Citizens for Environmental Responsibility v. State of California

Why It Matters: The Third District Court of Appeal upheld the use of a categorical exemption for a rodeo event held on fairgrounds owned by the 14th District Agricultural Association (Association). The Association relied on a Class 23 CEQA exemption (normal operations of existing facilities for public gatherings). (14 Cal. Code Regs § 15323.) This case is important because it is a continuation of judicial consideration of what is meant by the "unusual circumstances" exception to the categorical exemption regulations addressed earlier this year by the California Supreme Court in the Berkeley Hillside Preservation decision. In this case, Citizens for Environmental Responsibility (Citizens) asserted that the categorical exemption should not have been used because the rodeo project included a mitigation measure for manure management and thus implicated the potential for storm water flows from the fairgrounds contributing to further pollution of an already polluted creek.

Facts: The Santa Cruz County Deputy Sheriff's Association proposed certain improvements to the Association's fairgrounds for a rodeo event and potential future rodeos. The Association approved the project and determined that the project was exempt from CEQA review because it qualified as a Class 23 categorically exempt activity.

About the same time, the Regional Water Quality Control Board determined that the Corralitos and Salsipuedes Creeks were impaired due to human and animal fecal coliform, noting that one of the likely sources was the fairgrounds. The Regional Board established and allocated responsibility for implementing certain management practices to control discharges of fecal matter into the creeks. The Association was among those assigned responsibility under the Regional Board's ruling. The Association had previously adopted a Manure Management Program (MMP), and also began a voluntary stream monitoring program to measure and address contaminants in the Salsipuedes Creek, which flowed through the fairgrounds. The monitoring program determined that the amount of E. coli contamination in the water leaving the fairgrounds was less than that contained in the upstream waters flowing into the fairgrounds.

In adopting the categorical exemption for the rodeo, the Association in its Notice of Exemption addressed whether the activity could have a significant effect on the Creek and cited the MMP as one of the justifications for why the activity would not result in significant impacts.

The trial court found that the MMP was part of the normal operations of the fairgrounds and not a mitigation measure, and that none of the exceptions set forth in CEQA Guidelines Section 15300.2 to use of a categorical exemption were identified. The trial court entered judgment in favor of the Association, and Citizens appealed.

The Decision: The Court of Appeal agreed with the trial court, finding that the MMP was not a new mitigation measure necessitated by the rodeo project. In so doing, the court distinguished the decision in Salmon Protection & Watershed Network (SPAWN) v. County of Marin (2004) 125 Cal.App.4th 1098, in which the court criticized the County's use of mitigation measures to essentially mitigate its way into a categorical exemption. The court in SPAWN had held that "reliance on mitigation measures (whether included in the application or adopted later) involves an evaluative process of assessing those mitigation measures and weighing them against environmental impacts, and that process must be conducted under established CEQA standards and procedures . . . ." 125 Cal.App.4th at 1108.

Relying on the recently decided Supreme Court decision in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, the Court went on to explain in great detail how the unusual circumstances exception should be analyzed. The two-step test articulated by this Court was as follows:

  1. Does the project present unusual circumstances?
  2. If so, is there a reasonable possibility of a significant effect on the environment due to the unusual circumstances?

The possibility of a significant effect can be found if a challenger can prove both unusual circumstances and that there is a reasonable possibility of a significant effect due to those unusual circumstances. The unusual circumstances determination—which is primarily a factual determination—is reviewed under the substantial evidence test, but the reasonable possibility of a significant effect is reviewed under the fair argument standard. In the alternative, a party may establish an unusual circumstance by proving that the project will have a significant environmental effect. In this latter case, the deferential substantial evidence test applies and not the fair argument standard. The determination of the agency will be upheld if there is any substantial evidence to support its finding. A finding of a significant effect in the second circumstance necessarily satisfies both prongs of the test.

The Court of Appeal went into great detail in considering the application of this test to the rodeo project, taking great pains to explain how the rule is to be applied and carefully distinguishing the circumstances cited by Citizens. This analysis provides a useful roadmap for applying the unusual circumstances exemption.

Practice Pointers:

  • In seeking to determine whether the "unusual circumstances" exception applies to a project for which a categorical exemption is proposed, lead agencies should utilize the two-part test and the roadmap articulated by the Court in this case to determine whether to use a categorical exemption.