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Certified Regulatory Program Posts

First District Court of Appeal Considers Certified Regulatory Programs’ Potential Mitigation Measure Disclosure Standards

Wednesday, December 13th, 2017

Groundwater basins within the contested SED’s Potential Indirect Impacts on Municipal, Industrial and Agricultural Water Use and Related Indirect Impacts on Other Environmental Resources (California Water Boards)

In Living Rivers Council v. State Water Resources Control Board (2017) 15 Cal.App.5th 991, the First District Court of Appeal upheld the State Water Resources Control Board’s (“Board”) approval of a policy to maintain instream flows of Northern California coastal streams (“Policy”) for the purposes of water rights administration under Water Code section 1259.4. While the case has since been depublished, its analysis provides guidance on determining when a potential mitigation measure may be deemed infeasible, and discusses the level of impact disclosure required to produce CEQA-sufficient environmental review documents.

In May 2010, the Board adopted the Policy with a Substitute Environmental Document (“SED”), in accordance with CEQA’s provisions for certified regulatory programs under Public Resources Code section 21080.5. The Policy includes measures to protect native fish populations, including steelhead trout, coho salmon, and chinook salmon. It also establishes five principles related to the timing and rate of allowable surface water diversions and the construction of new on-stream dams. Although the Board also prepared Subterranean Stream Delineations (“Delineations”) to identify locations in the Policy area where the Board would have permitting authority over groundwater pumping, the Board neither disclosed the locations, nor incorporated the Delineations, into the Policy. A report prepared by the Board’s consultant as part of the SED noted that the Policy’s restrictions on surface water diversions could result in depletion of groundwater as some of the surface water users would begin to divert water from other sources, including groundwater.

The plaintiff sued the Board, alleging CEQA violations. The trial court found the SED deficient and ordered the Board to, among other things, evaluate the Delineations as a potentially feasible mitigation measure for the anticipated increased use of groundwater. In response, the Board conducted additional CEQA review and certified a revised SED (“RSED”) in October 2013. The RSED evaluated the Delineations as a mitigation measure, but concluded they would not be feasible for several reasons, including: (1) the likelihood of affected persons switching to groundwater pumping was uncertain; (2) the potential shift from surface water diversions to groundwater pumping that might be caused by the Policy was unlikely to cause a significant reduction in surface water flows; (3) adoption of the Delineations would not assist the Board in regulating pumping outside the mapped areas; (4) the Delineations were based on the information available at the time they were prepared and field inspections had not been conducted; (5) the Board could consider the Delineations on a case-by-case basis even if they were not adopted as part of the Policy; and (6) the Board could regulate unacceptable impacts associated with groundwater pumping based on its authority to prohibit the unreasonable use of water. In March 2014, the plaintiff again sued the Board based on the RSED’s analysis of the anticipated increased use of groundwater pumping. The trial court held for the Board.

On appeal, the Court first rejected the plaintiff’s argument that the RSED was misleading because it “equivocated” by asserting that the Policy’s impacts were uncertain or unlikely, while it simultaneously found these impacts would be significant. The Court concluded the RSED fulfilled its information purpose because it clarified the basis for its conclusions and was internally consistent.

Next, the Court upheld the Board’s conclusion that use of the Delineations as a mitigation measure was infeasible. First, the Court rejected the plaintiff’s contention that the Board relied on two legally irrelevant factors in making the conclusion, including: (1) the likelihood that surface water users would switch to groundwater pumping as a result of the Policy; and (2) the severity of the depletion of surface water flows resulting from groundwater pumping. The Court found it permissible for the Board to consider these factors because the likelihood and severity of the effect were relevant in making the determination. Second, the Court rejected the plaintiff’s argument that the Board was prohibited from considering the effectiveness of a mitigation measure in determining the measure’s feasibility. The Court explained that no case law precluded the Board from doing so.

