agriculture andensures additional parcel-levelenvironmental review at the time ofsubdivision. Lastly, the minimumparcel size west of the county waterline was increased from eight to

forty acres, a move which substan-tially limits the potential for thisagricultural land to be re-zoned forsprawl development in the future.Today, thanks to the CEQA pro-cess, environmental safeguards arein place with respect to San Diego’simportant agricultural lands.

While it took several years for theCounty to examine the environmen-tal impacts of this 200,000 acreproject, the review ultimatelyresulted in meaningful protectionsfor the environment. WithoutCEQA, such review would neverhave occurred and San Diego’sbackcountry would have beenchanged forever.


Bob Johnston is a Professor in theDepartment of EnvironmentalScience and Policy at theUniversity of California at Davis.Mr. Johnston is also a FacultyResearcher at the Institute ofTransportation Studies at theUniversity of California at Davis.Written by PCLF staff.

The Santa Isabella Valley Agricultural Preserve was threatenedwith subdivision under GPA proposal 96-03. Because of CEQA,the County substantially revised its plan.

Duncan McFetridge

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It took 15 years, but thanks toCEQA, more than 3,000 squaremiles in the unincorporated areas ofLos Angeles County were pro-tected against ill-conceived urbanexpansion by a legally soundGeneral Plan. In one of CEQA’slongest running lawsuits, begun in1972 and finally concluded in 1987,the Superior Court threw out threeseparate General Plans approvedby the Board of Supervisors beforea court-appointed referee con-vinced the County to approve whatthe referee advised the Court were“realistic standards and policies toaccommodate [new urban] devel-opment and [to] discourage ineffi-cient patterns ofdevelopment.”

In 1970, the Supervi-sors approved the“EnvironmentalDevelopment Guide”to serve as the General Plan for theCounty’s then 7 million residents,about 1 million of whom lived in the3000 square mile unincorporatedarea. Under the Guide’s “modifiedcenters concept,” new developmentto house about half of the projectedpopulation growth of 2.2 millionpersons over the next twenty yearswould be encouraged within alreadyexisting urban centers, while theother half was to be guided toproposed new “urban expansionareas” totaling approximately 173square miles. This basic policywas designed to revitalize theCounty’s older cities, while allowinglimited new fringe development inthe unincorporated area.

In 1972, the Legislature enactedAB 1301 which, for the first time,required localities to promptly bringtheir zoning into conformity withtheir General Plans and to followthose plans in their future land usedecisions. Thus, the Guide wentfrom being an “interesting study” toa “constitution” for future landdevelopment within the County’sunincorporated area, where theSupervisors have direct authority tomake land use decisions.

The Supervisors responded byordering County planning staff toembark on a “crash program.” Indirect conflict with the new legisla-tive reforms, County planners were

secretly directed to prepare a newGeneral Plan conforming to pre-existing zoning and to individualrequests by certain property ownersfor particular treatment of specificparcels.

Many professionals within thePlanning Department were horrifiedby the “crash program” and by thearbitrary planning decisions thatresponded to the requests ofpolitically powerful landowners.These planners undertook two keyenvironmental studies.

• One, the “conflicts” study,revealed that, despite the fact thatthe County’s twenty year population

projections had just been reducedfrom 2.2 million to only 700,000new residents, the “crash program”had nonetheless added another 178square miles of urban expansionareas, fully 99 percent of whichwere located in environmentallysensitive resource areas (e.g.,significant ecological areas andwatershed areas) or hazardousareas (e.g., flood hazard areas).

• The second, the “developmentsuitability” study, showed that two-thirds of the areas designated fornew urban expansion in the SantaMonica Mountains were the leastsuitable lands for urbanization.

No attempt wasmade to modify the“crash program’s”land use maps in lightof either study, andneither study was

revealed or made available to thepublic. Instead, the EnvironmentalImpact Report (EIR) prepared forthe new General Plan claimed tocontinue use of the Guide’s “modi-fied centers” concept, and assertedthat the new Plan would direct newurban development to suitableareas, while minimizing hazards andmaximizing environmentalpreservation.

Labeling the County’s Plan a“blueprint for urban sprawl,”attorneys from the Center for Lawin the Public Interest (CLIPI)launched a CEQA challenge to the1973 County General Plan onbehalf of a broad coalition of

CEQA, Fringe Area Growth, andthe LA County General Plan


In direct conflict with the new reforms, Countyplanners were secretly directed to prepare anew General Plan conforming to pre-existing

zoning and to individual requests for particulartreatment of specific parcels.

65


environmental and homeownergroups and professional planners.

After a two-week trial, Los AngelesSuperior Court Judge David A.Thomas in 1975 invalidated boththe EIR and the General Plan.According to the twenty-eight page“Thomas decision,” the EIR was“simply a sterile declamation ofunsupported generalities almostentirely failing to convey any factualinformation.” The EIR should haveprovided a “rational appraisal” ofwhy 178 square miles of new urbanexpansion were added despite thedramatic drop in the projectedpopulation growth, and why any ofthe urban expansion areas shouldintrude into environmentally sensi-tive lands and lands unsuitable forurban development. The EIR alsoshould have disclosed the existenceof the conflicts/suitability studies andtheir results. It should have dis-closed that the County’s actualrationale for adding the urbanexpansion in question was simply tomeet the requests of specificproperty owners and to conform topre-existing zoning. It should haveanalyzed alternative plans forchanneling new urban expansioninto “areas most suitable for urbandevelopment with the least conflictwith natural resource and environ-mental factors.”

The County did not appeal any ofthese rulings. Over the next fiveyears, Judge Thomas’ injunctionprevented new development withinthe approximately 3,000 squaremile unincorporated area except inaccord with strict environmentalstandards, while the County’sPlanning Department carefullyrevised the proposed General Plan.

The resulting 1980 Plan createdvery strong protections for theCounty’s “significant ecologicalareas” and avoided many of thefundamental errors that the Countymade the first time around. But itnonetheless still contained far moreurban expansion than was needed inlight of the still-diminished expectedpopulation growth. The plaintiffCoalition and many others sug-gested that the new Plan shouldinclude a “phasing” component tochannel any new urban expansionfirst to the areas that were leastenvironmentally sensitive and mostsuitable for development.

When the Coalition’s follow-upchallenge to the new Plan went totrial, then-Los Angeles SuperiorCourt Judge Norman Epstein againruled in their favor. Judge Epsteinordered the County to supplementits new Plan with a phasing mecha-nism that would permit fringe areaurban development only as popula-tion demands materialized andadequate public infrastructure (suchas sewers, streets and water)became available. This phasingmechanism, Judge Epstein ruled,must include “specific standards andcriteria” that would require newdevelopment to “pay its own way,”as the new County Plan promised,without additional expense toCounty taxpayers.

Shortly after the ruling, Countyplanners presented Judge Epsteinwith a proposed program that theyclaimed met his criteria for develop-ment phasing. Following a series ofrapid fire hearings, however, JudgeEpstein rejected the County’s latestproposal and, at the request ofCLIPI’s attorneys, appointed a

referee to monitor the County’sfurther compliance with his orders.

In late 1986, the Supervisors finallyapproved a new DevelopmentMonitoring System (DMS). Underthis system, the County agreed toundertake sophisticated computerand planning analyses to determinewhether a proposed residential,commercial or industrial develop-ment project within the urbanexpansion areas would potentiallyoverburden public facilities andservices. County planners wouldkeep updated information abouteach unincorporated community’straffic levels, classroom size and thelike and would determine how theywould change if a given projectwere approved. If DMS analysisshowed that a proposed develop-ment would strain facilities, countyplanners would determine the costof providing new or expandedpublic services and devise ways forthe developers to finance them.

In his final report to the court,Referee James A. Kushner, aSouthwestern Law School land uselaw professor, characterized theCounty’s new General Plan as “anextraordinarily significant achieve-ment.” In April 1987, JudgeEpstein brought an end to fifteenyears of litigation, approving theDMS system and calling it “aforward-looking proposal thatserves the public interest, that isgood for the County, and good forthe people of the County.”

Carlyle W. Hall, Jr. is a partner in thelaw firm of Akin Gump Strauss Hauerand Feld. In 1971, Mr. Hall co-foundedthe Center for Law in the PublicInterest (CLIPI), where he was the leadattorney in the Coalition litigation.

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Modesto’s experience withMaster EnvironmentalImpact Reports

(MEIRs) spans approximately eightyears and counting. When the Cityfirst decided to prepare a MEIR in1993—following passage ofAssembly Bill 1888 (Chapter1130, Stats. 1993), the enablinglegislation for an MEIR—it be-came one of the first agencies inCalifornia to do so. TheModesto MEIR was certified in1995 with adoption of the Gen-eral Plan. The MEIR was up-dated in 2003 to cover primarilytraffic modeling and relatedtopic areas, and various GeneralPlan Amendments.

The Modesto General Planprovides for an orderly plan forfuture growth, of which the MEIR isan integral part. Since 1974,Modesto has maintained policiesregulating the quality, quantity, anddirection of urban growth in theGeneral Plan. The legacy of thesepolicies has resulted in a compacturban form, neighborhoods offeringa diversity of housing types andhigher than average densities.

The MEIR allows the City toreview projects in the context of acomprehensive environmentalreview to ensure that later projectswould not have greater impacts thanalready analyzed. The MEIRrelies, in large part, upon existingadopted General Plan policies toavoid or reduce potential environ-mental impacts and identifies

mitigation measures for impacts thatare not avoided or reduced by theGeneral Plan policies. Thesemitigation measures must be made apart of project approval when theyare pertinent to a project. The

City’s specially adapted, initial studyform includes a master list ofpolicies and mitigation measurescontained in the MEIR, to apply toindividual projects for inclusion withthe list of project conditions.

In addition to the required contentsrequired of other types of EIR’s,CEQA requires a Master EIR toinclude a descrip-tion of anticipatedsubsequentprojects to beconsidered withinthe scope of theMEIR. Modesto’sMEIR includeseighteen types ofsubsequentprojects that aredeclared to be

“within the scope of the MasterEIR” as defined by CEQA (PublicResources Code Sec. 21157.1).Anticipated subsequent projectsaddressed in the MEIR includeprivate development projects, such

as subdivisions and conditionaluse permits, public developmentprojects such as capital im-provement programs andwastewater master plans thatenable future private projects.

At such time as they are consid-ered, subsequent projects aresubject to preparation of aninitial study, which determineswhether they are “within thescope of the Master EIR”.Projects that are consistent withthe analysis contained in the

Master EIR do not, in most cases,require extensive additional environ-mental review before they can beapproved. The Initial Study docu-ments their consistency with theMaster EIR, after which a finding ofconformance can be made. Thekey question for the Initial Study isnot “Would the project have asignificant effect?” It is instead,

Modesto’s Cutting-Edge Use of theGeneral Plan Master EIR

By Patrick Kelly

Modesto’s General Plan and MEIR have resulted in acompact urban form, diversity of housing types, and higherthan average densities.

EDAW

The Modesto MEIR has helped streamline approvals of infill projects,including this fifty-six unit affordable housing complex.

EDAW

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“Have the project’s significanteffects been identified in the MEIRand the mitigation measures fromthe MEIR applied to the project?”

The MEIR also addresses cumula-tive impacts, growth-inducingimpacts and significant irreversibleenvironmental changes related tosubsequent projects asrequired by CEQA.

The MEIR has worked wellfor infill projects located inthe City’s baseline devel-oped area within the City’ssphere of influence. Thebaseline area contains landsmostly developed withurban uses plus areas thatcan be served by sanitarysewer from the City’scurrent trunk sewer system.Most infill developments aredetermined to be in con-formance with the MasterEIR because the GeneralPlan anticipates the near-term development of thisarea.

The MEIR has also served as thefoundation for Focused EIR’s andMitigated Negative Declarationsprepared for later projects that haveproject-specific significant effectsnot analyzed in the MEIR or thatrequire new mitigation measures oralternatives.

Although the MEIR does serve tostreamline environmental review,there is a substantial time and costcommitment to keep it current. The2003 update was initiated in 2000,only five years following certificationof the 1995 MEIR. The updatetook approximately three years to

complete at a cost in excess of$200,000.

Although MEIRs do not automati-cally expire, CEQA requires aMEIR to be reevaluated after fiveyears following certification of theMEIR, to determine that no sub-stantial changes have occurred with

respect to the circumstances underwhich the MEIR was certified orthat no new information which wasnot known and could not have beenknown at the time the MEIR wascertified has become available.

Based on Modesto’s experience,MEIRs have created substantialstreamlining benefits without sacri-ficing environmental protection inthe City. Nonetheless, revisions areneeded to CEQA that would clarifyhow updates are handled andestablish a reasonable level ofimportance for the type of newinformation that would trigger theneed to revisit an MEIR. Not all

new information should necessitatean update to the MEIR, particularlyif the information doesn’t relate toany new or more severe environ-mental impact.

Although keeping the MEIR currentrequires a major staff commitmentwith cost impacts to the lead

agency, the time and moneyinvestment has been worth itfor Modesto. Application ofmitigation has been moresystematic; projects consis-tent with the General Planand MEIR have beenencouraged by the stream-lining benefit; and theenvironmental review ofmany projects has beensimplified. When consider-ing a MEIR, however,agencies should evaluate thecost/benefit of preparing aMEIR compared to othertypes of first-tier EIR’s,such as a program EIR.For communities experienc-ing significant growth, theMEIR will likely involve a

labor-intensive effort to ensure thatthe analysis is up-to-date. TheMEIR also requires some aware-ness to maintain the level of analysisto be used for subsequent projects.While CEQA’s MEIR provisionsneed some fine-tuning, all in all, withthe right level of commitment by acommunity, the MEIR can serve asthe environmentally protective,streamlining tool it was meant to beby the Legislature in 1993.

Patrick Kelly is the Principal Plannerfor the City of Modesto Community &Economic Development Department.

Northwest corner of Modesto’s General Plan boundaries. The ac-companying MEIR has created substantial streamlining benefits with-out sacrificing environmental protection.

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CHAPTER 4

See Pg...71

See Pg...83

See Pg...79

See Pg...85

Wildlife, Habitat, & Farmland

CEQA Protects California’s Natural HeritageWilliam J. Yeates ......................................................... 71

California’s Ecological RichnessKim Delfino .................................................... 71, Sidebar

Golf Course Threatens Bighorn Sheep HabitatWayne Brechtel ............................................................. 73

A Vision of Many CaliforniasSteve McCormick ........................................... 73, Sidebar

Innovative Solutions for Habitat Protectionin South Sacramento County

Mike Eaton ................................................................... 75

Bahia Marsh: A Tale of Two DevelopmentsPCLF Staff ................................................................... 77

CEQA and the Santa Monica MountainsJoseph T. Edmiston ...................................................... 79

Protecting Potrero ValleyMary L. Hudson ........................................................... 81

Carnegie Foundation and the Tiger SalamanderPCLF Staff ................................................................... 82

CEQA and California’s ForestsTom Lippe & Matt Vander Sluis ................................ 83

CEQA and Farmland ProtectionEd Thompson ............................................................... 85

Preserving Agriculture in Orange CountyKevin K. Johnson & Jared P. Hanson ....................... 87

WIL

DLIF

E, H

AB

ITA

T,

& F

AR

MLA

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WILDLIFE, HABITAT, & FARMLAND • WILDLIFE, HABIT

By Kim Delfino In 1987, The Nature Conservancy commissioned a report by Jones andStokes Associates entitled, “Sliding Toward Extinction: The State ofCalifornia’s Natural Heritage, 1987.” Prepared for the California Senate

Committee on Natural Resources and Wildlife, this study highlighted analarming trend caused by the increasing demands of California’s popula-tion—California at an alarming rate is losing native species and their habitatforever. “Sliding Toward Extinction” pointed out:

Habitat loss and the disruption of species breeding and migrationpatterns have resulted from the cumulative effects of many independentactivities carried out in various locations and at different times.

This report pointed out that “every individual” . . . “ultimately contributes tothe loss” and so we all have a responsibility “to ensure that additional lossesof natural diversity are minimized through land protection . . . .”

CEQA’s substantive mandate that public agencies refrain from approvingprojects for which there are feasible alternatives or mitigation measures helpsus address the loss of habitat and disruption of native species that “SlidingToward Extinction” exposed. CEQA places an affirmative duty on publicagencies to show that their decision approving or carrying out projectsfollows a careful and meaningful evaluation of alternatives and mitigationmeasures.

Stated another way, CEQA requires public agencies to identify a project’spotential significant change, and to identify ways to avoid that change, or toreduce the effect of that change on the existing environment.

All of the following strategies are included within CEQA’s concept ofmitigation: (1) avoiding the impact altogether; (2) minimizing the impact; (3)repairing, rehabilitating, or restoring the resource; (4) preserving the re-source over time; and, (5) replacing or providing a substitute resource. All

of these strategies are being usedtoday in order to prevent a “slidetoward extinction.”

Because CEQA applies at the earliestpossible time to public agency actionsthat may significantly change theexisting natural environment, CEQA’s

CEQA Protects California’sNATURAL HERITAGE

With its unusual and diverseflora and fauna, Californiastands in stark contrast toother parts of the country.This incredible wealth ofunique plants and animals ledthe late naturalist Elna Bakkerto call our state “an islandcalled California.”

From our rugged and majes-tic coastline to the expanse ofthe Central Valley to the peaksof the Sierra Nevada, Califor-nia leads the country in itsdiversity of plants and ani-mals, with nearly 5,000 plantspecies—nearly half of theUnited States total—and morethan 800 species of nativevertebrates—birds, mam-mals, reptiles, amphibiansand fishes.

California’s plants and ani-mals exist in a lavish array ofspecialized habitats foundnowhere else. The CaliforniaDepartment of Fish andGame’s Natural DiversityDatabase recognizes morethan 500 distinct naturalcommunity types. Theseinclude different types of oakwoodlands, grasslands,coniferous forest, desertcommunities, and chaparralshrublands.

By William J. Yeates


California’sEcological Richness

“When you try to pick out anything by itself, you find ithitched to everything else in the universe.” – John Muir

71

AT, & FARMLAND • WILDLIFE, HABITAT, & FARMLAND

public review requirement invites theinterested public to participate in a publicdecision-making process that seeks toreduce or avoid significant adversechanges to the existing environment.Rather than “slide toward extinction”CEQA provides real opportunities toreverse the trend highlighted by The Nature Conservancy’s 1987 report.

As “Sliding Toward Extinction” acknowledges, it is not necessarily one bigproject that destroys natural resources. It is the cumulative effect of manylittle changes that we all inflict on our natural communities that result in greatchange. Quoting from an article Professor Dan Selmi penned for the U.C.Davis Law Review, the Court of Appeal acknowledged:

One of the most important environmental lessons evident from pastexperience is that environmental damage often occurs incrementallyfrom a variety of small sources.1

CEQA is the only state law that requires public agencies to consider thecumulative effects of individual projects on the environment, so that theseagencies don’t evaluate projects in isolation. CEQA’s cumulative impactanalysis forces local agencies to consider the regional consequences of theiractions. Public agencies are required to evaluate alternatives that avoid aproject’s significant adverse cumulative impacts on natural resources.

CEQA gives the state’s wildlife and resources agencies the right to recom-mend mitigation strategies to protect California’s diminishing natural re-

sources. CEQA’s mitigation requirement hasspawned collaborative planning efforts thatseek to set aside or protect specific land-scapes, in order to reverse the trend ofrapidly diminishing or fragmenting naturalhabitats. It is not uncommon today that localagencies require project proponents to

contribute specified land, or funds for the acquisition of land, in order tomitigate the adverse effects new development projects have on existing anddiminishing natural habitats.

What follows are but a few examples of the many creative solutions that arebeing employed in California.

William J. Yeates is an attorney at law focusing on environmental and planninglaw, as well as zoning law and policies. Mr. Yeates’ practice emphasizes litigationand consultation in areas of land use, California Environmental Quality Act(CEQA), California Endangered Species Act (CESA), and election law.

Among the most interesting ofCalifornia’s many habitats is atype of seasonal wetlandknown as “vernal pools,”ponds that fill with winter rainsand dry up slowly through thecourse of the spring. Theseunique and beautiful grass-lands are home to creaturesfound nowhere else on earth,including the rare Riversidefairy shrimp and the SlenderOrcutt grass.

The diversity of California’sterrestrial ecosystems ismatched by the diversity of itsaquatic ecosystems. TheSan Francisco Bay / Sacra-mento-San Joaquin Delta isthe largest estuary on theWest Coast. The Sacra-mento and Klamath Riversare two of the most importantrivers for salmon in the lowerforty-eight states. California’sdesert springs and creeks arehome to endangered desertpupfish, which can live inwaters twice as salty as theocean and as hot as 113°Fahrenheit.

California faces an importantchallenge to protect andrestore its natural legacy. Inthe coming decades, Califor-nia will face increasing pres-sures from growth. If we areto preserve a “Wild California,”we must be willing to under-take this challenge and ensurethat future generations willenjoy California’s biologicaltreasures.

Kim Delfino is the CaliforniaProgram Director of Defenders ofWildlife.Footnote: 1Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 720.


72

Scot

t Frie

r, US

FWS

B. Peterson, USFWS


California isn’t easily imaginedor defined. My vision of thestate is a complex and colorfulone, a blend of landscapesthat I’ve known, explored,and—as a conservationist—worked to protect for manyyears. Instead of looking at thestate as a single, well-definedpolitical and geographic area, Isee California’s varied naturallands and waters as a tapes-try of contrasting yet comple-mentary habitats stitchedtogether by the state’s dra-matic geology and topography.

There are many Californias.When I think of California in allits marvelous variety, I recallthe salty essence of a snow-white fog bank drifting inlandfrom the Pacific, the hot tansmell of a Central Valleygrassland in July, and the coolbite of a fresh autumn windrustling radiant red-gold aspenleaves as it rushes down a

By Steve McCormick

A Vision of ManyCalifornias


Golf Course ThreatensBighorn Sheep Habitat

By Wayne Brechtel

The Peninsular bighorn sheep are a distinct population of bighorn thatis listed as endangered under state and federal law. Their range islimited to the band of peninsular hills that extends from the U.S.-

Mexico border to the north end of Palm Springs. Unfortunately, the rough,hillside terrain, with its spectacular views, is an increasingly popular venue

for new, links style golf course developments, resulting in a collision betweenwildlife preservation and new commercial development.

In the late 1990s, this conflict manifested itself in the form of a 359 acredevelopment known as Mountain Falls Golf Preserve (“Mountain Falls”),which included a new eighteen hole golf course within an undevelopedhillside canyon above Palm Springs known as Tachevah Canyon. Most ofthe property is owned by the City of Palm Springs, which had entered intoan agreement to lease it to the Mountain Falls developer.

On December 16,1998, over the strenu-ous objections of localresidents, resourceagencies, and theenvironmental commu-nity, the Palm SpringsCity Council approvedthe Mountain Fallsproject after a marathonsession that went intothe early hours of themorning. The localSierra Club chapterresponded with alawsuit alleging various violations of law, including CEQA, marking the startof a three-year legal battle.

The developer argued strenuously that theproject site for a new 18-hole golf course abovePalm Springs was not Peninsular bighorn habitat.

Bighorn sheep populations have declined precipitously sincethe 1850s. Hunting and habitat loss have decimated popula-tions across North America.

73

Katherine Lambert


12,000 foot escarpment onthe east side of the SierraNevada. In my mind’s eye Isee California’s scenic,rugged coastline and toweringsnow-capped mountains,scenes famous throughoutthe world.

I think of Yosemite Valley andMonterey Bay and our uniqueChannel Islands. I see teem-ing wildlife in rich sloughs andmarshes and in temperaterain forests in the northwest-ern part of the state. I pictureverdant groves of valley oaksand sycamores lining themighty Sacramento River andits tributaries. I rememberhiking in shimmering desertsand gazing in wonder atwildflower-ringed vernal poolsblossoming in the CentralValley. My mind lingers on theuniquely Californian scene ofgolden savannas dotted withrare blue oaks. I recall craggy,wind-sculpted Monterey pinesclinging to coastal cliffspounded by the Pacific.

My memory produces moreimages: pronghorn antelopegalloping across the CarrizoPlain, golden eagles soaringabove the voluptuous hills ofMount Hamilton, and tule elkgrazing on the peaceful PointReyes Peninsula.

Excerpt from a 1999 speech bySteve McCormick, ExecutiveDirector of The Nature Conser-vancy of California, at the IrvineRanch Land Reserve.

Continued from the previous page.Throughout the process, the developer argued strenuously that the projectsite was not Peninsular bighorn habitat, and that no bighorn had been seenon the property for decades.

At the urging of the developer, a meeting at the project site was arranged toprovide representatives from the Sierra Club, the City, the U.S. Fish andWildlife Service, and the Department of Fish and Game with an opportunityto review the project proposal in more detail.

As everyone stood outside of the car getting ready to walk the site, arepresentative from the Fish and Wildlife Service exclaimed that a group ofbighorn sheep were sitting next to the flag designating the location of aproposed golf course hole. Even the developer’s attorney, after muchanguish, had to admit that he saw the sheep.

The project approvals were set aside twice by the trial court for failure toadequately address significant impacts to the Peninsular bighorn sheep, andultimately, the developer abandoned its plans to develop a golf course in theTachevah Canyon. In May 2002, the project was converted into a limitedcondo development within the residential area outside of the canyon.Tachevah Canyon remains in its undeveloped, pristine condition today.

Wayne Brechtel is a partner at Worden Williams APC and is an expert onenvironmental laws governing land use in California including CEQA, NEPA, theFederal Clean Water Act, and the Federal and State Endangered Species Acts. Mr.Brechtel represented the Tahquitz chapter of the Sierra Club in this case.

As everyone stood outside of the car,a Fish and Wildlife representative exclaimedthat a group of bighorn sheep were sitting

next to the flag designating the location of aproposed golf course hole.

Endangered bighorn sheep, photographed on the proposed site of a golf course.CEQA ensured that development plans were modified to protect the animal’s habitat.

Way

ne B

rech

tel

74


The partnership between The Nature Conservancy, Sacramento County, and the

Department of Fish and Game toprotect Swainson’s hawk habitat insouth Sacramento County demon-strates the flexibility public agencieshave in meeting CEQA’s mitigationrequirements. Additionally,because CEQA requires localagencies to look at the environ-ment from a regional perspectiveand consider the cumulative effectof their decisions, CEQA’smitigation requirements encouragelocal, regional, and state agenciesto work together to address therapid decline of wildlife habitats inthe face of rapid urbanization.

The National Audubon Societyrecognized the Cosumnes Riverfloodplain as an Area of CriticalConcern in the 1970’s, because ofthe extensive wetland and riparianhabitat areas within this floodplain.The Cosumnes River hosts one ofthe last remaining and largest valleyoak riparian woodland stands inCalifornia’s Great Central Valley.

Once stretching continuously alongfloodplain terraces in swaths fromone to three mile wide, valley oakriparian habitat currently occupiesless than 5 percent of its historicrange–occurring only in sporadicpatches along the Sacramento andSan Joaquin Rivers. The Cosumneswatershed also contains one of thelargest populations of the threatenedgiant garter snake. The watershedcontributes critical habitat to help

sustain 50 to 7175 percent of thethreatened Greater Sandhill cranesthat winter in the area. Additionally,the watershed and surroundingagricultural lands provides one oftwo breeding centers in Californiafor the threatened Swainson’shawk.

In 1984, The Nature Conservancybegan a conservation program topreserve and restore the wetlandand riparian habitats within theCosumnes River floodplain. Work-ing with Sacramento County, DucksUnlimited, U. S. Bureau of LandManagement, California Depart-ments of Fish and Game and WaterResources, and the State LandsCommission, The Nature Conser-vancy has protected over 45,000acres of key Cosumnes Riverhabitats.

Yet, rapid urbanization threatens toisolate these protected areas andreduce the floodplain’s viability as arefuge for diminishing wildlifespecies. Sacramento County’s

population is expected to grow to2,858,427 and San JoaquinCounty’s population is expected totriple in size by 2050. In the ten-year period from 1988 to 1998,20,300 acres of farmland wereconverted to urban uses in Sacra-mento County.

In late 1993, Sacramento Countyupdated its general plan, whichallowed additional urban devel-opment in undeveloped areas ofSouth County. In 1996, Sacra-mento County launched thedevelopment of a Habitat Con-servation Plan (HCP) for theSouth County; and, CaliforniaDepartment of Fish and Game(CDFG) began seeking moreeffective Swainson’s hawkmitigation in response to therapid loss of hawk habitat. To

mitigate the impact of urbanizationon Swainson’s hawk habitat inSouth County, Sacramento Countyand developers proposed an“interim fee” as an alternative toeither waiting for completion of theHCP or to project-by-projectmitigation. Sacramento Countyand CDFG agreed upon a $750per acre interim mitigation fee fornew development that would beused to acquire critical Swainson’shawk habitat.

The Nature Conservancy agreed toassist in implementing theSwainson’s hawk mitigation feeprogram as a short-term solution toreduce the impacts of urban devel-opment adjacent to the Cosumnes

Innovative Solutions for HabitatProtection in South Sacramento County

By Mike Eaton

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The Nature Conservancy, Cosumnes River Preserve

A student group hikes through the Cosumnes River Pre-serve. Once stretching continuously along floodplainterraces in swaths from one to three miles wide, valleyoak riparian habitat currently occupies less than fivepercent of its historic range, occurring within patchesalong the Sacramento and San Joaquin Rivers.


River Preserve. A three-partyMemorandum of Understanding(TNC, Sac County, CDFG)provided that accumulated mitiga-tion fees would be used to buyeasements on lands outside ofSacramento County’s UrbanServices Boundary and within theCosumnes River corridor.

When it incorporated in 2000, theCity of Elk Grove inherited theCounty’s fee program.The City of Elk Grovein south SacramentoCounty has beengrowing like grassfire,issuing, for example,close to 15,000 buildingpermits in 2003 alone.By the middle of 2005,the City will havepermitted much of the land withinits current boundary to urbaniza-tion. The City’s new generalplan has designated a large areasouth of the City of Elk Grovewithin the Cosumnes Riverfloodplain as an Urban StudyArea to assess its future growthpotential. The new city’s studyarea lies outside the growth bound-ary adopted by the County in its1993 general plan.

Elk Grove’s action has left theimpression with the landowners inthis area and with developers thaturban development will soon becoming to the Cosumnes Riverfloodplain. Speculation over thisexpansion below the growth limitline has increased property values.Both Elk Grove and the Countyresponded to rising land values byincreasing the mitigation fee in2003, to $2,833 per acre within theCounty and $4,682 within Elk

Grove. But, this fee increase wasstill not enough to compete withdevelopers convinced that the Citywould be annexing land south of theformer County growth line.

In the spring of 2004, The NatureConservancy acknowledged thatrapidly escalating property valueswere outpacing the Conservancy’sability to acquire available land.CDFG also pointed out that

Swainson’s hawk forag-ing habitat was being lostthroughout the City ofElk Grove. CDFG

wanted this cumulative loss ad-dressed under CEQA.

In response to The Nature Conser-vancy and CDFG’s concerns, theCity revised its Swainson’s hawkmitigation strategy by requiringproject proponents to provide landinstead of money to reduce thedirect effects of new developmenton hawk foraging habitat. So now,for every acre of habitat taken, anew project proponent mustprovide an acre of hawk habitat.

This new one-for-one land mitiga-tion strategy is admittedly a place-

Mike Eaton is the Senior Project Directorfor the California Delta & San JoaquinValley at the Nature Conservancy.

holder, until the City of Elk Grove,Sacramento County, and theSacramento County Local AgencyFormation Commission determinethe City’s new boundaries. But, asthese public agencies contemplateElk Grove’s growth areas, CEQArequires all these public agencies toevaluate the cumulative effectgrowth will have on those irreplace-able habitat areas that The NatureConservancy and other agenciesstarted acquiring and protectingback in 1986. CEQA’s environ-mental review and mitigationmandate will require these agenciesto work together on an outcome

that addresses thesecumulative effects.Without CEQA theparochial interests of oneentity could result in thesituation where difficultplanning and growthissues are simply sweptunder the rug.

