Living Rivers Council v. State Water Res. Control Bd. CA1/2 ( 2014 )

Filed 5/7/14 Living Rivers Council v. State Water Res. Control Bd. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
LIVING RIVERS COUNCIL,
Plaintiff and Appellant,
A137082
v.
STATE WATER RESOURCES (Alameda County
CONTROL BOARD, Super. Ct. No. RG11560171)
Defendant and Respondent.
Living Rivers Council (LRC) appeals from the Alameda County Superior Court’s
judgment denying its petition for a peremptory writ of mandate. LRC sought a writ
ordering the State Water Resources Control Board (State Board) to void its approval of
an amendment to the Water Quality Control Plan for the San Francisco County Basin
(Basin Plan Amendment or Plan) regarding the deposition of sediment into the Napa
River, located in Napa County, California. LRC contends the Plan does not comply with
requirements in the California Environmental Quality Act, Public Resources Code
sections 21000 et seq. (CEQA).
For more than 20 years, the State Board and the San Francisco Bay Region Water
Control Board (Regional Board) have been concerned about the impact on water quality
of the deposition of sediment from anthropogenic sources into the Napa River and its
tributaries. In October 2010, the State Board approved the Basin Plan Amendment, as
recommended by the Regional Board, after extensive research and public participation,
which included numerous comments on draft reports and at public hearings by LRC. The
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Basin Plan Amendment establishes numeric targets for the deposition of sediment into
the Napa River, including a required 51 percent reduction in sediment from various
sources, such as vineyards, and a total maximum daily load (TMDL) for sediment equal
to 125 percent of natural background.
LRC does not challenge the need for these numeric targets. Rather, it sought a
writ of mandate challenging various alleged deficiencies based upon activities LRC says
are required under CEQA in order for the Plan to be properly adopted. After careful
review of the extensive administrative record before the Regional Board and the State
Board, including a two year technical study prepared in 1990, public comments on
various staff reports and an earlier draft of the basin plan amendment, and staff responses
to extensive comments submitted by LRC, among others, the trial court rejected LRC’s
arguments.
On appeal, LRC argues the State Board’s environmental documentation, which by
law it is allowed to substitute for an environmental impact report (substitute
environmental documentation, or SED), is inadequate in three ways. First, the SED does
not include a sufficient review of the environmental impact of certain Napa County
Conservation regulations (County regulations), which, LRC contends, the Plan sets as a
compliance standard for such matters as storm runoff from new hillside vineyards;
second, the SED does not sufficiently describe and evaluate a feasible mitigation measure
for controlling increases in such storm runoff, and improperly defers identification of
such measures to a later time; and third, the SED impermissibly defers to a future time, or
“piecemeals,” the environmental impact review of the State Board’s purported policy of
waiving “waste discharge requirements,” (WDRs) which, LRC contends, is an integral
part of the Plan, and, therefore, must be reviewed in the SED. The State Board disagrees
on all counts.
After careful review, we conclude that LRC’s arguments lack merit. Therefore,
we affirm.
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BACKGROUND
Since the late 1940’s, populations of steelhead and salmon in the Napa River and
its tributaries have declined substantially. Sediment from various human activities,
including livestock grazing and conversion of native lands to vineyards in more and more
of the Napa River watershed, is thought to contribute to that decline.
In 1990, the Regional Board, acting pursuant to the federal Clean Water Act (the
Clean Water Act) (33 U.S.C. § 1251 et seq.), listed the Napa River as impaired by
sedimentation. The Clean Water Act “places primary reliance for developing water
quality standards on the states (termed ‘water quality objectives’ in California).” (San
Joaquin River Exchange Contractors Water Authority v. State Water Resources Control
Bd. (2010) 183 Cal. App. 4th 1110, 1115 (San Joaquin River).) It “focuses on two
possible sources of pollution: . . . ‘Point’ sources refer to discrete discharges, such as
from a pipe. [Citation.] ‘Nonpoint’ refers to everything else, including agricultural
runoff.” (Ibid.) “ ‘California implements the Clean Water Act through the Porter–
Cologne [Water Quality Control] Act (Wat. Code, § 13000 et seq.),’ ” under which
“ ‘[r]egional boards must formulate and adopt water quality control plans, commonly
called basin plans[.]’ ” (Id. at pp. 1115-1116.)
“When the Clean Water Act’s permit program, applicable to point sources, fails to
clean up a river or river segment, states are required to identify such waters and list them
in order of priority. Based on that listing . . . [citation], states are to calculate levels of
permissible pollution in TMDL’s . . . . [Citation.]
“A TMDL defines the maximum amount of a pollutant that can be discharged or
‘loaded’ into the relevant water segment from all sources. A TMDL must be established
at a level that will implement the applicable water quality objective. [Citation.] A
TMDL is comprised of a ‘wasteload allocation’ that applies to point sources, a ‘load
allocation’ that applies to nonpoint sources, and a ‘margin of safety’ to account for any
lack of knowledge concerning the relationship between the pollutant and water quality.”
(San Joaquin River, supra, 183 Cal.App.4th at p. 1115, quoting City of Arcadia v. State
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Water Resources Control Bd. (2006) 135 Cal. App. 4th 1392, 1404-1405 (City of
Arcadia).)
