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1 PHILIP L.

GREGORY (SBN 95217)


2 pgregory@cpmlegal.com
BRIAN DANITZ (SBN 247403)
3 bdanitz@cpmlegal.com
COTCHETT, PITRE & McCARTHY, LLP
4 840 Malcolm Road, Suite 200
Burlingame, CA 94010
5 Telephone: (650) 697-6000
6 Facsimile: (650) 697-0577

7 Attorneys for Plaintiffs

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA


9 FOR THE COUNTY OF SISKIYOU
10
WEED AREA WATER ALLIANCE, DAVE Case No. SCCV-CVPT-2016-1180-1
11 PEARCE, HOLLY HANSARD, and JOE
BERRY, individually and on behalf of all others CEQA ACTION
12 similarly situated,
PETITIONERS’ OPENING BRIEF IN
13 Petitioners, SUPPORT OF PETITION FOR WRIT
OF MANDATE
14
v.
15 Date: February 23, 2018
THE CITY OF WEED Time: 8:30 a.m.
16 Dept.: 9
Respondent. Judge: Hon. Karen L. Dixon
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Action Filed: October 11, 2016
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Case No. SCCV-CVPT-2016-1180-1
1 TABLE OF CONTENTS
Page
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I. INTRODUCTION ................................................................................................................... 1
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II. STATEMENT OF FACTS ...................................................................................................... 1
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5 III. ARGUMENT ........................................................................................................................... 3

6 A. CEQA Is Interpreted to Afford the Fullest Protection to the Environment ................. 3

7 B. CEQA Exemptions Are Narrowly Construed .............................................................. 3

8 C. CEQA Standard of Review .......................................................................................... 4

9 D. All of the WLA is a “Project” Subject to CEQA ......................................................... 5

10 E. The WLA Project Is Not Categorically Exempt as an “Existing Facility” Under

11 Section 15301 .............................................................................................................. 7


12 F. The City Abused Its Discretion In Finding The WLA Project Was Categorically
13 Exempt As An “Existing Facility” Under Section 15301............................................ 9
14 G. The “Unusual Circumstances” Exception Prohibits Use of a Categorical Exemption
15 From CEQA ............................................................................................................... 10
16 1. The WLA Project Involves Unusual Circumstances As A Matter Of Law ... 11
17 2. There Is More Than A “Fair Argument” That There Is A “Reasonable
18
Possibility” The Unusual Circumstances Involved In The WLA Project Will
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Cause A Significant Effect On The Environment ......................................... 14
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IV. CONCLUSION...................................................................................................................... 16
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OPENING BRIEF; Case No. SCCV-CVPT-2016-1180-1
1 TABLE OF AUTHORITIES
Page(s)
2 Cases
3
Association for a Cleaner Environment v. Yosemite Community College Dist.,
4 116 Cal.App.4th at 639-40 ....................................................................................................... 9, 10

5 Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster


(1997) 52 Cal.App.4th 1165 ................................................................................................ 4, 9, 11
6
Banker’s Hill, Hillcrest, Park W. Cmty. Pres. Grp. v. City of San Diego
7 (2006) 139 Cal.App.4th 249 ............................................................................................ 4, 7, 9, 11
8
Berkeley Hillside Pres. v. City of Berkeley
9 (2015) 60 Cal.4th 1086 ............................................................................................................ 5, 11

10 Cadiz Land Co. v. Rail Cycle


(2000) 83 Cal.App.4th 74 .............................................................................................................. 3
11
Castaic Lake Water Agency v. City of Santa Clarita
12 (1995) 41 Cal.App.4th 1257 .......................................................................................................... 4
13 Elite Landscaping, Inc. v. City of Dublin,
14 No. RG11555497, 2011 WL 6441836 (Super. Ct. Oct. 21, 2011) .............................................. 12

15 Friends of the Old Trees v. Dept. of Forestry & Fire Protection


(1997) 52 Cal.App.4th 1383 .......................................................................................................... 5
16
Magan v. County of Kings
17 (2002) 105 Cal.App.4th 468 ...................................................................................................... 4, 9
18 McQueen v. Board of Directors
(1988) 202 Cal.App.3d 1136 ......................................................................................................... 5
19

20 Mountain Lion Found. v. Fish & Game Comm’n


(1997) 16 Cal.4th 105 .................................................................................................................... 4
21
In re N.M.
22 (2008) 161 Cal. App. 4th 253 ...................................................................................................... 12
23 Plan for Arcadia, Inc. v. City Council of Arcadia
(1974) 42 Cal.App.3d 712 ......................................................................................................... 6, 7
24

25 Rutti v. Lojack Corp. Inc.,


No. BC381043, 2009 WL 8394852 (Super. Ct. Apr. 16, 2009) .................................................. 12
26
San Joaquin Raptor/Wildlife Rescue Ctr. v. County of Stanislaus
27 (1994) 27 Cal.App.4th 713 ............................................................................................................ 3

28 Santa Monica Chamber of Commerce v. City of Santa Monica


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MCCARTHY, LLP PETITIONERS’ OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE ii
OPENING BRIEF; Case No. SCCV-CVPT-2016-1180-1
1 Save Our Carmel River v. Monterey Peninsula Water Management Dist.
(2006) 141 Cal.App.4th 677 ...................................................................................................... 4, 5
2
Save Tara v. City of W. Hollywood
3
(2008) 45 Cal.4th 116 .................................................................................................................. 10
4
South Shore Land Co. v. Petersen,
5 226 Cal.App.2d 725 (1964) ......................................................................................................... 12

