In March 2011, the Department of Fish and Game was sued in Siskiyou County by the local farm bureau who claims the Department has improperly expanded its authority to regulate substantial diversions or obstructions of stream flow under Fish and Game Code Section 1602. (Siskiyou County Farm Bureau v. California Department of Fish and Game, Case No. SCSCCVCV 11-00418.) In 2005, coho salmon in the Klamath Basin were listed as threatened under the California Endangered Species Act ("CESA"). The Department has since interpreted its authority under Section 1602 and CESA to require all agricultural streambed diversions in the Klamath Basin to obtain the necessary permits or authorizations to comply with Section 1602.
Questions often arise as to whether an agency can rely on an "old" certified environmental impact report to approve a revision to a project that was never built. In Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego, the Court upheld the use of a 2008 Addendum to a 1994 environmental impact report (EIR) to approve a revised project. The Court rejected arguments that the Addendum was insufficient because it failed to analyze greenhouse gas (GHG) impacts which were not addressed in the 1994 EIR. A GHG analysis was not required because it was not new information that could not have been known in 1994 when the EIR was certified. The Court found that GHG impacts were known as early as the 1970s. The Court also found that the City properly incorporated and approved a new water supply assessment in the Addendum. The opinion also provides good guidance on the requirement to present issues with specificity before the agency as a prerequisite for raising the issues in court (the exhaustion of administrative remedies doctrine). Click here for a more detailed analysis of the case.
On June 13, 2011, in response to a court order blocking implementation of the Cap-and-Trade Program proposed by the California Air Resources Board (“CARB”), CARB released the “Supplement to the AB 32 Scoping Plan Functional Equivalent Document” (“Supplement”). This Supplement provides an expanded analysis of the five project alternatives geared towards meeting the goals of AB 32 and the 2008 Scoping Plan. The Supplement was prepared by CARB in response to a San Francisco court’s finding that the analysis of the impacts of the alternatives in the 2008 Scoping Plan were not sufficient under the California Environmental Quality Act (“CEQA”) (see Association of Irritated Residents, et al. v. California Air Resources Board, et al., San Francisco Superior Court, Case Number CPF-09-509562, May 20, 2011). However, in the meantime, the court’s order blocking implementation has been temporarily stayed pursuant to an order by the First Appellate District, Division 3 while it reviews CARB’s appeal.