The Regional Board was thus required to establish a TMDL for sediment in the
Napa River. After five years of field studies, draft reports, public hearings, and receipt of
extensive public comments and written responses to them, it adopted the Basin Plan
Amendment in September 2009. Among other things, this Plan established a TMDL for
sediment in the Napa River intended to reduce it from 185 percent to 125 percent of the
natural background; set wasteload and load allocations needed to achieve this TMDL for
various point and non-point sources of sediment, including drainage runoff from
vineyards caused by storms; and included a plan to implement the TMDL. A 155-page
State Board staff report was prepared, which contains a 40-page environmental checklist,
a discussion of potentially significant environmental impacts, alternatives to, and benefits
of, the plan, and a lengthy summary of comments received on the proposed amendment,
including from LRC, and responses thereto. It also incorporates by reference several
lengthy responses made by the Regional Board staff to earlier, substantially identical,
comments. The State Board relied on this SED, rather than an environmental impact
report (EIR), to make its determinations. In October 2010, it approved the Basin Plan
Amendment.
LRC filed a petition for writ of mandate and complaint for declaratory relief in
February 2011. The court heard the matter and issued its final statement of decision in
August 2012, denying the petition, and entered judgment in September 2012. LRC filed
a timely notice of appeal.
DISCUSSION
I. Relevant Law
A. CEQA Requirements for the State’s Basin Planning Process
In order to assess LRC’s claims of deficiencies in the State Board’s SED, we must
first discuss what CEQA requires for the basin planning process of “certified” agencies
such as the State Board and Regional Board.
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“ ‘CEQA compels government first to identify the environmental effects of
projects, and then to mitigate those adverse effects through the imposition of feasible
mitigation measures or through the selection of feasible alternatives.’ [Citation.] CEQA
mandates that public agencies refrain from approving projects with significant
environmental effects if there are feasible alternatives or mitigation measures that can
substantially lessen or avoid those effects. [Citation.]
“CEQA is implemented through initial studies, negative declarations and EIR’s.
[Citation.] ‘CEQA requires a governmental agency [to] prepare an [EIR] whenever it
considers approval of a proposed project that “may have a significant effect on the
environment.” ’ [Citation.] ‘If there is no substantial evidence a project “may have a
significant effect on the environment” or the initial study identifies potential significant
effects, but provides for mitigation revisions which make such effects insignificant, a
public agency must adopt a negative declaration to such effect and, as a result, no EIR is
required. [Citations.] However, the Supreme Court has recognized that CEQA requires
the preparation of an EIR “whenever it can be fairly argued on the basis of substantial
evidence that the project may have significant environmental impact.” [Citations.] Thus,
if substantial evidence in the record supports a “fair argument” that significant impacts or
effects may occur, an EIR is required and a negative declaration cannot be certified.’
[Citation.]
“ ‘ “Significant effect on the environment” means a substantial, or potentially
substantial, adverse change in any of the physical conditions within the area affected by
the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of
historic or aesthetic significance. An economic or social change by itself shall not be
considered a significant effect on the environment. A social or economic change related
to a physical change may be considered in determining whether the physical change is
significant.’ (Cal. Code Regs., tit. 14, § 15382.)” (City of Arcadia, supra, 135
Cal.App.4th at pp. 1420-1421.)
State regulatory programs that meet certain environmental standards and are
certified by the Secretary of the California Resources Agency are exempt from CEQA’s
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requirements for preparation of EIRs, negative declarations, and initial studies. (City of
Arcadia, supra, 135 Cal.App.4th at p. 1421.) “The basin planning process of the State
Board and regional boards is a certified regulatory program (Cal. Code Regs., tit. 14,
§ 15251, subd. (g)), and the regulations implementing the program appear in the
California Code of Regulations, title 23, sections 3775 to 3782.” (Id. at pp. 1422-1423.)
“Environmental review documents prepared by certified programs may be used
instead of environmental documents that CEQA would otherwise require. [Citations.] . . .
[Citations.] Documents prepared by certified programs are considered the ‘functional
equivalent’ of documents CEQA would otherwise require. [Citations.] [¶] . . . [¶] The
guidelines for implementation of CEQA [citation] do not directly apply to a certified
regulatory program’s environmental document. [Citation.] However, ‘[w]hen
conducting its environmental review and preparing its documentation, a certified
regulatory program is subject to the broad policy goals and substantive standards of
CEQA.’ [Citation.] [¶] In a certified program, an environmental document used as a
substitute for an EIR [such as the SED in this case] must include ‘[a]lternatives to the
activity and mitigation measures to avoid or reduce any significant or potentially
significant effects that the project might have on the environment[.]’ (Cal. Code Regs.,
tit. 14, § 15252, subd. (a)(2)(A)(B).)” (City of Arcadia, supra, 135 Cal.App.4th at pp.
1421-1422.) “A regional board’s submission of a plan for State Board approval must be
accompanied by a brief description of the proposed activity, a completed environmental
checklist prescribed by the State Board, and a written report addressing reasonable
alternatives to the proposed activity and mitigation measures to minimize any significant
adverse environmental impacts.” (Id. at p. 1423, citing Cal. Code Regs., tit. 23, § 3777,
subd. (a).)1
B. Courts’ Application of These CEQA Requirements
Two leading cases, in which appellate courts reached opposite conclusions, show
how CEQA has been applied to the State Board’s environmental reviews in different
1
LRC does not argue that any of these required elements is missing from the
SED.