6 Stanislaus Audubon Society, Inc. v. County of Stanislaus


(1995) 33 Cal.App.4th 144 ............................................................................................................ 5
7
Taylor v. Superior Court
8
(1979) 24 Cal.3d 891 ................................................................................................................... 12
9
Tuolumne Cty. Citizens for Responsible Growth, Inc. v. City of Sonora
10 (2007) 155 Cal.App.4th 1214 .......................................................................................... 5, 6, 7, 12

11 Western States Petroleum Assn. v. Superior Court


(1995) 9 Cal.4th 559 ...................................................................................................................... 4
12
White v. State of California,
13 21 Cal.App.3d 738 ....................................................................................................................... 12
14
Statutes
15
California Evidence Code
16
§ 452(c) and (h)............................................................................................................................ 12
17
Government Code
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§ 65962.5 ..................................................................................................................................... 13
19
Public Resources Code
20
§ 21001(d) ...................................................................................................................................... 3
21

22 § 21065 (a) ..................................................................................................................................... 5

23 § 21065 (c) ..................................................................................................................................... 5

24 §21168.5 ........................................................................................................................................ 4

25 Other Authorities
26 Guidelines for Implementation of the California Environmental Quality Act,
California Code of Regulations, Title 14,
27
§ 15000. ......................................................................................................................................... 3
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OPENING BRIEF; Case No. SCCV-CVPT-2016-1180-1
1 § 15003 (a) ..................................................................................................................................... 3
2 § 15003 (f) ..................................................................................................................................... 3
3 § 15003.2(c) ................................................................................................................................. 16
4
§ 15300.2 ..................................................................................................................................... 10
5
§ 15300.2 (c) ............................................................................................................................ 5, 10
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§ 15300.2 (e) ................................................................................................................................ 13
7
§ 15301 ................................................................................................................................. passim
8
§ 15301(b) ...................................................................................................................................... 7
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§ 15378 (a) ..................................................................................................................................... 6
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§ 15378(a)(3) ................................................................................................................................. 6
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OPENING BRIEF; Case No. SCCV-CVPT-2016-1180-1
1 I. INTRODUCTION
2 This action challenges the City of Weed’s (“City”) approval of a Water Lease Agreement
3 (“WLA” or “Project”), without conducting any legally required environmental review. Among
4 other things, the WLA mandates significant reductions to the City’s “primary water supply” for
5 the first time in a century (an immediate loss of 25% and a later cut off of the entire water
6 supply), requires the development of new water sources, and requires that the City, for the first
7 time, accept the industrial effluents from the veneer manufacturing plant of Roseburg Forest
8 Products Company, Inc. (“Roseburg”). Notwithstanding these monumental changes to the status
9 quo, the City approved and filed a Notice of Exemption, stating that the WLA project is exempt
10 from compliance with the California Environmental Quality Act (CEQA) under the “existing
11 facilities” exception. On its face, the WLA is not a “minor alteration” and involves much more
12 than a “negligible or no expansion of use” as required by the limited exception under CEQA
13 Guidelines, Section 15301. Even if the WLA project was subject to a categorical exemption
14 (which it is not), there are significant “unusual circumstances,” including the presence of a U.S.
15 Environmental Protection Agency (“EPA”) Superfund site, excepting the WLA project from any
16 categorical exemption. Under the standard articulated by the California Supreme Court, there is
17 substantial evidence in the Administrative Record of a “fair argument” that it is at least
18 “reasonably possible” that those unusual circumstances will have a significant effect on the
19 environment.
20 Accordingly, Petitioners respectfully request that the Court issue a Writ of Mandate
21 directing the City to set aside its approval of the WLA and to comply with CEQA.
22 II. STATEMENT OF FACTS
23 The City of Weed sits at the base of Mount Shasta in Siskiyou County, CA. For at least
24 the last 100 years, the residents of Weed have piped the pristine gravity fed water of Beaughan
25 Springs to their homes and businesses. Tab 17, AR00000102-3.1 Beaughan Springs is the City’s
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28 1
“Tab” refers to tabs of the Administrative Record (AR00000001-277) lodged with the Court.
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Case No. SCCV-CVPT-2016-1180-1
1 “primary water source.” Tab 1, AR00000001. Since 1966, the City has relied on a flow of 2.0
2 cubic feet per second (“c.f.s.”) of Beaughan Spring water pursuant to a lease that would have
3 expired on June 30, 2016. Id.; see also Tab 2, AR00000005 ¶ B. On April 14, 2016, the City
4 Council met to consider approving a new Water Lease Agreement (Tab 3, AR00000021-29). See
5 Tab 4, AR00000030; Tab 53, AR00000247; Tab 5, 4/14/16 Meeting, parts 1-2 (Flash Drive)
6 (Ex. 1).2
7 The WLA contains a number of new provisions that significantly altered the status quo:
8 (1) The City’s immediate loss of 25% of its water supply (.5 c.f.s.) from Beaughan
9 Springs (WLA Recital D; Tab 2, AR00000005-6);
10 (2) The City’s loss of the remaining 75% of its water supply (1.5 c.f.s.) from Beaughan
11 Springs upon obtaining an alternate water supply or at the end of the lease term (WLA
12 Section 4.02; Tab 2, AR00000006);
13 (3) The requirement and practical necessity that the City develop “new water supplies” to
14 replace the water from Beaughan Springs (WLA Article 4, “Alternate Water Supply”;
15 Tab 2, AR00000005-6);
16 (4) A provision permitting Roseburg to connect to the City’s main sewer line (WLA
17 Section 5.03; Tab 2, AR00000011); and
18 (5) A provision requiring the City to accept Roseburg’s industrial effluent even though
19 the “[e]ffluent associated with Roseburg’s industrial operations are not currently
20 connected to the City’s sewer system.” (WLA Article 6, “City Services”; Tab 2,
21 AR00000011).
22 Despite widespread public opposition expressing numerous concerns regarding the
23 environmental impact of the WLA, the City Council approved the WLA, and also approved a
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26 2
“Ex. _” refers to exhibits to the Declaration of Brian Danitz filed concurrently herewith. The
27 relevant City Council meetings are in the Administrative Record at Tab 5 as audio files on a Flash
Drive. To assist the Court in its review, the accompanying Declaration of Brian Danitz attaches a
28 typed transcript of the City Council meeting of April 14, 2016. Ex. 1. The transcript was not
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MCCARTHY, LLP PETITIONERS’ OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE; 2
Case No. SCCV-CVPT-2016-1180-1
1 CEQA exemption for the WLA, claiming the WLA was exempt from complying with CEQA
2 under the “Existing Facilities” categorical exemption. Tab 1, AR00000001-4. Defendants did so,
3 even though the City is adjacent to an EPA Superfund Toxic Cleanup Site, and the Roseburg mill
4 continues to generate industrial effluents, which the City will now be forced to take on.
5 III. ARGUMENT
6 A. CEQA Is Interpreted to Afford the Fullest Protection to the Environment

