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Court Clarifies Subsequent CEQA Review Rules for Post-Approval Decisions

The California Court of Appeals, in Willow Glen Trestle Conservancy et al. vs. City of San Jose et al., shed light on the circumstances in which subsequent environmental review is required for an approved project under the California Environmental Quality Act (“CEQA”).  The court confirmed that CEQA does not require the lead agency to conduct supplemental environmental review when it applies to a responsible agency for an approval after it has already approved a CEQA document for the project. Specifically, these applications are not considered “discretionary approvals” under CEQA.

Case Summary
In Willow Glen Trestle Conservancy, the City of San Jose, as lead agency, approved a mitigated negative declaration (“MND”) for its approval of the removal and replacement of a bridge crossing a creek (“Project”). After that approval, the City applied for a Streambed Alteration Agreement (“SAA”) from the California Department of Fish and Wildlife (“CDFW”), a responsible agency under CEQA. Petitioners argued that the City violated CEQA by failing to conduct supplemental environmental review before submitting the SAA application to CDFW. Based on the measures specified in the MND and the final SAA, the City determined that the Project would not have any significant impacts on fish or wildlife.

Court’s Analysis
Analyzing the relevant law and the facts of this particular case, the court rejected the Conservancy’s claims that the City’s act of seeking and accepting the SAA was a “discretionary approval of the project.” Since there was no discretionary action by the City, CEQA was not triggered. The court further explained that the Conservancy’s claim “attempts to equate any action in connection with a project” to be an approval for the relevant project. Such a ruling would, as the court stated, endlessly reopen the City’s consideration of the Project’s environmental impacts. Since the Conservancy did not challenge CDFW’s issuance of the SAA, the proper CEQA review of that action for a responsible agency was not an issue before the Court. However, CDFW relied on the MND approved by the City for the Project.

Standards for Supplemental Environmental Review
In reaching its decision, the Court reiterated well-established principles regarding the narrow standards under which CEQA supplemental review is required. Specifically, an agency may only perform supplemental environmental review if there is both “new information” resulting in new significant environmental impacts of the project and the agency is making a subsequent discretionary decision regarding the project. Because the City here was not making a subsequent discretionary decision, the standards for supplemental environmental review were unmet.