Although the solutionshave not been found,CEQA’s substantiverequirements will produce

a better outcome as it will requirethe affected local agencies to workwith interested regional and stateagencies. CEQA’s informationdisclosure requirements will providea forum for interested privateorganizations, like The NatureConservancy, local landowners, andthe building industry to talk with oneanother about solutions that willbalance the interests of Elk Grove’sgrowth with the conservation andprotection of diminishing naturalhabitats.

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The Cosumnes watershed and surrounding agricultural lands pro-vide one of two breeding centers in California for endangeredSwainson’s hawk. Now for every acre of habitat lost to develop-ment, project proponents must provide an acre of hawk habitat.

The Nature Conservancy, Cosumnes River Preserve

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BAHIA MARSH: A TALE OF TWO DEVELOPMENTS

The city of Novato, in Marin County, is home to steep fog-swept hills, beautiful

bay-front marshes and stunningwildlife. Sadly, these very qualitieshave brought an influx of develop-ments that threaten the naturalenvironment. Two starkly contrast-ing stories of proposed develop-ments in an area of Novato calledBahia demonstrate the importanceof robust environmental reviewunder CEQA to protect Marin’snatural environment.

The Bahia CommunityThe first development, now referredto as the Bahia Community, wasapproved and built in the mid-1960s, several years before theenactment of CEQA. To constructthe 288 unit development, workersdredged up the existing tidal marsh,creating the Bahia lagoon. Eightyhomes with boat docks wereconstructed on the lagoon and achannel was dredged to provideboat access to the Petaluma River.

This man-made lagoon was anenvironmental disaster. Because ofthe lack of environmental review,there was no analysis of siltationrates in the area until the houseswere already built. Each year, siltfrom upstream on the PetalumaRiver and the San Francisco Bay isdeposited by tidal waters, inundat-ing the surrounding marshlands,channel and lagoon.

To complicate the matter, the BahiaHomeowner’s Association (HOA)had included a provision in itsCodes, Covenants, and Restrictionsguaranteeing boat access to theriver. Early dredging efforts tempo-rarily restored access, but theresults were always short-lived. Inaddition, public concern about theadverse impacts of disposing ofdredged material resulted in in-creased regulatory oversight andcostly limitations on dredging.

The HOA has been trying for morethan twenty years to solve thesiltation problems to no avail. Anumber of HOA members suedtheir board of directors to forcethem to provide the promised boataccess, but project proponentshave been unsuccessful in obtainingthe necessary permits for regionalagencies.

As Susan Ristow, a local activistworking to protect Marin’s

In the mid 1960s, Marin County marshland was dredged to make way for the Bahia Lagoonand 288 housing units.

U.S. Geological Service - TerraServer-USA

Because of inadequate environmental review, the Bahia community has suffered tremendoussiltation problems. Now only a thin stream runs by these “waterfront” homes.

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baylands explains, “This develop-ment shouldn’t have happened. Theabsence of environmental reviewhas caused long-term adverseimpacts on the environment and thecommunity. Residents have had tospend millions of dollars trying toprovide boat access for a fewhouses. If they continue to pursueplans for a lock and resumeddredging they may never see aresolution.”

The Bahia Master PlanThe story of the Bahia Master Plandemonstrates how outcomes can beimproved by CEQA. Here, ArtCondiotti proposed to complete theoriginally envisioned project byconstructing 424 luxury houses

adjacent to the Bahia Community.This time, the CEQA-mandatedenvironmental review ensured thatcommunity residents and localorganizations were informed of theimpacts of the proposed projectand gave them the opportunity tovoice their concerns.

The Environmental Impact Reportillustrated the dangers of furtherdevelopment in Bahia. Condiottiplanned to build along the ridgetopand hillsides of a rare Blue Oak

woodland. Moreover, the develop-ment would have adversely im-pacted approximately eight to tenacres of wetlands, threatening oneof the few remaining populations ofendangered Clapper Rail and 125other species of migratory shore-birds and waterfowl. Finally, itwould have significantly increased

the amount of pollutant-laden runoffcontaminating local wetlands beforedraining into the Petaluma River andthe San Francisco Bay. Empoweredby this information, citizens attendedpublic meetings, wrote editorials,and submitted comment letters.

When, in spite of these efforts, theNovato City Council approved theBahia Development in 2001, thecommunity again responded. TheMarin Audubon Society filed alawsuit challenging the project

approval on CEQA grounds. Atthe same time, residents gatheredsignatures for a city-wide referen-dum. “Our ability to litigate underCEQA was important because itallowed us to show that we hadgenuine and justifiable concernsabout the environmental review, andthat we wouldn’t disappear untilthey were addressed,” says Bar-bara Salzman. “After the over-whelming success of the referen-dum, the developer called us andagreed to begin negotiations thateventually led to Marin Audubon’spurchase of the property.”

Thanks to impressive communitysupport, preservationists were ableto raise enough money to purchasethe 632 acres of oak forest andmarshland. By January 2003, theMarin Audubon Society hadsecured over $15.8 million infunding from Marin County OpenSpace District, CALFED, Caltrans,California Coastal Conservancy,Wildlife Conservation Board, MarinCommunity Foundation, NationalOceanic and Atmospheric Adminis-tration through the Bay Institute,and many private groups andindividuals. Planning for restorationwork has begun.

“Looking out over the developmentin Bahia makes me shudder at whatplanning must have been like beforeCEQA,” says Salzman. “Looking atthe tidal marsh and upland propertywe purchased makes me incrediblythankful for the passage of thisbedrock environmental law.”


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The Bahia Plan wouldhave threatened oneof the few remaining

populations ofendangered Clapper

Rail, a ground-dwelling marshbird,native to the area.

The Bahia Homeowner’s Association hasbeen trying for twenty years to solve its

siltation problems to no avail.

Thanks to impressive community support,preservationists were able to raise

enough money to purchase the adjacent632 acres of oak forest and marshland,

previously slated for development.


It is so much fun to bash CEQAthat even in this article meant tosupport it, I can’t help speculate onall the forests destroyed for millionsof pages of junk science producedunder CEQA’s rubric. (PuttingEnvironmental Impact Reports onthe Web will solve this problem.)And who can avoid noticing theBiostitute profession that hasgrown, streetwalker wise,around developer’s carnalneed to find “no significantimpact” in their projects.

But when the Planning andConservation League Foundationasked me to evaluate the impact ofCEQA on protection of the SantaMonica Mountains, I had to backdown from my cynicism and analyzethe true facts. And the facts arethese: CEQA is directly responsiblefor protecting roughly a third of alllands that have been preserved inthe twenty-five year history of stateefforts to preserve open space inthe Santa Monica Mountains. Thatis no mean accomplishment andthat fact alone should cause us tore-examine the critical approachthat many, even in the environmen-tal community, have taken towardCEQA.

I was a young Sierra Club activistin law school when the CaliforniaSupreme Court’s Friends ofMammoth decision came down in1972. The court said, in essence,CEQA means what it says aboutevaluating environmental impactsand, yes, private projects permittedby government action fall within its

purview. Suffice it to say thatCEQA, then, was seen exclusivelyas a way to kill projects, certainlynot make them better!

Dozens of legislative amendmentssince then, hundreds of lower courtrulings, and scores of appellatecourt decisions have solidifiedCEQA practice into a fairly predict-

able body of law. It is this fact thathas had the unintended (by bothenvironmentalists and developers)consequence of making projectsmore approvable by making themmore environmentally friendly. Idon’t think for a moment that when

CBIA, the Realtors, or the Cal-Chamber pushed for “weakening”amendments in the late seventiesand eighties they had any intentionof making projects better. Theywanted to make them unstoppable.Likewise, my old employer theSierra Club and other environmen-

talists didn’t want to see incremen-tally less harmful developments,they were looking to keep the holesin the strainer sufficiently small sothat the fewest projects possiblewould emerge from the CEQAprocess.

What has happened in reality defiesthe expectations of both interest

groups. Would you believethat some of the mostcompetent professionalplanners I know work forlaw firms that regularlyadvise developers—it is

true. Oh yes, there are still thoselaw firms out there who are notori-ous for advising clients to fightCEQA with every last dollar of theirlaw firm’s billings. But the membersof the business community who arewilling to take such advice is rapidlydwindling as the evidence piles upthat CEQA is a vehicle for projectapproval—given a developer’swillingness to accept its basicpremise.

So what is that magic “get out ofthe Planning Commission” card thatCEQA offers? At its most basic, itis that projects mitigated to themaximum extent feasible, certainlyas close as possible down to thethreshold of environmental signifi-cance, do tend to get approved andthat approval sticks in the courts.

As CEQA works itself out in highlycharged development arenas, suchas the Santa Monica Mountains inthe heart of the Los Angeles Metro-politan Area—probably the most

By Joseph T. Edmiston

CEQA and the Santa Monica Mountains

Because of CEQA, this 7,000 acre contiguoushabitat block in the Sierra Pelona Range will bepreserved in mitigation of the Ritter Ranch de-velopment.

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Projects mitigated to themaximum extent feasible do

tend to get approved and thatapproval sticks in the courts.


competitive real estate market thisside of Lower Manhattan—CEQAis less a vehicle for environmentalimpact avoidance, or at least notexclusively so, as it is an engine formitigation of impacts. Purists seemoffended by this, but from anecological standpoint I’ve neverunderstood why. Take any givenarea of land, add a subdivisionproject (even a “green” one with asemblance of jobs/housing balance)and the net environmental impact,especially in a sensitive ecosystemlike Mediterranean chaparral, isgoing to be far greater under anydevelopment scenario than if amitigation strategy is employed.

It is by environmental mitigation thatCEQA’s real benefit is felt. Wehave seen that a far more efficientstrategy—for the developer and theconservationist—is to encourage aproject to meet itseconomic objec-tives so that it canalso fund a more“pure” achievementof environmental objectives by wayof a compensating mitigationproject. To take the Santa MonicaMountains as one example, thenumbers are impressive. Since

1980 when the Legislature estab-lished the Santa Monica MountainsConservancy, roughly three-quarters of a billion dollars has beenspent by Federal, State, and localsources to protect this resource.Money well spent. Real nature willabide within touching distance ofone-third of Californians probablyforever. Yet of the roughly 80,000acres saved since 1980, at least20,000 of that total was obtained asCEQA driven developer dedica-tions in mitigation of environmentalimpacts identified in the EIR pro-cess at no cost to the taxpayers.

Ten years before all of AhmansonRanch was acquired by the SantaMonica Mountains Conservancy for$150 million, 10,000 acres of thekey north-south wildlife corridorwas preserved as a mitigatingcondition required by Ventura

County as part of the CEQAprocess. Los Angeles Countyfamously (and many environmental-ists would say erroneously) ap-proved the largest housing projectin its history (20,000 units) atNewhall Ranch, but not beforepreserving 4,300 acres of primeundisturbed habitat as the result of aCEQA mitigation measure. Acontiguous habitat block of 4,000acres of the Sierra Pelona north ofSanta Clarita has been dedicated,and 3,000 acres remain to bededicated as a result of CEQAconditions on the Ritter Ranchproject. The list goes on and on.From thousands of acres down toneighborhood habitat, CEQA has

Joseph T. Edmiston, FAICP, is theExecutive Director of the SantaMonica Mountains Conservancy.

worked to save land in perpetuitywhere the environmental impactreport process has identifiedfeasible mitigation opportunities.

Developers don’tlike to see thesefigures in printbecause theyrepresent lost

profits. Environmental activistsdon’t like to see these numbersbecause they don’t like figures thatshow development actually helpingthe environment. Legislators,taxpayers, and the great body ofaverage citizens, however, shouldlove these figures because theyshow a successful land use regula-tory system that does more thanchurn out unread paper. Deer,bobcat, and yes, mountain lions, willpad their way through these landsforever.

Hikers and bikers flock to open space landsin the Santa Monica Mountains. CEQA isdirectly responsible for preserving roughly athird of these lands.

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CEQA mitigations were used to turn Cor-ral Canyon, the last undeveloped canyonin LA County, into a state park with beachaccess and a state-of-the-art trailhead.The County had approved a plan to de-velop the canyon into luxury homes anda golf course.

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Through CEQA, over 20,000 acres in theSanta Monica Mountains have been protected

at no cost to taxpayers.


Protecting POTRERO VALLEY

vegetation, and regional watersupply were inadequate, as werethe measures to mitigate impacts onwetlands, waterways, and many ofthe sensitive animal and plantspecies.

The Court’s lengthy and detailedopinion showed the difficulty

Lockheed faced in tryingto correct the deficienciesfor a new round ofCEQA review. As thateffort proceeded, and theseverity of the environ-mental problems grewmore evident, interest in apublic acquisitionwarmed. Federal, state,and county wildlifeagencies got involved,pulled together fundingfrom all three sources,and began negotiatingwith Lockheed. TheConservation Fund, anational nonprofit,

stepped in to broker the final deal,preserving for posterity this naturaloasis in the midst of urban southernCalifornia. The property willbecome part of the California Dept.of Fish and Game’s increasinglyimpressive San Jacinto WildlifeArea, nearly doubling its size.

Mary L. Hudson is a sole practitionerin Sausalito, California and repre-sented the Sierra Club in the PotreroValley litigation. Ms. Hudson is formerdeputy chief counsel for the CaliforniaCoastal Commission and immediatepast President of the Pacific MarineConservation Council.

When Lockheed Martin conveyed thirteen square miles of choice

undeveloped Riverside County landinto public ownership in late 2003,there were many winners. ThePotrero Valley property, previouslyplanned as the site of five smalltowns with 18,000 homes and twogolf courses, is now to beoperated as a huge naturepreserve. The County’smultispecies habitatconservation programgained a critical linkbetween lowland andupland habitats. Thevalley’s rich animal andplant life were spared.The public gained oppor-tunities for hiking, birding,and horseback riding.And Lockheed received$25.5 million in publicfunds.

Wildlife agencies had longrecognized the extraordinary naturalvalues of Potrero Valley, butLockheed’s $100 million price tagput acquisition out of reach. Thevalley is traversed by a meanderingstream system and dotted withseasonal ponds, unusual in this aridarea. With woodlands, grasslands,shrub lands, and 316 acres ofwetlands, the site hosts an array ofanimals including large species,such as bears and mountain lions,and many birds of prey and otheravian species, including many thatare listed or pre-listed under theEndangered Species Act. Nearly

2,000 acres are occupied by theStephens kangaroo rat, a federallylisted endangered species, and thesite is considered to be prime areafor recovery of this species. Posi-tioned between dry “badlands”south of Beaumont and the slope ofthe San Jacinto Mountains, PotreroValley provides seasonal passage

for migratory animals. Much of theproperty is in pristine condition, asmall portion of it having been usedby Lockheed for missile testingduring the 1960s.

When the City of Beaumont ap-proved Lockheed’s developmentproposal, the Sierra Club sued onthe basis that the approval did notmeet CEQA standards. (SierraClub, Inc. v. City of Beaumont(Lockheed Corporation)). TheCourt of Appeal agreed. The Courtfound that information and analysisof cumulative impacts on wildlife,

By Mary L. Hudson

Lockheed Martin planned to build 18,000 houses and two golf courseson 13 square miles of Riverside County’s Potrero Valley, paving overbear, mountain lion, and other endangered species habitat. Because ofCEQA, the property will instead become part of the San Jacinto WildlifeArea, nearly doubling its size.

Mark Chappell

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In 1999, the Carnegie Foundation for the Advancement of Teaching—the third oldest foundation in the country and the only advanced

study center for teachers in the world—announced itsintention to construct a 21,000-square-foot think tankfacility in the Stanford hills on a site leased fromStanford University. This was considered a win-winarrangement: the foundation would gain a shining newfacility on land verygenerously leased at $1dollar a year for fifty-oneyears. The Universitywould benefit from theCarnegie Foundation’sprestige and from thecontributions of itsvisiting scholars.

However, local environ-mental groups, includingthe Committee for GreenFoothills, the StanfordOpen Space Alliance,and the Loma PrietaChapter of the SierraClub, did not agree. The proposed site was located onbeautiful oak woodland in the Stanford foothills, landthat has become increasingly valuable to the localcommunity as open space. The development, theymaintained, would establish a dangerous precedent foradditional construction in the foothills. The City Coun-cils of Palo Alto and Menlo Park, which have beendealing more and more with issues of urban growth,joined them in their objection to the Carnegiedevelopment plans.

The proposal also threatened the welfare of the Cali-fornia tiger salamander, a “species of special concern”under state law and a candidate for protection underthe federal Endangered Species Act. A 1998 agree-ment between Stanford University, Santa Clara County,the State Department of Fish and Game, and theFederal Fish and Wildlife Service, had established atiger salamander management zone to protect the

Carnegie Foundation & the Tiger Salamander

amphibians, limiting development within its boundaries.The Carnegie project lies within the management zone’sboundaries.

In November of 2000, the County Planning Commissionapproved the Environmental Impact Report for theCarnegie project on the grounds that specific mitigationmeasures for the tiger salamander would be adopted. The

Committee for GreenFoothills appealed thedecision to the countyboard, maintaining that thespecified mitigations wereunclear, untested, andfailed to adequatelyprovide for the imperiledsalamander.

By October of 2001, whenthe Santa Clara CountyBoard of Supervisorsgranted its final approval ofthe Carnegie complex, theproject had changedsignificantly due to public

involvement in the CEQA process and the new StanfordCommunity Plan, passed by the city of Palo Alto in De-cember of 2000. As a result, the developer was requiredto move the building site downhill, bringing it within thenew Academic Growth Boundary, and to plant four matureoak trees to minimize the visual impact of the project. Inaddition, an undeveloped, 4.5 acre salamander conserva-tion area was established at the lower end of the property.Finally, all other salamander mitigation requirements wereclearly defined and enforceable.

Ultimately, Stanford University and the Carnegie Founda-tion got the think tank facility that they needed and wanted.Through hard work and their involvement in the CEQAprocess, the Committee for Green Foothills ensured thatthe concerns of the environment and of the community atlarge were addressed in the final Carnegie plan.


A CEQA settlement moved the Carnegie Foundation’s think tank facilitydown the hill from this planned site in the Stanford Hills. It also ensuredthat clearly defined measures were taken to protect the threatenedtiger salamander. Stanford’s Hoover Tower is visible in the background.

Mike Kahn / Kahncious.Net

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The last one hundred and fiftyyears of logging inCalifornia’s forests has

caused severe, well-documenteddamage to many environmentalvalues and resources. The list ofendangered or threatened wildlifespecies is long and getting longer.Coho salmon, steelhead, northernspotted owl and marbled murreletwill probably be joined by Califor-nia spotted owl, and Pacific fisher.Many watersheds have sufferedincreases in erosion and sedimenta-tion, bank failures, flooding andlandsliding, and the loss of theirfisheries. Excessive sedimentationfrom logging has filled gravel stre-ambeds with silt, creating unlivableconditions for local wildlife. Cur-rent conservation policies that pre-serve islands of suitable habitat in asea of logging have led to what theU.S. Forest Service has called a“prescription for extinction.”

Few issues in California have beenmore controversial or engenderedmore passionate public debate thanthe damage to the state’s environ-ment from logging. The almostcomplete disappearance of theprimeval old-growth redwood for-ests that once blanketed the northcoast of California has been thefocal point for much of that debate.Public concern is also growing re-garding the steep increase inclearcutting in the Sierra Nevadaand the accelerating conversion ofoak woodlands to housing subdivi-sions and vineyards. A broad coali-tion of scientists, public agencies,concerned businesses, and commu-

nity groups are raising the alarmabout the plight of the forests andthe approval process for newlogging.

With the overwhelming majority ofCalifornia’s forests owned by theState and private landholders,CEQA has been one of the mostimportant methods to improve for-est management practicesstatewide.

Logging on non-federal land isregulated by the California Board ofForestry and the California Depart-ment of Forestry and Fire Protec-tion (CDF). According to theZ’berg-Nejedly Forest PracticeAct, every time a logging companywishes to log a certain area theymust have a Timber Harvest Plan(THP) approved by the Department

of Forestry. Each plan should alsobe analyzed by the Department ofForestry, the Department of Fishand Game, the appropriate Califor-nia regional water quality controlboard, and the county planningagency. These agencies assess theplan’s compliance with a number ofimportant environmental laws in-cluding CEQA, the Forest PracticeAct, the Clean Water Act, and theFederal and State Endangered Spe-cies Acts.

THPs were not subject to CEQAuntil 1976, when the CaliforniaCourt of Appeal ruled that timberharvest plans had to comply withCEQA. The following year theLegislature amended CEQA toprovide a limited exemption fromCEQA for “certified regulatoryprograms.” The Secretary ofResources quickly certified CDF’sprogram for approving timberharvest plans and the Board ofForestry’s program for adoptingforest practice rules as “certifiedregulatory programs” that were“functionally equivalent” to CEQA.

Unfortunately CDF has had a his-tory of failing to live up to the sub-stantive and procedural require-ments of CEQA, and the courtshave repeatedly found that CDF’simplementation of the certified regu-latory program does not measureup. Public agencies and privatecitizens have used their power tolitigate under CEQA to mend someof the major flaws in CDF’s ap-proval of timber harvest plans.

CEQA and California’s ForestsBy Tom Lippe and Matthew Vander Sluis

Current conservation policies that preserve is-lands of suitable habitat in a sea of logging haveled to what the U.S. Forest Service has called a“prescription for extinction.”

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Thomas N. Lippe is an environmentaland land use attorney with offices inSan Francisco, California. Mr. Lippehas represented numerous nonprofitenvironmental organizations andpublic agencies in environmentalcases since 1987, including over fortycases involving timber harvesting.

Because of CEQA, in 1978, CDFwas required to begin preparingwritten responses to significant envi-ronmental comments, greatly in-creasing government accountability.

In 1985, the courts ruled thatCEQA’s cumulative impact analysisrequirements also apply to timberharvest plans. A single timber har-vest plan usually represents part ofa larger plan to log large contiguousareas or interlocking blocks of for-est. Requiring the lead agency tolook at the big picture is especiallyimportant in these situations be-cause many forest-dwelling endan-gered species require large areas ofundisturbed habitat. In the samecase CEQA helped close anotherloophole by prohibiting CDF fromrelying on nonpublic documents torespond to significant environmentalpoints.

In 1994, the courts found that CDFhas authority under CEQA to re-quire the submission of informationthat is necessary to identify poten-

tially significant environmental im-pacts, even where there is no spe-cific forest practice rule requiringthe submission of such information.This decision marked a majorpolicy change for CDF, increasingboth the quantity and quality ofinformation available to decisionmakers.

In a 1997 Court decision applyingCEQA to timber harvest plans,CDF was required to circulate itscumulative impact assessment tothe public for review and comment.That same year, another appellatecourt ruled that, to comply withCEQA, timber harvest plans mustconsider a range of reasonablealternatives to the current loggingproposal.

CEQA has also been instrumental inimproving other aspects of forestmanagement, including the conver-sion of oak woodlands and themanagement of our state forests. In1999, CEQA was applied to theconversion of oak woodlands to

vineyards under local landuse laws governing gradingon steep slopes. This hassignificantly slowed the paceof environmental change inwine growing regions of theNapa Valley, preservingtheir viability as rural-agri-cultural areas.

Similarly, Jackson StateDemonstration Forest, thelargest state forest in Cali-fornia at 50,000 acres, iscurrently using CEQA to re-assess its management plan.A judge recently threw outthe existing plan in whichone third of logging in thestate forest was approved

for clearcutting or similarly harshmethods.

The need to strengthen our forestrymanagement practices is clear. Ev-ery year, more species are listed asthreatened or endangered. Everyyear, more public agencies admitthat their approval and monitoringprocesses for logging are deeplyflawed. As the substantial impactsfrom commercial logging becomemore widely known, concernedcitizens are seeking new legal andlegislative solutions. Despite thefailures of the forestry certifiedregulatory programs, CEQA contin-ues to play a significant role instrengthening protection forCalifornia’s forests.

Under the Upper San Antonio Creek Timber HarvestPlan, logging has occurred within thirty feet of thisstream and within forty feet of a state park boundary.

Chris

Hall

Warren Alford

Upstream on the San Antonio Creek. CEQA con-tinues to play a significant role in addressingthe inadequacies of forestry certified regula-tory programs.

Matthew Vander Sluis is a staff writerfor the Planning and ConservationLeague Foundation.

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California is by far thenumber one agricultural producerand exporter in the United States.With 2002 production valuesexceeding $25 billion, Californiaproduced more than Texas andIowa combined—the nation’ssecond and third agricultural states.California is also the nation’s mostpopulous state and the fastestgrowing. The American FarmlandTrust’s groundbreaking “Farming onthe Edge” report ranks three areasof California among the nation’stwenty most threatened farmingregions: the Central Valley (1),Central California Coastal Valleys(15) and the Imperial Valley (17).Despite wider public awareness ofthe issue, conversion of agriculturalland to urban development is stilloccurring at a rapid rate inCalifornia.

According to a May 2001 reportby the Agricultural Issues Center ofthe University of California, thestate lost approximately 500,000acres of farmland to urban develop-ment between 1988 to 1998. Asthe report states, “Turning that muchfarmland into developed acres isroughly equivalent to creating threenew cities the geographic size ofModesto each year.” Or to look atit another way, California hasurbanized an agricultural land baseover the last ten years equivalent tothe size of Orange County.

Recognizing both the economicimportance of agricultural lands andthe open space and habitat benefits

of farm and ranch lands, many citiesand counties in California haveidentified the importance of farm-land as a regional and local asset

and have goals and policies forfarmland preservation statedthrough their general plans. Theloss of prime farmland is oftenstated as a significant impact whendevelopment occurs.

The CEQA Guidelines

State CEQA Guidelines addressfarmland conversion impactsdirectly in two ways. First, cancel-lation of Williamson Act contracts

for parcels exceeding 100 acres isan action considered to be “ofstatewide, regional, or area widesignificance,” and thus subject toCEQA review. Second, AppendixG of the CEQA Guidelines statesthat a project that would “convertprime agricultural land to non-agricultural use or impair the agri-cultural productivity, would ‘nor-

CEQA and Farmland ProtectionBy Ed Thompson

mally have a significant effect on theenvironment.’” Note that in thesecond case, no set acreage thresh-old of prime farmland conversion

has been determined by case law orregulatory framework which wouldconstitute a significant impact. TheWilliamson Act has a detaileddefinition of what constitutes “primeagricultural lands.”

Neither CEQA nor the CEQAGuidelines provide lead agencieswith specific directions concerningthe content of, or analytical ap-proaches to be used in, assessingfarmland conversion impacts as partof the environmental process.Some local jurisdictions, such asSanta Barbara County, however,have adopted their own CEQAguidelines with numerical thresholdsfor agricultural land conversion that,if exceeded by a proposed project,would trigger a finding of “significantenvironmental impact.”

CEQA and Farmland Mitigation

A California Court of Appealsrecently issued an unpublishedopinion concluding that if theenvironmental impact of a projectconverting farmland to urban usecan not be mitigated below a levelof significance, other mitigationmeasures must still be adopted ifthey would substantially lessen the

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California’s Central Valley, Central CoastalValleys, and Inyo Valley are three of the nation’s

twenty most threatened farming regions.


environmental impact of the project.Adopting a statement of overridingconsideration does not exempt thelocal agency from mitigating mea-sures such as the payment of feesfor conservation easements to limitfuture loss of farmland. The name ofthe case is South County Citizensfor Responsible Growth v. City ofElk Grove, currently unpublished(3d Dist. Feb. 5, 2004). Since theopinion is currently unpublished itmay not be relied upon by otherlocal agencies. There is a requestfor publication currently pendingwith the California Supreme Court.

Creative and effective mitigationmeasures for conversion of impor-tant farmland to urban developmentand other uses have been imple-mented under CEQA. Potentialmitigation measures include:

• Establishing policies and proce-dures for evaluating the impacts of aproject on agriculture and applyingthese policies consistently to mini-mize the conversion of prime andimportant farmland;

• Requiring project proponents toevaluate alternatives and mitigationmeasures that would direct growth

toward less productive agriculturalland and minimize the loss of primeand important farmland throughhigher-efficiency urban land use;

• Requiring project proponents toplace an agricultural conservationeasement, Farmland Security ZoneContract or other form of long-term

reservation on farmland of equiva-lent quality as a condition of projectapproval;

• Requiring project proponents topay a per-acre mitigation fee to beused for the acquisition of agricul-tural conservation easements orother long-term farmland protectiontools on farmland in anotherlocation.

As a result of mitigation measuressuch as those listed above, signifi-cant gains have been made inpreserving California’s agriculturallands. For example:

• The California Energy Commis-sion requires mitigation of farmlandat a 1:1 ratio for development ofnew power plants in California withsuccessful easement projects in SanJoaquin and Tulare Counties.

• Several proposed highwayprojects in Imperial County, Cali-fornia, will result in hundreds ofacres of farmland conversion,including the Brawley Bypass, StateRoute 111 Realignment, and theState Route 7 Expressway Exten-sion projects. These highway

projects are within the territory ofthe California TransportationDepartment’s (Caltrans) Region 11.Caltrans is developing an overallprogram to mitigate for this loss offarmland by establishing conserva-tion easements on viable agriculturalparcels at an acreage ratio of 1:1.

• The Sierra Club has negotiatedseveral comprehensive farmlandmitigation settlement agreements inSan Joaquin County that will ensurethe availability of millions of dollarsfor farmland protection to beadministered by the new CentralValley Land Trust.

The CEQA process has greatpotential to provide mitigation offarmland loss. Local organizationscan use this tool to protect farmlandduring the Environmental ImpactReport review process if they areaware of the range of potentialmitigation practices. It could beespecially effective when mitigationis used in conjunction with estab-lished local or regional farmlandpreservation programs. At themoment, however, many leadagencies are still hesitant to requireor agree to mitigation and theadditional development costs due tothe perception that it will place themat a disadvantage when areascompete for economic develop-ment. There is a need to strengthenCEQA’s farmland protectionpolicies to prevent agencies from“overriding” significant impacts tothis state’s precious and valuableagricultural resources, while encour-aging compact, efficient urbandevelopment.

Ed Thompson is the California Directorof the American Farmland Trust.

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Between 1988 and 1998 Californiaurbanized an agricultural land base

equivalent to the size of Orange County.


an Environmental Impact Report(EIR) for the project, purporting toanalyze the potential mitigationmeasures for the project’s obvious

impacts to agriculturalresources. Relyingupon the circumspectanalysis within the EIR,the City of Irvineconcluded that nofeasible measuresexisted to mitigate theelimination of agricul-

tural resources. The City, therefore,approved the project pursuant to aStatement of Overriding Consider-ations without imposing any mitiga-tion measures whatsoever.

Defend the Bay, anon-profit publicbenefit corporationdedicated to protect-ing Newport Bay andother public areasfrom environmentalharm, filed suit underCEQA to challengethe EIR and the City’sdecision to approvethe project withoutmitigating the loss ofprime farmland.(Defend the Bay v.City of Irvine, et al.,

Orange County Superior CourtCase No. 01CC07568.)

After exhaustively analyzing theCity’s and the Irvine Company’s

CEQA has been utilized recently to address the threat that development

poses to California’s agriculturalresources. Inparticular, areaswith importantagricultural heritageshave been facingincreased pressureto convert agricul-tural property tomore economicallyprosperous uses, such as commer-cial, industrial, and residentialdevelopment.

CEQA specifically includes agricul-tural property as aprotected resource.Any significant, ad-verse impacts toagricultural resources,therefore, must beeither avoided ormitigated, if feasible todo so. Potentialnegative impactsinclude the conversionof farmland to non-agricultural uses andinconsistency withapplicable zoning andplanning documents.