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circumstances. In City of Arcadia, supra, 135 Cal. App. 4th 1392, the State Board’s
process in adopting a TMDL regarding trash (Trash TMDL) was held to be deficient.
The Board adopted a zero Trash TMDL with a multi-year implementation period for litter
discharged from municipal storm drains into the Los Angeles River estuary. The
appellate court focused on the Board’s failure to address altogether “the temporary
impacts of the construction of [anticipated ] pollution controls, which logically may result
in soils disruptions and displacements, an increase in noise levels and changes in traffic
circulation,” as well as “the effects of increased street sweeping on air quality and
possible impacts caused by maintenance of catch basin inserts, [vortex separation system
(VSS)] units and other compliance methods.” (Id. at p. 1425.) Because evidence of such
environmental consequences had been introduced in the administrative proceedings,
albeit by municipalities complaining about the expense of the proposed Trash TMDL, it
was improper for the State Board to ignore that evidence. Under CEQA, “a public
agency must explain the reasons for its actions to afford the public and other agencies a
meaningful opportunity to participate in the environmental review process, and to hold it
accountable for its actions.” (City of Arcadia, at p. 1426.) In other words, substantial
evidence had raised “a fair argument the Trash TMDL may have significant impacts on
the environment,” requiring remand so that an EIR, a tiered EIR, or the functional
equivalent would be prepared. (Ibid.) The court rejected the State Board’s argument that
the environmental impact issues raised were based on “speculative possibilities” that did
not need to be studied, finding instead that “the Trash TMDL sets forth various
compliance methods, the general impacts of which are reasonably foreseeable but not
discussed.” (Ibid.)
On the other hand, in San Joaquin River, supra, 183 Cal. App. 4th 1110, the
appellate court found a TMDL was based upon a sufficient environmental impact review,
contained in a final staff report. There, the State Board adopted a “Salt/Boron TMDL
Amendment” to restrict agricultural discharges from facilities into the lower San Joaquin
River. The court rejected the contention that the final staff report was inadequate, as had
been established about the documentation in City of Arcadia. The San Joaquin River
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court noted that the documentation in City of Arcadia was more like a negative
declaration than a fully developed EIR, unlike the more extensive staff report before it.
(San Joaquin River, at pp. 1127-1128.) Also, unlike in City of Arcadia, “the compliance
methods here, at this point, are indeed ‘ “speculative possibilities.” ’ ” (San Joaquin
River, at p. 1128.) The court concluded that a CEQA analysis could not reasonably be
performed until further decisions about methods and infrastructure were made by
dischargers who would apply for facility permits in the future. (San Joaquin River, at
p. 1128.)
C. Our Standard of Review
Recognizing that this case presents the issue of the adequacy of an SED, and not
an EIR, our standard of review is that set forth by our Supreme Court in Vineyard Area
Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412
(Vineyard Area Citizens):
“[A]n agency may abuse its discretion under CEQA either by failing to proceed in
the manner CEQA provides or by reaching factual conclusions unsupported by
substantial evidence. (§ 21168.5.) Judicial review of these two types of error differs
significantly: While we determine de novo whether the agency has employed the correct
procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’
[citation], we accord greater deference to the agency’s substantive factual conclusions. In
reviewing for substantial evidence, the reviewing court ‘may not set aside an agency’s
approval of an EIR on the ground that an opposite conclusion would have been equally or
more reasonable,’ for, on factual questions, our task ‘is not to weigh conflicting evidence
and determine who has the better argument.’ [Citation.]
“In evaluating an EIR for CEQA compliance, then, a reviewing court must adjust
its scrutiny to the nature of the alleged defect, depending on whether the claim is
predominantly one of improper procedure or a dispute over the facts. For example,
where an agency failed to require an applicant to provide certain information mandated
by CEQA and to include that information in its environmental analysis, we held the
agency ‘failed to proceed in the manner prescribed by CEQA.’ [Citations.] In contrast,
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in a factual dispute over ‘whether adverse effects have been mitigated or could be better
mitigated’ [citation], the agency’s conclusion would be reviewed only for substantial
evidence.” (Vineyard Area Citizens, supra, 40 Cal.4th at p. 435.)
II. The Basin Plan Amendment and SED Adequately Address Vineyard Runoff
LRC first argues, in essence, that the State Board violated CEQA by incorporating
into its Basin Plan Amendment a compliance standard based upon the County regulations
without adequately evaluating the regulations’ environmental impact in its SED. We
disagree.
The County regulations, which LRC has criticized for 13 years, permit installation
of engineered drainage facilities in new hillside vineyards. LRC asserts that, while these
facilities may help avoid surface runoff, they also may concentrate water runoff,
particularly during heavy storms, and deliver it, with sediment, to the tributaries of the
Napa River with such force that it increases the rate of stream bed incision and erosion of
the river banks. This increased incision and erosion leads to deleterious effects on fish
habitat and other potentially significant environmental impacts. LRC argues that,
because the State Board adopted the County regulations as a means of Plan compliance
and LRC presented evidence that engineered drainage facilities permitted by these
regulations cause environmental problems, the State Board was required to, but did not,
conduct a full EIR-level review of the County regulations, like the one required in City of
Arcadia with respect to installation and maintenance of catch basin inserts and VSS units
in storm drains.