7 In enacting CEQA, the Legislature sought to “[e]nsure that the long-term protection of the

8 environment . . . shall be the guiding criterion in public decisions.” Pub. Resources Code, §

9 21001(d). “The foremost principle under CEQA is that the Legislature intended the act to be

10 interpreted in such manner as to afford the fullest possible protection to the environment within

11 the reasonable scope of the statutory language.” San Joaquin Raptor/Wildlife Rescue Ctr. v.

12 County of Stanislaus (1994) 27 Cal.App.4th 713, 720 (citation omitted); see also Guidelines,

13 § 15003 (f) (same).3 The Environmental Impact Report (“EIR”) “is the heart of CEQA.”

14 Guidelines, § 15003 (a). “CEQA’s purpose is to inform the public and its governmental officials

15 of the environmental consequences of their decisions before they are made.” Cadiz Land Co. v.

16 Rail Cycle (2000) 83 Cal.App.4th 74, 84. “Thus, the EIR ‘protects not only the environment but

17 also informed self-government.’” Id. (citing Citizens of Goleta Valley v. Board of Supervisors

18 (1990) 52 Cal. 3d 553, 564).

19 B. CEQA Exemptions Are Narrowly Construed

20 The Legislature authorized the Secretary of the Resources Agency to adopt a list
of classes of projects determined to be exempt from CEQA because they ‘do not
21 have a significant effect on the environment. Such classes of projects are declared
to be categorically exempt from the requirement for the preparation of
22
environmental documents. The determination whether a project is exempt under
23 one of these classes is made as part of the preliminary review process prior to any
formal environmental evaluation of the project. . . . Where a project is
24 categorically exempt, it is not subject to CEQA requirements and may be
implemented without any CEQA compliance whatsoever.
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“Guidelines” refers to Guidelines for Implementation of the California Environmental Quality
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Case No. SCCV-CVPT-2016-1180-1
1 Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th
2 677, 688 (“Carmel River”) (citations and internal quotations omitted).
3 Categorical exemptions to CEQA are narrowly construed and “are not to be expanded
4 beyond the reasonable scope of their statutory language.” Mountain Lion Found. v. Fish & Game
5 Comm’n (1997) 16 Cal.4th 105, 125. Categorical exemptions may be provided only for “classes
6 of projects which have been determined not to have a significant effect on the environment.”
7 Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th
8 1165, 1192-93 (“Azusa”). If “there is any reasonable possibility that a project or activity may
9 have a significant effect on the environment, an exemption would be improper.” Banker’s Hill,
10 Hillcrest, Park W. Cmty. Pres. Grp. v. City of San Diego (2006) 139 Cal.App.4th 249, 266
11 (“Banker’s Hill”) (citing Pub. Resources Code, § 21084(a)); see also Castaic Lake Water Agency
12 v. City of Santa Clarita (1995) 41 Cal.App.4th 1257, 1268 (rejecting “an attempt to use limited
13 exemptions contained in CEQA as a means to subvert rules regulating the protection of the
14 environment”).
15 C. CEQA Standard of Review

16 The City’s determination that the WLA project was exempt from compliance with CEQA
17 is subject to judicial review under the abuse of discretion standard in Public Resources Code
18 Section 21168.5. Carmel River, 141 Cal.App.4th at 693. The inquiry focuses on “whether there
19 was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not
20 proceeded in a manner required by law or if the determination or decision is not supported by
21 substantial evidence.” Id.
22 The City “‘has the burden to demonstrate substantial evidence that the [activity is] within
23 the exempt category of projects.” Magan v. County of Kings (2002) 105 Cal.App.4th 468, 475
24 (citation omitted); Banker’s Hill, 139 Cal.App.4th at 267 n.19. The substantiality of evidence
25 presents a question of law for the Court’s independent review. Western States Petroleum Assn. v.
26 Superior Court (1995) 9 Cal.4th 559, 573; Santa Monica Chamber of Commerce v. City of Santa
27 Monica (2002) 101 Cal.App.4th 786, 792.
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1 Where the issue turns only on an interpretation of the language of the Guidelines or the
2 scope of a particular CEQA exemption, this presents “a question of law, subject to de novo
3 review by this court.” Carmel River, 141 Cal.App.4th at 693 (citations omitted). The Court’s
4 task is “to determine whether, as a matter of law, the [project] met the definition of a categorically
5 exempt project. Thus as to the question whether the activity comes within the categorical class of
6 exemptions, [courts] apply a de novo standard of review, not a substantial evidence standard.” Id.
7 at 693-94 (quotation marks and citations omitted).
8 Where the “‘unusual circumstances’ exception to a categorical exemption is established,
9 the reviewing court should apply the fair argument standard in determining whether there is ‘a
10 reasonable possibility’ that those circumstances will produce ‘a significant effect’ within the
11 meaning of CEQA. (Guidelines, § 15300.2 (c).)” Berkeley Hillside Pres. v. City of Berkeley
12 (2015) 60 Cal.4th 1086, 1115. To comply with the “fair argument” test, the evidence presented
13 by parties challenging project approvals does not need to be “overwhelming or overpowering,”
14 nor does it have to be uncontradicted. Friends of the Old Trees v. Dept. of Forestry & Fire
15 Protection (1997) 52 Cal.App.4th 1383, 1402. Rather, the test sets a “low threshold” of requiring
16 evidence of “ponderable legal significance … reasonable in nature, credible, and of solid value.”
17 Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 152.
18 D. All of the WLA is a “Project” Subject to CEQA

