One year ago, a series of wildfires wrought an unprecedented level of destruction in Southern California, and many experts believe that fires of similar magnitude could strike again. In the year since the fires, government agencies have approved a variety of measures in hopes of reducing damage by future fires, but it does not appear that broad changes in land use planning are part of those fire-safe measures. The fires sparked the formation of numerous state, regional and local task forces and commissions, many of which have issued detailed reports and recommendations since firefighters doused the last hot spots in November 2003. For the most part, the follow-up reports have addressed firefighting and other emergency services. Building standards received some attention. Recommended changes to large-scale building patterns or planning practices, however, have not been part of the mix. At least two factors appear to be forcing planners into the background. First, there is no consensus on what steps planners could take. And, maybe more importantly, the marketplace is unlikely to accept drastic changes in how people build in rugged, scenic — and, yes, fire-prone — areas. The lack of a consensus might be a nod to pragmatism. Even the most drastic proposals — such as building moratoriums in mountainous areas clogged with unhealthy trees — meet with shrugs from firefighters. The ambivalence stems from the fact that so many dangerous areas are already developed. For example, the Lake Arrowhead area in San Bernardino County — where a huge tree die-off, a century of fire suppression and ongoing drought have created wickedly dangerous conditions — already has about 90,000 residents, not counting all of the people who own second homes there. Firefighters are focused on protecting people and structures that are already in harms way. “A moratorium,” San Bernardino County Supervisor Patti Aguiar told the , “probably made sense a long time ago, if you didn’t want anybody up there. But now, everybody’s already up there. It’s pretty darn late.” Although he views the situation a bit differently University of California, Riverside, earth sciences Professor Tom Scott agreed that Aguiar has a point. “If you already have five houses on a street, it won’t significantly alter the land use if you build two more houses,” Scott said. Then there are the considerations of civil rights and the public marketplace. A long-term moratorium could raise property rights issues. Drastic changes in planning and zoning — such as requiring very large lot sizes to limit building density, or mandating clustered development inside a wide fire break — would be difficult to sell to property owners and the general public. “Land values didn’t go down at Lake Arrowhead, even though almost the whole town burned down last year,” pointed out Richard Minnich, also a professor in UCR’s earth sciences department. “People don’t have long memories. They want to live in the woods with the birds and the bees.” Still, the marketplace itself might force some changes, and that is because insurers are growing wary of California’s fire hazard. Plus, some policymakers are questioning whether homeowners who live outside of fire hazard zones should continue to subsidize insurance rates for people who live in what is known as the “urban-wildland interface.” “If we start getting these catastrophic fires on a routine basis,” said Scott, “maybe people won’t be able to build in some of these places because they won’t be able to get insurance.” New Building Standards The magnitude of the 2003 fires in Southern California remains difficult to grasp. On October 21, 2003, the first fire ignited, beginning two weeks worth of 14 fires in San Diego, Riverside, San Bernardino, Los Angeles and Riverside counties. By the time firefighters had all of the blazes contained on November 4, the fires had killed 24 people and injured 246 others, destroyed 3,631 homes and scorched 1,150 square miles of forest, chaparral and grassland. Less than two months later, floods and mudslides in fire-ravaged Waterman Canyon north of the City of San Bernardino killed 16 people. Despite the death and devastation, there were slivers of hope. Ventura and Los Angeles counties combined counted the lost homes in the dozens — not in the hundreds — even though more than 200,000 acres burned. Limits on “rural sprawl,” and strict building and brush clearance standards were credited for keeping most structures safe (see , February 2004). Even San Diego County, which suffered about two-thirds of the property damage, saw much greater survivability of homes built after the county Board of Supervisors adopted tougher building standards in 1997. In the past year, building codes have continued to get stricter in many jurisdictions that were hit or threatened by the firestorms. “A lot of conversation has taken place,” said Kevin Crawford, fire chief in the City of Carlsbad and president of the San Diego County Fire Chiefs Association. “We have the ear in a way that we never had it before.” San Diego County, for example, upgraded roofing requirements, outlawed siding made of wood or other easily flammable material, mandated dual-glazed windows, and set new standards for gutters and exterior doors. In high-fire-risk areas, the county prohibited new wooden fences or patio covers. The City of San Diego, which had refused to ban wood shake roofs, took that step earlier this year. San Bernardino County has gone further. Earlier this year, the county amended its general plan fire hazard overlay maps and modified the development code. “I think we’ve gone a long way in beefing up our development requirements,’ said Michael Hays, director of San Bernardino County’s Land Use Services Department. The general plan amendment placed hazardous areas into one of three categories. Fire safety area 1 covers the San Bernardino Mountains and valley foothills, while area 2 takes in the mountain-desert interface on the mountains’ north side. Area 3, the most dangerous zone, is the urban-wildland interface on the south side of the mountains adjacent to the City of San Bernardino. Last year, fire swept into the city in that area. At the same time that it approved the general plan amendment, the county tightened the development code, including banning wood shake roofs. The most stringent requirements apply in area 3, where, for example, eaves must be enclosed by flame-retardant material. The county also limited development density in hilly areas and even prohibited all development on slopes of more than 30% in the foothills. The county is keeping fire safety in mind while it is updating the general plan, Hays said. “I think we have made a good attempt at it already,” he added. “We will certainly give it a more refined look during the general plan update process. But, believe it not, there is opposition to some of this.” Chief Crawford would believe it. “There is still much debate about how far codes and ordinances need to go,” Crawford said. “There is still the battle between the fire services and the building industry, and with the planners and engineers.” The Nature of Fire Whether the code changes will make a big difference in the event of a catastrophic fire is unclear. Even UCR’s Minnich, a skeptic regarding local fire-safe regulations, said that it was only “dumb luck” that a fire swept into San Diego’s Scripps Ranch neighborhood last year, burning about 300 houses. Instead, Minnich and others point to the need for different land and fire management strategies that involve dramatic reductions in the amount of “fuel” that comes in the form of dead trees and chaparral, overly dense forests and tall grasses. The Governor’s Blue Ribbon Fire Commission, which released a lengthy report this year, dealt at length with the problem of too much burnable material on both public and private lands. “Until the removal of thousands of acres of dead bark beetle infested trees and sound forest stewardship is achieved, Southern California and other forested areas of the state will continue to have hazardous standing fuel just waiting to become the next conflagration,” the governor’s commission reported. “Fuel reduction and fuel modification programs are essential to reducing the potential threat of major WUI fires.” Again, San Bernardino County might be a small step ahead of other jurisdictions. In 2002, the county began insisting that property owners remove dead trees and the county started placing liens on the real estate of recalcitrant landowners. Of course, new land and fire management strategies are far easier to recommend than to implement. Upon the release of the governor’s commission report, Chairman William Campbell, a former Republican state senator from Hacienda Heights, said environmental regulations must be relaxed to allow large-scale fuel reductions. Otherwise, Campbell said, “these tragedies are certain to repeat.” That recommendation drew a strong condemnation from environmentalists, who insisted that regulation does not prevent proper forest management. Better land and fire management would involve thinning trees, letting low-intensity fires burn even during summer months, and using cattle to graze on grasslands near urban areas, Minnich suggested. But Minnich, who has studied wildfire extensively in the West and in Mexico, blames the conundrum on a deep-seated mindset that can be seen in the face of Smokey Bear. Fire is simply part of the landscape, he said. There is no such thing as “fire prevention,” only fire postponement, he urged. “We have no more ability to control fires than we do any of the other natural occurrences — earthquakes, flood, tornadoes,” Minnich said. “It’s a ridiculous mindset.” As has been proven many times, the recommendations of one commission — even one tasked by the governor himself — do not mean change is on the way. The recommendations of the Governor’s Blue Ribbon Fire Commission resulted in the passage of five bills during the recently completed legislation session. With little explanation, the governor vetoed four of the bills. The bills that died on the governor’s desk would have required additional California Department of Forestry and Fire Protection (CDF) staffing, more fire engines and helicopters, and better local fire district reporting to the state fire marshal. The bill that did survive, AB 3065 (Kehoe), might be the one of most interest to planners. It requires CDF to review the safety elements of city and county general plans beginning in 2010.