One of the areas in which CEQAhas been applied to the conversionof agricultural property is in OrangeCounty, within the sphere of influ-ence of the City of Irvine. In 2000,

the Irvine Company sought toconvert over 600 acres of primefarmland, the highest classificationof agricultural soils, to industrial

development. The project, calledSpectrum 8, entailed eliminating allagricultural uses on the 730 acresite and replacing it with over10,000,000 square feet of general

industrial and medical/sciencedevelopment.

The City of Irvine and the IrvineCompany cooperated in preparing

Preserving Agriculture inOrange County

By Kevin K. Johnson and Jared P. Hanson

The Irvine Company’s Spectrum 8 proposal called for the conversion of over 600acres of Prime Farmland into more than 10,000,000 square feet of generalindustrial development. The City of Irvine originally approved the project withoutimposing any mitigation measures whatsoever.

Kevin

Joh

nson

Areas with important agriculturalheritages are facing increased pressure to

convert land to more economicallyprosperous uses, such as commercial,

industrial, and residential development.

87


attempt to support the City’sdecision, the Court concluded thatthere was absolutely no evidence tosupport the City’s rejection ofcertain possible mitigation mea-sures. For instance, there was noevidence to support that preservingat least some of the project site foragricultural uses was infeasible.Alternatively, the City might haveimposed an agricultural impact feeto mitigate for the elimination ofagricultural acreage on the site.

The Court further concluded thatthe project was inconsistent with the

City’s General Plan, which hadbeen updated only two years beforeapproval of the Spectrum 8 project.Because of the trend towardurbanization and conversion ofagricultural property, the GeneralPlan provided for the preservationof agricultural land uses within theCity.

The Court therefore held that theCity had failed to comply with therequirements of CEQA, andordered that the approval of theproject be rescinded.

As a result, the City of Irvine andthe Irvine Company were forced toreturn to the table and consider truemitigation measures to address theagricultural impacts. Although theCity ultimately concluded that the

Kevin K. Johnson and Jared P. Hansonare attorneys at Johnson & Hanson,LLP. The firm represented Defend theBay in this case.

impacts could not be fully miti-gated, it did impose mitigationmeasures that partially lessened theloss of agricultural lands within theCity of Irvine.

The City established an AgriculturalLegacy Program, which is intendedto provide land for small-scalefarming operations within the City ofIrvine to preserve the historical roleagriculture has played in the city.The City committed to preserving atleast 300 acres of land within theCity for permanent agricultural use.Finally, the City imposed upon the

Irvine Company a fee of $100,000to fund the operation of theprogram.

Accordingly, despite overwhelmingdevelopment pressures, the large-scale conversion of agriculturalproperty within the City of Irvinehas not resulted in the total elimina-tion of the City’s historical agricul-tural land and operations. Thefaithful application of CEQA by thepublic and the courts has preserveda substantial portion of theseimportant resources.

Despite overwhelming developmentpressures, the faithful application of CEQA

by the public and the courts has preserved asubstantial portion of the City of Irvine’s

historical agricultural lands and operations.

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CHAPTER 5Environmental Justice

See Pg...91

See Pg...92

See Pg...97

CEQA Promotes Environmental JusticeAlan Ramo ................................................................... 91

Editor’s NotePCLF Staff ................................................................... 92

Hazardous Waste Incinerator in Kettleman CityLuke Cole ..................................................................... 93

Lancer and the Vernon Incinerator: Protecting Communitiesfrom the Projects that “Have to Go Somewhere…”

Joel R. Reynolds ........................................................... 95

ConocoPhillips & Paramount:CEQA and Oil Refinery Expansions

Richard Drury .............................................................. 97

CEQA: Protecting CommunitiesWill Rostov ...................................................... 97, Sidebar

EN

VIR

ON

ME

NT

AL JU

ST

ICE

90

View from St. Anthony Catholic School overlooking the Chevron refinery in thetown of El Segundo. The refinery is among the largest sources of industrial airpollution in Los Angeles County, with direct impacts on community health. Be-cause of CEQA, Chevron implemented additional measures to reduce emissionsaffecting the community.

Joe Lyou, California Environmental Rights Coalition

ENVIRONMENTAL JUSTICE • ENVIRONMENTAL JUSTICE •

The environmental justice movement arose out of grassroots resistance to a

pervasive pattern of siting the mostdangerous, polluting facilitiesin communities with predomi-nantly low-income residentsand minorities. This trend isdriven in large part by zoningrequirements, low propertycosts, and the fact that manylow-income communities lackthe political clout to effec-tively oppose these projects.

Policies relating to the sitingof polluting facilities arefacially race neutral. How-ever, in practice they result in low-income communities and communi-ties of color bearing a dispropor-tionate share of the burden ofenvironmental degradation, withdirect and sometimes tragic results.The effort to integrate environmentaljustice concepts into the decision-making process requires recognizingand remediating thedisparate impact ofthese policies onCalifornia’s mostvulnerablecommunities.

The environmentaljustice movement,which began to gainmomentum at thegrassroots level in the mid-1980s,achieved federal recognition throughPresident Clinton’s 1994 ExecutiveOrder on environmental justice.

This Executive Order established anational policy of addressingdisproportionately high and adversehuman health or environmental

effects on minority populations andlow-income populations.

California followed suit in 1999,passing its own environmentaljustice policy. The Legislaturedeclared that Cal-EPA should“conduct its programs, policies, andactivities that substantially affect

human health or the environment ina manner that ensures the fairtreatment of people of all races,cultures, and income levels, includ-

CEQA PromotesEnvironmental Justice

By Alan Ramo

ing minority populations and low-income populations of the state.”

CEQA is unquestionably the mostuseful legal tool for the environ-mental justice advocate inCalifornia to implement Cali-fornia’s environmental justicepolicy; just as NEPA, CEQA’sfederal model, is one of theprincipal legal mechanisms foraccomplishing environmentaljustice at the federal level.

Environmental Justice practitio-ners have also utilized otherlaws. For example, an arrayof pollution specific laws like

the Federal Clean Water Act isavailable. However these lawsusually address pollution problemsafter they have begun. They alsosystematically fail to address theproblem of cumulative impacts andthe interaction of social and envi-ronmental effects that underlie mostenvironmental justice problems in

communities of color.

Unlike NEPA, CEQAdoes not addressenvironmental justiceexplicitly. However,CEQA takes directaim at cumulativeimpacts, the interac-tion of physical andsocial impacts and the

need for alternatives that avoidsignificant impacts. And it does sowith a rich set of guidelines and

Residents of Strategic Alliance for a Just Economy (SAJE)march against the loss of affordable housing. Read aboutSAJE and CEQA on page 44.

Robin

Doy

no

91

CEQA, at its heart simply demands that agovernment agency fully contemplate anddisclose the foreseeable consequences of

its actions and avoid unnecessaryenvironmental risks. This has turned out

to be the primary weapon againstenvironmental injustice in California.

• ENVIRONMENTAL JUSTICE • ENVIRONMENTAL JUSTICE

Alan Ramo is a Professor at the GoldenGate University School of Law, and isthe Director of the Environmental Lawand Justice Clinic.

case law that define how theseconcepts work in practice.

These CEQA concepts also pro-vide the substantive information thatunderlies any claim of discriminationunder civil rights laws. Thealternatives analysis iscrucial. Federal civil rightslaw makes it clear thatdemonstrating the availabil-ity of a nondiscriminatoryalternative is a key torebutting any claim thatimpacts affecting a particu-lar low-income neighbor-hood or ethnic or racialgroup are necessary.

Finally, CEQA supports theenvironmental justicemovement’s insight that anenvironmental decision makingprocess that allows full publicparticipation will more surely avoidinjustice. CEQA encourages publichearings. It requires that documentsbe drafted so that they are useful tothe public. CEQA provides thatcomments and information beavailable as early as possible andthat agencies respond to comments.CEQA ultimately requires thatenvironmental impact reportsinclude a full discussion of environ-mental impacts, as well as mitigationand alternatives. A court has alsorequired environmental documentsto be in the language of thoseaffected by a project, assuring thatpublic disclosure is not mere lipservice. All of these requirementsprovide the basis for a truly in-formed community.

Other doctrines are coming into theforefront to advance environmentaljustice, such as the precautionary

principle. This principle requiresputting the risk upon those seekingto affect the environment andrequires a search for alternativesthat avoid risks. This approachworks hand in hand with CEQA.

Only CEQA provides that a fullenvironmental review is required if aproject “may” cause a significantenvironmental effect. Only CEQArequires a set of alternatives de-voted to avoid significant impactsand prevents a project goingforward that cannot mitigate to

insignificance. Only CEQA findsthat cumulative impacts are signifi-cant if a project contributes to sucheffect even though their individualcontribution is insignificant.

Activists using CEQA haveachieved victories stopping ormitigating impacts fromincinerators, hazardous wastefacilities, power plants, portand refinery expansions andother projects affecting low-income communities andcommunities of color. CEQA,at its heart simply demandsthat a government agency fullycontemplate and disclose theforeseeable consequences ofits actions and avoid unneces-sary environmental risks. Thishas turned out to be the

primary weapon against environ-mental injustice in California.

Editor’s Note:As Professor Ramo points out in this article, CEQA has becomethe primary weapon for combating environmental injustice in thestate of California. In this chapter, we have compiled some of thelandmark environmental justice victories in the history of themovement.

But these are by no means the only environmental justice “suc-cess stories” you’ll find in the pages of our report. From fightingfor parks in underserved communities, to ensuring that commu-nity well-being is not neglected in the planning and execution ofmajor development projects, to protecting community health inthe face of incinerators, ports, mega-dairies, and other industrialfacilities, environmental justice issues are central to the CEQAstories found in virtually every chapter of this report.

Activists using CEQA have achieved victories stopping or miti-gating impacts from incinerators, hazardous waste facilities,power plants, port and refinery expansions, and other projectsaffecting low-income communities and communities of color.

92


In 1988, Chemical WasteManagement, Inc, (ChemWaste) proposed the con-

struction of a toxic waste incinerator3.5 miles from Kettleman City, apredominantly Latino community of1,100 residents in Kings County, inCalifornia’s San Joaquin Valley.Though none knew it at the time,this proposal would spark one ofthe defining struggles of the earlydays of the Environmental Justicemovement, in which a small farm-worker town ultimately used CEQAprovisions to take on the largesttoxic waste company in theworld—and won.

Since the 1970s, Kettleman Cityhas been host to one of the largesttoxic waste dumps in the U.S.,owned and run byChemical WasteManagement, Inc(Chem Waste). Itwas built withoutthe community’sknowledge orconsent. It wasnot until the early1980s—aftermultimillion-dollar environmentalfines were levied against the ChemWaste facility—that residentsbecame aware of its existence. Atthat late date, they saw few ways inwhich they could challenge thedump. Things changed, however,when they learned of the proposedincinerator.

Perhaps unsurprisingly, the residentsof Kettleman City heard about thisproposal not from Chem Waste,nor from Kings County or stateofficials, but from a Greenpeaceorganizer in San Francisco. Theywere shocked to learn that theincinerator would burn up to108,000 tons—216,000,000pounds—of toxic waste each year.This translates to 5,000 truckloadsof waste per year in addition to thehundreds already passing throughtheir community daily.

A new community group, El Pueblopara el Aire y Agua Limpio (Peoplefor Clean Air and Water), quicklyorganized and involved itself in thepermitting process. However,Kettleman City is 95 percent

Latino, with 70 percent speakingSpanish at home, and 40 percentmonolingual in Spanish. Thus,language became a critical issue.

When Kings County published a1,000 page, CEQA-mandatedEnvironmental Impact Report(EIR), city residents urged that thehighly technical document be

translated into Spanish so theycould participate in the environmen-tal review process. The county,however, was unresponsive. Aftersignificant pressure, Chem Wasteissued a scant, five page executivesummary in Spanish.

About 200 Kettleman City resi-dents attended the sole publichearing on the incinerator proposal.Hoping to testify before the Plan-ning Commission, they brought theirown translator. However, theCommission refused their request,stating that translation was onlyallowed in the far back of the roomand not during testimony. Residentstestified anyway, in Spanish, fromthe front of the room.

The PlanningCommissionvoted to approvethe incinerator,and an appeal ofthis decision tothe Kings CountyBoard of Super-visors also failed.It seemed that the

County—already receiving $7million dollars per year in revenuefrom Chem Waste’s existingdump—had too much to gain fromthe project. The incinerator prom-ised to almost double the taxrevenue that the County receivedfrom the toxic waste dump. Withthe incinerator, the County wouldhave ended up receiving about one-

Hazardous Waste IncineratorHazardous Waste IncineratorHazardous Waste IncineratorHazardous Waste IncineratorHazardous Waste Incineratorin Kettleman City

By Luke Cole

“I think they thought we would go away. Butit was too dangerous to let an incinerator come in here.

We had to do something about it.”

– Mary Lou Mares, KC housewife and leader of El Pueblo.

93


sixth of its annual revenue from thissingle company.

Finally, the residents filed a lawsuitunder CEQA. The lawsuit ulti-

mately succeeded. The presidingjudge ruled that the EIR had notsufficiently analyzed the toxic wasteincinerator’s impacts on air qualityand on agriculture in the SanJoaquin Valley. Just as importantly,the judge ruled that the residents ofKettleman City had not beenmeaningfully included in the permit-ting process.

As the Court eloquently stated,“The residents of Kettleman City,almost 40 percent of whom weremonolingual in Spanish, expressedcontinuous and strong interest inparticipating in the CEQA reviewprocess for the incinerator projectat the Kettleman Hills Facility, justfour miles from their own homes.Their meaningful involvement in theCEQA review process was effec-tively precluded by the absence ofSpanish translation.”

Rather than go back and do theenvironmental study right, ChemWaste appealed the decision. But

Luke Cole is an environmental justiceand civil rights lawyer, and Director ofthe Center on Race, Poverty & theEnvironment in San Francisco. Mr.Cole has represented Kettleman Cityresidents in various environmentaljustice disputes for the past fifteenyears, including their successfulstruggle against the toxic wasteincinerator.

by this time, the press had pickedup the story and Kettleman City’sstruggle had become a nationalstruggle, and part of the growingnational Environmental Justice

Movement. Finally, in Septemberof 1993, Chem Waste announcedthat it was withdrawing its applica-tion. The town’s residents hadcome together to protect thecommunity welfare and, with the aidof the California EnvironmentalQuality Act, had won.

Delegates to the First NationalPeople of Color EnvironmentalLeadership Summit held inWashington DC in 1991,drafted and adopted 17 prin-ciples of Environmental Justice.The first five principles are:

1) Environmental Justiceaffirms the sacredness ofMother Earth, ecological unityand the interdependence of allspecies, and the right to be freefrom ecological destruction.

2) Environmental Justicedemands that public policy bebased on mutual respect andjustice for all peoples, free fromany form of discrimination orbias.

3) Environmental Justicemandates the right to ethical,balanced, and responsibleuses of land and renewableresources in the interest of asustainable planet for humansand other living things.

4) Environmental Justicecalls for universal protectionfrom nuclear testing, extraction,production and disposal oftoxic/hazardous wastes andpoisons, and nuclear testingthat threaten the fundamentalright to clean air, land, water,and food.

5) Environmental Justiceaffirms the fundamental right topolitical, economic, cultural andenvironmental self-determina-tion of all peoples.

Principles ofEnvironmental

Justice

“The residents of Kettleman City, almost 40 percent ofwhom were monolingual in Spanish, expressed

continuous and strong interest in participating in theCEQA review process for the incinerator project at theKettleman Hills Facility, just four miles from their own

homes. Their meaningful involvement in the CEQAreview process was effectively precluded by the absence

of Spanish translation.”

– Judge’s ruling in the Kettleman City CEQA suit.

94


Los Angeles lies in the dirtiestair basin in the country, withclimatic conditions and air

inversions that trap air pollution.Thus, Los Angeles would seem anunlikely location for siting large-scale commercial incinerators forthe burning of solid waste andtoxics. But during the 1980s, that isprecisely the proposal that con-fronted the low income, minoritycommunities of South Central andEast Los Angeles.

As an “answer” to the mountains ofgarbage generated each day by theresidents of Los Ange-les, the city’s Bureau ofSanitation proposed aseries of mass burnincinerators, beginningconstruction in thecommunity of SouthCentral Los Angeles.At almost the same time,California’s Department of HealthServices was proposing to site thestate’s first large-scale toxic wasteincinerator in the city of Vernon,only blocks from the residentialneighborhoods, schools, andchurches of East Los Angeles.

In both cases, CEQA was the firstand primary, though not exclusive,line of defense for communities indeveloping and implementing theirstrategies of opposition.

LANCER and the ConcernedCitizens of South Central LA

The Bureau of Sanitation proposedLANCER, an enormous threeincinerator, mass-burn complex in

LLLLLANCERANCERANCERANCERANCER and the and the and the and the and the Vernon IncineratorVernon IncineratorVernon IncineratorVernon IncineratorVernon Incinerator: : : : : Protecting CommunitiesProtecting CommunitiesProtecting CommunitiesProtecting CommunitiesProtecting Communitiesfrom the Projects that “from the Projects that “from the Projects that “from the Projects that “from the Projects that “Have to Go SomewhereHave to Go SomewhereHave to Go SomewhereHave to Go SomewhereHave to Go Somewhere . . . .” . . . .” . . . .” . . . .” . . . .”

By Joel R. Reynolds

the most densely populated andhighly polluted area of the city. Itwould produce or emit nearly 5million tons of ash—most destinedfor landfills—of which over 8 millionpounds would be spewed intoadjacent neighborhoods from its280 foot main stack, as well as anadditional 150,000 pounds ofcooling tower particulate matteremissions.

All of its emissions would contain awide variety of hazardous emis-sions, including heavy metals, toxicorganic compounds, and other

carcinogens, totally apart from theair pollution generated by the 600to 700 garbage truck trips per dayto and from the facility. During itsdesign life, the project wouldconsume over 12 billion gallons ofwater and discharge over 2 billiongallons into the city’s alreadyoverburdened sewer system.

Led by a group called ConcernedCitizens of South Central LosAngeles, community residentsbegan to visit City Hall, askingquestions, demanding answers, andporing over documents, includingthe project’s Environmental ImpactReport (EIR). What they foundwas disappointing: an environmentalreview process that understated thepotential risks, relied on outdated

information, ignored reasonablealternatives, and served as a posthoc rationalization for a decisionthat appeared already to have beenmade to proceed with this projectbecause the trash “has to go some-where . . . .”

Concerned Citizens organized abroad coalition of groups fromaround the city, including, amongothers, an activist group inWestwood called Not Yet NewYork, lawyers at the Center forLaw in the Public Interest, andscientific experts at the UCLA

School of Public Health.They held rallies, visitedcity offices, and testifiedat city hearings, de-manding a full andobjective analysis ofalternatives to massburn incineration in the

heart of their community. And thetide began to turn as the coalitiongained strength.

CEQA played a pivotal role byproviding an accessible and rela-tively understandable legal basis forcommunity education, organization,and, ultimately, effective action.

CEQA mandated that an EIR beprepared and made available to thepublic. Its process incorporatedpublic hearings that served as afocus for community organizationand enabled the public to learnabout the project and express theirviews to public officials. And itultimately provided a right of actionin court, should the city decide toproceed with the project.

Meanwhile, city-wide opposition to massburn incineration continued to grow,fueled by heightened concern about

potential health impacts, not just in thesurrounding communities but

throughout the South Coast Air Basin.

95


Joel R. Reynolds is a Senior Attorneyat the Natural Resources DefenseCouncil and director of its UrbanProgram. Mr. Reynolds representedConcerned Citizens of South CentralLos Angeles and the Mothers of EastLos Angeles in their successfulopposition to the LANCER and VernonIncinerator projects.

In this case, litigation provedunnecessary. Faced with newinformation about the potentiallyhazardous byproducts of the massburn incineration process, the citydirected that a Supplemental EIRand Health Risk assessment beprepared and circulated. Mean-while, city-wide opposition to massburn incineration continued to grow,fueled by heightened concern aboutpotential health impacts, not just inthe surrounding communities butthroughout the entire South CoastAir Basin.

In the summer of 1987, Mayor TomBradley withdrew his support, andLANCER was abandoned. Back-ing for incineration dissipated,replaced by a renewed resolve tofocus seriously on more sustainablealternatives, like recycling. Al-though their focus had been pro-tecting their own community,Concerned Citizens of SouthCentral Los Angeles created a city-wide movement that changed solidwaste disposal policy in LA fordecades to come.

The Vernon Incinerator and theMothers of East Los Angeles

At the same time, incineration wasbeing promoted as a promisingalternative for the disposal of toxicwaste in California. Leading theway, and proposed by a companycalled California Thermal TreatmentSystems (CTTS), the VernonIncinerator project would involvetwo large-scale commercial hazard-ous waste incinerators, to beconstructed in the heart of the SouthCoast Air basin, in the city ofVernon, within 7,500 feet of homes,schools, churches, hospitals, andfood processing facilities. The firstof its kind in California, the incinera-

tor would receive, store, and burn awide variety of hazardous wastes,including solvents, mixed oil, andpaint sludge.

As byproducts of incineration, theproposed facility would producesome 19,000 tons per year of ash,dust, and other hazardous waste, allof which would be transported tohazardous waste landfills. Theincinerator would continuously emitheated gases at the rate of over83,000 cubic feet per minute from a75-foot high, six-foot diametersmokestack. Many of the com-pounds contained in the gases hadbeen designated by state andfederal agencies as toxic air con-taminants and proven carcinogens,mutagens, and/or teratogens.

This project generated strongopposition from surrounding com-munity residents, led by the Moth-ers of East Los Angeles. Remark-ably, regulators had allowed theproject to proceed without requiringan EIR. Before opponents knewwhat hit them, the thirty-day statuteof limitations under CEQA hadexpired. With construction permitsalready issued by the South CoastAir Quality Management Districtand EPA, and with the support ofthe California Department of HealthServices, and the City of Vernonassured, the project lookedunstoppable.

The community, however, refusedto give up. Aided by then-Assem-blywoman Lucille Roybal Allardand others, they pursued a range oftactics, from protest marches, tolegislative and administrative advo-cacy, to legal action. They recruitedlawyers from the Center for Law inthe Public Interest and, later, theWestern Center for Law and

Poverty and the Natural ResourcesDefense Council (NRDC). Law-suits were filed under CEQA andNEPA against the Department ofHealth Services and the U.S. EPAdemanding full scale environmentalreviews that, in permitting thefacility, neither agency had botheredto require.

As the project received morescrutiny, concerns about the healthrisks it would generate gainedtraction, including, in particular,significant new information about itspotential to generate dioxins andfurans too persistent to be de-stroyed in the burning process.When CTTS applied in 1988 for anextension of its construction permitfrom the South Coast District, thecommunity opposed it. To thecompany’s surprise, the District,citing the new information, condi-tioned the extension on thecompany’s agreement to prepare anEIR, incorporate “best availablecontrol technology” (BACT), andupdate its health risk assessment.

When the company challenged theconditions in court, the communityintervened on the District’s behalf.Although the Superior Court upheldthe company’s challenge, the Courtof Appeal reversed the decision.The company abandoned theproject in 1990. Against enormousodds, the Mothers of East LosAngeles had prevailed.

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By Richard Drury

ConocoPhillips:

In May 2003, the ConocoPhillipsCompany proposed to expand itsRodeo Refinery by 10,000 barrelsper day and to produce cleanerburning low-sulfur diesel fuel.Production of the new fuel wouldreduce emissions throughout theState of California, a benefit to allCalifornians. However, the projectwould increase emissions in thealready polluted community near therefinery due to more extensiverefining and increased refinerythroughput. This presented a clearenvironmental justice dilemma.

Contra Costa County issued a DraftEnvironmental Impact Report(DEIR) under CEQA toanalyze the project. Commu-nities for a Better Environ-ment (CBE) and a consortiumof five labor unions and theirmembers reviewed the DEIRand proposed additionalmitigation measures to reducethe project’s impacts.

Expert analysis indicated thatthe project would increase cancerrisk in the surrounding community.Related construction activitieswould generate high levels ofparticulate matter and diesel exhaustduring project construction. Theproject would generate significantsulfur-related odor impacts, includ-ing significant impacts from thecooling tower and significantlyincreased emissions from various

ConocoPhillips & Paramount:CEQA and Oil Refinery Expansions

refinery process units. The expertsproposed feasible mitigation mea-sures to reduce each impact.

After extensive proceedings beforethe County Planning Department,ConocoPhillips, CBE and theunions were able to reach anagreement to implement numerousadditional mitigation measures thatwould reduce the localized impactsof the project while still allowing theproject to move forward.

ConocoPhillips agreed to install ahigh performance drift eliminator onthe reactivated cooling tower, whichwill reduce particulate emissions byover 99 percent. ConocoPhillipsalso agreed to use ultra-low-sulfur

diesel fuel in construction equip-ment, which will reduce dieselexhaust emissions dramaticallyduring construction, and to retrofitnumerous existing trucks andstationary diesel engines withparticulate traps to reduce particu-late matter and toxic emissions.The agreement also specifiedactions to reduce flaring, improvethe monitoring system to detect

Communities for a BetterEnvironment (CBE) has beenworking with people who livein the shadow of industrialfacilities for more than 26years. CBE is a Californiaenvironmental health andjustice nonprofit promotingclean air, clean water, and thedevelopment of toxin-freecommunities. CBE’s uniquethree-part strategy providesgrassroots activism, environ-mental research and legalassistance within low-incomecommunities and communi-ties of color. CBE directlyequips residents impacted byindustrial pollution with thetools to inform, monitor, andtransform their immediateenvironment.

CBE uses CEQA to helprefinery neighbors alleviate theburden of unfair localizedpollution. CEQA plays anessential role in CBE’s advo-cacy, because CEQA bothinforms communities of theenvironmental impacts thataffect them and provides realopportunities for publicparticipation.

CEQA also can inform policyand help stop bad projects.Environmental Impact Reportdata helped CBE use theClean Water Act to force 80 to90 percent cuts in seleniumdischarge to San FranciscoBay from the Unocal and

CEQA: ProtectingCommunities

By Will Rostov


97


Richard Drury is an attorney at AdamsBroadwell Joseph & Cardozo. The firmrepresented construction unions inboth refinery proceedings.

Paramount:

In late 2003, the South Coast AirQuality Management District(SCAQMD) released a DEIRunder CEQA for the ParamountRefinery Reformulated Gas Phase 3and low-sulfur diesel project.

The Paramount Refinery is locatedin the City of Paramount nearDowney and Bell Flower inSoutheast Los Angeles County.The refinery currently processes upto 50,000 barrels per day with aworkforce of 180. However, sincethe refinery’s gasoline does not meetstate requirements, its products aresold to other refineries for furtherprocessing or sold out-of-state.Due to its failure to upgrade, manyunits of the refinery have been idlesince 1997.

The project involved theconstruction of several new refineryunits and modifications to existingunits to allow the refinery toproduce gasoline and low-sulfur

diesel fuel for sale in California.While the project would result in theproduction of cleaner burning fuel, itwould also result in increasedemissions in the local community ofParamount.

CBE and a consortium of five laborunions and their members filedextensive CEQA expert and legalcomments identifying the

environmental impacts of theproject and also proposing feasiblemitigation measures to reduce thoseimpacts.

As a result of the CEQA comments,Paramount agreed to implementnumerous additional mitigationmeasures to reduce impacts on thelocal community, including: theinstallation “leakless valves”throughout the refinery; theimplementation of measures toreduce construction emissions, suchas the use of low-sulfur diesel fuel,particulate traps, and natural gaspowered equipment; theimplementation of measures toreduce emissions of volatile organiccompounds (VOCs) from paintsand to reduce refinery flaring;moving certain refinery units awayfrom sensitive receptors such asschools and residences; and others.

Exxon refineries. CBE usedCEQA and the Clean Air Act ina campaign that stopped thereopening of a mothballedrefinery in residential neighbor-hoods of Santa Fe Springs.

In the ConocoPhillips settle-ment, CBE identified the localenvironmental effects of theproject and ensured thatmitigations were put in place.When the Paramount refineryin Los Angeles County wantedto retool, CBE provided CEQAcomments and achieved asettlement to reduce emis-sions and risks to the localcommunity. In 2004, CBE wona lawsuit requiring Chevron tostudy the cumulative impactsof a project at its Richmondrefinery.

In a 2004 CEQA settlement,the Bay Area Air Districtagreed to analyze pollutionreduction rules for five airpollution sources at Bay Arearefineries including what mightbecome the first refinery flarecontrol rule in the country. Thecase was an integral part ofmulti-year organizing cam-paign to achieve these rules.

CEQA is so important toCBE’s work that when Gover-nor Pete Wilson enactedguidelines designed to weakenCEQA, CBE challenged thoseguidelines. In 2002, the StateCourt of Appeal ruled in CBE’sfavor, reversing most of theguidelines.

odor-causing compounds, and toreduce construction noise from piledriving, among other things.

As a result of the CEQA process,the ConocoPhilips refinery willmake cleaner burning fuel, willproduce more fuel to meet increas-ing demand, and will do it in amanner that minimizes impacts onthe local community.


Will Rostov is Staff Attorney withCommunities for a BetterEnvironment.

Because of CEQA, the ConocoPhilips refinery willmake cleaner burning fuel, will produce more fuel tomeet increasing demand, and will do it in a manner

that minimizes impacts on the local community.

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CHAPTER 6Toxics

See Pg...101

See Pg...102

See Pg...103

See Pg...106

Toxic Substances, CEQA, and the Choices We MakeEd Lowrey .................................................................. 101

Common Sources of Toxics in CaliforniaPCLF Staff ................................................................. 102

Toxics at Hercules Bayfront BoulevardRichard Drury ............................................................ 103

Labor and the EnvironmentAram Hodess ................................................ 103, Sidebar

Dow Chemical Plant ExpansionWill Rostov & Catherine Engberg ............................ 105

Pesticides Discovered in the Soil at Siteof Future San Diego Homes

Kevin K. Johnson & Jared P. Hanson ..................... 106

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T O X I C S • T O X I C S • T O X I C S • T O X I C S • T O X I C S • T O X

Toxic substances surround us.They are in the products we use,the air we breathe, the food andwater we drink, and the land uponwhich we live andwork. They get thereas intended additivesto products, as wasteleaching from thoseproducts when theyare disposed, or aswaste byproducts ofindustrial and otherprocesses.

It is not hard tounderstand whyCEQA review iswarranted and gener-ally accepted for anew factory that willsubject us to toxicexposures. Similarly,few would quibble with CEQAreview of a facility proposal wherehazardous waste is proposed to betreated or stored.

Less accepted, andless common, is theapplication ofCEQA to thecleanup of a sitepolluted with toxicwastes. After all, a cleanup canonly enhance public health andsafety, so why subject an environ-mentally beneficial project to theburden of CEQA review? Basedon this logic, the use of categoricalexemptions, and indeed, the com-

Toxic Substances, CEQA, andthe Choices We Make

plete absence of any CEQA review,is commonplace in the site cleanupuniverse.

Nevertheless, it is in site cleanupswhere far-reaching and long-lastingchoices are made that cry out forCEQA analysis. These choices

often foreclose other options andsubject those who will live andwork in a “cleaned up” site to realand calculated risks. A cleanup israrely a process of returning a siteto a pristine state. Rather thangoing to the expense of removing all

contamination, we engage in a cost-benefit analysis, wherein a site iscleaned to an “intended use,” wherewe select a level of contamination

that remains which isconsidered appropriatefor that intended use.

Generally, the level ofremaining contamina-tion is based on risk tothose who will use thesite. Toxicologistsperform a risk analysisbased on the identity ofknown contaminants,the pathways ofexposure to humans,the duration of ex-pected exposure to thelikely user, and theeffects that exposurewill have on people

who will live and work at the site.We then select an “acceptable risk.”In most cases, the controlling risk iscancer, and an “acceptable risk”

can vary fromone cancerdeath per tenthousand peopleto one death in amillion.

In some cases, the fact that treat-ment will occur can create its ownhealth and environmental risks. Forexample, trucks transportingcontaminated soil expose those inthe neighborhood to diesel fumes,noise, and direct contact with

By Ed Lowrey

Site cleanups require the sort offar-reaching and long-lasting choices

that cry out for CEQA analysis.