The State Board does not dispute that engineered drainage facilities can have such
a deleterious effect on the river and its tributaries. Rather, it argues LRC’s “insufficient
evaluation” argument lacks merit because the Plan and SED do not adopt the County
regulations as a means of compliance by itself with the TMDL, but instead refers to them
as effective in controlling the delivery of excessive sediment resulting from vineyard
surface erosion. Moreover, to the extent anything stated in the Plan implied that
following these regulations aided a vineyard owner’s or operator’s ability to comply with
the TDML and the Plan’s performance standards, the use of permitted engineered
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drainage facilities was one of several possible methods discussed. Therefore, the
regulations’ environmental impact need not be further studied.
Also, the State Board asserts, the SED sufficiently evaluates vineyard drainage,
along with the other identified sources of sediment in the river, as it includes extensive
commentary on the issue, including the potential exacerbation of the problem by County
regulations-permitted engineered drainage facilities on hillside vineyards. The State
Board and Regional Board staffs did extensive analyses of the potential environmental
impacts caused by requiring compliance with the 125 percent of background TMDL, and
the Water Board adopted additional performance standards intended to avoid or mitigate
those impacts. The State Board argues that City of Arcadia is inapposite, therefore,
because in that case, the State Board performed only the equivalent of a negative
declaration in the face of evidence of significant environmental impact from the only
effective means of compliance.
We agree with the trial court and the State Board that the Plan’s reference to the
County regulations does not constitute their adoption as a means of compliance with the
TMDL. LRC focuses on a reference to the County regulations contained in footnote 5 of
Table 4.1 of the 20-page Plan. To understand that footnote, we must examine it in
context.
The Plan begins with a statement of goals, which include conservation and
enhancement of the fish communities, and enhancement of the aesthetic and recreational
values of the river and its tributaries. It identifies the specified actions needed to achieve
these goals, which include actions to “[a]ttain and maintain suitable gravel quality and
diverse streambed topography in freshwater reaches of Napa River and its tributaries”
and “[p]rotect and/or enhance base flows in tributaries and the mainstem of the Napa
River.”
The Plan also identifies the problems, which include “high concentrations of fine
sediment,” channel incision, and the fact that, “[d]ue to excess erosion and sedimentation
in the Napa River watershed, the narrative water quality objectives for sediment and
settleable material are not being met . . . .” According to the Plan, more than half of fine
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sediment delivered to Napa River from 1994 to 2004 was associated with land use
activities, coming from such sources as human-caused channel incision and associated
bank erosion, and “gullies and shallow landslides associated with vineyards, and/or
intensive historical grazing.”
The Plan then describes the implementation plan and regulatory tools needed to
“achieve TMDL targets and allocations and habitat enhancement goals by September
2029.” With respect to nonpoint source discharges, including those from vineyards, the
Plan states: “The state’s Policy for Implementation and Enforcement of the Nonpoint
Source Pollution Control Program requires regulation of nonpoint source discharges
using the Water Board’s administrative permitting authorities, including [WDRs], waiver
of WDRs, Basin Plan Discharge Prohibitions, or some combination of these. Consistent
with this policy, Tables 4.1 - 4.4 specify actions and performance standards by nonpoint
source category, as needed to achieve TMDL sediment targets and allocations in Napa
River watershed.”
Table 4.1 focuses on vineyards. It sets forth the following performance standards:
“Surface Erosion associated with vineyards: Control excessive rates of
sediment delivery to channels resulting from vineyard surface erosion; and
“Roads: Road-related sediment delivery to channels ≤ 500 cubic yards per mile
per 20-year period; and
“Gullies and/or shallow landslides: Accelerate natural recovery and prevent
human-caused increases in sediment delivery from unstable areas; and
“Effectively attenuate significant increases in storm run off, so that the runoff
from vineyards shall not cause or contribute to downstream increases in rates of bank or
bed erosion.” (Fns. omitted.)
Table 4.1 further states that vineyard owners and operators should take the
following actions to achieve these performance standards: “Submit a Report of Waste
Discharge (RoWD) to the Water Board that provides, at a minimum . . . a description of
the vineyard[,] identification of site-specific erosion control measures needed to achieve
performance standard(s) specified in this table[,] and a schedule for implementation of
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identified erosion control measures”; or “[d]evelop and begin implementing a farm plan
certified under Fish Friendly Farming Environmental Certification Program or other farm
plan certification program, approved as part of a waiver of WDRs. All dischargers
applying for coverage under a waiver of WDRs also will be required to file a notice of
intent (NOI) for coverage, and to comply with all conditions of the WDR waiver.” (Fns.
omitted.) The table also states that vineyard owners and operators should “[c]omply with
all applicable [WDRs] or waiver of WDRs” and “[r]eport progress on implementation of
site specific erosion control measures.”
As indicated above, footnote 5 in Table 4.1 appears at the end of the statement of
the “surface erosion” performance standard. It states in its entirety: “Napa County
Conservation Regulations (County Code, Chapter 18.108) are effective in the control of
excessive rates of sediment delivery resulting from vineyard surface erosion. Rates of
sediment delivery are ‘excessive’ when the predicted soil loss rate exceeds the tolerable
soil loss rate (T), calculations described in ‘The Universal Soil Loss Equation, Special
Applications for Napa County, California’ (USDA, 1994).”
