Tag: Findings

SECOND DISTRICT HOLDS REGIONAL WATER BOARDS ARE NOT REQUIRED TO EVALUATE UNREASONABLE USE OF WATER OR MAKE FINDINGS OF SIGNIFICANCE WHEN ISSUING WASTEWATER DISCHARGE PERMITS

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UPDATE:

On June 2, 2023, the Second District Court of Appeal vacated their prior opinion and issued a revised opinion in Los Angeles Waterkeeper v. State Water Resources Control Board (2023) 92 Cal.App.5th 230, following a request for modification from the State Water Resources Control Board and the Los Angeles Regional Water Quality Control Board (collectively, the Boards). The Boards sought clarification about the Regional Board’s authority to regulate the unreasonable use of water under article X section 2 of the California Constitution and Water Code sections 100 and 275, and the scope of the CEQA exemption in Water Code section 13389. The court’s revised opinion maintains the original holdings but clarifies their scope.

The revised opinion makes clear that nothing in the holding was meant to limit a regional water quality control board’s authority to regulate the unreasonable use of water. According to the court, its decision expresses “no opinion as to whether the State Board may direct or authorize the regional water quality control boards to take actions related to preventing the waste or unreasonable use of water in coordination with the State Board’s efforts in this regard.” As noted by the court, this clarification is important to ensure that coordination between the regional water quality control boards and the State Board regarding issues of waste and unreasonable use of water can continue and is not undermined by language in the opinion.

The revised opinion also clarifies that, because the instant case only deals with NPDES-equivalent permits that are subject to the Water Code section 13389 CEQA exemption, the court did not decide whether the exemption applies to other types of waste discharge permits not at issue in this case.

– Alina Werth

 

In Los Angeles Waterkeeper v. State Water Resources Control Board (2023) 88 Cal.App.5th 874, rehearing granted March 27, 2023, the Second District Court of Appeal held that the Regional Water Quality Control Board does not have a duty to evaluate whether discharges of treated wastewater are an unreasonable use of water under article X, section 2 of the California Constitution and Water Code sections 100 and 275. The court also held that under CEQA, Regional Water Quality Control Boards are not required make findings of significance under Public Resources Code section 21002 when issuing wastewater discharge permits, which are exempt from CEQA pursuant to Water Code section 13389.

Background

The Regional Board renewed permits allowing four publicly owned treatment works (POTWs) to discharge millions of gallons of treated wastewater daily into the Los Angeles River and Pacific Ocean.

Petitioner requested review of the permits to the State Water Resources Control Board, which declined review. Petitioner then filed petitions for writs of mandate against the State Board and the Regional Board (collectively, the Boards), claiming violations of the Water Code and CEQA.

The Boards demurred to the petitions. The trial court sustained the demurrer as to the Regional Board, but overruled the demurrer as to the State Board, finding that the State Board had a constitutional and statutory duty to prevent the waste of water. The trial court also ruled that the Regional Board did not have to comply with CEQA when issuing wastewater discharge permits, pursuant to an exemption under the Water Code.

The trial court held that the State Board failed to fulfill its duty with regard to the four POTWs and accordingly issued four judgments and four writs of mandate against the State Board. The State Board appealed the four judgments. Real Party in Interest appealed the judgment against the State Board pertaining to its POTW. Petitioner appealed the trial court’s decision to sustain the demurrer in favor of the Regional Board. The appellate court consolidated the appeals.

The Court of Appeal’s Decision

California Constitution & Water Code

The Court of Appeal held that the Regional Board does not have a duty to evaluate whether discharges of treated wastewater are an unreasonable use of water under article X, section 2 of the California Constitution and Water Code sections 100 and 275. The court determined that the Legislature did not design or empower the Regional Board to enforce the mandates of article X, section 2 when issuing wastewater discharge permits. Moreover, it explained that the Regional Board’s role in state water law is to regulate water quality by ensuring the state’s waters are sufficiently free of pollutants to be safe for their intended uses—a role which does not include regulation of wasteful or unreasonable use of water. The court stated that nothing in the Water Code delegates the Regional Board powers to adjudicate and regulate functions of the state in the field of water resources or to take all appropriate proceedings or actions to prevent waste and unreasonable use of water, as it delegates to the State Board.