Choices made during the cleanup of sites polluted with toxic wastes oftensubject those who will live and work in those sites to real and calculated risks.

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X I C S • T O X I C S • T O X I C S • T O X I C S • T O X I C S • T O X I C S

Ed Lowry served as the CaliforniaDirector of Toxic Substances Contfrom 1999 to 2004.

inadequately tarped loads ofcontaminated soil. Or the choice ofthe particular treatment may createthe risk. Thermal treatment systemscan vent low levels of toxins to theair, thereby subjecting nearbyresidents to some additional riskeven though a clean site may be theend result. It is not hard to imagineother examples.

The point is that by creating,releasing, and ultimately treatinghazardous substances, we presentourselves with far-reaching risksand choices. Only CEQA, oranother truly equivalent process,

can provide the level of public inputand environmental inquiry that willhold business and governmentaccountable in a manner that willprotect the public and the environ-ment from the short and long termhazards of toxic substances.

Ed Lowry served as the CaliforniaDirector of Toxic Substances Controlfrom 1999 to 2004.

Rather than removing all contamination, cleanups involve a process of cost-benefitanalysis, wherein a site is cleaned to an “intended use.” The level of contamination thatremains after cleanup is considered appropriate for that intended use.

Common Sources ofToxics in California

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Only CEQA provides the level of public inputand environmental inquiry that will hold

business and government accountable in amanner that will protect the public and theenvironment from the short and long term

hazards of toxic substances.

Silicon Valley Toxics Coalition

Electronic Waste

Agricultural Pesticides

Lead Based Paints inHomes Built Before 1978

Oil Refineries


In early 2003, the Bixby Company proposed to build a mixed-use commer-cial/residential development on a formerly contaminated bayfront site in theCity of Hercules. The site had been heavily contaminated with lead andother chemicals by the long-defunct gun-powder manufacturer, the HerculesPowder Company.

The proposed project appeared to be very beneficial. It would provide amixed-use “transit village” with up to 123 units, including 39 units of afford-able housing, with future access to an Amtrak station and possible ferryservice to San Francisco. However, some nearby residents were concernedabout the adequacy of the clean-up that had been conducted on the site.

The City of Hercules circulated a Negative Declaration pursuant to CEQA,concluding that the project would not have any significant impacts, otherthan impacts that were already considered and mitigated through priorCEQA documents prepared for the area.

However, the eight-year-old EIR relied upon by the City was preparedbefore substantial development projects occurred in the area, including theconstruction of over 800 residential units on an adjacent property, a HomeDepot, and other commercial developments. The old EIR made no consid-eration of these major projects at all. Clearly, the projects would havecumulative impacts on traffic, air quality, and storm water run-off. In addi-tion, the old EIR did not adequately consider the toxic chemical contamina-tion on the Bayfront site.

Toxics at HerculesBayfront Boulevard

By Richard Drury


In 1992, developers proposeda 900 unit residential develop-ment in Franklin Canyon, anundeveloped scenic area inHercules, California. Ignoringoverwhelming opposition fromthe community, environmentaland labor groups concernedabout the projects impacts ontraffic, open space, endan-gered species, critical habitatand local area working stan-dards, the Hercules CityCouncil unanimously approvedthe project.

Community, environmental,and labor groups, includingPlumbers and SteamfittersLocal 159, responded bysponsoring a successfulreferendum overturning theapproval. This successopened a lot of eyes.

For years, the interests ofworking people and environ-mentalists have been por-trayed as being in essentialconflict. Developers andindustry have not hesitated tocapitalize and encourage theidea that this supposed “con-flict” is irresolvable. Frankly,both Labor and environmental-ists have contributed to thisperception, with labor appear-ing often more interested in jobcreation and environmentalistsappearing more interested inprotecting and increasing open

Labor & the Environment

By Aram Hodess

The City of Hercules extends along the San Pablo Bay, just thirty minutes northeast of down-town San Francisco. Today, many of its abandoned brownfield sites are being converted tohousing. CEQA has ensured adequate clean-up of toxic materials before construction.

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Richard Drury is an attorney with Adams Broadwell Joseph & Cardozo. Mr. Drury’sfirm represented the unions and local residents in their 2003 CEQA action.


space. The 1992 referendumand subsequent experiencestaught me that our interestsoften intersect. By coordinatingour efforts, we can encouragegood development decisions,benefiting the quality of life ofour members, the physicalenvironment, and the commu-nities in which we live.

We understand that environ-mental advocacy is not limitedto the protection of endan-gered species and openspace; working people andpoor communities are themost impacted by industrialpollution and poor workplacepractices. For example,neither construction workerswho work on a project nor theeventual residents of a projectshould be exposed to toxicchemicals that have contami-nated the project soil.

Our coordinated efforts withthe community and environ-mentalists reflect a longer-term view of our self-interest.We’ve seen how traffic, con-gestion and overburdenedinfrastructure can frustrateresidents to the point of adopt-ing “no-growth” initiatives. Theformation of coalitions withcommunity and environmen-talist groups can discouragereckless development propos-als. Well-designed projectsearn community buy-in and donot sow the seeds for harsh,community sponsored restric-tions on development. Ourmembers’ livelihoods dependon it, and the entire communitybenefits from it.

Aram Hodess is the BusinessManager of Plumbers andSteamfitters Local 159.

Local residents, togetherwith Plumbers andSteamfitters Local 159,International Brotherhood ofElectrical Workers Local302, and Sheet MetalWorkers Local 104, re-tained legal representationand technical experts toanalyze the project’s impactson air, traffic, water quality,and soil contamination.

Extensive legal and expert comments were filed raising concerns about theadequacy of the clean-up. In particular, the experts raised concerns thatlead standards had becomemore than twice as stringentsince the site clean-up planwas developed ten yearsearlier, and that further soiltesting was required to deter-mine whether or not residualcontamination remained on thesite above the new clean-uplevels.

After attending several hear-ings before the HerculesPlanning Commission and CityCouncil, the City, the developer, the local residents, and the unions wereable to reach an agreement to resolve the issues raised in the CEQA pro-cess. This agreement allowed the project to proceed while ensuring that thecontamination issues were resolved at the development.

The developer agreed to binding permit conditions to be imposed by theCity requiring extensive soil sampling on the site for all of the chemicals ofconcern. The soil sampling will be conducted by an independent third-partyconsultant. If the sampling reveals any significant levels of contamination, thedeveloper agrees to implement any and all further site remediation requiredby the Department of Toxic Substances Control (DTSC).

As part of the agreement, DTSC agreed to review the soil sampling results.As a result of this settlement, the Hercules transit village will be built in amanner that ensures that future residents and construction workers will notbe exposed to toxic chemicals.

Lead standards had become more than twice as strin-gent since the original cleanup at the proposed Her-cules Transit Village site. In addition, the eight-year-oldEIR did not account for major development projects onadjacent properties.

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Now that contamination issues have been addressed,construction has begun on the Hercules Transit Vil-lage. Each home meets design guidelines to blend-inwith Hercules’ historic buildings.

KTGY Group

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over thirty new measures, designedto reduce emissions and minimizeaccidental releases during plantoperation, which Dow has agreedto incorporate into its final projectdesign. In addition, Dow consentedto a 25 percent reduction of certainair emissions from 2001 levels bythe end of 2006.

The settlement also requiredincreased public disclosure ofDow’s internal SF monitoringstudies, performed to determinethe health and environmentaleffects of the pesticide. Dow willprovide a number of thesestudies to the Department of

Pesticide Regulation and to thegeneral public for use in settingappropriate health standards.

The City of Pittsburg agreed toretain outside CEQA counsel totrain City planning staff on theCEQA process and to establish alist of qualified CEQA consultants.

Finally, the agreement requiredDow to fund two additional envi-ronmental projects in the amount of$500,000 each, for a total of$1,000,000. To be administered bythe nonprofit San Francisco andEast Bay Community Foundations,these projects will benefit publichealth and the environment in thePittsburg/Antioch area, and farmworker safety in California.

Dow Chemical Plant ExpansionBy Will Rostov and Catherine Engberg

In December 2001, the City ofPittsburg approved the constructionof a new Dow Chemical pesticideplant without requiring an Environ-mental Impact Report (EIR). Dowproposed to build the plant at itsPittsburg, California chemicalcomplex, which according to Dow’swebsite is “the largest integratedchemical manufacturing complex ofits kind on the west coast.” Theproposed plant would replace anexisting plant that was to be shutdown upon project completion.The new plant would tripleDow’s production of the toxicpesticide sulfuryl fluoride (SF) to18 million pounds per year.

The planning commission approvedthe new plant and found the ap-proval exempt from CEQA, citingthe “replacement or reconstruction”exemption. Communities for aBetter Environment (CBE) ap-pealed the exemption to the CityCouncil. Four months later, theCity issued a Notice of Intent toAdopt a Mitigated NegativeDeclaration and noticed a publichearing before the City Council.

At the hearing and in a lengthycomment letter, CBE argued thatthe construction of a new pesticideplant required the preparation of anEIR. CBE’s lead scientist raisedserious concerns about the dramaticincrease in use of hydrofluoric acid(HF) and chlorine, two of theconstituents of SF. Both chemicalscan be deadly on human contact,and HF in particular is one of themost dangerous chemicals knownto science. A staff scientist from the

Pesticide Action Network NorthAmerica (PANNA) raised issuesregarding the hazards of SF. A thirdexpert analyzed air quality impacts.

Despite clear evidence of potentialhazards to workers and communitymembers from increased SFproduction, and despite corre-sponding air pollution, noise, traffic,

and other cumulative impacts, theCity Council approved the project.Further, they disregarded city codeprovisions requiring a conditionaluse permit for the plant expansion.

CBE and PANNA sued the City forboth failing to prepare an EIR underCEQA and for failing to require aconditional use permit under itsMunicipal Code. The City andDow quickly came to the negotiat-ing table. Following extensivesettlement negotiations, mediated byState Senator Tom Torlakson ofContra Costa County, the partiesreached a creative settlementagreement and entered into aconsent judgment in July 2003.

The settlement required Dow to hirean independent consultant, agreedto by all parties, to analyze in detailthe air quality and hazard impacts ofthe project, and to develop manda-tory mitigation measures for theseimpacts. The consultant proposed

Will Rostov is Staff Attorney withCommunities for a Better Environment.

Catherine Engberg, an associateattorney at Shute Mihaly &Weinberger,represented PANNA in this case.

The agreement required Dowto fund two additional projects

in the amount of $500,000 each.These projects will benefit public

health and the environmentin the region, and farm worker

safety in California.

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Pesticides Discovered in the Soilat Site of Future San Diego Homes


Kevin K. Johnson and Jared P. Hansonare attorneys at Johnson & Hanson, LLP.The firm represented Quail BotanicalGardens Foundation, Inc. in this case.

One of the more unique and most important features of CEQA is its ability to

require project applicants and leadagencies to take a meaningfulsecond look at the methods used byconsultants in evaluating possibleenvironmental impacts. In the caseof a proposed forty unit subdivisionon land used for decades forgreenhouse operations, the futureresidents ended up with a big winfrom a public health standpoint.

The City of Encinitas, in NorthCounty San Diego, is called the“Flower Capital of the World”based on a rich history of green-house and field agriculture. When arespected flower grower decided tosell his land for development thebuyer/builder faced a friendlyreception at City Hall. The initialstudies on the project resulted in astaff recommendation that theapplicant proceed by way of aNegative Declaration.

The project site was immedi-ately west of and adjacent toQuail Botanical Gardens, atwenty-seven acre publicpark known for its rare and endan-gered plant species. The park isvisited annually by approximately120,000 visitors from around theU.S. and the world.

When initially approached about theproposed subdivision, representa-tives of the Quail Botanical GardensFoundation requested that consid-eration be given to a number ofpotential impacts, including the

spectacular ocean views from theGardens. The Foundation evenoffered to take any excess dirt fromthe planned cut and fill operation onthe property.

As the project then proceededthrough the Negative Declarationprocess a number of concerns cameinto focus, including view and noiseimpacts, impacts on the park’sindigenous wildlife, and concernsthat the dirt from the property mightbe contaminated.

A close review of the limited soilstudy revealed that the soil sampleswere not taken in a random manner.One area, where chemicals likeDDT and Toxaphene were mixedfor decades, was not even sampled.

It was noted in public testimony thatgreenhouses in particular hadhistorically used large quantities ofchemicals now known to be toxic tothe environment and public health.

The applicant and its soils consult-ant insisted to the City Council thatthe sampling methodology wastrustworthy. In spite of a variety ofimpacts that the Foundation and thepublic felt were not being ad-equately mitigated, and in spite ofcalls for a full Environmental ImpactReport (EIR), the Council ap-proved the forty unit subdivision.

The Foundation and concernedcommunity members took the Cityto court. In 1994, the FourthAppellate District Court of Appealreversed the Superior Court’sdecision and ordered the City toperform a full EIR. (Quail Botani-cal Gardens Foundation, Inc. v.City of Encinitas (1994) 29 Cal.App. 4th 1597.)

Subsequent, random soil testingresulted in the finding that the levelsof toxic chemicals in the groundconstituted unacceptable risks to

human health. The applicantwas directed by the City toremove the contaminatedsoils before it began con-struction of single familyhomes.

Today, thanks to CEQA, fortyfamilies live in the subdivision nextto Quail Botanical Gardens wherethey can garden, dig, and play inyards free from silent exposure toDDT and other toxic compounds.

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Kevin Johnson

View from Quail Botanical Gardens. Families in thesehomes would have been exposed to toxic chemicalson a daily basis if not for CEQA.

Thanks to CEQA, forty families livingnext to Quail Botanical Gardens cangarden, dig, and play in yards free of

DDT and other toxic compounds.

CHAPTER 7Infrastructure

See Pg...109

See Pg...111

See Pg...113

See Pg...115

CEQA and Large-Scale Infrastructure ProjectsFelicia Marcus ........................................................... 109

New Directions: CEQA and the Century FreewayCarlyle W. Hall, Jr. .................................................... 111

Improving Public Transit: The San FranciscoFerry Expansion Plan

Stuart Flashman .........................................................113

Protecting California’s Small Towns:The Somis Intersection Widening

PCLF Staff ..................................................................114

Hatton Canyon Saved from Unnecessary FreewayRachel Hooper .............................................................115

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INFRASTRUCTURE • INFRASTRUCTURE • INFRASTRUCTURE •

CEQA AND LARGE-SCALEINFRASTRUCTURE PROJECTS

By Felicia Marcus

Of all of the projects to whichCEQA applies, perhaps none haveas much potential to completelychange the environment and futurepatterns of development aslarge scale infrastructureprojects. For example, theproposed high speed railsystem linking the Bay Areawith Southern California couldhave dramatic and irreversibleeffects on communities and theenvironment in the CentralValley, and statewide. Suchprojects call for particularlyrobust environmental review.

In addition, most large infrastructureprojects receive massive invest-ments of public dollars. Construc-tion companies, lobbyists, andprofessional engineers tend to bethe primary stakeholders payingattention at all stages of projectdevelopment and populating thedecision-makers’ offices, counters,and hearing rooms. Public policydecisions affecting such vast expen-ditures of public dollars are rarelypurely engineering decisions. This isanother reason why CEQA, with itsrequirements of alternatives analy-sis, public hearings, and materialswritten in such a manner that it isuseful and understandable todecision-makers and the public, isan essential tool that has resulted infar better expenditures of publicdollars than could possibly havehappened otherwise.

While various land use and environ-mental requirements apply to largescale infrastructure projects, theyare largely met through scattered

processes in front of differentagencies, or even in front of differ-ent agencies within a given jurisdic-tion. Some of these processes mayrequire public hearing in front of alocal board, and others are simply

applications at a counter. TheCEQA process provides an orga-nizing framework for stakeholdersand members of the public toparticipate in decision-makingdespite the complexity of thesemany different processes. Even justthe requirement of corralling all of

the issues into one readable docu-ment makes an enormous differencein accessibility to the public.

Some project proponentsconsider CEQA to be a tortu-ous device designed to slow allgood things down. Othersview CEQA as a beautiful thingthat can lead to a more perfectworld, or at least more perfectprojects. Naturally, neitherview holds true all the time, butin my view, the latter argumentis stronger. CEQA has pro-

vided project proponents, govern-ment agen-cies, and the public witha vehicle for better decision-makingon public projects. When publicagencies take full advantage of thebenefits of CEQA rather thenmerely going through the motions,the result is better projects for thepublic’s dollar and, in many cases,avoidance of significant avoidableharms.

The actual cause of the “CEQA is aburden” view has to do as muchwith attitude as anything. If projectproponents and/or public agenciesview CEQA as a hurdle to begotten over, and if they pad thickdocuments with boilerplate andspend little time constructing thedocument as a useful tool fordecision-makers and the public,then they both fail to gain theadvantages of CEQA, and theybecome more vulnerable to chal-lenge and delays.

109

When public agencies take fulladvantage of the benefits of

CEQA rather then goingthrough the motions, the

result is better projects forthe public’s dollar and, inmany cases, avoidance of

significant avoidable harms.

• INFRASTRUCTURE • INFRASTRUCTURE • INFRASTRUCTURE

In contrast, when one approachesCEQA with the intent of developingthe best possible project throughthe interactive and iterative processrequired by the law, it provides afabulous tool for improving projectsand gaining public support—all ofwhich is the correct thing to dowhen spending scarce publicdollars. For example, the PublicWorks Department of the City ofLos Angeles took this approach inthe early 1990s, doing shorter andclearer environmental documentswith the clear intention of engagingthe public, listening to their con-cerns, and changing projectsaccordingly. As a result, they wereable to do better projects with morecommunity buy-in and less litigationthan had happened previously.

Examples of CEQA improvingprojects from my experience asPresident of the Board of PublicWorks for the City of Los Angelesinclude the expansion of the TillmanWater Reclamation Plant in the SanFernando Valley, the massiveupgrade of the Hyperion TreatmentPlant adjacent to El Segundo, andthe limited expansion of the City’s

Lopez Canyon Landfill, the solelandfill owned and controlled by theCity of LA. In each case, we foundthat by listening to the public andcrafting projects and projectalternatives to be fair and respon-sive to community concerns, wedeveloped better projects that wereaccepted by the community. On

Felicia Marcus is the Executive Vice-President and Chief Operating Officerfor the Trust for Public Land. Ms.Marcus served as Regional Administra-tor of the U. S. EPA Region IX and asPresident of the Board of Public Worksfor the City of Los Angeles during atime of massive infrastructure invest-ment. Ms. Marcus also has an extensivebackground as a private sector andpublic interest lawyer, litigating underCEQA and other statutes.

more than one occasion, we wentfrom encountering a roomful ofangry opponents at the Draft EIRstage, to a final approval meetingwith residents showing up to saythank you.

Some of the many benefits of theCEQA process include:

• Getting good information andideas from public comments:“We came up with alternatives I’dnever considered before….” In acomplex project it is difficult tothink of everything. Members ofthe public frequently have expertiseor experience that weren’t neces-sarily part of the project team itself(e.g., knowing about a species, thehabitual use of an alignment thatwasn’t necessarily available on GISmaps, the importance of a givenlandscape to a community).

• Getting input from the publicabout what is important to aparticular community: for ex-ample, parks and open space, aparticular vista, a route that school-children are fond of, historic andcultural uses of property, air quality

or noise impacts, and cumulativeimpacts. As noted earlier, goodpublic policy is not a purely engi-neering decision when dealing withscarce public dollars. Identifyingthese community concerns allowsfor the integration of elements into aproject that achieves multiplecommunity benefits.

• Getting community buy-in forthe chosen project. Listening tothe public, responding respectfullyto comments, and giving them dueconsideration has a value all its ownand is good public policy, as ishaving readable and useful environ-mental documents. With a “bad”document, one can easily end upwith an angry community that isconvinced that the project propo-nent has something to hide and hashidden it intentionally.

The examples that follow illustratesome of the ways in which CEQAhas led to better large-scale infra-structure projects. The resultsspeak for themselves, clearlyillustrating the importance of com-mitment to environmental reviewand the public process.

110

By crafting projects and project alternatives thatwere fair and responsive to community concerns,we developed better projects that were accepted

by the community.


NEW DIRECTIONS:CEQA & the Century Freeway


As originally planned, the ten-laneCentury Freeway—envisioned asthe most expensive freeway, mile-for-mile, ever to be built—wouldrun seventeen miles south from theLos Angeles International Airport.Routed through South Central LosAngeles and other areas comprisingthe most impoverished, heavilyminority areas of the LosAngeles MetropolitanRegion, the behemothfreeway would destroy fully8,250 low and moderateincome housing units andwould uproot more than21,000 people.

Seeking an end to Caltrans’“freeway mentality” of thefifties and sixties and thinkingthere must be a better way,lawyers from the Center forLaw in the Public Interest(CLIPI) launched theirCEQA/NEPA litigation(Kieth v. Volpe) against theCentury Freeway in early1971. CLIPI’s lawyersalleged that Caltrans officialshad moved ahead in planningthe freeway without fullyevaluating the overall transportationneeds of the region and withoutanalyzing the effects of their plan onair pollution. No consideration hadbeen given to alternative means ofmoving people through and be-tween these communities. Althoughthousands of affordable housingunits would be removed and tens ofthousands of individuals displaced,

no comprehensive plan had beenprepared for relocating thesepeople.

To underscore the “environmentaljustice” roots of the litigation,CLIPI’s lawyers organized a uniqueplaintiff’s coalition, which includedboth environmental (the Sierra Club

and Environmental Defense Fund)and civil rights (the NAACP)groups. Alleging discrimination inthe choice of the freeway’s path,they even threw in a claim for reliefunder the Fourteenth Amendment ofthe United States Constitution.

Within months, then Federal DistrictJudge Harry Pregerson issued an

injunction prohibiting further siteacquisition or any freeway con-struction until adequate Environ-mental Impact Reports wereprepared under CEQA and NEPA.Some five years later in 1977, thedraft environmental studies werereleased. The studies revealed thedepth of the housing and transpor-

tation planning problemsassociated with constructionof the freeway, and helpedconvince state and federalfreeway planners that funda-mental changes in thefreeway’s purpose anddesign were appropriate.

At that point, CLIPI’slawyers proposed that acooperative, rather thanconfrontational, approach betaken. In 1979, a far-reaching settlement wasannounced. The US Secre-tary of Transportation calledit “a precedent for the rest ofthe United States.” An LATimes editorial proclaimedthat the Settlement’s “realmeaning” is that “the goodold ways are gone.”

• The landmark settlement reducedthe freeway’s size from ten to eightlanes, with two of the eight lanesdedicated to high occupancyvehicles. Within the freewaymedian, the “Green Line” light railroute was designed to become thestart of Los Angeles’ still-growingMetro system, for the first time

The freeway was reduced from ten to eight lanes, with two dedi-cated to HOVs, and included plans for the “Green Line” light railroute. It also provided for the replenishment of lost affordablehousing, displacement assistance, and set hiring goals for minor-ity and female workers.

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providing lower income residentswithin the project impact area withpublic transit access to jobs in moreaffluent areas.

• The settlement also establishedemployment-hiring goals for minor-ity and women workers in order toprovide them with access to thefreeway’s more than 20,000 jobs.By the time construction ended withthe freeway’s opening in 1993, apre-apprenticeship job-training

program had trained thousands ofentry-level minorities and women.Caltrans’ hiring of minorities hadmore than doubled what it was forany other freeway in Caltranshistory, and its hiring of women wasmany times what it was anywhereelse. The settlement’s minority andwomen business enterprise goalsalso ensured that hundreds ofmillions of dollars in freewaycontracts went to MBE/WBEenterprises.

• The settlement provided hundredsof millions of dollars to replenish theaffordable housing supply lost tofreeway construction. Approxi-mately halfway through the expendi-ture of these funds, the housingprogram was privatized in order toincrease its efficiency. The fundingwill subsidize 8,500 units, effectivelyreplacing the affordable units initiallydestroyed to make way for thefreeway.

• Approximately three-quarters ofthe 21,000 people displaced as aresult of freeway acquisitions wereassisted by the Office of the Corri-dor Advocate, a service organiza-tion established to assist CenturyFreeway displaces in obtaining theirfull acquisition and relocationbenefits under state and federal law.

When he was elevated to the NinthCircuit, Judge Pregerson took theCentury Freeway case with him,

and it is now believed to be theoldest case on the federal docketwest of the Mississippi River.Although the Century Freewayopened in 1993, the consent decreeis still on-going as new affordablehousing units continue to be built bythe privatized program, now calledthe Century Housing Corporation.

The Century Freeway case hasbrought enormous social andmonetary benefits to the LosAngeles community. It also enabledthe Caltrans freeway-planningestablishment to rethink the basicpurpose and design of the LosAngeles freeway system, and, forthe first time, it prompted them toview freeway planning within thegreater framework of mass transitoptions.

Photos from In Our Path, © Jeff Gates 1982-2005.For more visit: http://outtacontext.com/iop

Carlyle W. Hall Jr. is a Partner at AkinGump Strauss Hauer & Feld. Mr. Hallrepresented the plaintiffs in this case.

The Century Freeway Project cut directlythrough whole neighborhoods, forcingover 21,000 people to relocate. CEQAensured that these people had substan-tial relocation assistance.

The CEQA settlement required thatdevelopments like Hawthorne Terrace(above) be built to replace affordablehousing lost to freeway construction.

The CEQA settlement set hiring goals forfemale and minority workers, ensuringthat they had fair access to the project’smore than 20,000 new jobs.

The Century Freeway Pre-ApprenticeshipTraining Program was established to helptrain thousands of minority and femaleworkers.

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According to the US Secretary of Transportation,the Century Freeway CEQA settlement set

“a precedent for the rest of the United States.”


Ferries are unquestionably a pleasant and romantic means of travel especially compared

with driving in rush-hour traffic.Further, ferries are a majortransportation mode in the PugetSound/Seattle area, and there wassome hope that expanded ferryservice in the Bay Area couldreduce congestion on Bay Areabridges. The question was whetherthis could be done without causingundue environmental harm in theSan Francisco Bay Area.

In 1999, the Legislature created theSan Francisco Bay Area WaterTransit Authority (WTA) to plan theexpansion of ferry service for SanFrancisco Bay. The WTA releasedan ambitious plan to extend ferryservice as far south as MoffettField, as far north as Port Sonoma,and as far east as Antioch. The

Improving Public Transit:The San Francisco Ferry Expansion PlanBy Stuart Flashman

Through the CEQA process, the Bluewater Network won assurance that advanced pollutioncontrol technologies will be used to make new ferry engines ten times cleaner. The projectwas also altered to address concerns about potential wildlife impacts.

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Draft Environmental Impact Report(DEIR) appeared to gloss overmany of the project’s potentialimpacts.

The first issue that arose was airquality. Ferries, like most large

ships, use diesel engines, andconventional diesel engines create alot of pollution. Bluewater Networkquickly raised this issue with theWTA and after numerousconsultations, public hearings, andsupport from air quality officialsconvinced the new agency to set anair emissions standard for the newfleet that would dramatically reduce

the ferries’ output of pollutants. Thenew standard would preventdegradation of the region’s airquality by requiring the new enginesten times cleaner than today’s, and85 percent more stringent than newfederal standards for ferry engines

that will go into effect in 2007. Thisgroundbreaking new standard wasset and the major air qualityproblem addressed by the time theFinal EIR was released. Otherenvironmental problems neededsimilar attention.

The Sierra Club and Golden GateAudubon Society raised concernsabout the wildlife impacts of someof the extensions, particularly fromdredging in the shallower andnarrower regions of the Bay wherewaterfowl tend to nest and tocongregate during migration. Bothorganizations were also concernedabout impacts from a proposedferry terminal within the newly-created Eastshore State Park.Finally, the Sierra Club wanted toensure that the ferry expansionwould not be at the expense ofother public transit initiatives, suchas expanding rail and express busservice. The two environmentalgroups submitted extensive

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The San Francisco Ferry Expansion Project is aprime example of how, with a cooperative publicagency, the CEQA process can result in a better

and environmentally superior project.


Stuart Flashman is an environmentaland land use attorney with a solopractice in Oakland, California. Mr.Flashman represented the Sierra Cluband Golden Gate Audubon Society intheir involvement with the ferryexpansion project.

Protecting California’s Small Towns:The Somis INTERSECTION Widening

Much of California has been designed around the freeway. Like the

towns along the famous Route 66,California cities have bloomed alongthe wide ribbons of asphalt thathave been carved across the state.Along with new freeways, roadwidenings and new intersectionsoften presage a boom in develop-ment. In Ventura County, one smalltown used CEQA to make sure thatCaltrans examined these impacts ifit decided to widen an intersectionin their town as part of a highwayexpansion project.

Caltrans had long considered a planto widen a fourteen mile section ofHighway 118, stretching fromHighway 232 in Saticoy to TierraRejada Road in the City ofMoorpark. The plan includedwidening the approaches of theRoute 118/Route 34/Donlon Roadintersection in the town of Somisfrom two to six lanes.

In 2000, Caltrans decided to moveforward with the 118/34/DonlonRoad intersection project. How-ever, when the environmentalreview team examined the intersec-tion project, they considered theintersection in isolation from thelarger route 118 widening proposal.After a cursory review, they de-clared that there would be nosignificant impact and approved theintersection project.

In response, a community groupcalled “Save our Somis” challengedthe Caltrans approval in court.With help from a traffic expert, they

pointed out that intersection must beexamined in the context of the largerhighway expansion and how theexpanded intersection would attractmore traffic to the area and inducemore growth. They demonstratedthat additional traffic would increasenoise levels and air pollution fornearby residents. They alsoshowed that the intersection projectwould result in the loss of Monarchbutterfly habitat and agriculturalland. These impacts togetherspelled disaster for the rural charac-ter of Somis, a town with just under3,000 residents.

The Court ruled in favor of SaveOur Somis and directed Caltrans toset aside its approval of the project.The Court confirmed that CEQAestablishes a very low threshold forinitial preparation of an Environ-mental Impact Report (EIR) when-ever a “fair argument” can be madethat there may be a significantimpact on the environment. Theydirected Caltrans to conduct an EIRthat would address the concernsthat Save our Somis had raised,examining the environmental effectsof the intersection together withthe Route 118 widening projectinstead of segmenting the full roadwidening plan into smaller sections.

Caltrans is no longer proposing thisintersection project, but, if it resur-faces, it is likely that Caltrans willrecognize the need to addresssignificant impacts on the town ofSomis and other towns alongHighway 118.


comments on the DEIR,documenting the evidence of majorimpacts. Behind the letter was thethreat of litigation.

The WTA took the EIR commentsseriously. It initiated a series ofmeetings with Sierra Club andAudubon to address their concerns.As a result of these meetings, theWTA agreed to revise the scope ofits preferred alternative to eliminatethe most problematic routes. It alsoexpanded its discussion of projectimpacts and identified additionalmitigation measures.

A revised DEIR was reissued andrecirculated for a second round ofcomments. This time, theenvironmental analysis was morethorough in the DEIR, and theresponses to the second round ofcomments confirmed that theProject would address and mitigateits potentially significant impacts andwas not intended to displace othertransit improvement projects. Thefinal EIR was certified, andsignificantly, no litigation was filed tochallenge the project or its EIR.

The Ferry Expansion Project is aprime example of how, with acooperative public agency, theCEQA process can result in a betterand environmentally superior projecteven without litigation.

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Hatton Canyon SAVED from UNNECESSARY FreewayBy Rachel Hooper

Just east of Scenic Highway 1,near the seaside town ofCarmel-by-the-Sea, lies Hatton

Canyon, an undeveloped canyonprized by the local community for itsbreathtaking views, remarkableecological diversity, and the recre-ation opportunities it offers. Hometo a perennial stream and oneof the last remaining geneti-cally pure Monterey Pineforests in California, the 160acre canyon and right-of-way area was acquired bythe state's Department ofParks and Recreation in2001 with the intention ofcreating Hatton CanyonState Park. This brought toa close the decades-longstruggle over the future of thisnatural treasure, ensuring thatthe wetland, forest, uniquewildlife habitat and water-shed corridor would bepreserved for future generations aspermanently protected open space.

