July 2013

Fifth District Court of Appeal Holds That Privileged Documents Shared Between Applicants and Agencies During The CEQA Administrative Process Are Not Protected From Disclosure and Inclusion In The Administrative Record

In an opinion with potentially significant consequences for the preparation of EIRs and other environmental review documents under CEQA, the Fifth District Court of Appeal (Fresno) has ruled in Citizens for Ceres v. City of Ceres that any attorney-client privilege or work product protection which initially attaches to a document is waived if that document is shared, prior to project approval, between a project applicant and the agency conducting CEQA review.  This would mean that otherwise privileged documents that concern the project at issue or compliance with CEQA generally, if shared among applicant and agency prior to project approval, are subject to disclosure and must be included in the administrative record which the court reviews in CEQA litigation.     

CEQA generally requires that any document in the lead agency's files that is relevant to the proposed project or compliance with CEQA must be included in the administrative record.  In the past, however, some agencies had relied on the so-called "common interest" doctrine of non-waiver of privilege to exclude from the record otherwise relevant documents prepared by or for attorneys for either the applicant or the agency, even if those documents had been communicated between the applicant and the agency considering the project. 

Sophisticated Parties Can Agree To Waive The Delayed Discovery Rule In California Construction Projects

Attorney Authors: 

On June 3, 2013, in the case of Brisbane Lodging, L.P. v. Webcor Builders, Inc., et al. (No. A132555), the California Court of Appeals set new precedent by affirming a lower court ruling upholding the enforcement of a contract provision which abrogated the “delayed discovery rule” by providing that all causes of action relating to work on the contract would accrue from the date of substantial completion. This is the first time in the history of the State that a California Court has done so.

Supreme Court Clarifies Distinction Between GIS Data And Software Under The Public Records Act

Attorney Authors: 

In Sierra Club v. The Superior Court of Orange County, the California Supreme Court ruled last week that data in a geographic information system (“GIS”) file format is a public record subject to disclosure under the California Public Records Act (“CPRA”, Government Code section 6250 et seq.).  The Supreme Court explained that, although GIS mapping software falls within the CPRA statutory exclusion of “computer software” generally, the ordinary meaning of “computer software,” does not include data that is stored in computers and formatted in such a way to be used with particular software.  If data in a GIS file format is statutorily exempt from CPRA disclosure, then any information stored on a computer in a specific format to be manipulated by software would arguably be exempt as well, and that is not what the Legislature intended.

Fourth Draft of Statewide Industrial Storm Water Permit Available for Public Comment

Attorney Authors: 

On Friday, July 19, the State Water Resources Control Board ("State Water Board") issued the latest draft of the Statewide General National Pollutant Discharge Elimination System ("NPDES") Permit for the Discharge of Storm Water Associated With Industrial Activities (the "IGP").  The IGP is issued under the federal Clean Water Act and state law to regulate operators of industrial facilities that discharge storm water into "waters of the United States."  The IGP contains many significant changes from the previous general industrial storm water NPDES permit issued in 1997, which remains in effect until the new IGP is adopted (the State Water Board anticipates adoption in January 2014).  A number of the IGP's changes are summarized below.

The State Water Board is accepting public comments on the IGP through noon on August 29, 2013, and will also hold a public hearing to accept verbal comments at 9:00 am on August 21, 2013.  The notice of opportunity to comment and all relevant permit documents related to the fourth draft IGP are available here.

This fourth draft of the IGP is the State Water Board's latest attempt to update the 1997 general industrial storm water NPDES permit, which demonstrates the long history and contentious issues that have prolonged the reissuance process.