Key Point: 

When considering if CEQA-mandated environmental documents are misleading, courts look to whether the documents fulfill their information purpose through clarification of the reasoning behind their conclusions and the document’s degree of internal consistency. Additionally, when considering the inclusion of regulatory concepts as potential mitigation measures, if those mitigation measures are infeasible, they may be properly excluded from environmental review documents if project proponents provided adequate reasoning (supported by substantial evidence) rationalizing the abandonment of the potential measure.

Court Upholds Agency Discretion to Issue a Timber Plan in Accordance with Statutory Requirements

Monday, January 12th, 2015

In Center for Biological Diversity v. California Department of Forestry & Fire Protection, 2014 Cal. App. LEXIS 1181, the First District Court of Appeal affirmed the trial court’s decision to deny a petition for a writ of mandamus challenging the Department of Forestry and Fire Protection’s (Cal Fire) approval of a Nonindustrial Timber Management Plan in Mendocino County.

The Plan authorized the logging of approximately 615 privately-held acres of north coast redwood and Douglas fir forest. The case centered on a 17-acre “Late Succession Forest Stand” (LSFS), as defined by the Forest Practice Rules promulgated by the State Board of Forestry, within the Plan area that had potential to provide habitat for the marbled murrelet, an endangered species of seabird.

The court rejected petitioners’ contention that the Plan failed to adequately assess cumulative impacts of logging in the LSFS. The court stated petitioners improperly framed the issue as a failure to provide adequate information and analysis. Instead, the proper question was whether substantial evidence supported Cal Fire’s conclusions.

The court found that Cal Fire followed the methodology required by the Forest Practice Rules and the Plan addressed issues of murrelet presence, continuity of habitat, impacts of logging on late seral habitat functionality, maintenance of functional late seral nesting habitat, and feasibility of alternatives.  Cal Fire participated in at least two site inspections and considered analyses by a privately retained forester and its own experts, recommendations by the Department of Fish and Wildlife, and public participation and comment. Accordingly, petitioners failed to satisfy their burden of showing there was not substantial evidence in the record. The same reasoning supported the court’s conclusion that petitioners failed to satisfy their burden in arguing the Plan violated the California Endangered Species Act by destroying murrelet habitat.

The court also held Cal Fire was not required to recirculate the Plan. Although a Cal Fire biologist recommended additional protective measures for murrelet habitat, this recommendation did not constitute significant new information. The court reasoned the recommendation was adequately incorporated into the mitigation measures and as a result, substantial evidence supported Cal Fire’s decision not to recirculate the Plan.

Finally, the court rejected petitioners’ separate claim against the Department of Fish and Wildlife, which alleged that the Department violated the public trust by failing to submit a nonconcurrence to the Plan. The court found that the Department’s decision was purely discretionary and, as a result, the court reasoned petitioners had no authority to compel the Department through mandamus to submit a nonconcurrence to the Plan.


Despite petitioners’ characterization of nearly every factual determination as one to be determined as a matter of law, the court applied the substantial evidence standard of review and  reiterated the need for courts to defer to lead agencies in making determinations about environmental impacts of projects. Here, Cal Fire followed the methodology required by statute and, as a result, the court’s inquiry ended there.

California Coastal Commission Certification of Local Coastal Plan Amendment Not in Violation of CEQA

Wednesday, February 27th, 2013

In an unpublished decision, Protect Our Village v. California Coastal Commission (February 7, 2013) 2013 Cal.App.Unpub.LEXIS 1018, the Second District Court of Appeal affirmed the trial court’s denial of a writ of mandate to vacate California Coastal Commission (Commission) certification of an amendment to a local coastal plan (LCP).

In 2008, the City of Santa Barbara conditionally approved a coastal development permit for a mixed-use project on two adjoining parcels.  The city conditioned approval on the Commission’s certification of an amendment to the LCP, to allow for a re-zone of one of the parcels from residential to commercial use.  After finding the amendment consistent the California Coastal Act and the city’s existing land use plan (LUP), the Commission certified the amendment.