A bill that would have required cities and counties to prepare economic impact reports for proposed big box stores that sell groceries received a veto from Gov. Arnold Schwarzenegger. During a flurry of activity in September, the governor also rejected a bill that would have created a pilot brownfield cleanup program and a measure making minor amendments to the California Environmental Quality Act. Schwarzenegger signed two other brownfield bills, as well as a number of measures endorsed by environmental groups, including a bill creating the Sierra Nevada Conservancy. Schwarzenegger’s rejection of the big box bill was expected. Organized labor supported the measure, SB 1056 by Sen. Richard Alarcon (D-Los Angeles). The bill would have required economic studies of stores that were proposed to have at least 130,000 square feet, with at least 10% of sales space devoted to nontaxable items. Alarcon and union allies directed the bill at Wal-Mart supercenters, which are stores of at least 200,000 square feet. Wal-Mart workers are not unionized, while most large grocery store chains have unions. Both labor and management at grocery store chains fear that supercenters will force existing supermarkets out of business. In his veto message, however, Schwarzenegger said the bill would “stifle market competition and expansion of employment.” “Local communities are already free to decide between rejecting or embracing any retail development,” Schwarzenegger said. “By requiring the approval of an economic impact report prior to approval of a development project that includes a ‘superstore retailer,’ this bill would create a system of costly hurdles that these retailers would need to overcome before opening a new facility in a city or county.” The Legislature passed three relatively significant brownfield bills this year, and the governor signed two of them. The measure that he rejected was SB 559 (Ortiz), which would have created a pilot project to streamline and coordinate the activities of local agencies, the Department of Toxic Substances Control and the Water Resources Control Board. Schwarzenegger said that while he appreciated the bill’s goal of better coordination among agencies, “this pilot project would create an unnecessary and redundant oversight program with significant costs. The California Environmental Protection Agency Site Designation Committee has already established much of what the author wants to demonstrate with her proposed pilot program.” The brownfield bills that Schwarzenegger did sign were AB 389 (Montañez) and SB 805 (Escutia). The Montañez bill was a compromise between developers and environmentalists. For developers, the bill reduces liability for landowners who had nothing to do with a site’s contamination. For environmentalists, the bill sets new rules in cases where additional contamination is found, and it requires regional water quality control boards to make their review processes more open to the public. Both the California Building Industry Association, and the Planning and Conservation League backed AB 389, although some environmental groups expressed doubts about the measure. The Escutia bill expands a provision in state law that permits a city to force cleanup of a contaminated site. The program was limited to infill sites of less than 5 acres with one owner. The new legislation eliminates the 5-acre restriction. The CEQA bill that the governor rejected was AB 3090 (Jerome Horton). The bill would have required the Governor’s Office of Planning and Research to amend CEQA Guidelines to reflect a 2001 state Supreme Court decision that said a city-sponsored ballot measure is not exempt from environmental review. Schwarzenegger said the most recent update of the Guidelines mentions the court case, , (2001) 25 Cal.4th 165. The governor signed two CEQA bills with greater implications. One measure, AB 2922 (Laird) permits the broader use of master environmental impact reports, and allows lead agencies to adopt mitigated negative declarations that tier off of a master EIR. The later provision is important because a 2002 court decision regarding the CEQA Guidelines suggested that only an EIR — and not a negative declaration — could tier off of a master EIR(see , January 2003). The other CEQA bill that Schwarzenegger signed was SB 1334 (Kuehl). It requires counties that determine that a project would result in the loss of oak woodlands to consider certain alternatives or mitigation measures. Probably the most significant piece of environmental legislation approved by the governor was AB 2600 by Assemblymen Tim Leslie (R-Tahoe City) and John Laird (D-Santa Cruz). The bill creates the Sierra Nevada Conservancy, a state agency that will have jurisdiction over about one-quarter of the territory in California, from just outside the City of Mojave to the Oregon border. During a signing ceremony on the banks of the Bear River, Schwarzenegger called AB 2600 “common sense legislation to preserve and protect our environment.” The new entity will not have authority to purchase land or easements, but it can provide funds to local agencies or nonprofit organizations for acquisitions. Goals for the new Conservancy include preserving “working landscapes” and boosting tourism. Sierra Nevada Alliance Executive Director Joan Clayburgh said, “For too long the region has not received adequate attention from the State of California … The new Conservancy would serve as a central roundtable for coordination and planning of conservation efforts throughout the Sierra Nevada and Cascade mountains, and would fund grants and projects across the region.” Two bills backed by advocates of housing element reform received Schwarzenegger’s signature. AB 2158 (Lowenthal) gives councils of government, cities and counties more say in determining regional housing needs allocations. Meanwhile, AB 2348 (Mullin) revises the criteria for potential development sites that can be counted toward meeting a local government’s fair share.

State legislation approved in 2001 permits a Southern California wholesale water agency to sell water directly to retail customers, the Second District Court of Appeal has ruled. The ruling was a victory for the Castaic Lake Water Agency over leaders of the Newhall County Water District and slow-growth advocates. The two sides are at war over the amount of water truly available to serve the Santa Clarita Valley in Los Angeles County (see , March 2004). The Legislature created the Castaic agency to acquire water and water rights, and to provide water at wholesale to the Santa Clarita Valley. In 1999, the agency approved a retail service agreement with the private Santa Clarita Water Company, which provided water service primarily in the City of Santa Clarita. A few weeks later, Castaic purchased all of the private company’s assets and shares. Four people — including Newhall County Water District Directors Lynne Plambeck and Joan Dunn, acting as individuals — filed a lawsuit challenging Castaic’s actions. A Los Angeles County Superior Court judge ruled for Castaic, but the Second District overturned that decision and sent the case back to the lower court. , (2001) 90 Cal.App.4th 987 (see , September 2001). Although the appellate court did not rule on the merits, the court said that if the water wholesaler merged with the private water company, it would violate Water Code § 12944.7, which created the Castaic agency. Less than two months after the Second District ruled, the Legislature approved and Gov. Davis signed AB 134 (Kelley). The measure amended Castaic’s enabling act to allow the agency to sell water at retail within a certain area, which, not coincidentally, matched the Santa Clarita Water Company’s service area. When the litigation returned to the Superior Court, Castaic’s four opponents maintained that the merger was still illegal under § 12944.7, subdivision (b). They argued that the statute permitted a retail sale by Castaic only via a contract with a company that was regulated by the Public Utilities Commission (PUC). The court agreed, finding that AB 134 actually imposed an additional hurdle to Castaic’s retail sale. The court ordered Castaic to stop selling water at retail. Castaic appealed, and this time the Second District sided with the agency. Castaic argued that the original provision in the enabling legislation that required a contract with a separate retailer subject to the PUC was irrelevant because of AB 134. The court agreed. “Newly enacted § 15.1 now authorizes the agency to sell water to the ultimate consumer within a specified geographic area ‘notwithstanding’ or the prerequisites to that authority in § 12944.7, subdivision (b), and the prohibition in § 15 of the agency enabling act,” Justice Richard Aldrich wrote for the unanimous three-judge panel. The more recently approved statute “necessarily controls,” he wrote. The intent of AB 134 was “to circumvent the hurdle to retail authority caused by the agency’s takeover of the water company,” Aldrich wrote. “Furthermore, the agency sponsored Assembly Bill 134 while it was embroiled in this litigation … We doubt the agency would have expended the time and resources to have the bill enacted merely to add another limitation to retail authority on top of § 12944.7, subdivision(b)’s, requirements.” The Case: , No. B161069, 04 C.D.O.S. 6840, 2004 DJDAR 9291. Filed July 29, 2004. The Lawyers: For Klajic: Jennifer Kilpatrick, (323) 852-1000. For Castaic: Barry Levy, Horvitz & Levy, (818) 995-0800.