LRC argues footnote 5 constitutes adoption of the County regulations as a
compliance standard, thereby requiring an EIR-level analysis of these regulations. To
support this argument, it emphasizes that an earlier version of the “surface erosion”
performance standard in Table 4.1 provided in relevant part: “Comply with conservation
regulations (County Code, Chapter 18.108)” But this prior draft standard was replaced
with the standard we have quoted above, which was contained in the Regional Board’s
later recommendation to the State Board, and is in the Amended Basin Plan. Thus, the
Plan does not contain any reference to the County regulations, other than the comment on
their effectiveness in footnote 5. LRC’s attempt to construe footnote 5 as adopting a
legal standard in the face of this critical revision is, at best, misguided.
LRC also takes out of context a snippet of testimony from a Regional Board staff
environmental scientist, Mike Napolitano, before the Regional Board in September 2009
to contend that efforts to comply with the County regulations have caused a serious
problem with increased runoff from engineered drainage facilities on hillside vineyards.
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We quote Napolitano’s testimony at length here, with the snippet quoted by LRC in
italics: “I think, first of all, in terms of we have not done anything other than
acknowledge that the [County regulations] exist, that they are in place. We do find that
they are effective in controlling surface erosion on site and we also find, from having
been out—I think I have been out to 86 vineyards now, over 10,000 acres, that the
methods and means that are used to control surface erosion are not monolithic and they
are not unchanging in time. In some cases, the methods that have been used have
definitely increased the flow of runoff off-site and have led to local gulling at the site of
discharge, and we have noted that as a significant source in our sediment budget
analysis. It was one of the reasons that we added a performance standard.” (Italics
added.) Thus, Napolitano actually indicated the Plan’s reference to the County
regulations did not establish a compliance standard, that efforts to comply with these
regulations had led to mixed results, and that these problems were one reason for
adopting a new performance standard. This supports the Water Board’s position more
than LRC’s.
LRC also points to a comment in the State Board’s staff report that “ ‘[t]he Basin
Plan [A]mendment relies on landowner compliance with [the County regulations] to
achieve sediment allocations for vineyard surface erosion.’ ” However, LRC ignores the
testimony of Napolitano, which places this analysis in its proper, more limited context.
LRC also ignores the State Board staff’s extensive formal response to the comment on
this subject by LRC’s Thomas N. Lippe, which expressly states that the County
regulations are neither a performance standard nor a mitigation measure, but simply
helpful in achieving the TMDL.2
2
The staff response states: “Commenter incorrectly states that ‘[t]he TMDL
adopts, as a performance standard for controlling surface erosion from vineyards, Napa
County’s enforcement of [the County regulations] on new vineyard conversions.’ The
TMDL does not adopt the program as a performance standard or as a mitigation measure
for the TMDL; it simply acknowledges the existence of the program as one program that
may be helpful for achieving the TMDL. The [County regulations] are not referenced as
a mitigation measure to reduce potential impacts from the TMDL; the County’s program
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In short, reviewing the matter de novo, we agree with the trial court that the State
Board did not, as LRC argues, adopt the County regulations as a compliance standard
regarding vineyard surface erosion control in the Basin Plan Amendment. Further, to the
extent that LRC disagrees with the State Board’s conclusion that the County regulations
are effective, there is substantial evidence in the administrative record to support this
conclusion, as indicated by Napolitano’s testimony, for example.
We also agree with the State Board that the SED sufficiently evaluated vineyard
drainage, as indicated by the extensive analyses referred to by the State Board. LRC’s
reliance on City of Arcadia is thus misplaced. Nothing in the SED indicates that
installation of the engineered drainage facilities highlighted by LRC is necessary or
sufficient to comply with the TMDL. In City of Arcadia, negative environmental effects
were reasonably anticipated from the necessary installation of catch basin inserts and
VSS units, which were anticipated to be the only effective means of meeting the Trash
TMDL. (City of Arcadia, supra, 135 Cal.App.4th at p. 1425.) Here, on the other hand,
Table 11a of the Environmental Checklist, prepared by the State Board’s staff prior to
adopting of the Basin Plan Amendment, identifies six “reasonably foreseeable
compliance action(s)” which might address peak flow attenuation, only one of which
involves engineered drainage. And that reference is only to “[r]educe/disconnect
engineered drainage,” which, “at a minimum,” would require permitting through “WDR
or conditional waiver.” Given the number of reasonably foreseeable means vineyard
does not address any of the potential adverse impacts that will result from adoption of the
TMDL. The TMDL does not in any way approve the creation or operation of vineyards.
The TMDL establishes a program to ensure that if discharges occur from the creation or
operation of vineyards, they occur in a manner that ensures that water quality objectives
will be met. [¶] To the extent that there may be impacts from the adoption of the TMDL,
those impacts would result from the construction and/or operation of reasonably
foreseeable methods of compliance with the TMDL, not from the operation or
construction of vineyards themselves. The TMDL merely dictates that when vineyards
are built or operated they must include methods to ensure that increases in the discharge
of sediment do not occur.”
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owners could choose in the future to comply with the performance standard for avoiding
runoff, this case is much more like San Joaquin River than City of Arcadia.
