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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.

Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal. App. 4th 515

Tuesday, May 22nd, 2012

In 1994, the City of San Diego (City) certified an EIR and approved a 665-acre mixed-use development plan. In 2008, the City was approached by a developer who wished to build condominiums on the last remaining open space within that area. The City prepared a water supply assessment (WSA) and an addendum to the 1994 EIR. Petitioner filed a petition for writ of mandate arguing that the City failed to comply with the Water Code in adopting the WSA, and that the City should have prepared a supplemental EIR because there was new information and changed circumstances pertaining to water supply and climate change. The trial court found for the City. The Fourth District Court of Appeal affirmed. In addressing the Petitioner’s first point regarding the Water Code, the Court held that the WSA was properly approved by the City. While notices for the CEQA hearings did not reference the WSA, the Court concluded no authority mandates the CEQA notices to specifically reference the WSA. The Court also held that the Petitioner failed to provide new information regarding changes in water supply and climate change. Additionally, the Court explained that the Petitioner delivered its information in a disorderly way by presenting thousands of unorganized documents last minute, essentially “document dumping.” The Court explained that objections must be specific so as to provide the City with a chance to evaluate and respond.

Key Point:

For the purposes of Public Resources Code section 21166, “new” information only includes information that could not have been known and raised when an EIR was certified. Additionally, in presenting evidence to an agency, a Petitioner cannot expect, and CEQA does not require, a lead agency to pore through thousands of documents to find and respond to information that arguably supports Petitioner’s claims.