19 A “project” under CEQA is a discretionary activity by a public agency that “may cause

20 either a direct physical change in the environment, or a reasonably foreseeable indirect physical

21 change in the environment . . . .” Pub. Resources Code, § 21065 (a). It includes agency approval

22 of “a lease, permit, license, certificate, or other entitlement.” Pub. Resources Code, § 21065 (c).

23 “‘Project’ is given a broad interpretation in order to maximize protection of the

24 environment.” McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136, 1143. “This broad

25 interpretation ensures that the requirements of CEQA cannot be avoided by chopping up proposed

26 projects into bite-size pieces which, when taken individually, may have no significant adverse

27 effect on the environment.” Tuolumne Cty. Citizens for Responsible Growth, Inc. v. City of Sonora

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Case No. SCCV-CVPT-2016-1180-1
1 (2007) 155 Cal.App.4th 1214, 1223 (“Tuolumne Cty”) (citing Plan for Arcadia, Inc. v. City Council
2 of Arcadia (1974) 42 Cal.App.3d 712, 726) (“Plan for Arcadia”).
3 Accordingly, “Project” refers to “the whole of an action, which has a potential for resulting
4 in either a direct physical change in the environment, or a reasonably foreseeable indirect physical
5 change in the environment . . . .” Guidelines, § 15378 (a). The “question concerning which acts
6 constitute the ‘whole of an action’ for purposes of Guidelines section 15378 is a question of law.”
7 Tuolumne Cty, 155 Cal.App.4th at 1224.
8 Here, by its own terms, the WLA project consists of a number of parts, each of which will
9 result in a direct or reasonably foreseeable indirect physical change in the environment, including:
10 (1) The City’s immediate loss of 25% of its water supply (.5 c.f.s.) from Beaughan
11 Springs (Recital D; Tab 2, AR00000005-6);
12 (2) The City’s loss of the remaining 75% of its water supply (1.5 c.f.s.) from Beaughan
13 Springs upon obtaining an alternate water supply or at the end of the lease term
14 (Section 4.02; Tab 2, AR00000006);
15 (3) The requirement and practical necessity that the City develop “new water supplies” to
16 replace the water from Beaughan Springs (Article 4, “Alternate Water Supply”; Tab 2,
17 AR00000005-6);
18 (4) The provision permitting Roseburg to connect to the City’s main sewer line (Section
19 5.03; Tab 2, AR00000011); and
20 (5) The provision requiring the City to accept Roseburg’s industrial effluent even though
21 the “[e]ffluent associated with Roseburg’s industrial operations are not currently
22 connected to the City’s sewer system.” (Article 6, “City Services”; Tab 2,
23 AR00000011).
24 In its report, the City Staff recognized that “the Water Lease Agreement is a ‘project’ as
25 defined by Section 15378(a)(3) of the CEQA Guidelines” and that “CEQA clearance is required
26 before the City Council can approve the Water Lease.” Tab 4, AR00000030. However, the Staff
27 Report failed to consider any of the above components of the WLA, stating only that: “The
28 Water Lease results in a physical action which is the actual transmission of water from Beaughan
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Case No. SCCV-CVPT-2016-1180-1
1 Creek Spring.” The Staff Report is silent on the immediate loss of 25% of this “primary water
2 supply,” the subsequent loss by the City of all of this primary water supply, the fact that the City
3 must develop alternate water supplies, the fact that the City must permit Roseburg’s veneer
4 manufacturing plant to hook up to the City’s main sewer connection, and the fact that the City is
5 required to accept Roseburg’s industrial effluents. The final Notice of Exemption acknowledges
6 that the “lease involves a decrease in the water delivery of the previous lease from two (2.0) cfs, or
7 1.29 MGD” (Tab 1, AR00000002), but is silent regarding the WLA’s other requirements.
8 Notwithstanding the City’s silence, each of these components is part of the WLA project
9 and must be considered in the City’s initial review of the applicability of CEQA to the project.
10 Banker’s Hill, 139 Cal.App.4th at 258 (the agency must conduct a preliminary review to determine
11 whether the project is exempt from CEQA); Tuolumne Cty, 155 Cal.App.4th at 1218 (reversing
12 judgment and remanding for the issuance of a writ of mandate; finding as a matter of law that the
13 construction of a home improvement center and the realignment of a road constituted a single
14 CEQA project); Plan for Arcadia, 42 Cal.App.3d at 726 (finding that the construction of a
15 shopping center, a parking lot, and improvements to an adjacent street were all part of a single
16 CEQA project).
17 E. The WLA Project Is Not Categorically Exempt as an “Existing Facility” Under
18 Section 15301