Finally, unlike in City of Arcadia, in this case the State Board did not ignore
evidence that use of engineered drainage facilities could have a negative impact. To the
contrary, it acknowledged that potential negative impact, implemented an “effectively
attenuate” performance standard to address the use of such facilities, discussed further,
post, and identified feasible alternatives which vineyard owners could consider to meet
the performance standard. For all of these reasons, we agree with the trial court that
nothing more was required of the State Board with respect to the County regulations.
III. Because the SED is a Planning Level “Project,” its Description of the
Performance Standard For Controlling Increases in Vineyard Runoff
is Adequate.
As we have indicated, one of the performance standards in Table 4.1 of the Plan
states, “Effectively attenuate significant increases in storm run off, so that the runoff
from vineyards shall not cause or contribute to downstream increases in rates of bank or
bed erosion.” LRC argues this standard actually is a mitigation measure that is not
sufficiently described and evaluated in the SED nor feasible, and that the Plan improperly
defers “identification of whether and how mitigation will be achieved” to a later time.
The State Board responds that this performance standard is a mitigation measure
only to the limited extent that it addresses using newly-approved engineered drainage
facilities for vineyard runoff, which, as discussed ante, is only one of several foreseeable
compliance methods referred to in the Plan and is clearly disfavored. Further, this is a
qualitative performance standard, and does not need to contain a quantitative
requirement. The State Board is allowed by law to implement it through the Regional
Board’s ability to grant, or not to grant, conditional permits regarding WDRs, or waivers,
for specific projects as presented in the future, which will require additional CEQA
review and monitoring of the effectiveness of any conditions imposed. Also, the record
indicates implementation of this standard is feasible, and that the State Board may best
measure compliance through monitoring and measurement of any actual changes in
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stream bed incision and bank erosion caused by any such engineered drainage devices,
rather than adopting a numerical proxy which itself would have a large margin of error.
We agree with the State Board. We find no violation of law or abuse of discretion
by the State Board regarding this “effectively attenuate” performance standard/mitigation
measure.
The “effectively attenuate” statement, whether viewed as a performance standard
or a mitigation measure, is neither inadequately described nor an improper deferral of the
identification of a mitigation measure to a later date. To the contrary, it is consistent with
the State CEQA Guidelines (Guidelines).3 The Guidelines make clear that, “[w]here a
lead agency is using the tiering process in connection with an EIR for a large-scale
planning approval, such as a general plan or component thereof . . . the development of
detailed, site-specific information may not be feasible but can be deferred, in many
instances, until such time as the lead agency prepares a future environmental document in
connection with a project of a more limited geographical scale, as long as deferral does
not prevent adequate identification of significant effects of the planning approval at
hand.” (Cal. Code Regs., tit. 14, § 15152, subd. (c); see also § 15385 [definition of
“tiering”] and § 15168 [“[a] program EIR is an EIR which may be prepared on a series of
actions that can be characterized as one large project and are related . . . [¶] . . . [¶] (3) In
connection with issuance of rules, regulations, plans, or other general criteria to govern
the conduct of a continuing program”].)
To the extent that these provisions of the Guidelines apply to a Plan adopted by a
certified regulatory agency, the Basin Plan Amendment is like a general plan or a
program EIR. The SED here identifies a potential negative effect not of the Plan, but of
one of several foreseeable methods that can be employed in efforts to comply with the
TMDL—the use of engineered drainage facilities. However, for the reasons discussed
above, the State Board cannot further evaluate whether a specific request regarding a
3
The State CEQA Guidelines are contained in California Code of Regulations,
title 14, section 1500 et seq.
16
WDR or a conditional waiver is appropriate until an operator of a vineyard makes such a
request. At that time, a separate CEQA analysis will be performed, as contemplated by
California Code of Regulations, title 14, section 15152, subdivision (c). For now, the
performance standard has been clearly set out in Table 4.1. It can be met by the Regional
Board setting conditions for WDRs or waiver of WDRs,4 and then, as the Regional Board
plans to do, by monitoring the activities of vineyard owners and operators to assure
compliance.5 As the trial court concluded, citing California Native Plant Society v. City
of Rancho Cordova (2009) 172 Cal. App. 4th 603, “the development of attenuation
standards with a greater level of detail and the application of those standards in individual
locations can be left for further agency action.”
With respect to the feasibility of achieving this “effectively attenuate”
performance standard, Table 11a of the Environmental Checklist included in the SED
identifies six reasonably foreseeable compliance actions, including “reduce/disconnect
engineered drainage.” LRC has cited no evidence in the record that suggests any of these
methods of attenuating peak flows from vineyards is not feasible. On the other hand,
4
The waivers would be for up to five years. (Wat. Code, § 13269, subd. (a)(2).)
The Regional Board could terminate them at any time and would not be required to
renew them if it finds that particular vineyards have not been successful in meeting the
standard.
5
As the State Board staff further stated in its response to the comment by LRC’s
Thomas N. Lippe, discussed in footnote 2, ante: “Foreseeable methods of compliance
may be BMPs, structures or devices that attenuate peak flow, or other methods. The
potential impacts from reasonably foreseeable methods of compliance were analyzed by
the [Regional] Board to the extent possible in this plan-level analysis. The Water Boards
are precluded from specifying manner of compliance (Wat. Code, § 13360), so it could
not perform project-level analyses on every project that will be designed in compliance
with this TMDL. As individual projects are proposed, the permitting agencies, including
the [Regional] Board, may have a better idea of the specific methods that will be
incorporated into the projects, and, as a result, may better be able to focus more specific
environmental review on those individual methods. At this point, however, the
[Regional] Board appropriately analyzed reasonably foreseeable methods of compliance
in the substitute environmental documentation . . . , as required by Public Resources Code
section 21159, and analyzed potential mitigation measures, potential alternatives, and the
costs involved.”