Fifteen years ago this month, while the Giants and the A’s warmed up for Game 3 of the World Series at Candlestick Park, the Loma Prieta earthquake struck Northern California. Centered in the mountains between Santa Cruz and San Jose, the magnitude 7.1 temblor killed 62 people, the majority of whom were caught in the collapse of a freeway in Oakland. Less tragically, but maybe more worrisome, the earthquake cause a portion of the upper deck of the San Francisco-Oakland Bay Bridge to collapse. Caltrans put the Bay Bridge back together quickly, but follow-up studies soon identified hundreds of bridges across California that were vulnerable to collapse. Nearly all of the structures have been seismically upgraded or replaced since then, including three other toll bridges in the Bay Area, the Vincent Thomas Bridge in Los Angeles, and the San Diego-Coronado Bridge. The major exception is the eastern span of Bay Bridge —the very bridge that failed during the Loma Prieta earthquake. Although the current schedule calls for a new bridge to open in early 2011, even that date — more than two decades after the deadly earthquake — appears to be as squishy as the fill lining the bay. The Bay Bridge is the region’s workhorse, carrying about 280,000 vehicles per day. The plan is to retrofit the western span between Yerba Buena Island and San Francisco (work is mostly complete) and build an entirely new eastern bridge between the island and Oakland. Bay Area officials insisted on making the new bridge a “signature” structure. Engineers have designed a Self-Anchored Cable Suspension (SAS) bridge connecting to a “skyway” that reaches Oakland. The seismic upgrade project, however, has been problematic from the beginning. The latest round of troubles began in May, when Caltrans received bids for the single tower that is the hallmark of the proposed bridge. Actually, Caltrans received only one bid — for $1.4 billion using foreign steel, or $1.8 billion with domestic steel. Caltrans had estimated the contract to be worth $740 million. Immediately, Caltrans began re-examining project costs. In August, Caltrans issued a report the pegged the cost of a new eastern span at $5.1 billion — up from $2.6 billion only three years earlier and up from $1.3 billion in 1997. Bechtel Infrastructure Corporation, working for the Metropolitan Transportation Commission (MTC), corroborated Caltrans’ newest estimate. Moreover, Caltrans and Bechtel concluded that seeking new bids or changing the design would only delay the project by one to four years and save little, if any, money. The reasons for the quadrupling of estimated costs are myriad: A fancy bridge that is not easy to construct; poor original estimates by Caltrans, which omitted inflation and contingency factors; a rapid rise in materials cost; and industry consolidation. Meanwhile, the number of public agencies and officials willing to accept responsibility for the mess is nil. Caltrans and the Schwarzenegger administration blame the elaborate bridge design and factors beyond the government’s control. The MTC and Bay Area lawmakers point out that Caltrans has been in charge of the project since Day 1. “Fundamentally, it’s the full and complete responsibility of the state Department of Transportation, by law and by practice,” MTC spokesman Randy Rentschler said of the seismic project. Still, Rentschler conceded that MTC has been “heavily involved on the policy side.” In fact, Caltrans let MTC pick the design. Where the project is headed is uncertain. The single bid for the tower from a joint venture of American Bridge, Nippon Steel Bridge and Fluor Corporation was scheduled to expire on September 30 (a few days after ’s printing deadline). Because the state does not have enough money to let the contract, it was expected that the Schwarzenegger administration would ask for a bid extension to allow state lawmakers to develop a funding solution. “If there’s no funding plan in place for that tower, we can’t award the contract,” said Caltrans spokesman David Anderson. But, he added, “It wouldn’t be financially sound to rebid the contract.” While an extension of the bid may be the administration’s preferred alternative, however, it is anything but a sure bet that the bridge builders will stick to the price they quoted in May, especially considering the continuing increase in steel prices. When Caltrans published its most recent report, Gov. Schwarzenegger essentially declared the problem to be the Bay Area’s. He proposed giving the project to the Bay Area Toll Authority (an arm of MTC) and letting that agency siphon funds from other regional transportation projects to pay for the bridge cost overruns. The governor’s proposal also called for a regional ballot measure that would ask voters to shift one-third of the current $3 toll on Bay Area bridges from other transportation projects to the seismic work. Schwarzenegger even tried to stir regional rivalries in an effort to win Southern California lawmakers’ support. The MTC and Bay Area legislators responded in the final week of the legislative session with a stop-gap measure that would have authorized the Toll Authority to provide financing in order to raise enough cash for Caltrans to let the contract. However, the Legislature adjourned on August 28 without approving any fiscal plan. The governor’s approach infuriated Bay Area officials. Their ire rose further when Business, Transportation and Housing Secretary Sunne Wright McPeak said that the Legislature’s failure to adopt a long-term financing strategy meant “construction will not go forward.” New state Senate President Pro Tem Don Perata (D-Oakland) told the , “We have always been willing and continue to be willing to accept our fair share of the responsibility. We’ve always paid half . But we can’t pay half when Caltrans can’t control costs. In mid-September, the California Transportation Commission reviewed the situation but offered no solution. “Until the Legislature comes back in session, there really is no venue to figure out how to raise the money,” the MTC’s Rentschler said. In the meantime, MTC has urged Caltrans to award the contract. Bay Area officials offer Bechtel’s conclusion as support. “Caltrans’ analysis indicates that if achieving seismic safety for the motoring public is the primary objective, awarding the current bid is the most effective option,” Bechtel concluded. “Further, Caltrans’ comparative evaluation indicates that there appears to be little opportunity for significant cost savings by rebidding the current design or by redesigning the current project to a cable-stayed system bridge. The review of Caltrans’ comparative assessment of these options and associated assumptions indicates that Caltrans’ conclusions are reasonable.” Contacts: Metropolitan Transportation Commission: www.mtc.ca.gov Caltrans tollbridge seismic safety retrofit program report: www.caltrans.ca.gov/tollbridgeretrofitreport.pdf

Contra Costa County Extension of half-percent tax, from 2009 to 2034 Expected revenue: $2 billion Distribution: Transit, 31.7% Highways, 26% Local subventions (based on population and road miles), 20.1% Roads, 4.8% Other (livable communities, transportation for kids, congestion management, etc.), 16.9% Key projects: Fourth bore for Caldecott Tunnel on Highway 24; BART extensions Marin County New half-percent tax, from 2005 to 2025 Expected revenue: $331 million Distribution: Transit, 55% Local subventions, 26.5% School congestion and access, 11% Highways, 7.5% Key projects: Improved bus service, bikeways, sidewalks and pathways; carpool lanes on Highway 101 in San Rafael Sacramento County Extension of half-percent tax, from 2009 to 2039 Expected revenue: $4.7 billion Distribution: Transit, 38.25% Local subventions, 38% (three-fourths by population, one-fourth by road miles) Highways, 12% Other (bicycle, pedestrian and streetscape projects, senior and disabled programs, smart growth, etc.), 11.75% Key projects: New road connecting U.S. 50, Highway 99 and Interstate 5; expanded light and commuter rail San Bernardino County Extension of half-percent tax, from 2010 to 2040 Expected revenue: $6 billion Distribution: Highways and interchanges, 40% Roads, 20% Local subventions, 20% Transit, 10% Senior and disabled programs: 8% Traffic management system: 2% Key projects: I-10, I-215 and Cajon Pass widening; numerous freeway interchanges San Diego County Extension of half-percent tax, from 2008 to 2048 Expected revenue: $14 billion Distribution: Highways, 42.4% Local subventions, 33% (two-thirds by population, one-third by road miles) Transit, 16.5% Congestion relief, 8.1% Key projects: Corridor improvements (carpool and managed lanes, bus rapid transit, rail, etc.) on I-5, I-15 and I-805 corridors San Mateo County Extension of half-percent tax, from 2009 to 2034 Expected revenue: $1.5 billion Distribution: Transit, 30% Highways, 27.5% Local subventions, 22.5% Rail grade separations, 15% Bike and pedestrian facilities, 3% Alternative congestion relief, 1% Key projects: Improved Caltrain service; improvements to corridors for I-280 and Highways 92 and 101 Santa Cruz County New half-percent sales tax, from 2005 to 2035 Expected revenue: $577 million Distribution: Highways, 66.6% Local subventions, 19.5% Transit, 5% Other (pedestrian and bike facilities, etc.), 8.9% Key project: Widening Highway 1 (would receive all money designated for highways) Solano County New half-percent, tax from 2005 to 2035 Expected revenue: $1.4 billion Distribution: Highways, 47% Transit, 25% Roads, 15% Local subventions, 10% Safety projects, 2% Key projects: I-80/I-680/Highway 12 interchange enhancement; freeway corridor improvements Sonoma County New quarter-percent tax, from 2005 to 2025 Estimated revenue: $470 million Distribution: Highways, 40% Roads, 40% Transit, 15% Bicycle routes, 4% Key projects: Widening Highway 101 (would receive all money designated for highways); improved freeway interchanges Ventura County New half-cent tax from 2005 to 2035 Estimated revenue: $1.5 billion Distribution: Highways and roads, 40% Local subventions (based on population), 40% Transit, 20% Key projects: Improvements to Highways 23, 101, 118 and 126