Were it not for the open environ-mental review required by CEQAand NEPA (the National Environ-mental Policy Act), and theSisyphusian efforts of the HattonCanyon Coalition and its partners,Hatton Canyon would today behome to an entirely different crea-ture-the unnecessary Hatton CountyFreeway. Initially proposed in1956, during the heyday of bigbudget freeway projects, and longbefore the enactment of CEQA, theHatton Canyon Freeway wasrevived in the early 1980's by the

California Department of Transpor-tation (Caltrans) as a way toalleviate congestion on the two-plusmile section of Highway 1 adjacentthe canyon. When Caltrans, inconjunction with the FederalHighway Administration (FWHA),approved the three mile long, $48

million dollar freeway project in1986, it sparked a legal battle thatonly recently ended in victory forthe Coalition, its partners, localenvironmentalists, and the greatercommunity at-large.

The Hatton Canyon Coalition andits partners, the Monterey PeninsulaRegional Park District, the City ofCarmel-by-the-Sea, and the SierraClub (Ventana Chapter), collec-tively known as the Hatton CanyonConsortium, alerted Caltrans andthe FHWA that the environmentalreview for the project did notcomply with the requirements ofCEQA or NEPA.

The Environmental Impact State-ment / Environmental ImpactReport (EIS/EIR) did not explain,for example, how a wetlandsmitigation plan that relied uponpolluted freeway runoff for irrigationof replacement wetlands could"fully" mitigate the destruction of

pristine wetlands. Agenciesand members of the publiclikewise questioned Caltrans'conclusion that the planting ofseedlings could fully compen-sate for the planned removalof over 7,000 matureMonterey Pines, a uniquespecies. The EIS/EIR failednot only to identify effectivemitigation measures for itsmyriad impacts, but also toinclude a proper range ofproject alternatives. Tomake the latter argument, theHatton Canyon Coalitionhired an independent engi-

neering firm, which demonstratedthat widening the existing highwayto four lanes could provide nearlythe same level of service at afraction of the financial cost andnone of the environmental cost.

The Consortium also worked hardto ensure that the state and federalagencies responsible for the protec-tion of natural resources were fullyinformed of the Hatton CanyonFreeway's threat to the environ-ment. Ultimately, the Army Corpsof Engineers, the U.S. Fish &Wildlife Service, and the CaliforniaDepartment of Fish and Game allagreed that the EIS/EIR both

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A view from the north end of Hatton Canyon, soon to become astate park. The dark trees in the midground are one of the lastremaining genetically pure Monterey Pine forests in California.

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Rachel Hooper is a partner at ShuteMihaly & Weinberger. Ms. Hooperrepresented the Consortium at allstages of the Hatton Canyonlitigation.

understated the severity of projectimpacts and failed to document itsconclusions.

Rather than reconsider the ad-equacy of their environmentalreview, the stateand federal trans-portation agenciesrushed throughtheir decisions toapprove thefreeway. InJanuary of 1992,the Hatton CanyonConsortium filed suit, alleging thatthe agencies had violated bothCEQA and NEPA.

The ensuing litigation followed acourse of dramatic twists and turns.In 1996, the Court of Appeal forthe Ninth Circuit ruled that the EIS/EIR failed to properly analyzeimpacts to wetlands and MontereyPines, failed to assess cumulativeimpacts on biological resources,and failed to analyze all reason-able alternatives. But the courtinexplicably vacated this decisiona year later, after the transporta-tion agencies filed a petition for arehearing, and issued a newruling that reversed its earlierdecision in most respects. Thenew ruling, however, did main-tain that the EIS/EIR's analysisof cumulative biological impactsappeared to violate CEQA andNEPA requirements and re-manded the matter to the districtcourt. Finally, in July of 1998,the district court invalidated theEIS/EIR, vacated Caltrans' and theFHWA's respective decisions toapprove the Hatton Canyon Free-way, and enjoined construction of

the freeway until CEQA and NEPArequirements were satisfied.

Meanwhile, the political winds offate were changing for the HattonCanyon Freeway. A newly elected

Salinas City Councilperson sympa-thetic to Hatton Canyon wasappointed to the TransportationAgency for Monterey County(TAMC) Board of Directors in2001. Her weighted "no" vote forlocal TAMC funding for the free-way effectively killed the project byredirecting local HCF funding to adifferent highway project. TheTAMC Board then directed its staff

to consider improvements along theexisting Highway 1 alignment.Caltrans' staff was soon directed tobegin implementing the improve-ments, which included adding a new"climbing lane" to the highway.

These improvements were subse-quently challenged on CEQAgrounds in court by the partiessupporting the freeway, but thechallenges were dismissed.Caltrans has now implemented most

of the improve-ments, whichhave successfullyalleviated thecongestionproblem. As theHatton CanyonCoalition hadargued from the

beginning, it simply was not neces-sary to build an environmentallydestructive freeway in order tosolve the traffic woes in the Carmelarea.

In Sacramento, Jeff Morales,Governor Davis' Director forCaltrans, took a softer position onthe freeway and worked with FredKeeley, then speaker pro tem of the

State Assembly, to sell thefreeway right-of-way. Mr.Keeley subsequently acquired$2.75 million to purchase theproperty and facilitated thetransfer of ownership to theDepartment of Parks andRecreation. Thanks to CEQAand its practitioners, HattonCanyon and its intrinsic naturalenvironmental values are nowprotected as permanent openspace and an unnecessary andenvironmentally damagingfreeway project was stopped.

Carmel Valley residents have valued the canyon for itsecological diversity and recreational activities. Whenthe freeway proposal was resurrected in 1986, theyunited to defend their local treasure.

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Thanks to CEQA and its practitioners, HattonCanyon and its intrinsic natural environmentalvalues are now protected as permanent open

space, and an unnecessary and environmentallydamaging freeway project was averted.

CHAPTER 8Water Policy

See Pg...119

See Pg...121

See Pg...127

See Pg...129

CEQA Redefines California Water LawAntonio Rossmann .....................................................119

CEQA Protects Water Supply ReliabilityRoger B. Moore .......................................................... 121

Toward Collaborative Water Supply PlanningRandele Kanouse ......................................... 122, Sidebar

Planning and Conservation League v. Department ofWater Resources: Putting a Stop to Paper Water

Antonio Rossmann .................................................... 123

The Monterey AmendmentsPCLF Staff ................................................... 123, Sidebar

Land Use Decisions after PCL v. DWR:SCOPE and Newhall Ranch

Lynne Plambeck .......................................... 124, Sidebar

CEQA and the Restoration of Mono LakeRichard Roos-Collins ................................................ 125

Los Angeles and the Owens Valley:CEQA Rewrites Water History

Antonio Rossmann & Theodore Schade .................. 127

From Gridlock to Agreement:The Sacramento Water Forum Story

Curtis E. Alling .......................................................... 129

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CEQA AND WATER POLICY • CEQA AND WATER POLICY • CEQA AND WATER POLICY

WATER POLICY • WATER POLICY • WATER POLICY • WATER

The State Constitution and Water Code declare that California’swater is a public resource to be dedicated to public use. For morethan a century, however, California water law was defined by private

parties litigating their competing proprietary claims in one-dimensionaljudicial contests. Often the courts would eloquently introduce public policyconcerns into their resolution of these private disputes, but more oftenmaximum “development” of the resource formed the guiding judicial crite-rion. Even our magnificent constitutional mandate for “reasonable use” and“conservation” originated to promote more appropriation of water resourcesto private interests for accompanying economic expansion.

Enactment of CEQA enabled California water law to break free of itsproprietary shackles, and, for the first time, allowed environmental consider-ations to influence and even determine water allocations. This history beganin 1972 when Inyo County, owning no water rights and burdened by LosAngeles’ ownership of virtually the entire Owens Valley floor, engagedCEQA to challenge Los Angeles’ assertion of its “legally-protected” owner-ship of groundwater rights (see pg. 127).

The city’s water bureaucracy gave short shrift to the high desert valleywhose government and citizens owned no water rights—after all, LosAngeles had bought out the valley deliberately to eliminate competingclaimants. But the Sacramento Court of Appeal found in CEQA the meansto force environmental accountability on the Department of Water andPower—and ultimately replace a single owner’s control with joint manage-ment of the Owens Valley water by both Inyo and Los Angeles. A youngenvironmental law essentially reversed the outcome of the West’s mostcelebrated water war.

The latest and equally dramatic chapter in CEQA’s history is being writtenby our own Planning and Conservation League, again asserting only anenvironmental public interest to challenge the proprietary prerogative of theholders of entitlement to the State Water Project. In its 1995 CEQA caseagainst the Department of Water Resources (DWR) and the principal statewater contractors (see pg. 121 and 123), PCL was motivated by its exclu-sion and that of other members of the public from the contractors’ secretnegotiations to restructure the water project that belongs to the people ofCalifornia. Representatives of the public were excluded because theytechnically did not have a contractual right to the water.

What began as a modest CEQA challenge to DWR’s failure to write theEnvironmental Impact Report (EIR) on its own project was transformed by

CEQA Redefines CaliforniaWATER LAW

By Antonio Rossmann

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POLICY • WATER POLICY • WATER POLICY • WATER POLICY

the Sacramento Court of Appeal in 2000 into the first authoritative declara-tion that the State would have to live within a water project only half thatpromoted, and a mandate to employ realistic assessments of water availabil-ity in land use decisions. Buoyed by the court’s courageous declaration ofreality, the Legislature responded with mandates that henceforth all majorland-use decisions be preceded by proof of reliable water availability.

But CEQA’s influence on our water resources has not only resulted fromcontested cases. As our state and local governments have discovered longago, CEQA can become a powerful engine of advocacy for public initiativesto improve the environment. My favorite example is Mono Lake—not thecelebrated public trust case decided by the Supreme Court in 1983, but thefar-less-publicized 1994 decision of the State Water Board to enter theorders that actually put water back into the lake (see pg. 125). What made

that decision possible, in both process and substance, was the transparentpreparation of an exemplary EIR by the State Water Board staff. Theprocess brought all interested parties to the table and to the hearing room;the substance answered the hard technical questions of how to fulfill theSupreme Court’s mandate for a decision that protected the lake and itswildlife while also accounting for the legitimate needs of Los Angeles waterconsumers.

As CEQA now enters its middle age, its qualifications to frame and influencethe governance of our water resources are well-established. Given thatexisting fresh water resources have been rededicated to their natural use toprotect the environments of the Delta, Mono Lake, and Owens Valley, whilepopulation continues to grow, CEQA must now rise to a challenge as greatas any in its first third of a century: guiding the State in redistributing ourconsumable supplies to urban demands while protecting our agriculturaleconomy and rural culture and the environment. Employed by progressiveleaders to shape the public regulation of this great reallocation, CEQA cansecure the state’s water future in the 21st century.

I invite you to read the CEQA stories that follow. You’ll find examples ofCEQA protecting our water supply and cleaning up polluted waters.Because of California’s unique reliance on groundwater, we’ve included aspecial section on protecting the quantity and quality of this essentialresource. Enjoy.

Antonio Rossmann has practiced CEQA law since the early 1970s, has taught at theUniversity of California, Berkeley (Boalt Hall) and other California law schools since1980, and has served on the PCL board for over twenty years. Mr. Rossmann served asspecial counsel for 21 years to Inyo County, addressing Owens Valley water issues, andas lead counsel for PCL in the PCL v. DWR litigation.

Enactment of CEQA enabled California water lawto break free of its proprietary shackles.

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Kenneth Gates USFWS

Norm Flette



The close and sometimestortured relationship betweenwater and land development

has been a hallmark of Californiahistory since the state’s inception.Yet until recently, the prevailingapproach to that relationship wasfounded in a virtual secular faith inthe ability of water to follow devel-opment wherever it may occur.Reinforcing that “Field of Dreams”approach to water supply reliabil-ity—“if you build it, the water willcome”—the state’s major waterproviders often responded with anunyielding optimism best capturedby the familiar line from speeches offormer Department of WaterResources Director Harvey Banksthat “we must build now and askquestions later.”

These declarations of faith helpedshape much of California during thetwentieth century. But they stoodon a collision course withCalifornia’s political, environmental,and hydrologic realities at the turnof the new millennium, which foundthe state’s major water projects,many of its groundwater basins, andthe Sacramento / San Joaquin Deltaoverextended and facing an unsus-tainable future. A series of chal-lenges, ranging from the pressuresof expanding population to theonset of climate change, have raisedcritical questions about the sustain-able use of water and left the nextgeneration of Californians with anurgent need to understand thatwhich their forefathers simplyassumed.

CEQA Protects Water Supply ReliabilityBy Roger B. Moore

CEQA has been indispensable torecent efforts in California to movefrom faith-based development to anapproach grounded in a morerealistic appraisal of available water.Recent CEQA decisions andlegislative changes have begun tousher in a new sense of realismabout the reliability of water sup-plies. Once a footnote in CEQAjurisprudence, water supply reliabil-ity has now emerged as a centraltheme. Assessments of the watersupply available to support devel-

opment decisions are germane to awide range of CEQA issues,including the assessment andmitigation of environmental impacts,the analysis of growth inducement,the framing of the “no project” andproject alternatives, and the defini-tion of the appropriate lead agency.

A handful of CEQA decisions in thelate twentieth century foreshadowedthe transition toward greater realismin assessments of water supportingland uses. Inadequate water supplyassessments led courts to demand amore rigorous environmental reviewof projects ranging from a majorKern County development in the

late 1970s to an Orange Countymine in the 1980s. A mid-1990scourt decision prevented StanislausCounty from approving a twenty-five year residential developmentproject based upon present assess-ment of only just five years of water.In these CEQA cases, decision-makers were required to assess theenvironmental consequences ofproviding all water needed for theproject, as well as the infrastructureneeded to supply that water.

But even after California experi-enced prolonged drought in the late1980s and early 1990s, the state’shistoric tendency to base develop-ment decisions on wishful thinkingabout water proved remarkablyresilient. A dispute during the 1990sbetween the East Bay MunicipalUtility District (EBMUD) andContra Costa County over watersupplies to support the controversialDougherty Valley developmentproject, although eventually settled,left little doubt that the reliability ofCalifornia’s water supplies closelyrelated to statewide debates oversprawl and sustainable develop-ment. Researchers at EBMUDidentified more than a hundredcommunities throughout Californiathat had barely considered, or evenignored, water supply issues inapproving new development.

These lingering questions, linkingCalifornia’s future in land and water,set the stage for the 2000 Sacra-mento appellate ruling in Planningand Conservation League v.Department of Water Resources

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(DWR). After years of drought,Californians faced the grim realitythat the State Water Project, whichsupplies some water to more thantwo-thirds of California’s popula-tion, has historically been able todeliver only half or less of its total“entitlements” to water. Agriculturaland urban water contractorsdisputed enforcement of the provi-sion that would have required thoseentitlements to be brought in linewith existing supplies based uponthe system’s long-term inability tomeet full entitlement levels. Ratherthan making that adjustment, DWRmet secretly with a select group ofcontractors in Monterey, California.The resulting “Monterey Agree-ment” gave rise to the most drasticcontractual restructuring in the StateWater Project’s forty-five yearhistory. Among other major contractrevisions, it deleted the permanentshortage provision.

After five years of litigation, thePCL decision vindicated the role ofCEQA in requiring responsible andaccountable discussions of waterreliability. The court affirmed thatDWR, as CEQA “lead agency,”must conduct the programmaticstudy of these amendments andcould not delegate that task to alocal agency. It also held that thepermanent shortage provision couldnot be eliminated without DWR firststudying the consequences of itsenforcement. The court spokebluntly about the “huge gap” be-tween entitlements and existingsupplies, connecting its holding tothe risk of land-use planning deci-sions grounded in “paper water”rather than real, deliverable water.“Paper water,” the court noted, was“always an illusion,” steeped in the“unfulfilled dreams” of a waterculture that had fostered an inflated

expectation of what could bereliably delivered.

Three developments since the PCLdecision have bolstered hope for anew era of water realism. First, thesettlement agreement in the PCLcase deletes the term “entitlement”from key contract provisions,requires new statewide program-matic study, and requires biennialDWR reliability reports. Second,courts following PCL have invokedCEQA against the approval ofsprawl development north of LosAngeles due to faulty reliance upon“paper water.” Lastly, key legisla-tive reforms have tightened therequired nexus between watersupply and development approval.These include SB 221, whichrequires land use agencies to verifya “sufficient water supply” beforeapproving subdivisions exceeding500 units; and SB 610, whichrequires water utilities to preparedetailed water supply assessmentssupporting local land use agencies’CEQA documents, and strengthensthe state’s Urban Water Manage-ment Plan law. These improve-ments are hardly a panacea againstthe powerful currents thatmarginalized the role of water inland use decisions for more than acentury. But taken together, theyoffer promise that California’sdevelopment future, unlike its past,will no longer rest on articles offaith.

Toward CollaborativeWater Supply Planning:

SB 221By Randele Kanouse

Historically, collaboration hasbeen the exception rather thanthe rule between California’swater utilities and local plan-ning departments, leading tounsubstantiated claims ofavailable water and poorplanning decisions. SB 221begins to reverse this trend,ensuring that water utility andcity and county plannersemerge from their isolatedbunkers and plan together tomeet future water needs.

SB 221 modifies one of themost important areas of watersupply policy, the approvalprocess for new subdivisionmaps. It requires that city orcounty determinations regard-ing the sufficiency of watersupplies to meet local growthneeds must be based onevidence in the record andverified by the water utility.This statute makes the city orcounty a partner in integratingland use planning with watersupply considerations, andensures that the water utilityand city/county closely col-laborate in order to render thejoint findings to support subdi-vision map approval.

The jury is still out on whetherSB 221 has improved planningby changing the “bunkermentality.” We hope it willusher in a new era of collabo-rative planning for California’sscarce water supplies.

Randele Kanouse is SpecialAssistant to the General Managerof the East Bay Municipal UtilityDistrict.

Roger B. Moore is a partner at Ross-mann & Moore, LLP. Mr. Moore hasrepresented public and non-profitentities in a wide variety of cases in-volving CEQA, water allocation, waterquality, and environmental account-ability, including the landmark“Monterey Amendments” litigationand negotiations framing a latersettlement agreement.

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The California State Water Project, approved in 1960, is one of the largest pub-

licly-funded infrastructure projectsin the world, diverting millions ofgallons of water to the Bay Area,the San Joaquin Valley, the TulareBasin, and metropolitan SouthernCalifornia. It has been the focus ofsome of the most contentious and

far-reaching water policy decisionsin California.

In 2000, the Sacramento Court ofAppeal set aside the EnvironmentalImpact Report (EIR) prepared tojustify the so-called "MontereyAmendments" to the 1960 StateWater Project, which had beennegotiated in secret in 1995 by theDepartment of Water Resources(DWR) and a handful of the most

By Antonio Rossmann

Planning and Conservation Leaguev. Department of Water Resources:

Putting a Stop to Paper Water

influential contractors. PCL not onlyled to reassessment of the StateWater Project with the public andenvironmental community at thetable, but laid the foundation forrealistic water-to-land-use planningstatewide.

The PCL decision condemned thefailure of the EIR to recognize the

reality that the State Water Projectwill not be built out as anticipated in1960 and that, because of this, its"entitlements represent nothing morethan hopes, expectations, waterfutures, or as the parties refer tothem, 'paper water.'" Of equalimportance, the court connectedthis error to the greater risk ofstatewide land-use decisions basedon the false expectation that theState Water Project will ultimately

deliver twice as muchwater; that land-usedecisions would be basedupon paper entitlementsand not actual supplies.

PCL can be seen assignaling the passage ofCEQA into the ranks offully mature statutes thatframe our modern legalculture, comparable to the

Constructed as part of the State Water Project, the Cali-fornia Aqueduct runs 444 miles, stretching from the SanFrancisco Bay Delta to Lake Perris in Riverside County.

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The so-called “Monterey Amendments” to the1960 State Water Project had been negotiatedin secret in 1995 by the Department of WaterResources (DWR) and a handful of the most

influential contractors.

The Monterey Amendments,which proposed sweepingchanges to the 1960 StateWater Project contracts, weredrafted behind closed doors.The EIR was conducted by asingle local agency with noability to analyze the dramatic,statewide implications of theAgreements.

The original contracts re-quired proportional reductionsin so-called water “entitle-ments” if the State becamechronically unable to deliveroriginally-anticipated amounts.The Monterey Amendmentseliminated this safety plan,promoting the illusion that thestate could divert, on average,twice or more the level ofhistoric deliveries from North-ern California rivers.

The original contracts requiredthe State to prioritize the waterneeds of urban populationsduring temporary shortages,cutting back first on agricul-tural deliveries. The Amend-ments eliminated this.

The Amendments also gavea state-owned groundwaterstorage facility to the largestagricultural water contractor.This facility had received $70million in public funds.

In PCL v. DWR, the Courtrequired the state to preparea new EIR. Through CEQA,the public will be able toexamine the reasoning behindproposed changes and sug-gest better ways for the stateto plan for droughts, managestate-owned facilities, andprotect California’s waterresources.

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Antonio Rossmann has practiced CEQAlaw since the early 1970s, has taught atthe University of California, Berkeley(Boalt Hall) and other California lawschools since 1980, and has served onthe PCL board for over twenty years. Mr.Rossmann served as lead counsel forPCL in the PCL v. DWR litigation.

Land Use Decisionsafter PCL v. DWR:

SCOPE & NEWHALL RANCH

By Lynne Plambeck

Months after the appellate rulingin PCL v. DWR, the SantaClarita Organization for Planningthe Environment (SCOPE)challenged Los AngelesCounty’s review and approval ofthe Newhall Land and FarmingCompany’s West Creek project,an extensive residential andcommercial developmentproposed for the Santa ClaritaValley. A 2003 appellate rulingagreed with SCOPE that theEnvironmental Impact Report’s(EIR) water supply assessmentfailed to satisfy CEQA becauseit relied heavily upon paper“entitlements” in calculating thetotal available water supply, anddisregarded the inability of StateWater Project facilities to deliverthat amount.

The decision closely followedthe reasoning of PCL v. DWR,concluding that “[t]he dream ofwater entitlements from theincomplete State Water Project(SWP) is no substitute for thereality of actual water the SWPcan deliver.” The court decerti-fied the project EIR and requireda new report on water supplyconsistent with the PCL andSCOPE decisions. This con-firmed that PCL will have animportant “on the ground” effect,forcing local governments toface real-world constraints ondeliveries in assessing watersupplies for new development.

securities acts or antitrust laws. Innatural resources administration,PCL marks the end of paperdreams and the restoration of realityto water and land-use planningassumptions. As many editorialsproclaimed in response to the

decision, finally someone in author-ity spoke the unspeakable truth-thatthe State Water Project hasreached its limit. The decision notonly spares communities fromunsustainable development; in theend it spares the watersheds andDelta from destructive demandsbacked by a population created onfalse expectations.

By its pragmatic and realisticassessment of the State WaterProject through the lens of CEQA,the Court of Appeal provoked anhistoric restructuring of that projectand empowered a competent but

historically disenfranchised public.Under a comprehensive settlementhammered out with DWR aftermore than two years of negotiation,the state water contracts have beenamended to eliminate the misnomer"entitlement" and to require empiri-

cally-based assessments of projectreliability. A "Monterey Plus" EIR isbeing prepared by DWR with PCLand others as advisors, which willattempt to determine how theproject can be operated to improvethe environment statewide.

Norm Flette

The “Monterey Amendments” gave rise to the most drastic contractual restructuring in theState Water Project’s (SWP) forty-five year history. Among its principles was the deletion ofa key provision of SWP contracts which addressed permanent water shortages in the StateWater Project, further obscuring the ecological limits of California’s water resources.

Lynne Plambeck is president of SantaClarita Organization for Planning andthe Environment, an elected BoardMember of Newhall County WaterDistrict and a small business owner.

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The PCL v. DWR decision can be seen assignaling the passage of CEQA into the ranksof fully mature statutes that frame our modern

legal culture, comparable to the securitiesacts or antitrust laws.



In the Mono Lake Cases, the State of California Water Resources Control Board

limited municipal water rights inorder to preserve and restoreMono Lake and its tributarystreams. Decision 1631 (1994)ended more than fifteen years oflitigation in federal and statecourts over the novel legalissue: may the Water Boardreopen valid water rights underauthority of the public trustdoctrine, and if so, how shouldmunicipal water supply beprotected along with environ-mental quality? The WaterBoard prepared an Environ-mental Impact Report (EIR)under CEQA, and that system-atic factual analysis of alterna-tives helped drive the WaterBoard’s eventual decision.

In 1940, Los Angeles Departmentof Water and Power (LADWP)applied to the Water Board andobtained permits to divert watersfrom four streams tributary to MonoLake, a desert lake just east ofYosemite National Park. Sincelocal streams and aquifers wereinadequate for the rapidly growingpopulation of the Los AngelesBasin, LADWP looked severalhundred miles north to the Owensand Mono Basins, rural areas withabundant waters and sparse popu-lations, for additional supply.Though the Water Board found thatthe requested diversions—whichwould exceed natural stream flowsin most months—would damage

environmental quality, it regretfullyissued the permits. Since municipalwater supply is the highest and bestuse of water recognized under theState Constitution and Water Code,it concluded that it did not have anyauthority to require mitigation (suchas a minimum flow release) in the

face of LADWP’s legitimate needs.LADWP rapidly completed thestorage and diversion system onthese streams, as well as the LosAngeles Aqueduct to deliver thesewaters to the Los Angeles Basin. In1974, these permits becamelicenses, which are vested waterrights. As a result of these diver-sions, the streams lost their flows inmost months, along with theirfisheries and riparian vegetation;and the lake declined more thanforty-five feet in elevation.

In 1979, the Mono Lake Commit-tee sued against LADWP to compelwater releases into Mono Lake. Itcited the public trust doctrine. Thiscommon law had originated in

Imperial Rome, been adopted inEngland during its Roman occupa-tion, then migrated to our Coloniesalong with the English settlersbefore the Declaration of Indepen-dence. The common law, whichnow applies in all fifty states,generally provides that a State must

protect fishing, navigation, andcommerce on navigable watersas a public trust. In 1983 theCalifornia Supreme Court heldfor the first time that the WaterBoard must consider the publictrust before issuing waterrights—and indeed mayreopen rights issued withoutsuch consideration—and mustprotect the trust uses to theextent feasible consistent withmunicipal water supply andother beneficial uses. Califor-nia Trout and the Mono Lake

Committee then successfullybrought other cases under the Fishand Game Code, seeking similarresults for protection of the non-navigable tributary streams. In1989, the Court of Appeal orderedthe Water Board to amendLADWP’s water rights to protectMono Lake and its tributaries tocomply with all applicable laws.

The hearing lasted forty days, oneof the longest in the history of theWater Board. More than 125experts testified, and the partiessubmitted more than 1,000 exhibits.The hearing record alone fillsseveral filing cabinets. The EIRaddressed a multitude of factualdisputes framed but not necessarily

CEQA and the RESTORATION of MONO LAKE

By Richard Roos-Collins

The water levels in Mono Lake declined more than forty-fivefeet after the LA Department of Water and Power begandiversions. Streams lost their flows in most months, alongwith their fisheries and riparian vegetation.

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resolved by this partisan evidence.In sum, the EIR answered thequestion: what is the most feasiblemeans to restore Mono Lake whileprotecting LADWP’s reliable andeconomical water supply?

The State Water Board preparedthe EIR in a collaborative manner.It convened technical advisorygroups to frame issues and sortthrough the library of scientific andother studies compiled since theMono Lake Cases began. Allparties participated in some way inthese groups. To prepare the actualEIR, the Water Board engaged andsupervised a consulting firm, undera contract paid-for by LADWP.The consultant undertook newstudies as necessary to supplementthe existing information.

The resulting EIR is a systematicanalysis of how LADWP’s diver-

sions had lowered the lake level anddegraded environmental conditionsthat had existed in the Mono Basinin 1940. It predicted that the trendwill continue, in the absence ofamendment to water rights. Theanalysis differentiated impacts byresource, including migratorywaterfowl, trout, brine shrimp, and

air quality. More importantly, itevaluated a series of alternativescenarios for lake level: how muchshould the lake rise towards its pre-1940 condition, which was eleva-tion 6,417 Mean Sea Level(MSL)? These scenarios assumedincreasingly strict limitations onLADWP’s diversions. The EIRevaluated the municipal impacts ofthese alternatives—what is theincremental risk of supply shortage,taking into account all of LADWP’ssources?—and the feasibility ofreplacement supply, such as recla-mation of municipal wastewater.

The final EIR recommended thealternative lake level of 6,392 MSLwhich, over the long term, willpermit LADWP to divert roughlytwenty-five percent of the waterscontrolled by the 1940 permits,using feasible alternative sources tomake-up the supply deficit. Deci-

sion 1631 adopted thatrecommendation. Noparty appealed, ending theMono Lake Cases. TheEIR was critical to per-suading LADWP andother parties and, moreimportantly, the affectedpublic that the State haddiligently studied theproblem and found thebest balance of protectionboth of municipal watersupply and the public

trust. Today, Mono Lake and itsstreams are returning to goodcondition.

Richard Roos-Collins is Senior StaffAttorney for the Natural HeritageInstitute. Mr. Roos-Collins was trialcounsel for California Trout in theMono Lake cases.

Frances Spivy-Weberbecame Executive Directorof the Mono Lake Commit-tee in 1997, after the StateWater Board’s decision torequire LADWP to restoreMono Lake. She and theMono Lake Committee staffand Board knew that adecision, even one asdramatic as D1631, was abeginning, not an end. TheCommittee, she maintains,must focus on futurechallenges:

“LADWP will need decadesto carry out the restorationplan developed after theWater Board decision. TheCommittee’s on-the-groundpresence at Mono Lake iscritical for monitoring thedecision and raising redflags, when necessary.”

Fran is active in statewidewater policy decisionspromoting programs thatwill stretch California’swater supplies to meeturban, agricultural, andenvironmental needs.“Already, LADWP replacesthe water it is using torestore Mono Lake withwater conservation andrecycling. My highestpriority is to enhance theseprograms statewide sothere can be more ‘MonoLake / Los Angeles’success stories.”

Through the CEQA process, the State was able to find thebest balance of protection both of the municipal watersupply and the public trust.

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Los Angeles & the Owens Valley:CEQA Rewrites Water History

By Antonio Rossmann and Theodore Schade

In the late 1800s, Owens Lake was one of the largest natural lakes inCalifornia. With a surface area of more than 110 square miles and anaverage depth of twenty to thirty feet, Owens Lake supported two steam-ships transporting silver ingots from the mines in the Inyo Mountains destinedfor the growing city and port of Los Angeles. With regard to wildlife, anearly settler reports that the lake was once “alive with wild fowl, from theswift flying Teel to the honker goose…. Ducks were by the square mile,millions of them. When they rose in flight, the roar of their wings…could beheard on the mountain top at Cerro Gordo, ten miles away….”

But, the fate of Owens Lake was sealed in 1913 when the City of LosAngeles completed construction of the Los Angeles Aqueduct. This marvelof modern engineering intercepted the Eastern Sierra snowmelt that previ-ously kept Owens Lake full and diverted the water south 223 miles to thegrowing City of Los Angeles. By the mid-1920s, Owens Lake had all butdisappeared. The lake became a lifeless, hypersaline brine pool that,depending on rainfall, varies in size from zero to about forty square miles.

With the lakenearly gone,over sixtysquare miles ofsaline lake bedwas suddenly

exposed, resulting in dust storms of fine salt and soil particles that truly haveto be seen to be believed. The largest dust storms in the U.S. occur atOwens Lake. Owens Lake is the largest single source of air pollution in theUnited States in terms of total tons of air pollutants emitted per year and interms of the levels of standard exceedances.