17
Table 11a of the Environmental Checklist indicates there are several ways to address that
problem that have been proven successful over the years, and which do not have negative
consequences in terms of increased runoff associated with some engineered drainage
facilities. LRC fails to explain why anything more is required to establish feasibility.
(See California Native Plant Society, supra, 172 Cal.App.4th at p. 622 [“[a] mitigation
measure is feasible if it is ‘capable of being accomplished in a successful manner within a
reasonable period of time’ ”].)
LRC relies heavily on the decision of Division Four of this court in Communities
for a Better Environment v. City of Richmond (2010) 184 Cal. App. 4th 70 (CBE) for its
arguments. CBE is wholly inapposite here. There, Chevron sought and, by a five to four
vote of the Richmond City Council, received approval for extensive modifications to its
Richmond facility intended to permit it greater flexibility in the grades of crude oil
Chevron could process there. Chevron’s project description was found to be potentially
misleading and at least inconsistent regarding whether Chevron intended to process more
lower grade crude oil, which could generate more greenhouse gases than Chevron’s then-
current operations. Furthermore, the City of Richmond was slow to acknowledge that
Chevron’s massive project would involve “ ‘estimated new emissions of 898,000 metric
tons per year of GHGs [greenhouse gases] prior to mitigation [which] would most likely
be a significant effect on the environment’ ”; mitigating that quantity of greenhouse gases
was equivalent to taking 160,000 cars off the road. (Id. at p. 91.) Yet the EIR before the
city council did not address how that mitigation was to be accomplished. Rather, it
provided that Chevron would have a year after approval of the EIR to present its proposal
to the city, which would then review it, apparently without the benefit of a complete new
EIR.
In contrast, here, the Basin Plan Amendment was proposed and adopted for the
express purpose of reducing sediment in the Napa River by a state agency charged with
doing so. There is no challenge to the Plan except the three discussed in this opinion, and
no suggestion that the Regional Board or the State Board has acted in less than the best of
good faith in their compliance with CEQA. The SED also described in some detail in the
18
State Board staff responses to LRC’s comments on this point how the Regional Board
will evaluate compliance.6 Nothing in CBE suggests that the administering of WDRs or
WDR waivers and monitoring of effectiveness by the public agency legally responsible
for achieving the performance standards in the Plan is inadequate.
Indeed, the CBE court correctly stated the law that is directly applicable here:
“Deferred selection of mitigation measures is permissible under the following
circumstances: ‘ “[F]or kinds of impacts for which mitigation is known to be feasible,
but where practical considerations prohibit devising such measures early in the planning
process . . . , the agency can commit itself to eventually devising measures that will
satisfy specific performance criteria articulated at the time of project approval. Where
future action to carry a project forward is contingent on devising means to satisfy such
criteria, the agency should be able to rely on its commitment as evidence that significant
impacts will in fact be mitigated. . . .” ’ ” (CBE, supra, 184 Cal.App.4th at p. 94; see also
Sacramento Old City Assn. v. City Council (1991) 229 Cal. App. 3d 1011, 1029.)
Similarly, in North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of
Directors (2013) 216 Cal. App. 4th 614, the court upheld mitigation measures which set
standards and committed agencies to future actions through “ ‘ “identified measures that
will mitigate those impacts,” ’ ” noting that “ ‘ “the agency does not have to commit to
any particular mitigation measure in the EIR, as long as it commits to mitigating the
significant impacts of the project. Moreover, . . . the details of exactly how mitigation
will be achieved under the identified measures can be deferred pending completion of a
future study.” ’ ” (Id. at p. 629.)
6
LRC contends these comments were provided too late for proper consideration.
We disagree. They were provided to LRC and the public on October 1, 2010, in advance
of the State Board’s hearing on October 5, 2010. This was at the end of a lengthy period
of providing information to the public and receiving its input before the State Board made
its decision. LRC does not establish it lacked sufficient opportunity to review those
responses before the hearing and express its views of them at the hearing.
19
The State Board did not violate any law or abuse its discretion in adopting this
approach. Therefore, LRC’s argument about the purported inadequacy of the “effectively
attenuate” performance standard, or mitigation measure, lacks merit.
IV. The Basin Plan Amendment Does Not Improperly “Piecemeal” Review
of the Project As a Whole
LRC’s final argument is that the SED impermissibly defers to a future time, or
“piecemeals,” the environmental impact review of a State Board policy of waiving
WDRs, albeit to be applied in the future, which, LRC contends, is an integral part of the
Plan that must be reviewed in the SED. LRC argues it is “uncontradicted” that this
waiver policy is already a part of the Plan. LRC is incorrect.