The court rejected petitioner’s argument that article X, section 2 applies to all government actors, including the Regional Board. It explained that while an action could be brought against anybody for wasting water, petitioner’s claims did not allege that the Regional Board was wasting water, but rather, failed to prevent the POTWs from wasting water, and nothing in article X, section 2 or the Water Code empowers the Regional Board to prevent unreasonable use of water.

The Court of Appeal did not need to reach the issue of whether the State Board has a duty to prevent unreasonable use of water because it concluded that petitioner failed to adequately plead a cause of action against the State Board. It nonetheless explained that the provisions in the California Constitution and the Water Code requiring the State Board to prevent the waste of water are highly discretionary and do not require the State Board to prevent all waste, nor do they dictate how to prevent waste. Therefore, these provisions cannot be read to restrict the State Board’s discretion as to whether to direct its resources towards one method of conservation in its portfolio over another.

CEQA

The Court of Appeal held that Public Resources Code section 21002 does not apply to wastewater discharge permits and, accordingly, the Regional Board is not required to make findings as to whether a project has significant and unavoidable impacts, and whether there are feasible alternatives or mitigation measures that would substantially lessen those impacts.

The appellate court rejected petitioner’s argument that section 21002 imposes environmental review requirements independent of CEQA’s environmental impact report (EIR) procedures from which the wastewater discharge permits are exempt under Water Code section 13389. The court explained that section 21002 does not impose requirements separate from the EIR process; it only has force to the extent an entity is otherwise obligated to prepare an EIR. The court based its reasoning in the language of sections 21002, 21002.1, and 21082, all of which confirm that the EIR is the means by which the agency satisfies the policies articulated in 21002.

The appellate court also rejected petitioner’s argument that an agency can comply with section 21002 by means other than an EIR, and that the Regional Board can comply with this section by using the information and analysis it collects and performs in the normal course of permit approvals. The court explained that it will not read section 21002 to impose such requirements when the Legislature has not specified any means to carry out those requirements apart from an EIR, as there would be no way for a court to evaluate whether the Regional Board’s efforts were sufficient. The court concluded that the Legislature has opted to govern environmental review in this context through the wastewater discharging process by exempting the Regional Board from an EIR requirement.

The court accordingly did not need to reach the broader question of whether Water Code section 13389 provides a complete exemption from CEQA.

– Veronika S. Morrison

Sixth District Court of Appeal Upholds Trial Court’s Use of Interlocutory Remand on Determination Regarding General Plan Consistency

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The Sixth District Court of Appeal held in the partially-published opinion, Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, that general plan consistency is not a CEQA issue, and therefore mandate procedures for CEQA violations are inapplicable.

The Trial Court Proceedings

In 2012, Monterey County certified an EIR for an 11-acre shopping center project. The county’s general plan requires a specific finding of “a long-term sustainable water supply,” but in approving the project the board of supervisors determined only that the project had an “adequate long-term water supply.” After the county approved the project, Highway 68 Coalition filed a petition for writ of mandate challenging approval of the project on both CEQA and general plan consistency grounds. The trial court rejected the CEQA claims, but issued an order of interlocutory remand to the county to clarify whether there was a long-term sustainable water supply using the specific language mandated by a general plan policy. The board of supervisors held a hearing on remand and made the specific findings required by the general plan.

Highway 68 then filed, and the court granted, a motion for leave to file a supplemental writ petition regarding the county’s subsequent findings. Highway 68 argued that the county had violated procedural due process and had violated CEQA during the remand proceedings. The trial court denied Highway 68’s claims, finding that the county’s procedures on remand had not violated due process, and substantial evidence supported the board’s findings regarding water supply. The trial court lifted the prior stay and denied the petition for writ of mandate.

The Appeal

On appeal, Highway 68 argued that the trial court erred in issuing interlocutory remand in a CEQA writ of mandate case; the county violated due process requirements on interlocutory remand; and the EIR’s analysis of consistency with the general plan, traffic analysis, and segmentation of environmental review was insufficient under CEQA. The Court of Appeal found that because the issue of whether a proposed project is consistent with a county’s general plan is not a CEQA issue, CEQA’s mandate procedures do not apply. Thus, the court held that because this was a single, discrete issue of general plan consistency, which is reviewed by ordinary mandamus, the trial court did not err when it ordered interlocutory remand. In addition, the court held that Highway 68 did not meet its burden to show, based on the evidence in the record, why the board’s determination was unreasonable. Thus, the court upheld the finding of general plan consistency and affirmed the trial court’s denial of the petition for writ of mandate.