A complex deal that would prevent large-scale development of the Hearst Ranch on California’s central coast is nearly complete. But the deal that will preserve the 82,000-acre ranch does not satisfy many members of an environmental community that has fought Hearst Ranch development plans for decades. While environmental groups dislike the deal, there is wide support for it among ranchers, farmland advocates, area residents, and San Luis Obispo County officials and business leaders. With the state Coastal Conservancy’s approval providing the last major hurdle for the $95 million deal, people rallied on both sides during a 6 1/2-hour public hearing on September 15. When the Conservancy’s board voted 6-0 to approve its part of the agreement, scores of people erupted with cheers, hugs and tears of joy — while people on the other side shook their heads and quickly fled the room. The deal appears to conclude years of sporadic fighting over Hearst Ranch. During the 1960s, a new town of 60,000 people was contemplated. In the early 1980s, San Luis Obispo County and the California Coastal Commission approved a local coastal plan that allowed development of several large resorts and two golf courses. While the new town was probably a pipe dream, the golf resort proposals were serious. Finally, in 1997, the county modified the coastal plan to allow one golf course, four hotels with a total of 650 rooms, several restaurants and shops, and a convention center. During an historic, four-day meeting in January 1998, the Coastal Commission unanimously rejected the plan (see , January and February, 1998). Hearst Corporation representatives, led by ranch manager Stephen Hearst, then began talking with land conservancies and state representatives. A tentative deal was struck in 2003, and Resources Agency officials endorsed the proposal earlier this year. Although the deal is complicated and includes numerous parties, the basic question for the Coastal Conservancy and other state officials was simple: Are Californians getting their money’s worth? “My instinct is to always want more,” said Conservancy board member Douglas Bosco, a former Democratic congressman from Humboldt County. “But this is a deal. It is a deal that’s been worked out over a long period of time. … I think we can’t be in the position of delaying it further or changing it.” Delays and changes were exactly what the deals detractors sought. Among the members of that camp were the California Coastal Commission, the Sierra Club, the Natural Resources Defense Council, the California League of Conservation Voters, Surfrider Foundation and some state lawmakers. “I’m concerned about what is going to be conserved and how,” said state Sen. Wesley Chesbro (D-Arcata), whose request for an up-front inventory of natural resources was rejected by the Coastal Conservancy. “I want to make sure we know what the taxpayers are buying.” Besides the Schwarzenegger administration, supporters included the California State Parks Foundation, numerous local officials and residents, individual Sierra Club members, and different members of the state Legislature. “On balance, this is a tremendous opportunity,” said Pete McCloskey, a former maverick Republican congressman and co-founder of the League of Conservation Voters. That has been the message from supporters since the release of the deal’s details in July: It is an historic — and, possibly, fleeting — opportunity to preserve the famous ranch and stave off future fights over development. Under the deal, Hearst will get $80 million, plus $15 million worth of state tax credits. Although the deal contains no development entitlements, it does permit Hearst to pursue development of 27 houses on 5-acre lots (with larger buffer zones), 15 units of employee housing, and a 100-room hotel in Old San Simeon Village. Hearst also would maintain ownership of five miles of coastline, including the highly treasured Ragged Point, San Simeon Point and Pico Cove. The state Department of Parks and Recreation will get 949 acres west of Highway 1 (13 miles of coastline), and Caltrans will get 518 acres to allow the agency to move the highway inland. Additionally, a conservation easement will be placed on about 80,000 acres east of the highway. “As far as I know, it’s the monster of all transactions in California,” Alvin Sokolow, a professor at University of California, Davis, said of the conservation easement. “I don’t think anything can match it for maintaining ranchland.” At its September meeting, the Coastal Conservancy approved $34.5 million for the deal. The Wildlife Conservation Board approved a like amount in August. That money comes from four different resource bonds — Propositions 50, 40, 12 and 117. Caltrans has received $23 million in federal funds for the project. Parks and Recreation is also supposed to put in $3 million. Of that $95 million total, $15 million would be in the form of tax credits through the Natural Heritage Preservation Tax Credit program. Hearst also will get a $140 million tax write-off — the difference between what the state is paying and the $235 million appraised value. Before the state disburses the funds, the Wildlife Conservation Board must approve a baseline conditions report and monitoring program, and review a management plan, according to Al Wright, executive director of the wildlife board. The baseline conditions report, however, will not be made available to the public. Under the deal, the state will grant funds to the American Land Conservancy (ALC), which will then purchase the conservation easement from Hearst. The ALC will then convey the easement to the California Rangeland Trust, a fairly new offshoot of the California Cattlemen’s Association, which will oversee the easement. The property would continue to serve as a cattle ranch, although Hearst could cultivate up to 3,000 acres. The conflict centers on public access to the coast and to the 80,000-acre backcountry, the provision of public facilities along the coast and ensuring that natural resources are protected. When the Coastal Conservancy considered the various agreements that comprise the deal, board member Mike Reilly (who is also chairman of the Coastal Commission and a Sonoma County supervisor) repeatedly sought to enhance public access, and to strengthen state oversight. But he was repeatedly thwarted by board member Karen Scarborough, who is undersecretary of the Resources Agency. In the end, the Conservancy board made only two fairly minor amendments to the agreements, and even Reilly voted for the package. Detractors said that public access limitations on coastal lands that Hearst will retain and on new public lands were unacceptable. Under the deal, only 100 people per day may visit San Simeon Point. Only 20 people per month — and only on guided tours — may visit Ragged Point and Pico Cove. Although all of those scenic vistas are private property, Hearst has not limited public access to them in the past. Furthermore, the deal prohibits nighttime use of the new public lands, and a new scenic easement along Highway 1 could limit the construction of public facilities. People also complained that five miles of the California Coastal Trail would run along the highway. “Hearst has essentially retained the prime parcels along the coast … and the Coastal Trail bypasses them,” said Susan Jordan, who heads the California Coastal Protection Network. Reilly sought to give Parks and Recreation the authority to determine the location of the Coastal Trail through Hearst’s lands — a proposal backed by Sen. Chesbro, who authored legislation to create the pathway. Reilly called the trail’s location a “litmus test” for the Conservancy, but the proposal died on a 3-3 vote, with Scarborough, Bosco and Patrick Kemp, sitting in for Finance Director Donna Arduin, unwilling to give Park and Recreation this authority. (The board’s seventh member, Chairman Paul Morabito, was absent.) Reilly also sought more direct state oversight