19 The City improperly determined that the proposed WLA project was categorically exempt
20 as a Class 1 activity under Guidelines Section 15301, entitled “Existing Facilities.” Guidelines,
21 § 15301(b). The Guidelines describe existing facilities that are categorically exempt projects as
22 activities concerning “the operation, repair, maintenance, permitting, leasing, licensing, or minor
23 alteration of existing public or private structures, facilities, mechanical equipment, or
24 topographical features, involving negligible or no expansion of use beyond that existing at the time
25 of the lead agency’s determination. . . . The key consideration is whether the project involves
26 negligible or no expansion of an existing use.” Guidelines, § 15301 (emphasis added).
27 Applying de novo review, the Court should find as a matter of law that the WLA project
28 does not fall within the limited scope of the “Existing Facilities” exemption. On its face, the
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1 WLA is not limited to “existing facilities” and requires a great deal more than “negligible or no
2 expansion of and existing use.”
3 As stated in the Notice of Exemption, Beaughan Springs is one of the City’s two “primary
4 water supply sources.” Tab 1, AR00000001. The immediate reduction of the City’s “primary
5 water supply” from 2.0 c.f.s. to 1.5 c.f.s., and to zero c.f.s. at the end of the lease term, requires
6 that the City develop and expand its water use from new sources, a completely different use.
7 See Tab 2, AR000000009 (WLA Article 4, Alternate Water Supply). Developing new sources of
8 water will unquestionably impact the physical environment in the City and its surroundings. This
9 significant reduction in the City’s primary water source and the concomitant need to expand to
10 new, other water sources means that the WLA is not on the same terms as the prior water lease.
11 Indeed, according to the WLA, the City has agreed to investigate installing a pipeline from the
12 south well to the north part of Weed, developing a water intake head-works at North Boles
13 Springs, and developing a well on Roseburg property on the north side of Weed, or consider other
14 new water sourcing options. None of these new water sources are “existing facilities.” Because
15 the City relied upon the gravity fed water from Beaughan Spring for more the one hundred years,
16 its entire water infrastructure is built around that “primary water source.” The required
17 construction takes the WLA outside of the “Existing Facilities” exemption.
18 Moreover, the WLA requires that the City accept industrial effluent from Roseburg’s
19 veneer manufacturing plant even though the “[e]ffluent associated with Roseburg’s industrial
20 operations are not currently connected to the City’s sewer system.” (Article 6, “City Services”;
21 Tab 2, AR00000011)(emphasis added). In and of itself, this is not a “minor alteration”
22 “involving negligible or no expansion of use” as required under Guidelines, Section 15301.
23 There could be dangerous chemicals in that effluent that are not regulated by existing compliance
24 standards. If CEQA review was prepared before signing the WLA, the public could demand
25 foreknowledge of what might be discharged by Roseburg, and could request mitigation for
26 hazardous chemicals that are not otherwise restricted by existing City regulations. These
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Case No. SCCV-CVPT-2016-1180-1
1 protections afforded by CEQA were improperly precluded by the City’s improper approval of the
2 categorical exemption.4 Azusa, 52 Cal.App.4th at 1195 (“The apparent rationale for the existing
3 facilities exemption is that the environmental effects of the operation of such facilities must
4 already have been considered.”). The Court should find as a matter of law the WLA does not fall
5 within the limited “Existing Facilities” - categorical exemption.
6 F. The City Abused Its Discretion In Finding The WLA Project Was Categorically
Exempt As An “Existing Facility” Under Section 15301
7

8 As discussed above, the City “‘has the burden to demonstrate substantial evidence that the

9 [activity is] within the exempt category of projects.” Magan, 105 Cal.App.4th at 475; Banker’s

10 Hill, 139 Cal.App.4th at 267 n.19. The City cannot make this showing. When questioned about

11 CEQA, the City’s only response was that the City would consider complying with CEQA at a

12 later date. (Tab 5 4/14/16 Meeting, part 1 (Flash Drive) at 10:45 [Ex. 1 at 5]). In advance of the

13 April 14, 2016 City Council meeting in which the categorical exemption and the WLA project

14 were approved, the City’s Website (erroneously) stated:

15 The next step in the process will be a careful and detailed analysis as required by
the California Environmental Quality Act. . . . Under the terms of the water
16 agreement, the City has agreed to begin the CEQA analysis within the next six
months and will make every effort to complete the process and select the best
17
option within two years.
18

19 Tab 58, AR00000266.

20 Promising to conduct a “careful and detailed” CEQA analysis, six months after a project is

21 approved and categorical exemption filed, both violates CEQA, and does not constitute

22 substantial evidence that an “Existing Facilities” categorical exemption applies to the WLA

23 project. As stated by the California Supreme Court, “[a] development decision having potentially

24

25

26 4
The City’s attempt to limit the WLA to the immediate reduction of 25% of the City’s water,
27 without considering the rest of the WLA and its consequences, is precisely the type of project
piece-mealing that courts have consistently held is improper under CEQA. See Association for a
28 Cleaner Environment v. Yosemite Community College Dist., 116 Cal.App.4th at 639-40 (“a group
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1 significant environmental effects must be preceded, not followed, by CEQA review.” Save Tara
2 v. City of W. Hollywood (2008) 45 Cal.4th 116, 134 (“Save Tara”).
3 Just as CEQA itself requires environmental review before a project’s approval,
not necessarily its final approval (Pub. Resources Code, §§ 21100, 21151), so the
4 guideline defines “approval” as occurring when the agency first exercises its
5 discretion to execute a contract or grant financial assistance, not when the last
such discretionary decision is made.
6

7 Save Tara, 45 Cal.4th at 134 (citing cases).

8 Here, the City approved the WLA project in its entirety when it entered into the

9 agreement. Its determination that the WLA is exempt from CEQA extends to the entire project.