The record establishes only that the Regional Board may adopt such a policy in the
future. As the State Board staff stated, “[O]ne approach the [Regional] Board may use to
implement the TMDL is to adopt a Waiver of WDRs, which will broadly regulate a
specified category of discharges. At the time that mechanism is adopted, it will be
subject to a more focused environmental review, specific to the types of discharges [it]
regulates.” This approach is reflected in footnote 2 of Table 4.1 of the Plan, which refers
to conditional WDR waivers that “may” be adopted by the Regional Board.7
Furthermore, the SED makes clear that the State Board, when it adopted the
TMDL, did not decide exactly how to regulate discharges in order to achieve it. Rather,
the State Board, operating as a certified regulatory agency, followed the protocols in the
Guidelines for adoption of the Plan as a program, with the intention to follow through
with subsequent CEQA compliance when and if a waiver policy is adopted. As the State
Board staff wrote in response to one of LRC’s comments: “[T]he CEQA review that
accompanies the TMDL is akin to a tiered EIR, which is programmatic in nature. Like a
general plan EIR, the substitute environmental documentation that accompanies a TMDL
looks at broad impacts of the plan, reasonably foreseeable methods of compliance, and
7
The State Board’s request for judicial notice, filed October 15, 2013, and LRC’s
second request, filed November 5, 2013, are both granted. However, neither changes our
analysis.
20
impacts, mitigation measures and alternatives for those methods of compliance. The
environmental documentation that accompanies a TMDL cannot be project specific
because no projects have yet been proposed to meet the specific requirements of the
TMDL. Project specific environmental review must await specific compliance projects
that will be proposed by dischargers to comply with the TMDL. . . . The [Regional]
Board’s documentation contains just such an environmental review. It states that one
approach the SF Bay Board may use to implement the TMDL is to adopt a Waiver of
WDRs, which will broadly regulate a specified category of discharges. At the time that
mechanism is adopted, it will be subject to a more focused environmental review,
specific to the types of discharges [it] regulates. . . .”
The State Board’s approach is consistent with the relevant case law. Cases which
have disapproved application of a tiered approach have involved inadequate review of an
actual specific project rather than a general plan. (See, e.g.: Stanislaus Natural Heritage
Project v. County of Stanislaus (1996) 48 Cal. App. 4th 182 (Stanislaus Natural Heritage
Project) [no analysis of impacts of providing water from off-site for a planned residential
facility that could not proceed without water]; San Joaquin Raptor/Wildlife Rescue
Center v. County of Stanislaus (1994) 27 Cal. App. 4th 713 (San Joaquin Raptor) [no
analysis of a contemplated sewer expansion that was a “crucial element” of a residential
development project]; City of Arcadia, supra, 135 Cal. App. 4th 1392 [no analysis of the
environmental impacts of specified pollution control devices necessary to meet the zero
trash TMDL].) Those cases have no application to this case.
On the other hand, as our Supreme Court held in In re Bay-Delta Etc. (2008) 43
Cal. 4th 1143: “Under CEQA’s tiering principles, it is proper for a lead agency to use its
discretion to focus a first-tier EIR on only the general plan or program, leaving project-
level details to subsequent EIR’s when specific projects are being considered. (See Cal.
Code Regs., tit. 14, § 15152, subd. (b).) This type of tiering permits a lead agency to use
a first-tier EIR to adequately identify ‘significant effects of the planning approval at
hand’ while deferring the less feasible development of detailed, site-specific information
to future environmental documents. (See id., § 15152, subd. (c).) In determining the
21
adequacy of an EIR, the CEQA Guidelines look to whether the report provides
decisionmakers with sufficient analysis to intelligently consider the environmental
consequences of a project. (Cal. Code Regs., tit. 14, § 15151.) The CEQA Guidelines
further provide that ‘the sufficiency of an EIR is to be reviewed in the light of what is
reasonably feasible. . . . The courts have looked not for perfection but for adequacy,
completeness, and a good faith effort at full disclosure.’ ” (Id. at pp. 1174-1175.) This is
the approach taken by the State Board in the present case.
It is true that, if the Regional Board decides to adopt a categorical WDR waiver
policy regarding vineyards, as well as other sources of sediment, that would be a further
regulatory document which would not be site-specific but which would serve as a basis to
regulate site-specific proposals by vineyard owners in the future. But unlike the water
sources in Stanislaus Natural Heritage Project or the sewer extension in San Joaquin
Raptor, whether the Regional Board settles on enforcing the performance standard for
vineyards through WDRs or waivers, LRC cites no good reason why, nor any CEQA
requirement mandating that, this decision must be made now. That is particularly true
since the State Board has acknowledged that further CEQA review would be necessary
for the adoption of any such policy, and that the effectiveness and applications to
individual landowners who might apply for a permit or a waiver would be subject to the
strict regulatory controls specified in the Policy For Implementation and Enforcement of
the Nonpoint Source Pollution Control Program adopted by the State Board on May 20,
2004.
The trial court found that, “The Basin Plan Amendment sets a performance
standard and in the adoption of the waiver policy the Board can more closely examine
how it will meet that standard both in policies and as applied to individual locations.”
We agree that whether the Regional Board decides to enforce the TMDL through WDRs
or waivers of WDRs with required follow-up, the State Board’s decision to defer the
issue was appropriate.
Given our conclusions, we do not discuss the other arguments and contentions
made by the parties.
22
DISPOSITION
The judgment is affirmed. The State Board is awarded costs of appeal.
_________________________
Brick, J.*
We concur:
_________________________
Kline, P.J.
_________________________
Haerle, J.
* Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
23