until development rights have been extinguished on all 271 parcels that Hearst has established during recent years with certificates of compliance. As the deal stands, Hearst would retire the development rights on a prorated basis as the houses allowed by the deal are developed. Reilly also sought to give the state more say in potential water transfers. But during the Conservancy’s marathon meeting, Scarborough emerged as the deal’s champion. She said it was acceptable for the Rangeland Trust to serve as the enforcement authority because Hearst might not trust the state. And both Scarborough and Rangeland Trust Executive Director Nita Vail said Hearst would not permit additional restrictions on water transfers. Vail and other deal supporters repeatedly noted that the “pristine” lands that environmentalists want to protect have been owned and managed by Hearst for generations, and there is no reason to believe the level of stewardship will diminish. “We really believe it will protect this magnificent landscape in perpetuity,” Vail said. A number of deal supporters warned the Conservancy board not to delay or condition the deal because Hearst was unlikely to accept amendments — an argument rejected by deal detractors. “I’ve never once seen a landowner or developer walk away from a deal because they were pushed,” said Linda Krop, chief counsel of the Environmental Defense Center. Krop and others were distressed that they were not more successful before the Coastal Conservancy and Wildlife Conservation Board. “It was very clear that the administration was supporting Hearst against the public interest,” Krop charged. She added, “I really do appreciate the extinguishment of the development rights on the west side . I just wish we didn’t lose the public access.” The next stop for the deal is a meeting this month of the state Public Works Board, which must agree to accept the 949 acres for Parks and Recreation. Approval is expected to be routine. Contacts: Linda Krop, Environmental Defense Center, (805) 963-1622. Nita Vail, California Rangeland Trust, (916) 444-2096. Coastal Conservancy: www.coastalconservancy.ca.gov

Kern County is moving forward on a new application process for nearly 30 new dairies and 214,000 cows. Although dairy supporters argue that the dairies would be good for the local economy, the cows bring with them tons of worry over public health, air quality, ground and surface water quality, and quality of life. Kern County already has 55 dairies and 297,000 dairy cows, and public concern about the industry’s environmental impacts has grown in recent years. In late August, the Board of Supervisors voted 3-2 to reject a two-year moratorium and adopt a plan to examine the implications of adding the new cows. Although the proposed moratorium was designed to give the county sufficient time for reviewing applications, the process the board approved could have a similar effect. It is widely understood that there is no guarantee that all of the proposed dairies and cows will get approved, said Ted James, Kern County planning director. The approved plan separates the proposed dairies into two groups, each with its own environmental review. The first group of eight dairies, owing to their advanced preparation, would be included in an environmental impact report that would serve as a program and a project-level environmental review. All others would be lumped into a second project-level EIR. Under the board’s decision, the two studies may proceed concurrently, although the second EIR must wait for programmatic questions to be resolved in the first document. In June, a flood of dairy applications began pouring into Kern County, largely in anticipation of a moratorium or other potential limits. The applicants’ intent was simply to hold their place in line. In one month’s time, the county received applications for 13 dairies and 114,000 cows. Since then, the number has grown to 29 applications. Where are these cows coming from? For years, San Bernardino County was the largest dairy county in the state, with the Chino-based San Bernardino County Dairy Preserve’s 400 dairies. Because of the dairies’ conflicts with the rapidly urbanizing area, the county opted to phase out the preserve (see , June 2002, March 1999). These dairies have to go somewhere, and many of them have chosen the Southern San Joaquin Valley. Tulare and Kings counties, just north of Kern County, have already completed extensive studies of dairies’ cumulative impacts and tightened dairy development regulations. One of the biggest dots on Kern County’s dairy map is Wasco. All eight of the applicants in the first EIR, along with their 76,000 cows, have proposed sites within three miles of the small city about 25 miles northwest of Bakersfield. In the past in Kern County, only dairies that were proposed within three miles of urban areas were subject to environmental review. In February 2000, largely in response to the controversial Borba Dairy application for a 24,000-cow operation, the county formed a Dairy Technical Advisory Committee. What followed were new restrictions on dairy siting, a California Environmental Quality Act lawsuit, and ultimately a court decision that mandated EIRs and conditional use permits. Around that same time, the Vanderham Dairy was proposed within two miles of the City of Shafter. Wasco and Shafter moved to establish buffers but dropped their efforts to get behind a more comprehensive approach from state Senator Dean Florez (D-Shafter). However, Florez’s bill, SB 707, failed. So, in the November election, Wasco will vote on an advisory measure for a 10-mile buffer. The intent is to formalize the public’s concern and force the county to take the city seriously, said Wasco City Councilman Larry Pearson. Kern County Supervisor Ray Watson, however, said Wasco needs to show that its proposed buffer zone is not arbitrary. He said that Wasco has not proven 10 miles is necessary to protect people from dairies’ impacts and that the Board of Supervisors would be unlikely to impose such a buffer. But Pearson contended that although the idea of a large buffer may not be politically viable right now, the county might take the proposal more seriously come January, when Michael Rubio replaces Supervisor Steve Parra, a buffer opponent. Wasco officials and dairy opponents are concerned about the ability of “factory farms” to disperse their waste effectively. Typically, dairies spread manure over acres of cropland as fertilizer. When done properly, this technique provides soil nutrients without harming groundwater quality. However, some observers contend that without an adequate dairy inspection plan and proper environmental planning, dairies overload the land and contaminate groundwater with nitrates. The more visible problem involves dairies’ cumulative impact on air quality in the valley. “The county is already classified ‘serious non attaining’ in regards to particulate matter, and ‘extreme non-attaining’ in regards to ozone,’” said Seyed Sadredin, executive officer for the San Joaquin Valley Air Pollution Control District. Dairies produce by-products that increase both particulate matter and ozone problems. Other dairy by-products, such as odors and flies, affect the health and comfort of nearby residents. Caroline Farrell, an attorney for the Center for Race, Poverty, and the Environment, said factory farms are not like typical agriculture and ought to be regulated more stringently. Of course, not everyone sees things from the same perspective. David Albers, an attorney who represents many local dairies, pointed to the construction, jobs, tax base, and other benefits of dairies. Construction of these facilities costs about $3,000 per cow, and dairies require one year-round employee per hundred head, he said. The industry is skeptical of Kern County’s new environmental review process. Not only does it have to relinquish control over the process to the county, the industry must pay all EIR costs aside from $275,000 that the State Water Resource Control Board granted. Unlike Planning Director James, Albers believes the process will take longer than 12 to 18 months and that it is possible the county may not issue permits for up to five years. However, dairy representatives said the process is better than a moratorium. Paul Martin, director of environmental services for the Western United Dairymen, said that a moratorium could have delayed even existing dairies’ plans for expansion. At least all applications are being accepted and will be processed concurrently, he said. Martin said the dairy industry wants a clear set of rules and an end to the uncertainty. Contacts: Ted James, Kern County, (661) 862-8616. Caroline Farrell, Center on Race, Poverty, and the Environment, (661) 720-9140. Seyed Sadredin, San Joaquin Valley Air Pollution Control District, (661) 326-6900. David Albers, Albers, Barnes & Kohler, (661) 716-3900. Paul Martin, Western United Dairymen, (209) 527-6453. Ray Watson, Kern County supervisor, (661) 868-3601. Larry Pearson, Wasco city councilman, (661) 758-7200.