10 Ass’n for a Cleaner Env’t v. Yosemite Cmty. Coll. Dist. (2004) 116 Cal.App.4th 629, 637-38 (“it

11 is clear that the requirements of CEQA ‘cannot be avoided by chopping up proposed projects into

12 bite-sized pieces’ which, when taken individually, may have no significant adverse effect on the

13 environment”) (citing Plan for Arcadia, 42 Cal.App.3d at 726). The City’s suggestion that it may

14 conduct a belated CEQA review is tantamount to an admission that the categorical exemption did

15 not apply. Notably, the WLA does not condition any future performance under the WLA,

16 including the development of new water sources or the introduction of Roseburg’s industrial

17 effluents, on compliance with CEQA. Because the Administrative Record is devoid of any

18 evidence, let alone substantial evidence, establishing that the Existing Facilities exemption applies

19 to the WLA, the City abused its discretion in approving that exemption and finding that CEQA

20 does not apply to the WLA project.

21 G. The “Unusual Circumstances” Exception Prohibits Use of a Categorical


Exemption From CEQA
22

23 Even if the WLA project came within the “Existing Facilities” exemption from CEQA, the

24 exemption is subject to the “unusual circumstances” exception set forth in Section 15300.2 of the

25 CEQA Guidelines, which provides: “A categorical exemption shall not be used for an activity

26 where there is a reasonable possibility that the activity will have a significant effect on the

27 environment due to unusual circumstances.” Guidelines, § 15300.2 (c). This exception “was

28 presumably adopted to enable agencies to determine which specific activities - within a class of
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1 activities that does not normally threaten the environment - should be given further environmental
2 evaluation and hence excepted from the exemption.” Berkeley Hillside, 203 Cal.App.4th at 668.
3 Courts use a two-prong test to determine whether the unusual circumstances exception
4 applies to a particular project. Id. at 670; see also Banker’s Hill, 139 Cal.App.4th 249. Under the
5 first prong, the court determines whether the project presents any unusual circumstances. This
6 determination is made as a matter of law, and no deference is given to the City. Berkeley Hillside,
7 203 Cal.App.4th 672; Azusa, 52 Cal.App.4th at 1207.
8 Under the second prong, if the court determines any unusual circumstances exist, then the
9 question becomes whether a “reasonable possibility” exists of a significant effect on the
10 environment due to those unusual circumstances. This prong is determined under the “fair
11 argument” standard. Banker’s Hill, 139 Cal.App.4th at 265-267; Berkeley Hillside, 203
12 Cal.App.4th at 672-673.
13 1. The WLA Project Involves Unusual Circumstances As A Matter Of Law
14 In Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster, the court found
15 “unusual circumstances” “where the circumstances of a particular project (i) differ from the
16 general circumstances of the projects covered by a particular categorical exemption, and (ii) those
17 circumstances create an environmental risk that does not exist for the general class of exempt
18 projects.” 52 Cal.App.4th at 1207.
19 There are very unusual circumstances in this case for a number reasons. First, the WLA
20 affects the City’s primary water source, the Beaughan Springs, which the City has relied upon
21 for more than a century. Changing the normal course of that 2.0 c.f.s. of spring water will affect
22 the physical environment in and around the City and downstream. Tab 59, AR00000269-70.
23 Without an environmental review as required by CEQA, it is impossible to know how the
24 environment and the citizens of Weed will be affected. Because of the City’s long reliance, the
25 City’s water infrastructure is based upon receipt of the gravity-fed flow of this spring water which
26 requires no processing. Tab 17, AR00000102. The significant reduction and eventual removal of
27 that water that is mandated under the WLA will require the City to develop, both new water
28
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1 sources, and a new water infrastructure, either of which will have significant affects on the
2 physical environment.
3 Second, it is highly unusual for a water lease to require the lessee to accept and process
4 industrial effluents. As stated in the WLA, “[e]ffluent associated with Roseburg’s industrial
5 operations are not currently connected to the City’s sewer system.” There could be dangerous
6 chemicals in that effluent that are not regulated by existing compliance standards. Tab 59,
7 AR00000271. If CEQA review was prepared before the WLA became effective, the public would
8 at least be informed about the compounds that are discharged by Roseburg’s veneer
9 manufacturing plant (Id.), and could request mitigation for hazardous chemicals that are not
10 otherwise restricted by existing City regulations.
11 Finally, the unusual circumstances include Roseburg’s operations atop an admitted
12 hazardous waste site and the WLA permits Roseburg to dispose of its industrial sewage effluent
13 in the City. The WLA’s reduction in water availability and the need to find new water
14 sources in close proximity to an EPA Superfund site also constitutes unusual circumstances that
15 preclude the City’s use of exemptions to CEQA review.
16 The WLA project will affect property designated as a federal EPA Superfund Site.5
17 Roseburg’s mill operations are partially located on such an EPA Superfund Cleanup site. Thus,
18

