CEQA Lead Agencies Do Not Waive Defense that CEQA Did Not Apply Despite Proceeding under CEQA

Recently, the court in Rominger v. County of Colusa found that a lead agency which approved a mitigated negative declaration for a project, can take the seemingly inconsistent position that the proposed project was not a California Environmental Quality Act (CEQA) project or was exempt from CEQA when its action is subsequently challenged.

In Rominger, real party in interest Adams Group, Inc. filed an application with the County of Colusa for the approval of a tentative subdivision map to divide 4 existing parcels into 16 parcels.  The application indicated that no specific plan for future expansion was available and that they intended to continue the existing use of the property.  The County prepared an initial study and issued a mitigated negative declaration under CEQA.

The Romingers brought an action against the County, claiming that the County violated CEQA by failing to prepare an Environmental Impact Report (EIR), preparing a deficient mitigated negative declaration, adopting insufficient mitigation measures, providing inadequate public review of the mitigated negative declaration, and having findings that were unsupported by substantial evidence.  The County and the real party in interest contended that the County actually exceeded the requirements of CEQA by preparing the mitigated negative declaration when the project was not even subject to CEQA.  At  issue was whether a lead agency in defense of a CEQA challenge is precluded from contending that the project was not subject to CEQA, despite previously proceeding as though CEQA applied.

The Court held that the County was not barred from contending that CEQA did not apply because during the administrative proceedings the County consistently took the position that its actions were not required by CEQA.  Thus, the County contended that the issuance of a mitigated negative declaration was not legally required by CEQA because the project was either not a CEQA project or was exempt from CEQA.  On this basis, the court found that the County was not barred from asserting that CEQA did not apply in the subsequent lawsuit, even though it had issued a mitigated negative declaration.

Although ultimately the court found that CEQA did apply and that the County should have prepared an EIR, the case provides valuable guidance for lead agencies.  If there is even the potential that a lead agency may argue that a project is not subject to CEQA or is exempt from CEQA if their action is challenged, they should ensure that the administrative record supports such an argument.  The lead agency should include in the administrative record the reasons why CEQA does not apply and make clear that the agency is exceeding the requirements of CEQA by proceeding as though CEQA applies.  If the record does not have such a showing, lead agencies may be barred from subsequently contending that CEQA does not apply.