Measures that would impose sales taxes for transportation dominate local ballots around California this November. Five counties are attempting to get voter approval for local-option sales taxes for the first time, while another five counties are seeking extensions of existing taxes. Seeking their first sales taxes for transportation are Ventura, Sonoma, Solano, Santa Cruz and Marin counties. With a population of 800,000, Ventura County is the most populous county in the state that does not have a local-option sales tax for transportation. Trying for extensions of existing half-percent taxes are San Mateo, San Diego, San Bernardino, Sacramento and Contra Costa counties. Although voters in all of those counties approved sales taxes during the late 1980s, all measures passed with only majority votes, ranging from 62% in San Mateo County to 52% in Sacramento County. In 1995, the state Supreme Court made clear in , 11 Cal.4th 220 (see , November 1995) that these special taxes require two-thirds voter approval. Everyone involved says that winning two-thirds voter approval is challenging for proponents. “It’s terribly difficult,” said San Bernardino Association of Governments (SANBAG) Executive Director Norm King. “In every county, you get 20% who say no, period. But our polling indicates we have a chance.” During the last 20 years, there have been only 44 elections in California for transportation-related, local-option sales taxes, according to the Self-Help Counties Coalition. About half of those elections were from 1988 through 1992. Because some of the approved sales taxes are nearing their sunset dates, and because local revenues are becoming a larger part of transportation funding formulas, more measures are appearing on ballots these days than during most of the 1990s. Voters decided four measures in 2000 and five measures during 2002. Counties are being forced to rely more heavily on sales taxes because traditional funding for highways, streets and roads, and transit is dwindling. Nowadays, a county should expect to pay at least half the cost of a freeway project, whereas 25 years ago the state and federal governments would have paid about 80% of the cost, with most of that revenue coming from fuel taxes. “The sales tax is becoming a more and more important source of revenue for transportation improvements because the gasoline tax is drying up,” King said. Martin Wachs, director of the Institute of Transportation Studies at University of California, Berkeley, said the growing emphasis on sales taxes for roads is part of a larger devolution of policy to local levels of government. “There has been no substantial increase in state or federal fuel taxes in more than a decade,” Wachs said. “There is a shift of fiscal responsibility — and it’s not happening in just transportation, it’s happening in all sectors — to local governments.” This downshifting of responsibility is almost a policy by default. Neither the Legislature nor any administration has announced a new policy or change in direction. Instead, elected officials at the state level have failed to recognize the 100-year history and importance of user fees for funding transportation, Wachs said. Additionally, term-limited lawmakers, who often take a short-term view of things, increasingly refuse to raise taxes on their watch, he said. So, with vehicles becoming more fuel efficient while the fuel tax remains the same, the result is less tax revenue (or user fees) per mile driven. Compounding the situation in recent years has been unprecedented use of fuel tax revenue for general fund spending. Both the Davis and Schwarzenegger administrations have raided the state highway account, which had previously been held inviolate. Additionally, both administrations and the Legislature have suspended Proposition 42, the measure approved by voters in 2002 that calls for the 6% sales tax on gasoline to be used for pavement and transit. columnist Dan Walters recently summed up the situation: In the 2004-05 fiscal year, “the state will take an additional $1.2 billion from the gasoline sales tax while repaying $1.4 billion to various highway accounts that had been diverted previously, almost all of which would originate in payments from Indian gambling casinos. In other words, slightly improving transportation financing is now dependent on Californians losing more money after driving to casinos.” Sarah West, executive director of the Self-Help Counties Coalition, said that there is not enough money left in state transportation accounts to patch chuckholes. “While people talk about the transportation shut down of the Jerry Brown years, this is as bad and could get worse,” West said. “Any county that wants to actually do anything has to show some independent revenue stream, and the sales tax is the most flexible, effective way to go.” Thus, the burden shifts to local governments. “It’s pretty much a national phenomenon, although, as usual, it’s more extreme in California,” Wachs said. Also more extreme is the two-thirds vote threshold, which few other places have. Since the Guardino ruling, transportation sales taxes have passed only in Santa Clara, San Francisco, Alameda and Riverside counties. Meanwhile, eight counties — including some that are trying again this year — have failed to cross the two-thirds hurdle. Those entities that have gained two-thirds support for sales tax measures did so, in part, by presenting unified fronts. Nearly all elected officials and many business groups endorsed the measures. In Alameda County, which has more Sierra Club members than any county in the United States, officials made sure they had the environmental group’s support for a 2000 ballot measure. Not coincidentally, the transit-heavy measure received 80% of the vote — compared with only 58% support two years earlier for a different transportation sales tax measure. In several counties this year, support for sales tax measures is not rock solid. In Ventura County, the half-percent transportation sales tax is on the same ballot as a quarter-percent sales tax for open space acquisitions. Having voters decide on somewhat conflicting measures (some of the open space tax’s strongest supporters oppose the transportation tax) threatens to doom both measures. In Santa Cruz County, about the only thing more unpopular than growth is highway construction. With two-thirds of the money from the Measure J sales tax earmarked for enhancing Highway 1 from Santa Cruz to Watsonville, the election is essentially a referendum on a wider freeway. Opponents, who include the Sierra Club, call the highway plan “a 1950s-style attempt to solve a 21st century problem.” In Sacramento and Contra Costa counties, conflicts over how to spend the sales tax revenue have divided elected officials and interest groups. But those conflicts have been minor compared with the political and legal battles over San Diego County’s Proposition A. The San Diego County Board of Supervisors voted 3-2 to oppose the extension of the half-percent sales tax because they argue the “TransNet” spending plan does include enough money for highways and rural roads. In September, Supervisors Dianne Jacob and Pam Slater-Price, as well as radio personality and former San Diego Mayor Roger Hedgecock, successfully defended their ballot argument against Proposition A in court. At the same time, slow-growth advocates and some environmentalists are opposing the tax, saying that it encourages growth and lets developers off too easily. San Diego County, like the other counties seeking a tax renewal, is years away from having its sales tax override expire. But transportation experts say that getting early approval of an extension is necessary for agencies to continue delivering projects. Older measures are mostly paying off bonds that funded already completed projects, West said. By gaining approval to extend the taxes years in advance, officials can move forward with the long planning and environmental review processes required of new projects, she said. “To the voters, it’s a seamless process. The tax never lapses and the projects keep rolling,” she said. “Transportation projects,” said SANBAG’s King, “need a lot of time to get ready for construction. One advantage for going early is that you know you’ll have funds, and you can also borrow ahead.” The success rate of transportation sales taxes in November is likely to help determine how many other counties go the same route in the near future. Napa and Monterey counties came close to putting measures on this year’s ballot, San Joaquin County is looking toward 2006, and Marin and Sonoma counties have discussed a bi-county measure to fund commuter rail. Contacts: Sarah West, Self-Help Counties Coalition, (916) 442-7195. Norm King, San Bernardino County Association of Governments, (909) 884-8276. Martin Wachs, Institute for Transportation Studies at UC Berkeley, (510) 642-3585. Sonoma County Transportation Authority: www.co.sonoma.ca.us/scta Ventura County Transportation Commission: www.goventura.org Solano Transportation Improvement Authority: www.sta.dst.ca.us/stia