Fortunately, a CEQA suit filed in 1972 has begun to change all that, though ittook more than a quarter-century of litigation. The day after the Friends ofMammoth decision, Inyo County District Attorney Frank Fowles woke upto learn that there was a California Environmental Quality Act, and that itrequired an Environmental Impact Report (EIR) before carrying out anenvironmentally-threatening project.

Frank began to wonder if that law might apply to Los Angeles’ groundwaterpumping in the Owens Valley, which had been expanding since the SecondLos Angeles Aqueduct was placed in use in June 1970, and whose impacton the valley was now being discerned. On November 15, 1972, nine daysafter Mammoth’s finality, Frank walked next door from his office in the Inyo

Sam Wasson is a long-timeresident of the Owens Valley:

“I remember as a child visitingmy Uncle in Keeler. Thiswould have been the forties,just after World War II. Keelerwas sort of a mining townthen, of about 100 people,right next to the Owens Lakebed. The wind would whipdust in all directions as thestorms moved in, creatinghuge, billowing clouds of whitedust. ‘The Keeler Fog,’ that’swhat people called it. Thedust would get in your hairand clothes, sinuses, every-thing. At times you couldn’tsee more than 100 feet.

“The dust was just somethingyou accepted. Everyoneknew water was being di-verted, but what could they doabout it? However, in thefifties and sixties, peoplestarted getting more environ-mentally conscious. And inthe eighties there were realconcerns about the healtheffects of PM10, arsenic,cadmium, and boron par-ticles. As people becamemore aware, they wantedsomething done. We’retalking about 60,000 people, inInyo and Kern counties.

“Since the City of Los Angelesaccepted responsibility for theproblem, over 80 percent ofthe emissive lakebed areashave been mitigated using acombination of shallow floodirrigation and experimentalfarming. And the Keeler


Owens Lake is the largest single sourceof air pollution in the U.S. in terms of

total tons of air pollutants emitted peryear and in terms of the levels of

standard exceedances.

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County Courthouse and filed County of Inyo v. Yorty (later County ofInyo v. City of Los Angeles).

This suit would ultimately result in six published and a few unpublishedopinions before its dismissal 25 years later. Los Angeles was required toprepare an EIR. The court declared its power to enjoin groundwaterpumping—even though LA’s water rights remained unchallenged—requiredfor the first time that the EIR prepared actually be reviewed for adequacy,demanded that the city adopt mandatory water conservation for the firsttime in its history, and rejected LA’s EIR’s not once but twice becausecontrived project descriptions (while not concealing environmental impacts)evaded a choice between increased groundwater pumping in Inyo andconstitutionally-preferred water conservation in Los Angeles. Finally, thecourt authorized the parties to experiment with joint decision-making andassessment, but not in derogation of the larger public’s right to an adequateEIR that lays the foundation for meaningful mitigation.

In discharging its writ in 1997, the court of appeal signaled its satisfactionwith these legal requirements of CEQA, and brought into force the perma-nent water management plan whereby Inyo and Los Angeles jointly decidethe annual allocation of the Owens Valley’s water resources, and wherebyLos Angeles has committed to mitigation of past impacts that will include therewatering of the Owens River for the first time since 1913.

In 1998, the City of Los Angeles and the Great Basin Air Pollution ControlDistrict entered into an historic agreement that provides for the dust problemto be solved by 2006. Los Angeles has finally acknowledged that the airpollution from Owens Lake is caused by their water diversions and the cityhas begun a costly and enormous undertaking to solve the problem.

In the first three quarters of the twentieth century, Owens Valley had cometo symbolize deceit, colonialism, and exploitation. By the judicial enforce-ment of CEQA in Inyo, in the last quarter of the century the Owens Valleycame to stand for integrity and honesty in public decisions, self-determina-tion by the people of Inyo, water conservation in Los Angeles, andultimately joint city-county governance of the valley’s water re-sources to reclaim their environment. The promise of CEQA in thiscase is best summed up in an old battle cry redefined as a positivemandate: “Remember the Owens Valley!”

Antonio Rossmann has practiced CEQA law since the early 1970s, hastaught at the University of California, Berkeley (Boalt Hall) and otherCalifornia law schools since 1980, and has served on the PCL board forover twenty years. Mr. Rossmann served as special counsel for 21 years toInyo County, addressing Owens Valley water issues.

Fog—the dust plumes thatused to stretch over thelakebed and beyond—is gone.

“The great thing about CEQAis that the stakeholders areinvolved and informed fromthe beginning. It promotes theconsideration of alternativesthat often end up being bothcost-effective and better forthe environment. Havingparticipated in the comment-ing process, I’ve seen howdiverse interests can cometogether to shape a solutionthat is better for everyone.

“CEQA is about the big pic-ture, about looking at a projectfrom all perspectives. TheOwens Lake dust mitigationmeasures were simply betterbecause issues of land use,air and water quality, and theenvironment were consideredtogether.”

Theodore Schade is a civil engineer and Air Pollution Control Officer atthe Great Basin Air Pollution Control District in Bishop, California. Mr.Schade has worked on the dust problems at Owens and Mono Lakessince 1990.


Sam Wasson, worked for the LADept. of Water and Power for 36years, retiring as a Transmissionand Distribution Superintendent.Since settling permanently inKeeler, CA, Mr. Wasson has beenan active participant in severalregional issues. He is alsocurrently a member of the InyoCounty Planning Commission.

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A dust storm originating in the Owens Lake bed strikesthe town of Inyokern, approximately fifty miles south.

Theodore Schade



Representatives of business anddevelopers, who must pay for theCEQA documents prepared bylead agencies for their projects,were also fully involved. While a

legal argument could have beenmade that the Water ForumAgreement was not a “project”under CEQA, all supported thepremise that it would be treated asa project, and an EnvironmentalImpact Report (EIR) would beprepared along with the agreement.Integrating the CEQA process intothe Water Forum Agreement

negotiations proved to beinvaluable in accomplishingthe objective of reaching aregional water supplyagreement.

A Program EIR was initiatedin August 1995, while thestakeholder process wasconcluding its researchphase and beginning todefine its guiding principles,well before the agreement

began to take shape. The EIR’simpact assessment and publicreview process were fully interwo-ven with the agreement negotiationprocess, yet CEQA’s independence

Contention, conflict, andcourt cases typified theSacramento region’s water

supply decisions in the two decadesprior to the 1990s. Recognizing

that substantial growth was plannedover the next thirty years and thatwater supply decision-making hadreached gridlock, a diverse groupof business and agricultural leaders,citizens groups, environmentalists,water managers, and local govern-ments created the Water Forum todevelop a long-term, regional,water supply plan that consideredall these stakeholders’needs. This group devotedtens of thousands of hoursresearching the causes ofthe gridlock, agreeing on theprinciples to guide develop-ment of a regional solution,and negotiating the WaterForum Agreement, whichwas successfully adopted in2000 and still guides re-gional water supply deci-sions today. The agreementwas founded upon the co-equalobjectives of “providing a reliableand safe water supply for theregion’s economic health andplanned development to the year

2030 and preserving the fishery,wildlife, recreational, and aestheticvalues of the Lower AmericanRiver,” a riverine jewel in the heartof Sacramento.

Integration of CEQA into theStakeholder Process

The stakeholders making up theWater Forum included citizengroups and environmentalists, whorepresented important publicconstituencies that watched over theregion’s natural resources, and

water managers and local govern-ments, who are CEQA lead agen-cies responsible for approving landuse developments and the watersupply projects supporting them.

FROM GRIDLOCK TO AGREEMENT:The Sacramento Water Forum Story

By Curtis E. Alling

The Sacramento Water Forum’s Stakeholders Group used the CEQAprocess to develop a long-term regional water supply plan thatconsidered the needs of all involved parties.

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Recognizing that substantial growth was planned over the next thirtyyears and that water supply decision-making had reached gridlock,

a diverse group of business and agricultural leaders, citizens groups,environmentalists, water managers, and local governments created

the Water Forum to develop a long-term, regional, water supply plan.



provided critical environmentalinformation and mitigation optionsas input to stakeholder discussionsand feedback about effects ofpotential agreement features.Temperature and fishery impactmodels helped define in-stream flowrequirements and dam releaseschedules. Biological impactassessment led to formulation of the

agreement’s HabitatManagement Element inwhich habitat mitigationcommitments were de-fined. Water recreationimpact assessment helpeddetermine how to reduceand compensate forFolsom Reservoir boatingimpacts from changing

reservoir levels. Without theiterative understanding of impactsand mitigation provided by the fullyintegrated EIR evaluations, theagreement could have been turnedon its head late in the process byunanticipated environmental im-pacts.

As a result of these multi-facetedvalues of the EIR process, CEQAbecame an essential component ofsuccess in reaching the landmarkWater Forum Agreement.

was purposefully maintained byprohibiting “negotiation” of environ-mental issues addressed and impactconclusions determined. TheNotice of Preparation and EIRscoping helped advise the publicabout the Water Forum processand sought input on key environ-mental issues. Preliminary environ-mental impact findings helped guidedevelopment of elements topreserve the AmericanRiver’s resources. TheDraft EIR was released forpublic review in early 1999along with a draft of theWater Forum Agreement,providing the primaryvehicle for public review ofthe draft solution. TheFinal EIR was certified later thatyear by the County of Sacramentoand City of Sacramento, serving asco-lead agencies with staff supportby the City-County Office ofMetropolitan Water Planning.

Values CEQA Brought to theWater Forum Agreement

CEQA played several distinctlydifferent, but consistently valuable,roles in the development of theagreement, as viewed by thevarious stakeholders.

Environmentalists sought prepara-tion of an EIR, as a condition oftheir participation in the stakeholderprocess, to help provide assurancesthat measures protecting the LowerAmerican River and other sensitiveresources would indeed be imple-mented. The EIR enabled theconsequences of the water supplyplan to be fully scrutinized by thepublic. It also determined mitigationcommitments to protect resources

that were incorporated as condi-tions of approval of the agreementand included in a CEQA-required,Mitigation Monitoring and Report-ing Program, formally adopted bythe co-lead agencies.

Business interests and water man-agers needed certainty that projectsconsistent with the agreement would

not be subject to the repetitiveenvironmental documents, so thatthe safe and reliable water supplyobjective could be more economi-cally achieved. The Program EIRdeveloped a fully comprehensivecumulative impact analysis of theentire Central Valley Project andState Water Project and a detailedalternatives analysis. While indi-vidual projects necessarily havetheir own CEQA reviews, thisapproach was intended to stream-line the later environmental reviewsof water projects by providing theopportunity to rely on the EIR’scumulative impact and alternativesanalyses, an incentive for projectsto be developed consistently withthe Water Forum Agreement.

For the City and County co-leadagencies, as well as State respon-sible and trustee agencies that mustapprove later permits for watersupply projects, the EIR’s technicalanalysis, conducted iteratively withformulation of agreement elements,

Curtis E. Alling, AICP, is an environ-mental planner with expertise in theCalifornia Environmental Quality Act,National Environmental Policy Act,Endangered Species Act, and TahoeRegional Planning Agency ordinances.Mr. Alling also teaches courses for theAssociation of Environmental Profes-sionals, American Planning Associa-tion, UC Davis Extension, and UCLAExtension on CEQA and NEPA practice.

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Integrating the CEQA process intothe Water Forum Agreement

negotiations proved to beinvaluable in accomplishing theobjective of reaching a regional

water supply agreement.

CHAPTER 9Water Quality

See Pg...133

See Pg...134

See Pg...135

See Pg...137

CEQA and the State’s Evolving Efforts to ProtectCalifornia’s Water Quality

Andy Sawyer ............................................................... 133

Learning by Example: Implementing Innovative WaterSolutions through CEQA Compliance

Frances Spivy-Weber ................................................. 134

The Mission Bay Project: New Stormwater MitigationsReduce Sewage Overflows in San Francisco Bay

Mike Lozeau ............................................................... 135

Changing Course: CEQA Review Confirms MassiveWater Contamination at the Port of LA

Daniel Cooper ............................................................ 137

CEQA and the San Joaquin Reservoir Conversion:Keeping Sewage out of Newport Bay

Kevin K. Johnson & Jared P. Hanson ..................... 140

Equestrian Estates in Silverado Canyon:Protecting Orange County’s Water Quality

Frank P. Angel & Ed Grutzmacher .......................... 142

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WATER QUALITY • WATER QUALITY • WATER QUALITY

California’s core water quality law, Porter-Cologne Water Quality ControlAct, administered by the State Water Resources Control Board (SWRCB)and the nine regional water quality control boards (RWQCB), was enactedin 1969. In part because of federal requirements, the initial focus of theprogram was to apply stricter controls to sewage treatment plants andindustrial dischargers.

Most regulatory activities were exempt from CEQA, either because therewere no adverse impacts or the statutory exemption for point source regula-tion (NPDES permits) applied. CEQA review focused on the non-waterquality impacts of local assistance.

The SWRCB administered a program of state and federal grants for sewagetreatment plant construction, a program that at that time included funding forexpanding treatment capacity, not just upgrading treatment. The Brownadministration, seeking to get a handle on air quality impacts of urbangrowth, used CEQA to impose treatment capacity limitations. This practiceended after the Legislature amended CEQA in 1976 to restrict the authorityof a responsible agency.

Since that time the SWRCB, as a responsible agency, has limited its reviewto water resources impacts when it awards grants and loans to publicagencies.

Making use of a functionally equivalent process authorized in a 1975amendment to CEQA, the SWRCB and the RWQCBs integrate environ-mental documentation into Porter-Cologne Act planning, allowing the samedocument to meet the requirements of both statutes.

CEQA also requires other agencies to consider the water quality impacts ofthe activities they approve. The effectiveness of CEQA in this context wasundermined for a time, based on the argument that proposed projects wouldhave no significant impact on water quality because the RWQCB wouldtake care of any problems that arose. The courts rejected that approach inSundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296.

By Andrew H. Sawyer

Point & Non-PointSource Pollution

There are two main sourcesof water pollution regulated bythe federal Clean Water Act:point sources and non-pointsources.

Initial efforts to protect waterquality on a national levelfocused on point sources,which are facilities such asfactories and sewage treat-ment plants that dischargepolluted water out of pipes orother discernable points intothe environment.

Under the Clean Water Act,National Pollution DischargeElimination System (NPDES)permits must be obtained forpoint sources. These per-mits reduce water pollutionby setting acceptable levelsfor point source discharges.Through this permittingsystem, we have made greatstrides in reducing pointsource pollution nationwide.

Non-point sources of waterpollution, including forestry,construction, and runoff fromstreets and highways, aremore difficult to control, andare not subject to NPDESpermit requirements. A veryhigh percentage of our waterpollution comes from non-point sources.

CEQA has become increas-ingly important in protectingand improving water qualityas more of the focus ofefforts to protect California’swater quality has shifted tonon-point sources.

CEQA and the State’s Evolving Effortsto Protect California’s Water Quality

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As the focus of water quality regulationshifted from point sources to stormwaterrunoff and non-point sources, CEQA has

become increasingly important inprotecting water quality.

• WATER QUALITY • WATER QUALITY • WATER QUALITY

As the focus of water qualityregulation shifted to stormwaterrunoff and non-point sources,CEQA has become increasinglyimportant in protecting water quality.Environmental groups and, in somecases, water supply agencies andthe Attorney General have used

CEQA to require consideration ofwater quality impacts in connectionwith a variety of activities, includinglogging, landfill expansion, streamchannelization, construction activi-ties, and new dairies. There hasalso been a trend towards use ofCEQA by dischargers seeking toavoid or delay the applicability ofmore stringent requirements, buttheir efforts have generally beenunsuccessful.

Overall, CEQA has complementedthe State’s water quality controlprogram, helping to provide forinformed decision-making andencouraging public participation.

Andrew H. Sawyer is the Assistant ChiefCounsel of the California State WaterResources Control Board. The views ex-pressed in this section are those of theauthor, and do not necessarily reflect theviews of the State Water Resources Con-trol Board, its individual members, or theState of California.

California is known across theworld for its creativity and innova-tion. Our water protection pro-grams are no exception. Fromtop-notch universities faculty tocreative community members,California has a brain trust ofindividuals generating cutting-edge solutions to safe-guard ourwater resources. New ideas arebeing disseminated faster andfarther than ever before, butmore is needed to make surethat new research is effectivelyimplemented and successfulwater projects get the publicattention they deserve.

Projects subject to CEQA analy-sis are increasingly able to usethe lessons learned from innova-tive projects, especially thosedesigned to comply with environ-mental laws like the FederalClean Water Act and California’sown SB 221 which requires largehome-building projects to dem-onstrate the availability of waterbefore approval.

For example, Los AngelesCounty is partnering withTreePeople in the eastern SanFernando Valley to build andinstall multiple projects thatcapture and storestormwater and non-stormrunoff on-site or divert waterto nearby gravel pits wherewater can safely seepthrough the soil to ground-water basins. In SantaMonica, a park-like planttreats dry-weather run off tomeet Clean Water stan-dards for the Bay. In theInland Empire and Orange

By Frances Spivy-WeberCounty, builders landscape newhomes with native plants andinstall smart sprinklers that willnot water when it rains. Theseprojects result in improved waterquality and useable, local watersupplies.

Responding effectively to thegrowing threats to California’swater requires an ongoing learn-ing process. CEQA is uniquelypositioned to be an engine ofinnovation and research, amethod for showcasingCalifornia’s best new ideas. Forexample, because the public isallowed to comment on proposedmitigations during EIR review,they can suggest new mitigationsthat may not be known by localplanning staff.

Through enlightened environ-mental review, and informedpublic comments, CEQA canhelp us maintain California’sreputation as a land of intelli-gence and a pioneering spirit,guiding us away from businessas usual to a creative, sustain-able future.

Frances Spivy-Weber is the ExecutiveDirector of the Mono Lake Committee.

The Santa Monica Urban Runoff Facility (SMURRF). Thisinnovative park-like facility helps the city meet CleanWater standards for the Bay and could serve as a modelfor future CEQA water quality mitigation measures.

City of Santa Monica

Learning by Example:Implementing Innovative Water Solutions

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Since non-point source pollution fromstormdrains is exempt from Federal over-sight, CEQA’s cumulative impacts analysishas become an increasingly important toolto ensure cleaner discharge. Read moreon page 135.


A striking example of how CEQA fosters negotiation and innovation ondevelopment projects was the agreement between San Francisco’s environ-mental community and Catellus Development Corporation over the 300acre Mission Bay project in San Francisco.

The proposed development of over 6,000 housing units, a forty-three acreUniversity of California campus, and millions of square feet of office spacewas designed originally to plug its sewage lines into the City’s combinedsewer system. The plan also called for the installation of concrete riprapalong the Islais Creek shoreline and other features potentially damaging toSan Francisco Bay. San Francisco is one of the few west coast towns witha combined sewer system. When the same pipes handle both sewage andstorm water, storms can cause massive overflows of sewage.

At the time it was considering the Mission Bay project, San Franciscodischarged about 110 million gallons of combined sewage overflows intoSan Francisco Bay from the eastern edge of the City. In addition to sew-age, much of the shoreline of the City on the Bay side was rip-rapped,limiting the habitat for birdlife and other animals. Instead of taking theopportunity to help cure some of these chronic problems, the originalversion of the Mission Bay proposal would have increased the sewageoverflows by 2 million gallons per rainy season and maintained unsightlyriprap along Islais Creek.

San Francisco BayKeeper spear-headed a coalition of San Francisco-based environmental groups who were interested in the Mission Bay Projectand other developments slated for San Francisco’s waterfront areas. Theupcoming CEQA process molded the behavior of both the advocacycommunity and the developer.

The availability of the CEQA process gave advocacy groups a frameworkto organize around and the confidence to approach Catellus even prior torelease of any draft documents. The CEQA process, including both theCity’s review and potential court challenges, gave Catellus a strong incentiveto negotiate with the coalition. Lastly, once the groups and Catellus realizedtheir various ideas could be mutually beneficial, their discussions led toenvironmentally-beneficial innovations in the project that created additionalcertainty for the company.

The Mission Bay Project:New Stormwater Mitigations Reduce Sewage Overflowsin San Francisco Bay by 30 Million Gallons Each Year

By Mike LozeauEvery time it rains or snowsin California, the state’sdrinking water supplies,coastal waters, and recre-ational beaches are contami-nated by runoff from urbanand suburban areas. Asstormwater washes throughcity streets, parking lots,suburban lawns, and gutters,it picks up a wide array ofpollutants, including: oils,grease, road salts, pesticidesfrom lawns and parks,sewage, litter, and toxicmetals. While a fraction ofthis water is collected andtreated, the vast majority isdirectly discharged at dis-crete points called outfallsinto streams, rivers, coastalwaters, and the ocean.

This problem, known asstormwater pollution, hasbecome a critical concern inCalifornia’s coastal regions.Indeed, recent studies havedemonstrated that urbanstormwater rivals and incertain cases exceedssewage treatment plants andlarge factories as a source ofdamaging pollutants. As thestate’s coastal cities continuetheir rapid growth, the envi-ronmental and economiceffects of stormwater pollu-tion will become increasinglysevere.

The four major categories ofstormwater pollutants andtheir effects are:


StormwaterPollution

The original Mission Bay proposal wouldhave increased sewage overflows by

2 million gallons per rainy season.

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In the end, Catellus agreed to changes in the project that separated the newdevelopment’s storm water from the City’s combined sewer system, reducingsewage overflows by an estimated 30 million gallons per year. The develop-ment also includes state-of-the-art storm water filtration systems at five stormwater outfalls to the Bay. The company also is creating wetland habitat alongthe public park slated for Islais Creek. The developer also assembled a teamof consultants to evaluate the feasibility of further reducing storm waterpollutants through playing- field sand filters and other possible innovations.

Although the environmental groups did not get everything they wished for, thediscussions and process fostered by CEQA made it possible to achievesubstantial environmental improvements on seemingly intractable pollution andshoreline issues among parties who, prior to the discussions, could only haveassumed the worst of each other. And this was done without a threat oflitigation, in a way that fostered ongoing trust amongst all of the parties and, itturns out, with increased certainty and less expense for the developer.

For more information, see:Stormwater Pollution: Causes,Impacts and Solutions, byMarianne Lowenthal, Planningand Conservation LeagueFoundation, 2003.


Aerial view of San Francisco, showing the Mission Bay project. CEQA mitigationsresulted in a reduction of sewage overflows by an estimated 30 million gallons peryear. The agreement also included the installation of state of the art stormwaterfiltration systems and the creation of wetlands habitat.

UCSF

At the time of the Mission Bay Project approval, Mike Lozeau was the ExecutiveDirector of San Francisco BayKeeper and a lead negotiator for the environmentalcommunity over the terms of the project. From 1999 to 2004, Mr. Lozeau was a staffattorney with the Earthjustice Environmental Law Clinic and a Lecturer on Law atStanford Law School. In January 2005, he returned to private environmental lawpractice in San Francisco.

Bacteria, Protozoa, andViruses: These pathogens,generally from raw or partiallytreated sewage, pose serioushealth risks to humans whoswim in beach waters or eatcontaminated shellfish.Victims have reported avariety of symptoms afterswimming in polluted water,including fever, vomiting,chills, and gastrointestinalillness.

Oils, Trash, and OtherPollutants: These pollutantscan clog fish gills, decreasethe survival and reproductiverates of fish, and decreasethe amount of free oxygen inthe water.

Toxic Metals: Contaminantslike copper, lead, and mer-cury can cause miscar-riages, reproductive toxicity,brain atrophy, and birthdefects in humans.

Excess Sediments andNutrients: High concentra-tions of sediments or nutri-ents (like nitrogen and phos-phorous) can disrupt coastalecosystems by destroyingentire populations of algae orby causing massive algalblooms. These algal bloomsare often toxic and harmful tohumans or other marinecreatures.

The discussions and process fostered by CEQAmade it possible to achieve substantial

environmental improvements on seeminglyintractable pollution and shoreline issues.

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By Daniel Cooper

Changing Course:CEQA Review Confirms Massive Water Contamination at the Port of LA;Port Joins in Suit against Polluters and Clean Up Begins

For over thirty years, the Port of Los Angeles co-operated a bulk materials shipping

facility on the main channel of innerSan Pedro Harbor, first withNational Iron and Metal andAmerican Bulk Loading, and laterwith Kaiser International. Thefacility handled copper concen-trates, scrap metals, and petro-leum coke and coal, amongother things.

Santa Monica Baykeeper beganinvestigating the site in 1997,when it was leased by KaiserInternational. The operationconsisted of an eighty-foot highpile of black, powdery petro-leum coke extending at least500 feet along a pier immedi-ately adjacent to the water. Petro-leum coke is the remnant materialfrom oil refining (the “bottom of thebarrel”) and containsheavy metals,polyaromatic hydro-carbons, and othertoxic pollutants.

Coke was shippedto the site via railcars, dumped onthe pile, and carried via a conveyorto ships at the pier. The waste pile,the transfer conveyor, and in fact,all operations were completelyuncontained. Afternoon windsskimmed oily black powder off thepile into the water on a daily basis.Both the Coast Guard and nearby

boat owners had repeatedly com-plained to the Port, the City, and theAir Quality Management Districtabout the black sticky powderraining down on their vessels.Conveyor transfer spilled thematerial directly into the Bay, while

vehicle tracking, rain water duringstorm events, and virtually everyother step in Kaiser’s operations

spread coke throughout the areaand into Harbor waters. Greenstaining and small piles of copperconcentrate, a material highly toxicto marine organisms, could be seenat various locations near the Bay.

Baykeeper began its enforcementaction against Kaiser for violations

of the Federal Clean Water Act andthe Resource Conservation andRecovery Act in 1998. Withinhours of the filing of Baykeeper’scomplaint, Kaiser “ceased” opera-tions in an effort to avoid its liabilityfor the contamination. While

Baykeeper actively sought thecooperation of the Port inforcing Kaiser to pay for cleanup, instead the Port defendedKaiser, compelling Baykeeperto add the Port to the enforce-ment action. For three yearsBaykeeper, Kaiser and the Portlitigated the issue of the FederalCourt’s Jurisdiction over theaction. During this period thePort removed most of the site’sequipment, as well as the pile,but coke and copper contami-

nation remained uncontained on thesite and on the harbor bottom. By2001, Baykeeper was prepared to

seek summary judg-ment on the Port andKaiser’s liability forthousands of violationsof Federal Law.

In 2001, the Portelected to prepare the site for rentalfor other operations. The Portdetermined that, after remainingcompletely unaddressed for threeyears, site clean up operations werean “emergency,” warranting thecircumvention of environmentalreview pursuant to CEQA. On sitecontamination, storm water runoff,

137

This pile of petroleum coke and coal was immediatelyadjacent to the inner harbor. Virtually every step in Kaiser’soperations spread coke throughout the area and into har-bor waters.

Both the Coast Guard and nearby boatowners had repeatedly complained to thePort about the black sticky powder raining

down on their vessels.


Daniel Cooper is a partner withLawyers for Clean Water, a law firmrepresenting grass roots environmentalorganizations throughout California toprotect water quality.

and other impacts from past opera-tions, as well as traffic and lightimpacts from the proposed newdevelopment, warranted a fewsentences each in the environmentalassessment.

Joining with San Pedro citizens,Baykeeper sued in State Courtseeking environmental reviewconsistent with CEQA. At thesame time, the Natural ResourcesDefense Council (NRDC) began itschallenge to the Port’s environmen-tal review of the China Shippingproject (see pg. 25).

Further, in 2002 the Port beganinvestigating contamination in Baysediments off the Kaiser site inanticipation of dredging to allowcruise ship opera-tions in the area.Coke and copperconcentrates werefound covering thebottom at depths ofup to eleven feet. Combined withthe mounting pressure fromBaykeeper and NRDC’s lawsuits,and statements from the Mayor’soffice relating to the Port’s respon-sibility to area residents, the discov-

ery of this extensive contaminationled to an about-face by the Port. In2002, the Port added cross claimsagainst Kaiser, American Bulk

Loading, and National Metals inBaykeeper’s Federal Lawsuit,seeking to recover clean up costsfor both the harbor bottom and theupland site. In addition, the Portsettled both the Federal and CEQA

lawsuits withBaykeeper.

The Port committedto non-industrial usesfor the Kaiser site,and paid for environ-mental restorationprojects in theaffected area.

In addition, the Portagreed to substantialimprovements in itsenvironmental review

process, including improved consid-eration of air and water impacts,and substantially improved publicnotice and public participation.

Finally, the Portdredged and dis-posed of much of thebottom contaminationas hazardous waste,at a cost of over

eleven million dollars. Litigationagainst the site operators continuesin an effort to recover some of theclean-up costs.

Baykeeper’s CEQA challenge andthe resulting settlement led to asignificant clean-up. Just as impor-tantly, they improved the Port’senvironmental review process insuch a way that might prevent theenvironmental destruction and coststo the public caused by similaroperations in the future.

Petroleum coke and copper concentrateswere found covering the bottom of the pier

at depths of up to eleven feet.

138

Service vehicles tracked petroleum coke, coal, oil and greaseacross the Kaiser International pier. In 2001, the Port deter-mined that, after remaining completely unaddressed for threeyears, site clean up operations were an “emergency,” warrant-ing circumvention of environmental review pursuant to CEQA.

After extensive contamination was discovered at the Kaiser International Pier in 2002, thePort finally changed course and joined with NRDC and Santa Monica Baykeepers to demandthat Kaiser International clean up the site.


One of the primary purposes of CEQA is to ensure that all projects are subjected

to scrutiny to determine whatenvironmental impacts may result.This is particularly important forprojects which may seem, at firstblush, to have environmentalbenefits. For such projects, thescrutiny required byCEQA forces agencies toaddress and mitigateadverse environmentalimpacts that might other-wise be overlooked orignored.

One such project was theIrvine Ranch WaterDistrict’s (IRWD) decisionto convert the San Joaquin Reser-voir, located upstream of NewportBay, from potable water storage toreclaimed water storage. At thetime, the reservoir had sat emptyand unused for several years due towater quality problems.

The goal of the project, accordingto the IRWD, was to increase theuse of reclaimed water and, there-fore, increase water conservation.However, the conversion and theoperation of the facility had severalenvironmentally adverse andpotentially dangerous conse-quences.

Defend the Bay, a non-profit publicbenefit corporation dedicated toprotecting Newport Bay and otherpublic areas from environmental


harm, challenged the IRWD’sdecision to approve the projectwithout preparing an EnvironmentalImpact Report. Defend the Bayand others (including the City ofNewport Beach), presented exten-sive evidence that the project wouldhave adverse environmental impactson many fronts, including water

quality, biological resources, andpublic health.

For instance, the project wouldstore up to 3,000 acre feet ofreclaimed water, or, as the IRWD’sown consultant referred to it,“sewage effluent.” Reclaimed watercontains substantially higher levelsof nutrients than potable water. Assuch, reclaimed water creates aserious threat to impairing waterquality when it is released intosurface or groundwater.

IRWD conceded that the seepagefrom the bottom and sides of thereservoir would be approximatelyone cubic foot per second (cfs).Although one cfs per second doesnot sound like much, it amounts tothe release of over 645,000 gallons

per day, or 4.5 million gallons perweek of sewage effluent. More-over, IRWD indicated that periodiccleanings of the reservoir maynecessitate discharging the contentsof the reservoir downstream.

The seepage of so much nutrient-rich reclaimed water into the

groundwater and thewatershed had potentiallyadverse impacts to publichealth, the water qualityof Newport Bay, and thesurrounding habitat. Forexample, the increasednutrients and moisture inthe soil could result innon-native speciesinvading the surrounding

California coastal sagescrub,negatively impacting the threatenedCalifornia gnatcatcher, whosepresence in the area was confirmed.

In addition to the water qualityimpacts, IRWD planned to store atthe site twelve one-ton containers ofchlorine, a hazardous material. Thepotential danger of a hazardouschlorine gas release was under-scored by the fact that the reservoirwas located between and upwindfrom two residential neighborhoods.