19

20
5 The Court may consider facts and documents subject to judicial notice in ruling on this petition.
21 See Tuolumne Cty, 155 Cal.App.4th at 1220 (granting judicial notice in CEQA action); see also
Cal. Evid. Code § 452(c) and (h); In re N.M. (2008) 161 Cal. App. 4th 253, 268 n.9 (taking
22
judicial notice of information on government website); White v. State of California, 21
23 Cal.App.3d 738, 743 n.l (judicial notice taken of a publication of the United States Army Corps of
Engineers entitled Water Resources Development in California); Taylor v. Superior Court (1979)
24 24 Cal.3d 891 (judicial notice of the Third Special Report of the Secretary of Health, Education,
and Welfare); South Shore Land Co. v. Petersen, 226 Cal.App.2d 725, 746 (1964) (judicial notice
25 of a report by the Chief Engineer of the Board of Tideland Commissioners); Elite Landscaping,
Inc. v. City of Dublin, No. RG11555497, 2011 WL 6441836 (Super. Ct. Oct. 21, 2011) (“Courts
26
generally may take notice of facts contained within government publications.”) (collecting cases);
27 Rutti v. Lojack Corp. Inc., No. BC381043, 2009 WL 8394852 (Super. Ct. Apr. 16, 2009) (taking
judicial notice of documents published on government website). See also the Request for Judicial
28 Notice filed concurrently herewith.
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1 Roseburg’s site is different when it is viewed in the context of similar activities in the area. Most
2 of Weed has no such unusual circumstance of an EPA Superfund hazardous waste site. The WLA
3 allows Roseburg to alter the use and flows of spring water from Beaughan Springs and to
4 discharge industrial effluent to the City’s sewers. However, CEQA Guidelines Sections 15300.2
5 (c) and (e) expressly prohibit the use of a categorical exemption under these circumstances.
6 Hazardous Waste Sites. A categorical exemption shall not be used for
a project located on a site which is included on any list compiled
7 pursuant to Section 65962.5 of the Government Code.
8
Guidelines § 15300.2 (e).
9

10 The Roseburg site affected by the WLA is included on a current list of hazardous waste

11 sites identified by the California EPA and compiled pursuant to Section 65962.5 of the

12 Government Code. The Weed City Council provided no substantial evidence to refute the

13 existence of unusual circumstances so that it might invoke a categorical exemption for the WLA.

14 According to the Website of the U.S. Environmental Protective Agency:

15
The J.H. Baxter Superfund Site comprises approximately 205 acres, located at
16 422 Mill Street, in Weed, California. The Site is owned partially by J.H. Baxter
Company and partially by Roseburg Forest Products. It is bounded by residences
17
[in the City] to the west and northwest, by Roseburg Forest Products to the north,
18 and irrigated pasture to the south. . . . The site chemicals of concern were selected
primarily on the basis of the concentration detected, or the known or suspected
19 toxicological properties of the substance. The wood treatment inorganic (metal)
chemicals of concern include arsenic, chromium, copper, and zinc, with arsenic
20 being identified as a high threat contaminant. The organic chemicals of concern
include carcinogenic and non-carcinogenic polynuclear aromatic hydrocarbons
21
(PAHs), polychlorinated biphenyls (PCBs), tetrachlorophenol, chlorinated
22 dibenzodioxins and chlorinated dibenzofurans. Carcinogenic PAHs, PCBs, and
dioxins have been identified as high threat contaminants. [¶] Groundwater,
23 surface water, and sediments are contaminated with pentachlorophenol (PCP),
creosote, polynuclear aromatic hydrocarbons (PAHs), arsenic, and heavy metals
24 including chromium and zinc. Ex. 2.6
25

26
6
27 Available at: https://yosemite.epa.gov/r9/sfund/r9sfdocw.nsf/vwsoalphabetic/J.+H.
+Baxter+&+Co.?OpenDocument; see also https://cumulis.epa.gov/supercpad/cursites/
28 csitinfo.cfm?id=0900917
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1 As reported by the North Coast Regional Water Quality Control Board (“RWQCB”) in
2 2005: “In Weed, the Roseburg Forest Products and the J.H. Baxter Paper Company are Superfund
3 sites where treated groundwater is used to water log deck and adjacent fields.” Ex. 3.7 As recently
4 as September 2015, the U.S. Army Corps of Engineers detected hazardous materials including
5 arsenic, chromium, copper, zinc, pentachlorophenol, and tetrachlorophenol in concentrations
6 exceeding clean up standards in ground water and surface water around the Superfund Site in the
7 City. Ex. 4.8
8 Accordingly, the Court should find the WLA project presents “unusual circumstances.”
9 2. There Is More Than A “Fair Argument” That There Is A “Reasonable
Possibility” The Unusual Circumstances Involved In The WLA Project
10 Will Cause A Significant Effect On The Environment.

11 A review of public comments on April 14, 2016, the day the City approved the WLA and

12 the Categorical Exemption, demonstrates there is a fair argument that there is a reasonable

13 possibility the WLA Project will cause a significant effect on the environment. The comments in

14 the Administrative Record also establish (1) the WLA project clearly does not fit within the

15 “Existing Facilities” categorical exemption; and (2) the City abused its discretion by determining

16 that the categorical exemption applied in the absence of substantial evidence in the first instance.