A state appellate court has rejected the City of Malibu’s argument that the state Legislature could not require the California Coastal Commission to adopt a local coastal program (LCP) for Malibu. The court also ruled that the Coastal Commission-prepared LCP is not subject to a local voter referendum. The court showed little patience with the city, stating that “Malibu stood head and shoulders above other entities in the burden it placed on the Commission.” The Coastal Act required all cities and counties with land in the coastal zone to adopt LCPs many years ago, but some jurisdictions — including Malibu, which incorporated in 1991 — have never adopted a plan. When a jurisdiction lacks an LCP, the Coastal Commission must make nearly all land use decisions within the jurisdiction’s coastal zone. All of Malibu lies within the coastal zone. Over the years, the Commission has commonly had to devote one full day every month only to applications from Malibu. From 1997 to 1999, the Commission received 976 applications from Malibu, far more than from any other city or county. Weary of having to conduct “Malibu days,” the Commission sponsored state legislation in 2000 (AB 988 – Hertzberg) that required the Commission to write an LCP for Malibu. The successful bill amended the Coastal Act. In 2001, after years of intense battles and apparently spurred by AB 988, the city adopted an LCP. However, the Commission declined to certify the plan because of the state legislation. A year later, the Commission adopted an LCP for Malibu. By October 2002, opponents of the Commission’s plan had gathered enough signatures to force a local referendum onto the ballot. With the referendum pending, the City Council declared the Commission’s plan invalid and said the Commission should continue to process development applications. The Commission responded that the LCP was in effect and that the city should use the LCP to process applications. The standoff has prevented the issuance of any coastal permits in Malibu for two years. Of course, the city and the Commission went to court. Los Angeles County Superior Court Judge Alan Goodman ruled for the Commission, ordering Malibu to process applications and prohibiting a referendum. The city appealed, and a three-judge panel of the Second District Court of Appeal, Division Eight, upheld the lower court. On appeal, Malibu argued that AB 988 was unconstitutional special legislation that, with no rational basis, singled out the city. Many other coastal cities have not adopted LCPs, Malibu noted. The Second District rejected this argument because of the extraordinary burden Malibu had placed on the Commission. Similar sized and even larger cities generated far fewer applications for the Commission to weigh, the court pointed out. “Contrary to Malibu’s contention, the Legislature was entitled to select Malibu from among cities that had not implemented an LCP because the state is entitled to solve a problem incrementally, starting with the worst offenders first,” Justice Laurence Rubin wrote for the court. The city further argued that the state could not pre-empt local land use control and that the Commission is an administrative agency that may not exercise unfettered legislative authority. As for the pre-emption argument, the court ruled that the state may pre-empt local regulation in matters of statewide concern. Citing , (1984) 36 Cal.3d 561, 571, Rubin wrote, “There is ‘no doubt that the Coastal Act is an attempt to deal with coastal land use on a statewide basis.’” As for the Commission’s legislative authority, the court found that “the Coastal Act provides sufficient guidance to the Commission.” The court then turned to the question of referendum. Malibu argued that the LCP enacted local laws, to which the citizens’ right to referendum applied. The court, however, said that the City Council’s failure to act had cost the citizens’ their right. According to the court, The Legislature may “withdraw a local community’s right of referendum” in at least two ways: By stating it intends to pre-empt the discretion of the local legislative body, or by delegating legislative power “exclusively to a local governing body as to indicate its intent to preclude the citizens’ otherwise coextensive right of referendum.” Both of those circumstances were present in the Malibu case, the court determined. The legislation required the Commission-prepared LCP to take effect immediately, permitting no time for a referendum. And, the legislation assigned the power to enact the LCP solely to the Commission. Added Justice Rubin, “Good governance cannot permit local voters to override a state decision with a local referendum … to permit voters to overturn state enactments would upend our governmental structure and invite chaos.” If Malibu voters want change, they should have the City Council petition the Commission for amendments to the LCP, or even lobby the Legislature to regain power to write a new plan, the court suggested. Although both of those things may eventually happen, it appeared the city’s first move would be to ask the state Supreme Court to review the case. The Case: , No. B168229, 04 C.D.O.S. 7805, 2004 DJDAR 10519. Filed August 23, 2004. The Lawyers: For the city: Christi Hogin, Jenkins & Hogin, (310) 643-8448. For the Commission: John Saurenman, deputy attorney general, (213) 897-2702.

In a ruling with potential implications for development projects impacting wetlands, streams and lakes subject to federal jurisdiction, the Ninth U.S. Circuit Court of Appeals has upheld an injunction against a development in suburban Phoenix that environmentalists challenged based on the Clean Water Act. Although the court did not rule on the merits, the court did indicate that the U.S. Army Corps of Engineers needed to consider more of the 600-acre subdivision than simply the 66 small locations, totaling 7.5 acres, where development would alter seasonal streams. The project at issue is a proposed 794-lot, single-family, gated subdivision on 608 acres of desert. The site is an alluvial fan with 31.3 acres of braided washes that run all across the land. Because the washes carry water during periods of heavy rain, the Corps of Engineers asserted its jurisdiction. The developer, 56th & Lone Mountain, LLC, applied for a § 404 permit under the Clean Water Act to permit the filling of 7.5 acres of waterways. The developer identified 66 sites that would be filled for road and utility crossings, building pads, flood control and other reasons. Despite the opposition of the Environmental Protection Agency (EPA) and the U.S. Fish and Wildlife Service (FWS), both of which said the site might provide habitat for the endangered ferruginous pygmy owl, the Corps of Engineers issued the permit. An environmental group called Save Our Sonoran (SOS) sued, alleging violations of the Clean Water Act and the National Environmental Policy Act. At the group’s request, District Court Judge Frederick Martone granted a temporary restraining order, and then a preliminary injunction to halt the project while litigation proceeded. Judge Martone concluded that SOS had raised serious questions. Although the washes amounted to only 5% of the development site, he likened them to capillaries. “It is difficult to deal with tissue without dealing with capillaries, and difficult to deal with capillaries without dealing with tissue,” Martone wrote. When 56th and Lone Mountain continued construction anyway, Martone made clear that development must cease until a hearing on the merits could be conducted. The developer then appealed the court orders, but a three-judge panel of the Ninth Circuit upheld Judge Martone. The test for a preliminary injunction includes a sliding scale “in which the required degree of irreparable harm increases as the probability of success decreases,” the court said, citing , 154 F3d 1097, 1100 (9th Circuit 1998). “ he district court made the determinations of hardship based on its factual findings and balanced the hardships appropriately,” the Ninth Circuit ruled. An appellate court will overturn a preliminary injunction only if it finds that the lower court abused its discretion. That was not the case here. “ he district court properly observed that once the desert is disturbed, it can never be restored. Thus, the court concluded, the plaintiffs had adequately demonstrated the possibility of irreparable harm,” Judge Sidney Thomas wrote for the Ninth Circuit. “The reasoning and conclusion are consistent with controlling precedent.” The developer argued that the district court erred by considering the 31.3 acres of washes, rather than only the 66 permit sites. But the Ninth Circuit ruled that a developer’s application does not determine the extent of the Corps of Engineers’ jurisdiction. “ t is the impact on jurisdictional waters that determines the scope of the Corps’ responsibility, not the constructs of the developer,” Thomas wrote. “Lone Mountain’s narrow jurisdictional interpretation would defeat the purpose of the mandate to regulate the pollutants that flow into the nation’s waterways.” “Specifically,” Thomas continued, “the district court concluded that there were serious questions as to whether the Corps had correctly confined its jurisdiction to the 7.5 acres that were the subject of the dredge and fill permit applications. It is significant at the onset to recall that two federal agencies, the EPA and the FWS — not the usual suspects in opposing the action of a federal agency — disagreed with the acreage limitations set forth in the permit applications and thus with the Corps’ interpretation of its jurisdiction.” Considering that the washes “run through the property like lines run through graph paper,” the Corps’ jurisdiction could be extensive, the court noted. Even the Corps’ own environmental assessment concluded that denial of the § 404 permit would prevent the proposed development. After upholding the injunction, the Ninth Circuit returned the case to the lower court for further proceedings. The Case: , No. 02-16156, 04 C.D.O.S. 7882, 2004 DJDAR 10664. Filed August 26, 2004. The Lawyers: For SOS: Myron Scott, (480) 968-2179. For the developer: Jay Shapiro, Fennemore Craig, (602) 916-5000.