In addition to storage of the con-tainers at the site, IRWD planned totransport six new one-ton contain-ers of chlorine through the residen-tial streets to the facility everyweek. IRWD, however, had notassessed the risks nor analyzed any

CEQA and the San Joaquin ReserCEQA and the San Joaquin ReserCEQA and the San Joaquin ReserCEQA and the San Joaquin ReserCEQA and the San Joaquin Reservoir Conversion:voir Conversion:voir Conversion:voir Conversion:voir Conversion:Keeping Sewage out of Newport Bay

139

Seepage from the bottom ofthe reservoir would havereleased over 4.5 million

gallons per week of sewageeffluent into the Newport

Bay watershed.


Kevin K. Johnson and Jared P. Hansonare attorneys at Johnson & Hanson,LLP. The firm represented Defend theBay in this case.

alternative to the use of chlorineand/or the storage of such largeamounts on site. Rather, it onlyindicated intent to develop a riskmanagement plan after it approvedthe project.

IRWD’s response to all theseenvironmental concerns was toeither ignore them or to state that itwould figure out how to deal withthem after the project was ap-proved. It therefore approved theproject by a mitigated negativedeclaration rather than an Environ-mental Impact Report.

Defend the Bay filed suit in OrangeCounty Superior Court. (Defendthe Bay v. Irvine Ranch WaterDistrict, Orange County SuperiorCourt Case No. 01CC01034.) Itargued that an Environmental

Impact Report was necessary toassess the potential impacts of theproject and analyze what meanswere available to mitigate and/oravoid them. The Court agreed and,in September 2001, issued a writ ofmandate directing IRWD to rescindits approval of the project and toapprove it only after the preparationand consideration of an Environ-mental Impact Report.

Following the Court’s order, IRWDprepared an Environmental ImpactReport which considered all theissues discussed above as well asothers addressed in the litigation.The EIR process resulted in IRWD

fully assessing the potential environ-mental and public health impactsbrought about by the project and,just as importantly, developing themitigation measures necessary toaddress those potential impactsprior to its approval of the project.

For example, with respect toseepage, IRWD committed itself toinstalling a system to capture theseepage and re-pump it back intothe reservoir, and to incorporate anutrient exchange well downstreamto remove excess nutrients. Inaddition, IRWD abandoned its planto use chlorine, and committedinstead to using a sodium hypochlo-rite disinfection system, which isconsidered a safer method. It alsoaltered the delivery route for safetyconsiderations.

As a result of the analysis requiredby the EIR process, IRWD endedup with a project which still met itsneeds, but which also mitigated thepotential environmental and publichealth impacts that otherwise wouldhave been ignored.

140

The San Joaquin Reservoir just east of Newport Beach’s city limits. In 2000, The IrvineRanch Water District proposed converting the reservoir from potable to reclaimed water,with a stated goal of increasing local water conservation. The use of CEQA helped ensurethat the environmentally adverse and potentially dangerous elements of the reservoir con-version were not ignored.

Through the EIR process, the Water District committeditself to installing a system to capture the seepage andremove excessive nutrients from downstream waters.


Water quality is of great interest to the citizens of Orange County and

other coastal jurisdictions, whichare struggling to reduce pollutionfrom urban runoff. Concern isgrowing not only for affected fishand wildlife species but humans aswell. Popular surfing spotsalong most of OrangeCounty’s coast have longbeen plagued by recurringbacterial contamination andpollution from cancer-causing chemicals andmetals, carried in increasingvolumes of stormwaterrunoff and dry weatherurban runoff associated withincreasing urbanization.Frequent beach closuresfrom high bacterial counts incoastal waters interfere withthe public’s historic right ofaccess to the ocean andreduce tourism-oriented revenue.Fortunately, an important 2004CEQA suit brought by an OrangeCounty environmental advocacygroup, Rural Canyons ConservationFund (RCCF), has opened thedoor to cleaner runoff and im-proved water quality in OrangeCounty and across the state.

In 2003, Las Vegas-based CCRCFarms, LLC submitted an Environ-mental Impact Report (EIR) for anequestrian estate subdivision on 70acres of open space in OrangeCounty’s Silverado Canyon. The

site of the subdivision is part of alarger property known as HoltzRanch, located along a majorgateway to and within the bound-aries of Cleveland National Forest,the southern-most national forest inCalifornia, separating Orange andRiverside counties. Stormwater

runs off the hills of SilveradoCanyon into Silverado Creek, theninto Santiago Creek, a recoveryarea for the endangered ArroyoToad. It joins with the Santa AnaRiver and finally empties into thePacific Ocean near NewportBeach.

The subdivider proposed to buildtwelve single-family estates on lotsaveraging 5.3 acres, as well asroads and other infrastructurefacilities. The project design placedthe building pads mainly on gradu-ally sloping land surrounded by a

“bowl” of hills, with the padsextending into and forcing grading inthe hills.

Local residents were initially con-cerned about the proposal becausethe equestrian estates would ac-commodate horse barns and

facilities. Equestrian uses areknown to generate wastescontaining contaminants suchas nitrates, arsenic, copper,selenium and the gastrointesti-nal disease-causing pathogensCryptosporidium, GiardiaLambia and Salmonella.According to the EPA, theaverage horse produces aboutforty-five pounds of fecalwaste each day, raising theprominence of adverse projectimpacts on water quality.

In this case, the project EIRclaimed, without supporting

evidence, that existing baselinewater quality conditions were worsethan future conditions with theproject. The EIR simply based thisclaim on the fact that portions ofHoltz Ranch had been used foragricultural purposes decades ago,stating that pollutants such assediments, nutrients, and pesticidesare “generally considered” to bepollutants associated with agricul-tural uses. Because of the EIR’sinadequate analysis of water qualityimpacts, RCCF challenged theCounty’s approval of the EIR.

By Frank P. Angel and Ed Grutzmacher

Equestrian Estates in Silverado Canyon:Protecting Orange CountProtecting Orange CountProtecting Orange CountProtecting Orange CountProtecting Orange County’s Water Quality’s Water Quality’s Water Quality’s Water Quality’s Water Qualityyyyy

141

Developers planned to build an equestrian estate subdivision onthis section of the Holtz Ranch in Orange County. Because ofCEQA, the Rural Canyons Conservation Fund was able to ensurethat the impacts of horse waste on local water supplies would beidentified and mitigated.

Fran

k An

gel


The Orange County Superior Courtfound unacceptable the lack of anystudy to determine what pollutants,if any, currently flow into nearbySilverado Creek from Holtz Ranch.Judge C. Robert Jameson wrotethat “[w]ithout a baseline studyidentifying the types and amounts of

pollutants currently existing in stormwater runoff, the actual effects ofthe project on surface water qualitycannot be compared and deter-mined, nor can the adequacy of anymitigation measures be assessed.”

The court in this case repudiated apractice which appears to havebeen common in Orange County, ofallowing developers to wait untilafter a project is approved todetermine how they will protectwater quality. RCCF hopes thecourt’s ruling will encourage thecounty to change its old ways andensure that future project EIRsdisclose to the public and countydecision makers all informationrelevant to protecting stream andcoastal water quality, includingdetailed and comparative dataabout available measures to reduceor capture pollutants before theypercolate into the site’s groundwa-ter, escape into its drainage chan-nels, or reach off-site streams.

Already, the county has chosen notto appeal the court’s judgment. Inan upcoming supplemental EIR

review process ordered by thecourt, concerned citizens, publicinterest stakeholder organizations,their experts, and the county’s ownofficials now will have the opportu-nity to learn about the relevant site-specific water quality baseline, andto assess actual water quality

impacts associated with stormwater runoff, urban runoff andconstruction-related activities. Inaddition, they will have the opportu-nity to play an active role in theevaluation and selection of impactmitigations that will help improvewater quality in Orange County.

We should note that while toughmitigations in this case alone will notclean up Orange County’s pollutedcoastal waters, the runoff pollutingthese waters stems from “a thou-sand points of non-point pollution,”and if each new project is toincorporate the strictest waterquality impact mitigations, theincremental and cumulative benefitfor water quality will be significant.

Frank P. Angel and Ed Grutzmacher ofthe Santa Monica-based Law Offices ofFrank P. Angel (LOFPA) served aslegal counsel for the CEQA plaintiff,RCCF. LOFPA specializes in represent-ing environmental organizations andcitizen groups in environmental,Coastal Act, and land use disputesbefore administrative decision makersand the courts.

Ray Chandos is a teacher ofelectronic technology at IrvineValley College. He founded theRural Canyons ConservationFund in 1983 when the OrangeCounty Board of Supervisorsapproved plans for a four-lanehighway through rural TrabucoCanyon where he had hikedsince he was a young boy.

Since that eye-opening experi-ence, Ray has become hisown teacher, learning how thejudicial system works, discov-ering how land use decisionsare made, and reading up onthe latest CEQA decisions inthe local law library.

CEQA continues to be anessential tool for the Fund.“Unless people know what’sgoing on and put up a fight,local government will bepressured by developmentinterests to ignore the laws andpolicies that protect the envi-ronment. CEQA provides thealarm bell. Then, it’s up to us.”

Ray admits that it’s an uphillbattle. “When people join theRural Canyons ConservationFund I joke that they’ll spendmore time in law libraries andat public hearings than in thegreat outdoors. But it’s worth it.It’s the least I can do for myson and his generation.”

142

The court repudiated a practice whichappears to have been common in OrangeCounty, allowing developers to wait until

after a project is approved to determine howthey will protect water quality.

CHAPTER 10Groundwater

See Pg...145

See Pg...147

See Pg...149

See Pg...151

CEQA and Groundwater: California’s “Invisible” Natural ResourceDavid Beckman ......................................................... 145

Groundwater Overdraft in Rohnert ParkJohn E. King .............................................................. 147

CEQA, The Carmel River, and September RanchFran Farina ............................................................... 149

Lakeside: All-American River TownSuzanne M. Michel .................................................... 150

The Keller Canyon Landfill: How CEQA Mitigations PreventGroundwater Contamination through Improved Design

John Thelen Steere ..................................................... 151

GR

OU

ND

WA

TE

R

144

GROUNDWATER • GROUNDWATER • GROUNDWATER • GROUND

By David Beckman

Beneath the surface of theearth lies a vast body ofwater. It does not exist in a

large underground lake or a flowingunderground stream but rather astiny droplets of water, interspersedamong the grains of soil and rockthat we commonly picture whenimagining the world underground.

Nevertheless, the aggregate volumeof those tiny water droplets isgreater than the volume of all thelakes and rivers of the worldcombined. In fact, the volume ofgroundwater is estimated to bemore than 30 times the combinedvolume of all fresh-water lakes inthe world and more than 3,000times the combined volume of allthe world’s streams. In Californiaalone, current supplies of usablegroundwater are estimated at about250 million acre-feet—six times thevolume of all of the state’s surfacewater reservoirs combined.

For more than 100 years, ground-water has provided a substantialand essential resource forCalifornia’s agriculture, its indus-tries, and its cities. It was not longafter statehood in 1850 thatCalifornia’s residents began buildingpumps to extract this plentifulresource from the subsurface. Thescarcity and seasonal availability of

Threats to California’sGROUNDWATER


Groundwater, one of theplanet’s most abundantnatural resources, is also oneof its most vulnerable. Thetwo major threats to ground-water in California andthroughout the world areoverdraft and contamination.

Groundwater is not an infi-nitely renewable resource.When the rate of groundwaterremoval exceeds the rate atwhich it is being naturallyreplenished, the aquiferbecomes less saturated, thewater table drops, and eventu-ally the groundwater supplybecomes depleted. Thiscondition is known as ground-water overdraft.

Because the recharge rate ofmost aquifers is exceedinglyslow, groundwater overdrafthas become a commonpractice in many parts of theworld, including: China, India,Mexico, Thailand, North Africa,the Middle East, and thewestern United States. Indeed,the largest aquifer in theworld—the Ogallala, whichlies underneath most ofNebraska and parts of Kan-sas, Colorado, Oklahoma,New Mexico, Wyoming, SouthDakota, and Texas—is beingconsumed so rapidly that itswater table is dropping anaverage of two meters peryear. At this rate the OgallalaAquifer, which supplies about30 percent of the water usedin the United States for irriga-tion, will be entirely depleted inless than fifty years.

surface water, especially in thesouthern half of the state, havecaused Californians to turn time andtime again to the state’sgroundwater supply.

Indisputably, the availability—and,more importantly, the deficiency—of all forms of freshwater have

substantially influenced California’shistory and development. In fact,water is widely considered thesingle most significant naturalresource affecting the growth of thestate. Given the arid climate thatpervades most of the southern halfof the state and the limited supply ofrunning water, legendary politicaland economic battles occurred overaccess to the waters of the MonoBasin, the San Joaquin River, theOwens Valley, the Colorado River,and the Sacramento-San JoaquinBay Delta.

Yet despite their importance, thesesurface water bodies are only partof the water picture in California.Between 25 and 40 percent ofCalifornia’s water supply in anaverage year comes not fromsurface streams or reservoirs butrather from beneath the ground.That figure can be as high as two-thirds in critically dry years. In fact,California uses more groundwater

CEQA & GROUNDWATER:California’s “Invisible” Natural Resource

145

The contamination and overdraft ofCalifornia’s groundwater resources is a

serious, long-term threat to theviability of the resource in California.

DWATER • GROUNDWATER • GROUNDWATER • GROUNDWATER

David Beckman is a senior attorneyand heads the coastal water qualityprogram in NRDC’s Los Angeles office.Mr. Beckman focuses on enforcing theClean Water Act and related coastallaws, and on issues involving environ-mental justice.


California is no stranger tothe problem of overdraft.Parts of the Central Valleyhave dropped more than adozen feet because ofgroundwater overdraft.

Contamination is the secondmajor threat to the world’sgroundwater. Gasoline andother harmful liquids wind upin the groundwater supplybecause of storage leaks orimproper disposal methods.Pollutants seep into ground-water from poorly con-structed landfills or septicsystems. And, finally, ground-water is contaminated byrunoff from fertilized fields,livestock areas, abandonedmines, salted roads, andindustrial areas.

California’s groundwater isbadly contaminated, espe-cially in urban areas. It isestimated that more thanone-third of California’sgroundwater is badly con-taminated. Yet this pollutedgroundwater has beenofficially designated as thefuture drinking water supplyfor our cities.

Groundwater contaminatedwith bacteria, chemicals,pesticides, gasoline or oil is aserious human health risk.Those who drink it or come incontact with it can sufferbacterial diseases, nervoussystem disorders, liver orkidney failure, or cancer. Andwhile restoring contaminatedgroundwater is possible, it istime consuming, expensive,and rarely 100 percenteffective.

than does any other state. Califor-nians extract an average of 14.5billion gallons of groundwater everyday—nearly twice as much asTexas, the second-ranked state.

Fifty percent of California’s popula-tion—some 16 million people—depends on groundwater for itsdrinking water supplies. But ofcourse, groundwater is used for

much more than just drinking water.California also leads the nation inthe number of agricultural irrigationwells, with more than 71,000. Inthe Lower Sacramento River Valleyalone, approximately 750,000 acresof prime agricultural land areirrigated, at least in part, by ground-water. Indeed, many areas of thestate rely exclusively on groundwa-ter for their water supplies. In thelower Sacramento Valley, forexample, approximately 1 millionpeople rely on groundwater tosupply all of their water needs.

As a result, the contami-nation and overdraft ofour groundwater re-sources is a serious, long-term threat to the viabilityof the resource in Califor-nia, a state that relies onits groundwater for manypurposes. Understandingthe full extent of theproblem, and generatingreliable information ontrends that can informpolicy and resourceallocation decisions, are

the best, and indeed, most basic,approaches to safeguarding thisnatural resource. While manystatutes and agencies have animportant role to play in meeting thiscritical mandate, CEQA’s rolecannot be overstated. No otherstatutory tool enables decision-makers and the public to under-stand the impact of new develop-ment on groundwater quantity and

quality. The information generatedby faithful compliance with CEQAis and will continue to be instrumen-tal in protecting California’s mostimportant “invisible” naturalresource.

Groundwater is one of the world’s most abundant and vul-nerable natural resources. Sources of contaminationinclude: industrial and vehicular emissions, industrial waste,stormwater runoff from urban and suburban developments,leaking storage tanks, and commercial as well as recre-ational boating.

USGS


CEQA’s role cannot be overstated. No otherstatutory tool enables decision-makers and the

public to understand the impact of newdevelopment on groundwater quantity and quality.

146


My ranch in Penngrove, California, has been in the family for almost 100

years. It was originally purchasedby my great-grandfather, DavidMcClure. Over the 1920s, '30s,and '40s, most of the property-about 130 acres-was put underirrigation for crops and pasture.

As the decades passed, my fatherand uncle noted that the 100 footdeep well, with a 30-foot staticwater level, could not be pumpeddry, even with a large horsepowerturbine pump. By the 1950s theturbine pump was replaced with amodern and more efficient submers-ible pump.

The 1960s marked the beginning ofexponential growth in neighboringRohnert Park to the North andPetaluma to the South. By the endof the decade, the water tablebegan to decline, and for the firsttime we had to add lengths of pipeto lower the submersible pumpdeeper. The decline continuedthroughout the 1970s, '80s, andearly '90s.

By 1996 the old 100-foot well wentdry. We installed a new 383-footreplacement well which producesconsiderably less water.

In 1999, I discovered that RohnertPark's new General Plan proposalcalled for an additional 4,500homes, and 5,000,000 square feetof commercial and industrial space.

GrounGrounGrounGrounGroundwadwadwadwadwater ter ter ter ter OverdraftOverdraftOverdraftOverdraftOverdraft in Rohnerin Rohnerin Rohnerin Rohnerin Rohnert Parkt Parkt Parkt Parkt Park

I contacted hundreds of regionalproperty owners and learned thatother wells had also gone dry orhad lowered pumps to stay in water.That's when I heard about themassive cone of depression, forwhich Rohnert Park hassince become famous.

Imagine a straw in thebottom of a martini glass.As liquid is pulled up thestraw from the bottom ofthe glass, the height of theliquid drops. That's exactlywhat has been happeningunderneath Rohnert Park.Over the past two decades,as public and private wellspulled water from under-neath the city, some areasof the water table sankprecipitously. When allmunicipal wells are pumpingat once, levels can drop400 feet.

The Environmental ImpactReport (EIR) for Rohnert

Park's May 2000 General Planacknowledged that their static watertable had dropped as much as 150feet over the past thirty years.Indeed, the City alone has beenpumping 4.2 million gallons per day(mgd) in a region that recharges at arate of 1.6 mgd, a clear case ofoverdrafting. Despite this, anddespite the fact that newly pro-posed developments would coverup precious groundwater rechargeareas, increase groundwater de-mand, and increase storm-waterrunoff, the EIR failed to assessimpacts on groundwater suppliesbeyond the City limits.

By John E. King

A 1979 Department of Water Resources map predictsthe worsening cones of depression from competing wellsin Cotati and Rohnert Park (see sidebar).

John King displays an original, hand-dug wellfrom approximately 1888. As the surroundingcommunities grew, wells on the family propertybegan to go dry.

147


John E. King is a farmer and rancher inPenngrove, California. He filed the2000 CEQA suit against the City ofRohnert Park and continues to workfor sound groundwater management inSonoma County.

The problems of Rohnert Park’swater supply extend deep intothe ground and deep into thepast. For over twenty-five years,the City has resisted the adviceof State Agencies and waterexperts who warned of toomuch groundwater pumping.One particularly striking wake-up call came in the form of areport entitled, Meeting WaterDemands in Rohnert Park,prepared for the city by theDepartment of Water Re-sources (DWR) in 1979.

The report includes a diagram(see previous page) showingthe effects of continuous pump-ing after 360 days in the city’swellfields. Each ring depicts thearea of drawdown for an indi-vidual pumping location.

Overlapping rings indicate areaswhere wells are competing withone another, pulling water fromthe same source. Commercialwells within the city tap thewater supplies of private wellsoutside city limits. As too manywells pump water, the waterlevel drops, creating overlappingcones of depression.

Because the city failed to adoptsound water managementprinciples, by the 1980s DWR’spredictions came true. RohnertPark now has twice as manywells and the cones of depres-sion have grown substanially.

A 2004 Sonoma County GrandJury Report cited John King’s2000 suit when it recommendedthe adoption of a groundwatermanagement plan to addressthe worsening water situation.So far the county has resistedcreating such a plan.

When the City moved forward withthe General Plan, I organized agroup of regional supporters andfiled a CEQA lawsuit under thename of the South County Re-source Preservation Committee andJohn E. King. The CEQA lawsuitcharged that the General Plan failedto adequately analyze or mitigategroundwater related impacts.

The administrative record so clearlyspelled out Rohnert Park's viola-tions that the judge did not evenhear opening arguments. He told theCity of Rohnert Park that they "hadserious water problems" and urgedboth parties to consider a "settle-ment agreement" or take his deci-sion. Judge Antolini did not dis-close what the terms of his decisionwould include.

We decided to "negotiate" a formalSettlement Agreement which canbest be described as a tug of war.The settlement agreement requiresthe City to reduce groundwaterpumping to 2.3 mgd, return identi-fied lands to the Penngrove(County) jurisdiction, monitor theeffects of groundwater pumping, not

import groundwater supplies fromthe Penngrove area, and more.

Our case galvanized SonomaCounty around what may be agroundwater crisis. It provedinstrumental in the 2004 Grand Juryreport, Got Water?, that urged theCounty and each of its cities toimplement groundwater manage-ment plans pursuant to AB 3030.

As a result of the lawsuit and theattention it brought to local ground-water issues, the O.W.L. Founda-tion (Open space, Water resourceprotection, and Land use), wasformed. A 501(c) 3 non-profitorganization, O.W.L. continues toguard against threats to groundwa-ter and destruction of open spacesthat serve as groundwater rechargelands.

Rohnert Park’sCones of Depression

This graph from Rohnert Park’s 2000 General Plan EIR clearly shows the overdraft problem.

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September Ranch is located inCarmel Valley just east of theMonterey Peninsula. The

property has almost 900 acres, onlya small portion of which isvisible from Carmel ValleyRoad. An equestriancenter operated there foryears. Locals boardedtheir horses in the quaintred barn. Drivers en-joyed seeing the horsesgraze in the lower terracepasture.

In 1995, SeptemberRanch Partners proposedto develop over 100houses on September Ranch.Several local organizations, includ-ing the Sierra Club and Save OurCarmel River, were concerned thatthis new development wouldincrease the demand for water,further impairing the Carmel River.

Home to steelhead trout and red-legged frogs, both of which arelisted as threatened species underthe federal Endan-gered Species Act,the Carmel River hassuffered tremendouslyin recent years due tooverdrafting of itsgroundwater sources. Becausethere was no history of irrigation onSeptember Ranch, determining ifadditional water would be requiredabove the baseline of current wateruse was critical to protect the river.

Hoping to quickly increase the levelof water use on September Ranch

to influence the outcome of theEnvironmental Impact Report(EIR), the property owner begandrenching the property with watercannons. The owner also per-

suaded Monterey County planningstaff and the EIR consultant thatthey should credit SeptemberRanch with the quantity of waterthat could be used for irrigation,instead of that which was actuallyused for irrigation. When even thiswas not enough to meet the projectdemand, the owner bought addi-tional land three miles up CarmelValley Road, which was currently

irrigated, and offered to reducesome of that pumping as mitigationto offset increased pumping for hisproject. No environmental reviewof the offset parcel was conducted.The water baseline was a movingtarget up to the day the EIR wascertified.

CEQA, the Carmel River,& September Ranch

Fran Farina is a member of theCalifornia and Florida Bars specializ-ing in water law. Ms. Farina formu-lated the water issues on behalf ofSierra Club, Save Our Carmel Riverand Patricia Bernardi in the SeptemberRanch litigation. Ms. Farina recentlyserved as General Manager of theMonterey Peninsula Water Manage-ment District.

By Fran Farina

Public comment from local residentsconfirmed there was no historicalirrigation on September Ranch, andthat the water cannons were a newactivity which coincided with the

development application.Nevertheless, in Decem-ber 1998 the Board ofSupervisors approved theproject, using the mostrecent water use statis-tics—including the watercannons—as the baseline,rather than historical wateruse numbers.

Ultimately, the County’sapproval of the project

was overturned by the courts,which held that CEQA requires anaccurate description of the existingenvironment (baseline) in order toassess the environmental impacts ofa project and determine appropriatemitigation measures.

The September Ranch propertyowner is currently preparing a newEIR to comply with CEQA. Hope-

fully, the new EIRadequately analyzesand mitigates forimpacts of theproposed project onthe Carmel River.

In 1995, September Ranch Partners proposed to develop over 100 houseson this site. Attempting to obscure the current water usage, the propertyowner began drenching the ranch with water cannons.

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Home to steelhead trout and red-legged frogs,both threatened species, the Carmel River hassuffered tremendously in recent years due to

overdrafting of its groundwater sources.


The San Diego River flowsdirectly through the center ofLakeside, a primarily low-

income community of 50,000,seventeen miles east of San Diego.Beneath this river is the largestalluvial aquifer in the south-centralpart of San Diego County. Twowater districts pump water from thisalluvial aquifer to supply low-costdrinking water to Lakesideresidents.

During the late 1970s and early1980s, local politicians promisedLakeside residents a river park,primarily to address floodingconcerns, but also to protect waterquality. However, in 1998 theEnvironmental Impact Report (EIR)for Lakeside’s“Upper San DiegoRiver ImprovementProject (USDRIP)Specific Plan”proposed to zonemost of the San Diego River regionfor heavy industrial development—acomplete reversal of the river parkplan designed in 1983.

Over 100 Lakeside residentsshowed up to the CEQA hearing,advocating for a river park andprotection of their drinking watersupply—the groundwater beneaththe San Diego River. Lakesidersfelt dumped upon with toxins andpoor planning. To make mattersworse, in 1999, groundwatersamples near wells in the San DiegoRiver Region revealed unsafeamounts of methyl tertiary butylether (MTBE), a gasoline additive.

Despite local protests, the land waszoned for heavy industrial develop-ment. In addition, Lakeside resi-dents were informed by the SanDiego County land use planningauthority that heavy industrialdevelopment would continue tointensify in the river region, despiteresident opposition, and despite thefact that groundwater wells werealready contaminated by localsandmining and commercial activi-ties in the riverbed.

One group of mothers who at-tended the CEQA public hearingsdecided to research and documentLakeside’s poor water quality. Dueto their efforts, the State of Califor-nia listed Lakeside’s San Diego

River as an impaired water bodyunder the Clean Water Act in 2000.

Things turned around when advo-cates for the San Diego Riverwatershed, together with a largecoalition of Lakeside residents,formed the San Diego River Park-Lakeside Conservancy to acquireland for the river park. TheLakeside Conservancy got its firstbreak when the California CoastalConservancy provided $800,000dollars to acquire river habitat.

However, it was protection of localgroundwater that finally crystallizedLakeside’s river park movement.

In 2002, the Riverview WaterDistrict (RWD), a local waterdistrict that produces 32 percent ofits water supply from groundwaterwells located in the San Diego Riverfloodplain, partnered with theLakeside Conservancy in a grantapplication to create wetlands forgroundwater recharge and purifica-tion. In addition, RWD donatedoffice space and equipment to theLakeside Conservancy.

Within three years the LakesideConservancy and the RWD part-nership has resulted in over $15million dollars raised for a SanDiego riverpark in Lakeside.

The CEQA process mobilizedLakeside residentsto reject the pro-posal to create yetanother polluted,industrial zone alongthe San Diego River.

For the first time in decades,Lakesiders feel positive about thefuture of a riverpark and cleanwater resources in the San DiegoRiver, as indicated by the popularbumper sticker: “Lakeside: All-American River Town USA.”

Susan M. Michel holds a Ph.D. in waterresources geography. Currently, Ms.Michel is an adjunct faculty of theDepartment of Marine Science andEnvironmental Studies at theUniversity of San Diego, where sheteaches environmental law and policy.

Lakeside: All-American River TownBy Suzanne M. Michel

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The CEQA process mobilized Lakeside residents toreject the proposal to create yet another polluted,

industrial zone along the San Diego River. Instead thecommunity will benefit from a new San Diego riverpark.


Garbage. It’s a topic that fewlike to talk about, but we all areresponsible for. And becomingmore responsible about how wedispose of our garbage, coupledwith increasing awareness aboutenvironmental and public healthconcerns, have been drivers forthe design of modern “sanitarylandfills,” which are far cry fromthe “garbage dumps” of yore.

Contra Costa is and has been oneof the San Francisco Bay Area’sfastest growing counties for at leasttwenty years. More people havemeant more refuse–and a bur-geoning need for more places toput it. By the mid 1980s ContraCosta County woke up to therealization that it was running outof room in its existing landfill to putits residents’ solid waste and beganto look for new landfill. Time wasof the essence, as a new one had tobe fully ready in several years.

More stringent regula-tions and new technolo-gies made landfills farcleaner and more fullycontained than in thepast, but the publiclargely still regardedthem as garbage dumpsthat they didn’t want anywhere neartheir communities. So a new landfillsite was about as controversial aproject as one could possibly

conjure up, evoking the epitome ofthe “not in my back yard” mentality.

County Community DevelopmentDepartment staff identified fivealternative solid waste sites, and

evaluated them through a program-matic Environmental Impact Report(EIR) on the County Solid WasteManagement Plan (CoSWMP).While none of them were terribly

popular, the County selected thesite that was among the mostcentral, based on evaluation factorsthat included the lowest haul times,transportation and air quality

impacts. That site was KellerCanyon, a 1,590-acre site tuckedaway in the hills behind Pittsburgnear the Sacramento River Delta.The project’s facilities wouldprocess countywide solid waste and

provide a thirty year disposalcapacity.

CEQA analysis for the KellerCanyon Landfill was tiered off ofthe programmatic EIR for theCoSWMP. The CEQA prepara-tion and review process wasextensive, spanning almost twoyears from1988 to 1990. TheEIR that resulted was rigorousand thoroughly scrutinized byregulatory agencies, the City ofPittsburg, and the public alike.Among the primary environmental

issues were “leachate” (the fluidsleaking or leaching out of the solidwastes) and their potential impactsto surface and ground water quality.Given that the City of Pittsburg and

the San Francisco Bay-Delta were downstream,preventing leachate fromcontaminating eithersurface or groundwaterwas a key public andenvironmental healthconcern. Project mitiga-tions in the EIR were

designed to prevent just suchpollution and well contamination.The mitigation approaches to stopleachate contamination of groundwater were translated into design

By John Thelen Steere

The Keller Canyon Landfill:The Keller Canyon Landfill:The Keller Canyon Landfill:The Keller Canyon Landfill:The Keller Canyon Landfill:HHHHHow CEQA mitigations prevent groundwaterow CEQA mitigations prevent groundwaterow CEQA mitigations prevent groundwaterow CEQA mitigations prevent groundwaterow CEQA mitigations prevent groundwatercontamination through improved designcontamination through improved designcontamination through improved designcontamination through improved designcontamination through improved design

A new landfill was about ascontroversial a project as one could

possibly conjure up. Among theprimary environmental issues were

fluids leaching out of the solid wastesand their potential impacts to ground

water quality.

Using a programmatic EIR, the County evaluated fivepossible landfill sites in Contra Costa County. KellerCanyon was chosen in part for its central locationand its proximity to existing roadways.

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modifications to the landfill. Theyconsisted of: 1) surface drainagesystem modifications and daily coverprovisions that would limit thecreation of leachate; 2) a leachatecontainment system under the entirelandfill composed of clay lineroverlain by a sixty millimeter thickpolyethelene (plastic) membrane; and3) a leachate collection system madeup of drainage below the base of therefuse piping system and collectionsumps to channel the leachate to a treatment facility.

This composite leachate control system thoroughly protected the groundwa-ter from contamination. However, for added assurance, a monitoring wellsystem on the downhill side of the landfill was proposed as part of the

mitigation program, in orderto detect any off-site leaking.These monitoring wells couldbe converted to extractionwells in the event of leachatemigration.