17 • Regarding the CEQA process, we have a 0.5 reduction in water. We have a


pipeline that we are proposing to install from our south end to our north end,
18 which means that we’ll be pumping probably 24/7 on our pipeline which could
19 possibly cause a problem with our water tables, and we are promising Roseburg a
connection for industrial sewage. Does that all come under the purview of no
20 CEQA? (Tab 5 4/14/16 Meeting, part 1 (Flash Drive) at 13:10 [Ex. 1 (4/14
Transcript) at 6-7]).
21
• If you want to approve this Agreement – or these Agreements, quickly because of the time
22
concerns, I’m going to ask you to delete the issues that would result in various
23 environmental impacts. If, however, you want to approve them as you’ve got them

24

25
7
Available at: https://www.waterboards.ca.gov/water_issues/programs/swamp/
26
docs/reports/rb1_monitoringrpt_2000_2006.pdf at 46.
27
8
Available at: https://yosemite.epa.gov/r9/sfund/r9sfdocw.nsf/3dc283e6c5d6056f8825742600741
28 7a2/a46d29d9458e014288257edd00708a2c/$FILE/JH%20Baxter%202015%20FYR
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COTCHETT, PITRE & ManagementReview09152015%20Final-formatLH.pdf at 22.
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1 written, you have to go through the California Environmental Quality Act. (Tab 5 4/14/16
Meeting, part 2 (Flash Drive) at 0:30 [Ex. 1 at 31]).
2

3 • There’s been a lot of discussion by other people on the City of Weed’s website even as of
today. It states that the Water Agreement compels the City to begin environmental review
4 within six months. That’s not done out of some excess of caution; it’s done because it’s
required. So on the one hand the City is saying they have to do an environmental review
5 triggered by the approval of the Agreement. On the other hand the Notices of Exemption
claim they are not required to do that. (Id. at 1:20 [Ex. 1 at 31]).
6

7 • Well, if you’d actually cut back the water supply by 25%, that’s going to result in some
impacts. If anything, Weed has gone through some devastating wild fire risk. (Id. at 1:50
8 [Ex. 1 at 31]).
9 • There could also be changes that are not simply the existing water being cut back, but
10 rather the City needs to go and look for new wells, new pipelines, and new water sources.
This could compel some kind of reduction in the flows at Boles Springs Creek, various
11 types of habitats effects. These need to be reviewed before you commit to actually the
provisions of these Agreements. (Id. at 2:10 [Ex. 1 at 31-32]).
12
• Why is this clause in here about the sewer connection – industrial sewer connection? Why
13
isn’t that presented at a future time when the connection’s being applied for? (Id. at 2:40
14 [Ex. 1 at 32]).

15 • They reduce the flow by 25%, how much pressure are we going to lose? That pressure
relates directly to what we have capable of fighting fires . . . (Id. at 6:20 [Ex. 1 at 33]).
16

17 • I would like to know what type of studies are going to be done on groundwater if that’s to
be the solution. I don’t see a lot of unallocated spring water around Weed that could be
18 pressed into use. If it’s going to be ground water, are we going to have good studies? (Id.
at 13:10 [Ex. 1 at 36]).
19
• And I feel like that Roseburg is holding the City hostage right now, especially on trying to
20
connect to the sewer connection Agreement right now and have the City take industrial
21 waste as part of getting continued use of some of the water. (Id. at 14:00 [Ex. 1 at 36]).

22 • They are in the driver’s seat at this point, and so we’re having to look at industrial sewage.
There are a lot of documents that say that we have to get EPA qualified—or EIR to get it
23 done. (Id. at 1:00:10 [Ex. 1 at 55]).
24
• These Agreements pose the potential of very real environmental risks to the City of Weed.
25 Such dangers include reduced water flows for City use, increases in wildfire hazard during
summer drought conditions, reduction in creek flows and groundwater availability
26 elsewhere in Weed, and possible industrial sewage impacts and stormwater impacts. (Tab
59, AR00000273).
27

28 • The City of Weed is proposing a new industrial effluent provision added to the new Water
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1 of the environmental risks involved. Nor does the City of Weed propose doing that in the
future. As a result, the new Water Lease Agreement appears to violate CEQA. (Id. at
2 AR00000276).
3
• The City of Weed otherwise must accept that industrial effluent as long as Roseburg
4 Forest Products Company pays the City. There could be dangerous chemicals in that
effluent that are not regulated by existing compliance standards. If CEQA review was
5 prepared before signing this Agreement, the public could at least demand foreknowledge
of what might be discharged by Roseburg Forest Products Company, and could request
6
mitigation for hazardous chemicals that aren’t otherwise restricted by existing City of
7 Weed regulations. (Id.).

8 • The City of Weed outright prohibits some kinds of wastes, but Weed and RFP are denying
the public any information to know what kinds of wastes might someday be discharged.
9 The City’s industrial sewer connection permit process is not public. Maybe City of Weed
10 staff would not know whether RFP’s industrial effluent really contained such prohibited
discharges? Or maybe the extremely vague term “excessive” would not prohibit RFP’s
11 discharge of “less-than excessive” quantities of such possibly hazardous chemicals? (Id.
at AR00000271).
12
• Or what if some of the underground water at the Roseburg Forest Products Company site
13 is pumped up from wells and is drained into the City’s sewer system? That groundwater is
14 so toxic that it had to be contained within an EPA Superfund Cleanup Site. (Id.)

15 • That’s why CEQA is required first… to at least provide the public with some insights.
(Id. at AR00000272).
16

17 Each of these comments raise at least a fair argument that it is “reasonabl[y] possible” the

18 WLA project will have significant environmental impacts. Accordingly, CEQA review is required

19 notwithstanding any purported exemption, under the unusual circumstances exception in

20 Guidelines Section 15003.2, subdivision (c).

21 IV. CONCLUSION
22 The WLA is not categorically exempt from CEQA. The WLA is not a “minor alteration”
23 and involves much more than a “negligible or no expansion of use” as required by the limited
24 exception under Guidelines, Section 15301. Even assuming the WLA project is subject to an
25 “Existing Facilities” exemption, there are significant “unusual circumstances”, including the
26 presence of an EPA Superfund site, excepting the project from such exemption. Finally, under
27 the standard articulated by the California Supreme Court, there is substantial evidence of a fair

28 argument that it is at least reasonably possible those circumstances will have a significant effect
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