The petitioners filed a writ of mandate to vacate Commission approval of the amendment, arguing the approval violated the California Environmental Quality Act (CEQA).  The petitioners argued the Commission was required to consider the environmental impact of the whole project driving the request before certifying the amendment.

The court disagreed, finding that the Commission appropriately limited its review to those impacts that could be attributed to the zoning change.  The petitioners argued that an agency with independent responsibility to consider a preliminary approval, such as a rezone or annexation, must also consider impacts of the whole project, comparing the Commission’s action to those taken by a local agency formation commission (LAFCO).  However, unlike a LAFCO, the Commission is not subject to CEQA, but rather, must comply with its own certified regulatory program, which the Secretary of Natural Resources has deemed the equivalent of CEQA review.   Thus, the CEQA requirements that might apply to a LAFCO would not necessarily apply to the Commission.  In addition, the CEQA Guidelines have clarified the role of lead and responsible agencies, concluding in section 15051 that, where a city has pre-zoned an area, the city is the appropriate lead agency and should prepare the environmental review document for the whole of the project, and the LAFCO acts as a responsible agency, considering only those impacts directly related to its action.  The court concluded that the Commission appropriately limited its review under its certified regulatory program to whether the rezone would carry out the provisions of the city’s LUP, and that the Commission had no authority to consider impacts outside the scope of its conformity analysis.

The petitioners also argued that the Commission failed to consider environmental impacts on water supply, views and aesthetics.  The court rejected these arguments, explaining once again that the only responsibility of the Commission was to determine whether the zoning change conformed to the California Coastal Act and the city’s LUP.  The court held that, in determining the proposed rezone met these standards, the Commission appropriately deferred to the city’s decision to approve the project.

Written By: Tina Thomas, Amy Higuera and Andrea Lutge (law clerk)
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.
The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Petitioners’ Challenge to Air District’s Rules Regarding New Flammable Paints goes up in Flames

Tuesday, July 3rd, 2012

Court holds that where an environmental assessment determines there are no significant impacts, the EA functions as a mitigated negative declaration and thus no mitigation or alternatives analysis is required. In W.M. Barr & Company, INC. v. South Coast Air Quality Management District, (2012) 2012 Cal.App.Lexis 759, the California Court of Appeal, Second District, addressed the South Coast Air Quality Management District’s (SCAQMD) Rule 1143 (Rule), which requires manufactures of consumer paint thinner and solvent products to limit volatile organic compounds (VOCs) in their products, consequentially resulting in more flammable products. The Rule also requires manufacturers to include product hangtags to alert consumers of the increased flammability. The court held the Rule was neither preempted by the Federal Hazardous Substances Act (FHSA) nor California State Air Resources Board (CARB) regulations. Additionally, the court held the district’s environmental assessment prepared for the Rule did not have to consider alternatives or mitigation measures under CEQA.

The lawsuit arose when petitioner, a Tennessee retail supplier of solvents, challenged SCAQMD’s Rule designed to reduce VOCs in consumer solvents and paint thinners. An environmental assessment revealed that the Rule would result in more flammable products to which consumers, familiar with the old, less flammable products, would not be accustomed, thereby increasing fire hazards. The Rule was therefore amended to require the products include hangtags to alert consumers of the changes. A supplemental environmental assessment concluded the amended Rule adequately addressed the fire hazards, reducing the Rule’s impacts to less than significant. Petitioner claimed the Rule was preempted by federal and state labeling laws and that SCAQMD did not comply with CEQA because its environmental assessment failed to consider alternatives or mitigation measures. The court reviewed those arguments on appeal.

Petitioner first claimed that the FHSA expressly preempted the Rule because it precludes states from establishing labeling requirements for hazardous substances that are designed to protect against the same risk that a federal requirement seeks to protect, unless the labeling requirement is identical to the federal requirement. In rejecting this claim, the court reasoned the hangtags required by the Rule did not interfere with the federally required labels and would even draw attention to them. Moreover, the hangtags were designed to address the risk that consumers may not be familiar with based on the reformulated product, and not the risk of fire hazards the federal label sought to address. Therefore, the FHSA did not expressly preempt the Rule because the Rule addressed a different risk than the FHSA requirements.