As result of a thoroughgoingplanning process, culminatingin an EIR that identified andmitigated all of the landfill’sissues – from leachatecontrol, to litter abatement,to almost complete avoid-ance of visual quality im-

pacts, the Keller Canyon Landfill was approved and constructed in the early1990s. The CEQA process helped modify its engineering and design,creating a state-of the-art facility that remains today a model of an environ-mentally sound landfill.

John Thelen Steere is an environmental planner whose eighteen year career spanspublic, private, and non-profit sectors of conservation and land planning. Mr. Steere wasProject Manager of the Keller Canyon Landfill EIR. Currently an ecological consultant,Mr. Steere is the author of the award-winning Restoring the Estuary and numerousarticles on habitat partnerships.

David Tam has served as theSolid Waste and Recyclingchair and a member of theExecutive Committee of theSierra Club’s San FranciscoBay Chapter for many years.When Contra Costa Countyhad to phase out a landfill inwetlands and choose amongfive uplands sites, the Clubendorsed Keller Canyon.

“Of the two final sites, KellerCanyon was environmentallysuperior, although politicallyvulnerable. It was 18 milesnearer major waste sourcesand served by State Road 4.It also had unique geologicfeatures that greatly reducedrisks to water quality,” heexplains. “That’s why theSierra Club supported KellerCanyon in the face of a refer-endum, funded by $3 millionfrom the competitor.

The competing Marsh Canyonlandfill site was visible from tworegional parks and served onlyby a two-lane blacktop road,meaning new highways andmore sprawl. Keller Canyon’sEIR was upheld in court, therival site’s EIR was not.

“CEQA helped discredit thebackroom deals and the nega-tive ad campaigns. In the end,55 percent of the voters andmost local decision makersagreed that Keller Canyon wasthe right choice.”

The CEQA process helped modify theengineering and design, creating a state-of-the-art facility that remains today a model of

an environmentally sound landfill.

Litter abatement was enhanced through the Keller Can-yon EIR. Now transfer trucks utilize an automatedtarping system to prevent litter from leaving the trailerprior to disposal at the landfill.

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CEQA review led to important environmentalmitigations such as this sedimentation basinwhich collects stormwater run-off and pre-vents sediment from leaving the site.

Keller Canyon Landfill.

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CHAPTER 11Historical & Cultural Resources

See Pg...156

See Pg...156

See Pg...157

See Pg...159

CEQA Preserves California’s HistorySusan Brandt-Hawley and Anthea Hardig ............. 155

Saving Saint Vibiana’s Cathedral:CEQA and the Revitalization of LA’s Historic Downtown

Jack H. Rubens .......................................................... 157

Fit for Retrofit: Inventor’s Historic Mansion ProtectedSusan Brandt-Hawley ............................................... 158

CEQA Protects Tribal Heritage ResourcesCourtney Coyle ........................................................... 159

Saving the Little ValleyCarmen Lucas .............................................. 159, Sidebar

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HISTORICAL AND CULTURAL RESOURCES • HISTORICAL AND CUL

From Native Californian sacred sites to drive-in theaters, California boasts a

remarkable array of historic andcultural resources—those sites,buildings, and objects that remainfrom the rich and varied pasts ofthis place. Yet California’s Crafts-man bungalows, folk-art gardens,

military bases, agricultural land-scapes, 1920’s-era schools, road-side architecture, and bridges, toname a few resource types, are atrisk in every corner of the state asthey have come of age and needrehabilitation to survive.

Communities that preservetheir historic resources foradaptive reuse reap greateconomic benefits andrevitalization, as the inher-ent integrity of historicresources builds a uniqueand evocative sense ofplace to which people arenaturally drawn to live andwork and play. Thecreative reuse of existingresources also has the advantage ofbuilt-in community acceptance,avoiding the opposition-relateddelays often faced by new con-struction. However, due to the lackof widespread understanding of thevalue and at times great profitabilityof preservation and re-use, many ofCalifornia’s historic resources suffer

from neglect. Many thousands havebeen lost.

California’s framework for address-ing the future of its valuable historicresources begins with local ordi-nances, zoning regulations, andgeneral plan elements that addressdemolition and provide incentives

for preservation and adaptive reuseprojects. The statewide Mills Actallows local jurisdictions to providetax incentives for rehabilitation. Allsuch local measures vary widelythroughout the state. Some citiesand counties have extensive historicresource ordinances and plans, and

some have none. Many haveappointed Cultural Heritage Com-missions or Landmarks Boards.Some have surveyed their resourcesand have created an historic regis-ter, and some have not. Some ofthe resource surveys that have beendone are out of date; most areincomplete.

California has a State HistoricalBuilding Code that applies tohistoric resource rehabilitation.There is a system of CaliforniaHistorical Landmarks and CaliforniaPoints of Historical Interest. TheCalifornia Register of HistoricalResources includes sites that meetcodified criteria (Pub. Resources

Code § 5024.1). The CaliforniaRegister objectively defines historicimportance based on a site’sassociation with important eventsand cultural history, its associationwith the lives of persons importantin our past, its distinctive architec-ture or high artistic values, or itslikelihood to yield informationimportant in prehistory or history.The staff of the California Office ofHistoric Preservation assesses a

property’s eligibility forthe California Register,and the State HistoricalResources Commissionmakes determinationsfollowing public hearing.The California StateHistoric Preservation

Officer (SHPO) also reviewseligibility for the National Registerof Historic Places. The consent ofa private property owner is requiredfor listing on the California orNational Registers; without suchconsent, the properties may still bedetermined to be eligible for listing.

CEQA Preserves CALIFORNIA’S HISTORYBy Susan Brandt-Hawley and Anthea Hardig

A CEQA lawsuit preventeddemolition of the historic JoseTheatre in San Jose. It re-opened as the Improv ComedyClub in November 2002.

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Californians do not want cookie-cutter communitiesthat lack any reflection of their colorful history.

LTURAL RESOURCES • HISTORICAL AND CULTURAL RESOURCES

CEQA has applied to historicresources from its adoption in1970, when it was declared to bethe policy of the state to “take allaction necessary to provide thepeople of this state with . . . enjoy-ment of historic environmentalqualities” (Pub. Resources Code §21001 subd.(b)). In 1992, CEQAwas amended to make clear that aproject that may cause a substantialadverse change in the significance ofan historical resource is consideredto have a significant effect on theenvironment (Pub. Resources Code§ 21084.1). CEQA Guidelinesection 15064.5 was adopted in1998 to implement protections ofhistoric and cultural resources.

CEQA’s application to discretionaryprojects that may result in the lossof an historic resource is extremelypractical. When a project requiringa discretionary permit is proposedby a local or state agency under itsown particular regulatory frame-work, CEQA review determineswhether it may impact an historicresource and, if so, whether theimpacts may be avoided. No otherlaw requires this. The whole ideabehind CEQA—to assess environ-mental impacts and to identify andadopt feasible alternatives andmitigations that allow achievementof most project objectives whileavoiding significant impacts—worksparticularly well in the field ofhistoric resources protection.

Since many in the building profes-sion are trained to prefer new overold, most are not aware of thepotential of viable and profitableadaptive reuse projects. CEQAenvironmental review provides anobjective look at such potential

within a public process, usingprofessional expertise and the StateHistoric Building Code to fairlyconsider the feasibility of accom-plishing a desired project withoutlosing the historic resource. Use ofthe federal Secretary of theInterior’s Standards for Rehabili-tation to adaptively reuse historicbuildings can exempt a project fromCEQA and also expedite develop-ment. Logically, if an historicbuilding has adequate structuralintegrity, most of the time there is away to accomplish adaptive reusethat is profitable to the developerand valuable to the people of thecommunity. The examples through-out the state are varied andpowerful.

Californians do not want generic,bland, cookie-cutter style communi-ties that lack any reflection of theircolorful history. Respecting ourbuilt environment that reflects manydecades of rich heritage buildsstrong neighborhoods, increases thequality of life, and improves under-standing of our vast ethnic diversity,while maintaining economic vitality.CEQA promotes the adaptive reuseof such properties in a manner thatavoids destruction of our historicand cultural heritage when it isfeasible to do so.

Anthea Hartig, Ph.D., lectures inCalifornia history and preservationplanning in university and professionalforums and is the current appointedChairperson of the CaliforniaHistorical Resources Commission.

Attorney Susan Brandt-Hawley hasrepresented public interest groups inCEQA matters throughout Californiafor over twenty years. Ms. Brandt-Hawley’s current practice focuses onhistoric resource issues.

Protected by CEQA:

A standard in modern architecture, IBMBuilding 25 in San Jose was threatened bya proposed box-store development. It wasspared after the EIR process demonstratedthat the project could be completed with-out demolition.

CEQA saved the Guerneville Bridge fromdemolition by Caltrans. Replaced by a largerbridge upriver, it now carries pedestrianrather than vehicular traffic. Built in 1922,the bridge was declared a Federally Pro-tected Historic Structure in 1990.

Cesar Chavez was incarcerated in the OldMonterey Jail for organizing a lettuce boy-cott that generated worldwide interest inthe farmworker movement. The jail’s demo-lition was averted in 2004.

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Early Saturday morning on June 1, 1996, the Roman Catholic Archdiocese of

Los Angeles attempted to demolishthe Cathedral of St. Vibiana, whichwas constructed in 1876 andis the oldest and perhapsmost significant structure inthe historic core of down-town Los Angeles. The LosAngeles Conservancy, alocal historic preservationgroup, came to the rescue.With a wrecking ball poiseda few feet from the cathe-dral, the demolition wasstopped after the Conser-vancy determined that theArchdiocese didn’t have ademolition permit. But theCity stated its intent to issue thatpermit on Sunday morning with noprior environmental review underCEQA. Later that afternoon,however, the Conservancy’sattorneys persuaded asuperior court judge toissue a telephonicrestraining order.

Two days later, theConservancy filed itslawsuit and obtained atemporary restraining order. TheArchdiocese and the City of LosAngeles contended that CEQAreview was not required based onthe statutory “emergency” exemp-tion. The court rejected this argu-ment because the damage to thecathedral had been caused by the

Northridge earthquake in January1994, almost two and a half yearsbefore the attempted demolition, sothat the damage was not based on a“sudden, unexpected occurrence”

that would justify application of theemergency exemption. Two weekslater, the Conservancy obtained apreliminary injunction after itsstructural engineer determined that

the landmark had not suffered anymaterial structural damage.

The City then attempted to circum-vent CEQA by revoking thecathedral’s designation as a localhistoric landmark, hoping this wouldconvert the issuance of the demoli-

tion permit from a discretionaryaction, which triggers CEQAreview, to a ministerial action, whichis exempt from CEQA review. TheConservancy filed a second lawsuit

and obtained anotherpreliminary injunction basedon the City’s failure toprepare an EnvironmentalImpact Report to addressthe stated purpose of thede-listing—the demolition ofthe cathedral.

Subsequently, the Archdio-cese elected to develop anew cathedral complex atanother downtown locationand sold the property toTom Gilmore, a preservation

developer. A new branch library forLittle Tokyo has already beenconstructed on the site, and theseismic retrofit of the cathedralstructures are underway. It is

anticipated that theformer cathedral will beadaptively reused as aperforming arts venue,while a boutique hotel isplanned for the adjacentrectory. The preserva-tion and rehabilitation of

this historic landmark will serve as acatalyst for the redevelopment ofthe downtown historic core.

By Jack H. Rubens

SAVING Saint Vibiana’s Cathedral:CEQA & the Preservation of LA’s Historic Downtown

Jack H. Rubens is a Partner atSheppard Mullin Richter & Hampton.

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St. Vibiana’s Cathedral (above) was narrowly saved from demoli-tion by CEQA. The former cathedral will be adaptively reused as aperforming arts venue.

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With a wrecking ball poised a few feet from thecathedral, the demolition was stopped after theConservancy determined that the Archdiocese

didn’t have a permit. But the City stated its intentto issue that permit the following morning with no

prior environmental review under CEQA.


In the heart of the campus at Menlo School in Atherton is a lovely mansion built in 1913 in

nineteenth century Italian design. In1921, the house was sold to LeonF. Douglass, a creative genius whoinvented many electronic andphonographic items, including thecoin-operated phonograph,motion picture cameras anddevices, the first process forproducing color movies, andthe first flint cigarette lighter.Convalescing soldiers occupiedDouglass Hall during WorldWar II. In 1945, the estate wassold to the Menlo School andbecame the centerpiece of thecampus. The building isformally recognized for its historicarchitectural significance and itsassociation with Leon Douglass.

Douglass Hall sustained somedamage in the 1989 Loma Prietaearthquake, but continued to beused by Menlo School for twoyears. In 1991, the School vacatedthe building and asked the Town ofAtherton to allow its demolition“due to seismic damage and obso-lescence.” The School proposedtwo replacement buildings to beused for campus administration andclassrooms. The demolition wasopposed by many, including stateofficials, local preservation groups,a number of public commissions,and also the heirs of LeonDouglass. A group of concernedlocal residents formed to advocateagainst the demolition, calling itselfFriends of Douglass Hall.

The Town of Atherton prepared anEnvironmental Impact Report (EIR)to address the impacts of thedemolition project and the feasibilityof alternatives. The EIR recognizedthat the building reflects “the workof a master” and possesses “highartistic values.” However, while

recommending rehabilitation ofDouglass Hall rather than its demo-lition, the EIR consultants did notprepare a cost analysis of anyrestoration options, but relied on anestimate for seismic upgrade andrenovation costs that had beenprepared by a contracting firmwithout expertise in historic re-sources, and which was partlyowned by a Trustee of the Schoolwho was an advocate of thedemolition.

The Town Planning Commissionrecommended denial of the demoli-tion, but the Town Council ap-proved it. The Friends of DouglassHall then filed an action in the SanMateo County Superior Court torequire the Town to comply withCEQA because the EIR had notfairly considered feasible alterna-tives to demolition when it relied on

the rehabilitation alternative pre-pared by the Trustee’s contractingfirm. The Court issued an injunctionto stop the demolition and ultimatelyissued a ruling in favor of theFriends. The Court held that theEIR must consider “restorationalternatives...short of destruction,”

using cost-saving provisions ofthe State Historic BuildingCode since there was noevidence that Douglass Hallwould not feasibly support theSchool’s educational mission.

The School Trustees, who hadbeen very committed todemolition and to their pro-posed new building project,

initially declared that despite theCourt’s ruling and the mandates ofCEQA they would never rehabili-tate Douglass Hall and would justlet it sit. However, after a bit oftime passed they reconsidered andproceeded to do a magnificentrestoration of the building. Theyhave renamed it Stent Family Halland it is once again a well-used andwell-loved centerpiece of the MenloSchool campus. Without the use ofCEQA, this remarkable resourcewould have unquestionably beenlost forever.

Fit for Retrofit : Inventor’s Historic Mansion Protected

Attorney Susan Brandt-Hawley hasrepresented public interest groups inCEQA matters throughout Californiafor over twenty years. Ms. Brandt-Hawley’s current practice focuses onhistoric resource issues.

By Susan Brandt-Hawley

Because of CEQA, Douglass Hall is once again a well-usedand well-loved centerpiece of the Menlo School campus.

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My whole life I have driven bythe Lucky 5 Ranch to get toand from our mountain home-land. As a kid, I wonderedabout that land, the formerreservation of my ancestors,the Kwaaymii Laguna Band ofMission Indians.

In 2001, State Parks acquiredthe Lucky 5 Ranch. I wascontacted by the Park’sarchaeologist to visit thesouthern parcel. I was excitedto finally walk on this land.

I was amazed by the amountand density of traditional plantresources there, includingchokecherry (which waseaten), oaks (acorns were afood source), penstemon(which was smoked), andsumac (important for basketmaking). With all theseresources concentrated in thisarea, it must have been animportant resource gatheringplace for my ancestors.

I also saw visible culturalresources: rock rings, millingsites near a natural spring,midden soil areas (indicatingformer living places), potteryshards and manos, and

In 2001, State Parks ColoradoDesert District acquired portions ofthe extensive Lucky 5 Ranch in SanDiego County as a link betweenCuyamaca Rancho and AnzaBorrego State Parks. One of theold Ranch’s parcels contains a littlescenic valley studded with stands ofoaks, boulder outcroppings, mead-ows and a natural spring.

State Parks intended to turn thislittle valley into a permanent horsecamp with twelve to fourteenequestrian campsites, including: agroup campsite, parking areas, vaulttoilets, a new well and waterconveyance system, trails and amanure collection area.

In 2002, State Parks prepared aMitigated Negative Declaration(MND) for the project. Theycontacted the state Native Ameri-can Heritage Commission, but theSacred Lands file did not showlisted properties. A letter went outto potentially interested tribalentities. A response was receivedby Parks, informing them that thiswas an area of tribal interest and

CEQA PROTECTS TRIBALHERITAGE RESOURCES

By Courtney Ann Coyle

Saving theSaving theSaving theSaving theSaving theLittle ValleyLittle ValleyLittle ValleyLittle ValleyLittle Valley

By Carmen Lucas


that there were concerns regardingthe proposed use. The survey doneby their archaeologist agreed thatthere was potential for significantimpacts to cultural resources.

Consultation with knowledgeablelocal Indians revealed that the valleywas an important cultural site. Inaddition to holding visible culturalmaterial, it had considerable intan-gible values: it possessed an integ-rity of setting, was a gathering areafor traditional plant materials, andwas linked to other nearby previ-ously unrecorded cultural sites thatmade the valley important to livingtribal peoples. Alternative loca-tions existed for the proposed horsecamp. State Parks’ resources staffrecommended that the valley beconsidered a traditional culturalproperty.

Based on public comment, StateParks issued a recirculated MND inSeptember 2003 which made someproject changes. The reviseddocument, however, still recom-mended the proposed site but withadded mitigation measures.

In October 2003, the worstfirestorm in recent memory to hitCalifornia burned through the valley,revealing cultural material that wasnot observed during the priorsurveys. It became increasinglyclear that building a recreationalhorse camp was not compatiblewith preserving the cultural andtribal values of the site.

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The CEQA process ensured that the beautifulLittle Valley would be preserved for its tribalheritage.

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metates (rock tools for prepar-ing food). Developing the sitewould endanger the plants andcultural resources.

Through the CEQA process,we read documents, wroteletters, and had many phonecalls. But the most importantactivities were the walks of thesite. Both before and after thefire, these site visits helped thedecision-makers and theirstaffs see through my eyeswhy the little valley was worthpreserving as it is. Thecultural materials are ancientand nonrenewable. Oncethese places are harmed,most lose their essenceforever—the intangible feelingof the old ones.

I was told that it would be awaste of time to get involved.But that wasn’t true. If peoplehave connections to a place,they should participate men-tally, emotionally, and finan-cially. My other advice is tofind a good attorney—onewho’ll crawl around in thebrush with you!

That is why the success storyof the preservation of the LittleValley is so important to tell.Through our efforts, ourhistory can be preserved.

The District Superintendent walkedthe site with the Indian informantand his resource staff to get afirsthand understanding of thecultural resources at issue. InDecember 2004, the Indian infor-mant was officially notified that the

property was no longer beingproposed for the campground.CEQA’s purpose had beenachieved. The tribal consultationprocess had worked. The LittleValley and its history were saved.

The foundation of CEQA restsupon informed decision making.But to be informed, decisionmakers must demand that facts andopinions be sought out. Wherethere is any indication in the physicalrecords or oral histories of culturalresources, meaningful consultation

Carmen Lucas, Kwaaymii, resideson the homeland of her people onLaguna Mountain, east of SanDiego. Ms. Lucas works as anarcheology technician, Indianmonitor, and consultant. Ms. Lucasalso serves on the county’s HistoricResources board and theKumeyaay Culture RepatriationCommittee.

Continued from the previous page.with local or tribal entities must beconducted in a timely manner.

Posting a notice in the newspaper,sending a letter or checking thesacred or historic lands files forrecorded properties is not enough.

Direct contact is essential to fulfillingthe objective of CEQA: to ensurewe do not adversely impact envi-ronmental or cultural resourceswhere avoidable.

After rains and the passage of sometime, many oaks have sprouted theirleaves. Green has returned to theonce burned valley, blanketing thetemporarily visible cultural re-sources so that they may again restin peace. The tribal informant couldalso rest at ease. She knew thatshe had honored her ancestors bytaking action. Though the CEQAprocess was not always familiar orcomfortable to her, her involvementensured that the voices of the landand of the old ones were heard, andthat the valley would be preserved,so their story would be told—againand again and again.

Courtney Ann Coyle is an attorney inprivate practice in San Diego, focusingon protecting and preserving tribal,cultural, biological, and park resourcelandscapes. Ms. Coyle was named byCalifornia Lawyer Magazine asEnvironmental Lawyer of 2003 for hersuccessful legislative and regulatoryefforts to protect the Quechan IndianNation’s sacred places from the impactsof hardrock mining.

A grinding stone located within the bound-aries of the Lucky 5 Ranch acquisition.This is just one example of the region’smany cultural resources.

C. A

. Coy

le

Though the CEQA process was not alwaysfamiliar or comfortable, the tribal

consultant’s involvement ensured that thevoices of the land and of the old ones were

heard, and that the valley would bepreserved, so their story would be told.

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CHAPTER 12Perspectives

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CEQA: A Legislative PerspectiveByron Sher .................................................................. 163

CEQA: A Judicial PerspectiveCruz Reynoso .............................................................. 164

Conclusion: Securing the Future of the Golden StateHerb J. Wesson, Jr. .................................................... 165

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PERSPECTIVES • PERSPECTIVES • PERSPECTIVES • PERSPE

CEQA: A Legislative PerspectiveBy Byron Sher

The California EnvironmentalQuality Act is the state’s single mostcomprehensive environmentalstatute, one that is often counted onto fill in the gaps of other environ-mental laws. More than any otherstate law, it contains essentialprocesses that allow each individualto fight for a clean and healthyenvironment.

CEQA requires lead agencies toanalyze and, where feasible, tomitigate the environmen-tal impacts proposedprojects, includingcumulative effects andgrowth inducing effects.In this way, CEQA hasprevented much unnec-essary harm to theenvironment. Countlessprojects have beenimproved through the CEQAprocess. Others were haltedbecause the CEQA process re-vealed their true environmentalcosts or unearthed feasible and lessdamaging alternatives to achieve thegoals of the project.

Perhaps more importantly, CEQAgives individual Californians a voicein their environmental future. Publicagencies are required to disclosethe details on the environmentalconsequences of proposed pro-jects. The public has a right tocomment. The comments of thepublic must be responded to inwriting. An individual can enforcethis process in court. CEQA thusprotects not just the environment,but informed self-government.

CEQA has been in effect for threedecades. It has been amended; butthe legislature has always protectedthe fundamental principles ofenvironmental review, mitigation,and public participation.

Exemptions from CEQA have beenproposed, sometimes for projectsfrom an individual legislator’sdistrict. Exemptions, if granted,would shield a project not just froman environmental analysis, but also

from public oversight. Fortunately,few exemptions have been enacted.

One of the most persistent CEQAissues has been the “fair argument”standard. Under the fair argumentstandard, an Environmental ImpactReport (EIR) must be prepared ifthere is a fair argument based uponsome substantial evidence that aproject may have a significant effecton the environment. This standardhas been frequently attacked forrequiring too many EIRs.

Yet the standard is fundamentallysound. It is applied early, beforemuch information about the projectis public. To require that the publicproduce evidence about a projectwhen the public has little access toinformation is manifestly unfair.

Such a rule would actually create anincentive to avoid disclosure,undermining one of the core valuesof CEQA.

California has a dynamic, diverseand prosperous economy. As weenjoy that prosperity and lookforward to additional economicgrowth, there is tremendous pres-sure to focus on the short term. Butwe ignore long-term consequencesat our peril. CEQA is the one

statute that compels us toexamine the long-termconsequences of ourdecisions while there isstill time to address them.

Looking back at mytwenty-four years in theLegislature, why did Ispend so much time on

CEQA? Like many provisions inthe Bill of Rights in the FederalConstitution, CEQA does notguarantee a specific outcome;instead it guarantees processes andprocedures, and it empowers theindividual person to enforce them.CEQA is the bill of rights for anenvironmental democracy.

Byron Sher served in the State Assem-bly for over fifteen years. He served foreight years in the State Senate. Sher isthe author of landmark laws to protectCalifornia’s environment, including theClean Air Act, the Integrated WasteManagement Act, the Safe DrinkingWater Act and the nation’s first law toprevent toxic contamination fromleaking underground storage tanks. Healso authored laws to strengthen thestate’s timber regulations and theSurface Mining and Reclamation Act,and to add new rivers to California’sWild and Scenic River System.

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Like many provisions in the Bill of Rights,CEQA does not guarantee a specific out-

come; instead it guarantees processes andprocedures, and empowers the individual

person to enforce them. CEQA is the bill ofrights for an environmental democracy.

ECTIVES • PERSPECTIVES • PERSPECTIVES • PERSPECTIVES

CEQA: A Judicial PerspectiveBy Cruz Reynoso

The first major CEQA case,Friends of Mammoth v. Board ofSupervisors, reached the SupremeCourt in 1972. The issue in thatcase—whether or not CEQAapplies only to public worksprojects or also toprivate projects thatrequired a discretionarygovernmental ap-proval—was obviouslyimportant. However, ofenduring importance tothe statute has been thetour de force repre-sented by JusticeMosk’s opinion. In it, he recog-nizes the constant threats to theenvironment from a single-mindedfocus on the economy and theunique importance of protecting theenvironment. Consequently,Friends of Mammoth declares thatCEQA must be interpreted “toafford the fullest possible protectionto the environment….”

It is sometimes the case that, whenthe Supreme Court rules, it takes acertain amount of repetition beforethe lower courts realize that theCourt meant what it said. This wastrue when, shortly after Friends ofMammoth, the Court acceptedreview of No Oil Inc. v. City of

Los Angeles. In No Oil, the Courtwas confronted by a shabbyevasion of CEQA, where the citycouncil—without having the analysisof an Environmental Impact Report(EIR) before it—made the essen-

tially political decision that an oildrilling project would not have asignificant impact on the environ-ment. The Supreme Court, how-ever, restated the principles that ithad declared in Friends of Mam-moth and established the now wellunderstood “fair argument” rule,namely, that an EIR must be pre-pared if there is a fair argument that

the project would cause a significantimpact on the environment.

Three years later, in 1975, the courtwas again compelled to stand by itsruling in Friends of Mammoth,thatCEQA should be broadly applied.In Bozung v. Local Agency For-

mation, the Court recognized thatthe annexation of property was nota mere paper exercise but the firststep in a process intended to lead todevelopment. The court gavemeaning to one of the core prin-

ciples of CEQA, thatthe analysis of envi-ronmental issuesshould occur as earlyas possible, whilethere is still time toconsider alternativesor mitigation mea-sures. It ruled that anannexation was a

“project” subject to the require-ments of CEQA.

It took some emphasis and somerepetition by the Court; but thesethree early cases successfullymanaged to set the tone for thirty-five years of interpretation andapplication of CEQA. Though thecourt has not always ruled on theside of those who filed the CEQAcase, the principles articulated inthese early cases have compelledparties and courts to take theenvironment seriously and to taketheir obligations under CEQAseriously. The environment and theState of California have greatlybenefited from the Court’s early andinsightful wisdom.

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Cruz Reynoso is a former Justice of theCalifornia Supreme Court. Mr. Reynosocurrently holds the Boochever and BirdChair for the Study and Teaching ofFreedom and Equality at the UC DavisSchool of Law.

Mammoth Mountain overlooking the town of Mammoth Lake in Mono County. In1971, when the Mono County Planning Commission approved plans to build sixbuildings up to eight stories tall in the small resort town, a group of residents filedthe first CEQA suit for a private development. The resulting Friends of Mammothv. Board of Supervisors decision recognized that private development projectsmust undergo environmental review pursuant to CEQA.

Though the court has not always ruled on the side ofthose who filed the CEQA case, the principles

articulated in these early cases have compelled partiesand courts to take the environment seriously and to

take their obligations under CEQA seriously. Theenvironment and the State of California have greatlybenefited from the Court’s early, insightful wisdom.


California’s reputation as a nationalleader in environmental protection iswell-deserved. From zero-emissionvehicle requirements to air qualitystandards for children, Californiahas pioneered environmentalprotection laws that set the standardfor other states and the world. Asrecently as 2002, during my tenureas Speaker of the State Assembly,we added another cutting-edgeenvironmental legislation to thebooks, one that limits greenhousegas emissions from vehicles.

We are in the forefront of environ-mental protection because we asCalifornians value the rich anddiverse natural resources with whichthe state has been blessed andappreciate the importance of aclean environment for the public’shealth. That is why we are commit-ted to preserving our natural re-sources and promoting a cleanenvironment. The California Envi-ronmental Quality Act is a primeexample of that commitment and asthis report illustrates, CEQA hasprotected the California environ-ment in various ways over its thirty-five year history.

CEQA’s contributions inprotecting California’scoastline, forests,wildlife habitat, andopen spaces have beenextraordinary. CEQA has helpedpreserve wildlands in the SantaMonica Mountains, the beauty ofLake Tahoe, and the SierraNevadas; protected popularbeaches in Northern and Southern

California; and helped make thevision of public parks at BaldwinHills, Chinatown Cornfield, andTaylor Yard a reality.

However, CEQA is more than atool for protecting habitat, parks,and open space. It has also pro-tected our urban communities fromhazardous exposure to toxic chemi-cals and from dangerous dieselemissions in the air, and has evenhelped preserve affordable housing.

CEQA has been a critical tool inblocking the construction of incin-erators in some of our most heavilypopulated neighborhoods. CEQAprotects groundwater, which islikely to form an increasingly large

portion of our water supply. CEQAhas required power plants toimprove their air emissions, and ithas protected the water quality inour bays, rivers, and oceans.

The examples of CEQA successes,as told in this report, clearly illus-trate how effective this statute hasbeen for California. It is no wonderCEQA enjoys very strong supportamong the general public. Unfortu-nately, its provisions are constantlybeing challenged by those whofavor economic growth policiesirrespective of their environmentaland public health implications.

Regardless of what critics may say,environmental protection does notcome at the expense of a healthyeconomy. Rather, a strong economyis compatible with, and complimen-tary to, strong environmentalprotections. Residents and busi-nesses are attracted to Californiabecause of our quality of life. Ahealthy environment is as much asymbol of California as the GoldenGate Bridge or the Hollywood sign.CEQA helps make California thegreat state that it is and, for that

reason, we need topreserve it. After all, weare only stewards of thisearth. Our job is tosafeguard it for thegenerations to come.

Conclusion: Securing the Future ofTHE GOLDEN STATE

By Herb J. Wesson, Jr.

Herb J. Wesson, Jr. is the SpeakerEmeritus of the California StateAssembly.

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A healthy environment is as mucha symbol of California as the GoldenGate Bridge or the Hollywood sign.

Children from the Baldwin Hills communityenjoy a game of soccer. Thanks to CEQA, aproposed sixty-five acre development inBaldwin Hills will instead become part of atwo square mile park in the historic African-American heart of LA, the largest new urbanpark built in the U.S. in over a century.

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ECTIVES • PERSPECTIVES • PERSPECTIVES • PERSPECTIVES

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The Planning and Conservation League FoundationThe Planning and Conservation League FoundationThe Planning and Conservation League FoundationThe Planning and Conservation League FoundationThe Planning and Conservation League Foundation& The Planning and Conservation League& The Planning and Conservation League& The Planning and Conservation League& The Planning and Conservation League& The Planning and Conservation League921 11th St., Suite 300Sacramento, CA 95814(916) 444-8726www.pcl.org

The CalifThe CalifThe CalifThe CalifThe California League of Conserornia League of Conserornia League of Conserornia League of Conserornia League of Conservvvvvation Vation Vation Vation Vation Voooootttttererererersssss& The CL& The CL& The CL& The CL& The CLCV Education FCV Education FCV Education FCV Education FCV Education Fundundundundund1212 Broadway, Suite 630Oakland, CA 94612(510) 271-0900www.ecovote.org

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