Sixth District Court of Appeal Upholds EIR for a Quarry Reclamation Plan, Rejecting Arguments Under CEQA and SMARA

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On August 31, 2016, the Sixth District issued a decision in Bay Area Clean Environment v. Santa Clara County (previously published at: 2 Cal.App.5th 1197)* upholding the County’s EIR for a quarry reclamation plan. The non-profit challenger asserted claims under the Surface Mining and Reclamation Act (SMARA) and the California Environmental Quality Act (CEQA). The court concluded that the county had not violated either statute.

The 3,510-acre quarry started producing limestone and aggregate in the early 1900s. In 2006, the Department of Conservation concluded that the quarry was violating SMARA because slope instability issues had not been properly addressed in the earlier 1985 reclamation plan. High selenium levels downstream of the quarry also posed a problem. In 2007 and 2010, Real Party in Interest Lehigh Southwest Cement Company applied to the county for amendments to the 1985 plan that would close one pit while allowing for the opening of new mining areas to replace the reclaimed pit. In particular, the 2010 application proposed a new pit called the South Quarry. But, subsequently, Lehigh applied in 2011 for an amendment to the 1985 reclamation plan that closed the problematic pit without proposing any new pits. This 2011 application superseded all earlier applications.

The county prepared an EIR for the reclamation plan amendment and made the requisite findings under both CEQA and SMARA. The county concluded that the project would result in significant and unavoidable impacts of excess selenium runoff during the 20-year period of reclamation. Bay Area Clean Environment and Midpeninsula Regional Open Space District filed challenges to the project. Midpeninsula ultimately settled with Lehigh, but Bay Area Clean Environment appealed the trial court’s denial of its petition for writ of mandate.

The Sixth District Court of Appeal started by addressing the SMARA claims. First, the court concluded that evidence in the record supported the county’s finding that the reclamation plan complies with SMARA with regard to water quality. The court explained that SMARA provided the county with discretion to allow reclamation activities that may result in adverse impacts—such as the additional deposition of selenium in Permanente Creek—if those actions were necessary to comply with federal and state laws. Second, the court held that evidence in the record supported the county’s conclusion that the project’s impacts to red-legged frogs were mitigated to the extent possible.

The court turned to the CEQA claims next. First, the court rejected the challenger’s argument that the county had failed to analyze the cumulative impact of the potential new South Quarry pit that had been proposed in the earlier 2010 application. The court explained that the South Quarry pit was not a reasonably foreseeable future project because the application for a use permit for the new pit had been withdrawn. The court also noted that the county had not engaged in improper piecemealing because the amendment to the reclamation plan was a stand-alone project that did not depend on the future approval of a South Quarry pit.

Second, the court addressed the argument that the county’s findings about impacts to the red-legged frog were insufficient and not supported by substantial evidence. The EIR reported that direct impacts to the frog would be less than significant. The EIR also determined that impacts to aquatic life, of which the frog is included, from excess selenium runoff in the downstream areas would be significant and unavoidable. The court concluded that substantial evidence in the record supported the EIR’s conclusions about both direct and indirect impacts to the frog. The court also held that a statement of overriding considerations for impacts to the frog was not required because the potential direct impacts to the frog were less than significant. Although it is not clear from the opinion, presumably the county adopted a statement of overriding considerations for the significant and unavoidable impact to aquatic life from excess selenium runoff. The court rejected the petitioner’s argument that a statement of overriding considerations directed specifically to the frog was required.

Finally, the court affirmed the trial court’s decision to grant Lehigh’s motion to augment the administrative record. Lehigh had argued that an email between a herpetologist and staff of the Department of Fish and Wildlife (DFW) should be included in the record under Public Resources Code section 21167.6, subdivision (e)(10). In the email, Dr. Mark Jennings explained to DFW staff that his 2007 report contained typographical errors and that he had in fact never observed the red-legged frog in one particular pond. This email was sent to the consulting firm that prepared the biological resources assessment for the EIR. The court concluded that the email could be properly included in the record as evidence of the presence or absence of the frog in the reclamation area that was relied upon by the consultants who prepared the biological study for the EIR.

* Review Denied and Ordered Not to be Officially Published ,December 14, 2016, per Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125.