ELR Citation: ELR 20031
No(s). D052237 (Cal. App. 4th Dist. Jan 9, 2009)

A California appellate court held that a water district violated the California Environmental Quality Act (CEQA) when it approved an agreement concerning the operation of a landfill and recycling center. The water district argued that its approval and execution of the agreement did not constitute approval of all or part of a project under CEQA. Under CEQA, "approval" is a "decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by any person." The approval of private projects "occurs upon the earliest commitment to issue or the issuance by the public agency of a discretionary contract." Here, the agreement sets forth the specific details regarding the district's 60-year obligation to deliver recycled water to the landfill and the construction required to allow that delivery. The district's approval and signing of the agreement therefore satisfied CEQA's definiteness requirement. In addition, by approving and executing the agreement, the district clearly committed itself to the course of action set forth in the agreement--a discretionary contract. And the agreement did not provide that the district retained its complete discretion under CEQA (as a responsible agency) to consider a final environmental impact report certified by the county environmental health department and thereafter approve or disapprove its part of the landfill project pursuant to the agreement or to require mitigation measures or alternatives to its part of the project. Accordingly, the district was required to comply with CEQA before approving the agreement. Because it did not, the agreement must be set aside.