Practice Areas > CEQA Advice and Litigation
To avoid delay or even loss of critical projects, water agencies must ensure compliance with the California Environmental Quality Act (CEQA). MKB attorneys advise and assist water agencies at all stages of the CEQA process. They emphasize early and careful planning, and positions well grounded in facts and law. While this advice cannot always guarantee that a water agency will avoid a CEQA challenge, it does substantially increase the agency's likelihood of prevailing in litigation.
Pre-Project Planning and Strategy
Many water agencies make the mistake of beginning the CEQA process without first developing a clear and detailed strategy for CEQA compliance. One of the keys to avoiding expensive litigation or, at a minimum, prevailing in subsequent CEQA litigation is to develop a CEQA compliance strategy at the pre-project stage. MKB attorneys assist water agencies in developing pre-project CEQA compliance strategies. The experience MKB attorneys have gained in the preparation of CEQA documents and in the successful defense of CEQA claims gives them significant insight into ways water agencies can avoid common traps and pitfalls during the CEQA process.
Lead Agency
Prior to commencing the CEQA process for any project, it is critical that a public agency first correctly identify the lead agency for the project. It is not at all unusual for water agency projects, and in particular water supply projects, to have a number of local and regional public agencies with some level of responsibility for carrying out or approving an aspect of the project. Under CEQA, however, the lead agency is the one public agency with the principal responsibility for carrying out or approving the project. It is then the lead agency that is responsible for determining the CEQA document required for a project. A failure to designate the proper lead agency is considered a prejudicial abuse of discretion and requires preparation of a new environmental document by the proper lead agency. In assisting water agencies in their compliance with CEQA, MKB routinely provides advice on lead agency issues.
Preparation of Appropriate Environmental Documentation
Once a public agency concludes that a proposed “project” falls under CEQA, there is a three-step process that is usually followed to determine whether the project is exempt from further CEQA compliance and, if not, to determine the minimum environmental documentation required to comply with CEQA: negative declaration, mitigated negative declaration or environmental impact report (EIR). If, however, it is clear from the outset that the proposed project may produce one or more significant environmental effects, then a public agency should consider beginning the CEQA process at the EIR scoping stage rather than needlessly spending valuable time and money at an earlier stage in the CEQA process. MKB routinely provides assistance to water agencies in the selection and preparation of the appropriate environmental document for a project. MKB attorneys assist water agencies in CEQA project oversight to ensure that consultants and others do not waste critical project time and money on unnecessary or inapplicable environmental documents or activities.
Litigation
While the preparation of CEQA-compliant documents should be all that is necessary to avoid litigation, unfortunately in California it is not enough. Our current state law provides few deterrents for filing meritless CEQA actions. CEQA remains the statute of choice in California for any group seeking to delay a water supply or infrastructure project, especially if the project might support new development. Every water agency must be prepared for the inevitable CEQA claim that will be filed challenging one of its projects. Preparation includes ensuring that each approved project has a well-documented administrative record establishing CEQA compliance. MKB attorneys utilize their extensive CEQA litigation experience to assist water agencies in the preparation of well-documented administrative records establishing CEQA compliance. As a result, MKB attorneys are able to provide their clients sued under CEQA with an aggressive and tactically sophisticated CEQA defense.