Petitioner next claimed that CARB’s subsequently enacted regulation pertaining to general purpose cleaners preempted SCAQMD’s Rule. Prior to SCAQMD’s adoption of the Rule, CARB advised SCAQMD that its governing preemption laws would not restrict SCAQMD’s authority to regulate a particular consumer product category, unless it had already been regulated by CARB. CARB specifically explained it had not yet adopted regulatory requirements for paint thinners and multipurpose solvents, so SCAQMD could adopt its own requirements. Pursuant to principles of statutory construction, the court gave great weight to CARB’s interpretation of its governing statute and agreed with its interpretation. SCAQMD’s Rule, therefore, was not preempted by state law.

Finally, the court concluded CEQA did not require SCAQMD to analyze alternatives or mitigation measures for the Rule. The Secretary for Resources has determined that the portion of SCAQMD’s regulatory program involving the adoption, amendment, and repeal of regulations pursuant to the provisions of the Health and Safety Code is a certified regulatory program under CEQA. (CEQA Guidelines, § 15251, subd. (l).) SCAQMD, therefore, analyzed the potential environmental impacts of the Rule pursuant to its certified regulatory program. SCAQMD produced a supplemental environmental assessment for the Rule, which concluded all potential environmental impacts of the Rule would be less than significant with hangtags on the affected products. The court found that substantial evidence supported this conclusion. Because the Rule as proposed did not have the potential to result in any significant environmental impacts, the court determined that the supplemental environmental assessment functioned as a mitigated negative declaration rather than an EIR. As such, the document was not required to include feasible alternatives and mitigation measures under CEQA.

Key Point:

Where an environmental analysis prepared under a certified regulatory program properly serves as the functional equivalent of a mitigated negative declaration, as opposed to an EIR, the analysis is not required to include a discussion of feasible alternatives or further mitigation measures.

Written By: Tina Thomas, Amy Higuera and Grant Taylor (law clerk)
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Ross v. California Coastal Com. (2011) 199 Cal. App. 4th 900

Tuesday, May 22nd, 2012

The Malibu Bay Company (MBC) proposed amendments to the City of Malibu’s local coastal program to facilitate development of beach front property it owned. Specifically, MBC requested a reduction of the minimum lot size. The City Council approved the amendments in a mitigated negative declaration. After the city approved the amendment, the Coastal Commission did so as well. Petitioners argued the local coastal program amendments had the potential to result in significant environmental impacts and that the Coastal Commission violated CEQA in approving the amendments. The trial court granted partial relief finding that the Commission failed to comply with the CEQA requirement of a 30-day public review period. The Second District Court of Appeal disagreed and reversed the trial court’s decision finding for the Commission for several reasons. The Court first addressed the 30-day requirement and found that it did not apply to the Commission’s certified regulatory program. The Commission’s regulations only require a 7 day public review period, which the Commission sufficiently surpassed by posting the amendments for public review for a total of 13 days. Second, the Court found that the Commission adequately responded to public comments and did not have to speculate what might happen in the future. Third, the Court explained that site-specific biological evaluations were not required – it would be “unreasonable to require the Commission, city or developer to conduct a biological assessment on developed property they do not own and for which there is no reason to expect will be subdivided.” Last, the Court addressed Petitioner’s argument that an inadequate land buffer was proposed to protect the dunes. The Court concluded that while the City’s general plan specified a 100 foot buffer, the local coastal plan allowed for smaller buffers, thus the Commission’s use of a 5 foot buffer was adequate.

Key Point:

Certified regulatory programs are exempt from CEQA’s notice and comment requirements unless otherwise provided by the regulatory program. Additionally, where an agency developed a plan, courts will give deference to its interpretations of the plan.