An amendment to a local coastal plan is not subject to the California Environmental Quality Act, even if the local agency adopts an environmental impact report for the amendment, the Second District Court of Appeal has ruled. Adoption of, and amendments to, a local coastal plan (LCP) are exempt from CEQA because the Coastal Commission — which has ultimate authority over LCPs — has an environmental review process that is functionally equivalent to CEQA. The fact that Santa Barbara County adopted an EIR under CEQA for a proposed LCP amendment does not invalidate the statutory exemption, the court ruled. In 1982, the Coastal Commission certified Santa Barbara County’s LCP for territory in the coastal zone. Among other things, the plan called for discretionary approval of greenhouse developments of at least 20,000 square feet in the Carpinteria Valley, between Santa Barbara and Ventura. When it certified the LCP, the Coastal Commission directed the county to prepare a “master environmental impact assessment” to determine how much greenhouse development the valley could handle. The county never produced the assessment, so the Commission in 1998 again directed the county to complete the study and prepare an LCP amendment for regulating greenhouse developments in Carpinteria Valley. The Commission suggested it might not approve more greenhouses until the county completed the assignment. The county then spent three years working on the issue before certifying a final EIR and approving an LCP amendment in February 2002. The following month, the Santa Barbara County Flower and Nursery Growers Association sued the county over the adequacy of the EIR. In court, the county argued that the EIR was legally unnecessary. Santa Barbara County Superior Court Judge James Brown ruled for the county, finding that the LCP amendment was exempt from CEQA and concluding that the association’s lawsuit was premature because the Coastal Commission had not decided on the amendment. The association appealed, but a unanimous three-judge panel of the Second District, Division Six, upheld the lower court. The association argued that the exemption for LCPs in Public Resources Code § 21080.5 is discretionary. When the county prepared an EIR under the rules of CEQA — a procedure apparently blessed by the Coastal Commission — the county waived the exemption, the association argued. These arguments did not get far with the appellate court, which agreed with the trial court that the exemption did apply and that the suit was filed too early. “Nothing in CEQA or the Coastal Act gives local government the power to opt out of the Commission’s regulatory program and choose to be governed by CEQA’s regulatory scheme,” Justice Steven Perren wrote for the court. “To the contrary, the § 21080.5 exemption is necessary to facilitate the Commission’s legislative mandate under the Coastal Act to implement statewide policies for coastal zone development rather than local policies that would be critical to an EIR for a local project.” Besides, Perren wrote, “ udicial review would be premature because there has been no final Commission determination.” That review could still occur in the future. “ he county unnecessarily prepared an EIR and the association unnecessarily participated in the approval process applicable to EIRs,” Perren concluded. “The association understandably may have been dismayed that a significant administrative proceeding was conducted through error. Nevertheless, the court cannot provide a remedy to the association without interfering with the statutory authority and established regulatory process of the Commission. Furthermore, the association does not establish that it was prejudiced in any material respect. The association remains free to seek judicial review of any decision by the Commission regarding the county’s LCP amendment and to challenge the adequacy of the environmental assessment supporting that decision.” The Case: , No. B170027, 04 C.D.O.S. 7583, 2004 DJDAR 10166. Filed August 17, 2004. The Lawyers: For the association: David Hughes, Price, Postel & Parma, (805) 962-0011. For the county, Alan Seltzer, chief assistant county counsel, (805) 568-2950.

The Court of Appeal has again upheld a public agency’s dismissal of project alternatives as economically infeasible, even though the project’s environmental impact report did not include an economic analysis. The ruling is the third published decision in two years in which a court has said that an economic analysis does not have to be part of an EIR. The latest decision came in a case brought by the Sierra Club over a proposed winery at the entrance to the Napa Valley. “Sierra Club may be correct that the public was not part of the debate of the economic feasibility of the project,” the court ruled, “but as we read CEQA, it does not require the public to be a part of that debate, although it requires the public to be informed if its officials choose economic feasibility over environmental concerns in approving a project.” Two years ago, an appellate court ruled that San Francisco could rely on an in-house report regarding economic feasibility of project alternatives that was not included in an EIR. , 102 Cal.App.4th 652 (see , November 2002). Last year, a court ruled that Madera County could use a consultant’s analysis that was not included in an EIR to determine that a smaller project was economically infeasible. , 107 Cal.App.4th 1383 (see , June 2003). In both of those cases, courts held that it was permissible for officials to make a decision based on substantial evidence in the record, even if the environmental document did not contain the evidence. The latest decision from Napa County builds upon the San Francisco and Madera County rulings. In 1999, Beringer Wine Estates applied for a use permit to allow development on a 218-acre site near the Napa Airport. Beringer proposed 1.4 million square feet of development for warehousing and storage, winemaking, blending, bottling and office uses. Beringer also proposed a 115-acre vineyard to be irrigated with treated wastewater from the winemaking operation. Essentially, Beringer sought to consolidate its operations, which are spread out at various Napa Valley sites. The Napa County Conservation, Development and Planning Department certified an environmental impact report for the project in December 2001, and soon thereafter approved a conditional use permit. The EIR found that the project would have a significant and unavoidable impact on about half an acre of wetlands that provides habitat for endangered fairy shrimp. However, the department adopted findings of overriding considerations that cited the overall benefits of the project. The Sierra Club appealed to the Board of Supervisors, but the board approved the EIR and use permit. The environmental group then sued the county, arguing that the county violated CEQA and that the use permit was inconsistent with the Airport Industrial Area Specific Plan. Napa County Superior Court Judge Stephen Kroyer ruled for the county. The Sierra Club appealed, and a three-judge panel of the First District Court of Appeal, Division One, upheld the lower court. The pivotal issue was the absence in the EIR of the economic feasibility study of project alternatives that would avoid impacts of the wetlands. The EIR listed six alternatives, but dismissed three of those, all of which involved different locations, without environmental analysis. The other three alternatives — called “no project,” “wetlands preservation,” and “reduced development” — were studied but rejected as infeasible, at least partly because they would not meet Beringer’s stated business objectives. The Sierra Club argued in court that the absence of economic analysis in the EIR rendered the document legally inadequate, and that the Board of Supervisors should not have considered evidence that was not available to the public. For support, the environmental group pointed to the landmark case, , (1988) 47 Cal.3d 376 ( ). In that case, the state Supreme Court said that CEQA mandated a “meaningful analysis of alternatives in the EIR,” and that reasons for rejecting alternatives “must be discussed in the EIR in sufficient detail to enable meaningful participation and criticism by the public.” The First District, however, was not convinced. “Nothing in requires EIRs to analyze the economic feasibility of a particular alternative or limits the evidence an agency can consider in deciding issues of economic feasibility,” Justice William Stein wrote. “The court found only that an EIR cannot abstain from the process of identifying and analyzing alternatives by accepting, at face value, an official’s assertions that there are no feasible alternatives. , accordingly, stands for the proposition that the EIR must identify alternatives and analyze their impacts on the environment. The agency may or may not reject those alternatives as being infeasible, but the public must be informed of their existence. Here, the EIR did identify alternatives and analyze their impacts on the environment. requires no more.” The Sierra Club pointed out that the public did not have the chance to review the economic analysis that was the basis for the Board of Supervisors’ decision, as the public did in the San Francisco case. Apparently, supervisors based their findings at least partially on a last-minute letter provided by Beringer. No matter, said the court. “That the public in had access to a comprehensive analysis of economic feasibility does not mean that the public must have access to such a comprehensive analysis before a project may be approved,” Stein wrote. “It is of no matter that the evidence of economic infeasibility here was far less detailed than the evidence in ,” Stein continued. “The question is simply whether the agency’s finding was supported by substantial evidence. Moreover, as was true of the appellants in , Sierra Club neither introduced, nor can it cite to, evidence suggesting that some alternative was in fact fully feasible.” As for the project’s consistency with the specific plan, the court found no conflict. The specific plan requires protection of all wetland and stream habitat where feasible, the court noted. In this instance, the county found protection to be infeasible. The Case: , No. A101941, 04 C.D.O.S. 8146, 2004 DJDAR 10939. Filed August 6, 2004. Ordered published September 1, 2004. The Lawyers: For Sierra Club: Thomas Lippe, (415) 777-5600. For the county: Laura Jean Anderson, county counsel’s office, (707) 259-8252. For Beringer Wine Estates: David Meyer, Dickenson, Peatman & Fogarty, (707) 252-7122.