Tag: lead agency

First District Holds Regional Water Quality Control Board’s Failure to Impose Mitigation Requirements Through CEQA Process Did Not Preclude it from Later Imposing Those Requirements Pursuant to Its Authority Under the Porter-Cologne Act

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The First District Court of Appeal in Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) 59 Cal.App.5th 199, held that CEQA did not preclude the San Francisco Bay Regional Water Quality Control Board, acting as a responsible agency under CEQA, from imposing additional waste discharge requirements via the Porter-Cologne Water Quality Control Act, beyond the mitigation measures imposed during the CEQA process.

Background

Every 10-20 years, the Upper Berryessa Creek—which drains from the Diablo Range Hills to the Coyote Creek tributary, and ultimately into the San Francisco Bay—floods the nearby areas of Milpitas and San Jose. In the 1980s, the U.S. Army Corps of Engineers began working on plans to build a flood control project on the creek, but the project did not move forward until 2013, when construction of a nearby BART station that could be impacted by flooding was proposed.

In 2015, the Santa Clara Valley Water District (District), acting as the lead agency under CEQA, issued a Draft EIR for the project. That same month, the Corps applied to the San Francisco Bay Regional Water Quality Control Board (RWQCB) for a section 401 Clean Water Act certification for the project.

The District later issued the Final EIR for the project, and the RWQCB’s executive officer issued the section 401 certification. As a CEQA responsible agency, the RWQCB found that all impacts within its jurisdiction would be mitigated to less-than-significant levels but clarified that it would later consider waste discharge requirements (WDRs) pursuant to its authority under the Porter-Cologne Act to address impacts to waters and wetlands that were not handled by the section 401 certificate.

In 2017, when project construction was nearly complete, the RWQCB issued a WDR order that required the Corps and the District to provide addition mitigation for the project’s impacts to waters and wetlands. The order stated that it suspended and replaced the prior 401 certification.

The District filed a petition for writ of mandate against the RWQCB, challenging the WDR order under CEQA, as well as section 401 of the Clean Water Act, the Porter-Cologne Act, and other state laws. The trial court denied the petition. The District appealed.

Court of Appeal’s Decision

On appeal, the District argued the RWQCB violated CEQA because: (1) the RWQCB’s failure to impose mitigation requirements as part of the RWQCB’s CEQA review barred it from imposing mitigation via the WDR order; and (2) the RWQCB prejudicially abused its discretion by failing to support the mitigation requirements with substantial evidence. The Court of Appeal rejected both arguments.

Relying on CEQA Guidelines section 15096, the District argued that the RWQCB’s only opportunity to impose mitigation was through the CEQA process. CEQA Guidelines section 15096 provides that a responsible agency that disagrees with the adequacy of a lead agency’s EIR must either sue the lead agency within 30 days, be deemed to have waived any objections to the EIR, prepare a subsequent EIR if legitimate grounds exist, or, assume the role of a lead agency as provided by Guidelines section 15052, subdivision (a)(3). Because the RWQCB did not challenge the District’s certification of the EIR or find that a subsequent EIR was required, the District argued that the EIR was deemed adequate and no additional mitigation measure could be imposed. As explained by the court, however, Public Resources section 21174 includes a savings clause that makes clear that CEQA does not prevent an agency from exercising it independent authority under statutes other than CEQA. The court determined, therefore, that the RWQCB did not violate CEQA by issuing the WDRs because it did so pursuant to its duties under the Porter-Cologne Act. Although the District, acting as lead agency, had not imposed CEQA mitigation measures requiring WDRs, the RWQCB, as a responsible agency, was not precluded from separately discharging its authority under the Porter-Cologne Act. Although the appellate court noted that unified CEQA review and other environmental regulation should be the norm, there may be times when an agency’s own environmental regulation can take place after CEQA review, as recognized by Public Resources Code section 21174.

The court also rejected the District’s claim that the RWQCB’s WDR order imposed “excessive” mitigation that was not supported by substantial evidence. The court concluded that the District failed to engage in sufficient analysis of the evidence supporting the RWQCB’s conclusions, and therefore, failed to carry its burden. The court also concluded that the District’s arguments lacked merit even if they had been properly briefed because the RWQCB’s determinations were supported by substantial evidence.

– Bridget McDonald

Fifth District Court of Appeal Upholds Air Pollution Control District As Proper Lead Agency, Finds Permit Requirements Provide Substantial Evidence For EIR Emissions Estimates, And Holds EIR Lacked “Reasoned Analysis” For Rejecting Additional Mitigation Measures

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In Covington v. Great Basin Unified Air Pollution Control District (2019) 43 Cal.App.5th 867, the Fifth District Court of Appeal affirmed in part the judgement of the trial court by holding that the District is the proper CEQA lead agency and that permit requirements provide substantial evidence to support the EIR’s fugitive emissions estimates for a proposed geothermal power project; and reversed in part by holding that the District’s feasibility assessment of a mitigation measure proposed by EIR commenters was flawed and required more “reasoned analysis.”

Background

In July 2014, the District certified the Casa Diablo IV Geothermal Development Project joint document EIR/EIS prepared for a proposed geothermal energy facility located on national forest land in Mono County. The project was proposed by Ormat Nevada, Inc., and Ormat Technologies, Inc. (“project proponents”) to be located adjacent to an existing geothermal power complex in an area that has been developed for geothermal activity since 1984. The joint document was prepared by the Bureau of Land Management, the U.S. Forest Service, and the District, with the state agency serving as the CEQA lead agency. The project was designed to reduce greenhouse gas emissions and dependence on fossil fuels by using heat extracted from water pumped from a deep geothermal reservoir to fuel a closed-loop system that would ultimately produce electricity. The reaction, however, would produce n-pentane (normal pentane)—a non-toxic reactive organic gas but a precursor to ozone—which would leak in some amount leak from the system and result in fugitive emissions. The EIR concluded that the amount of fugitive emissions would not exceed 410 pounds per day.

The Laborer’s International Union of North America Local Union No. 783 and certain individual members (“Petitioners”) filed a petition for writ of mandate against the District and project proponents as real parties in interest claiming that the EIR’s fugitive emissions conclusions were not supported by substantial evidence, that the District was an improper lead agency, and that the District erred in its feasibility analysis for measures to further mitigate fugitive emissions. The trial court denied the petition in full. Petitioners appealed.

District is Proper Lead Agency

Petitioners argued that Mono County, not the District, was the proper CEQA lead agency as defined in Guidelines section 15051, subdivision (b), because it was the agency with more “‘general governmental powers’” over the project. While the Court agreed that “‘normally’” a county would be the CEQA lead, as the first non-federal agency to act on the project, the District was qualified under Guidelines section 15052, subdivision (c), to act as lead.  As further evidence, the Court pointed out that, for a while, the District appeared to be the only involved state agency because of its unique permit authority over an otherwise federalized project. The Court further reasoned that the County’s involvement is minimal in comparison because the project requires “only” a conditional use permit from the County for a “small portion” of its pipeline, which gave it lesser responsibility for “approving the project as a whole,” thereby making the District the proper CEQA lead.

Permit Provides Substantial Evidence

Petitioners also argued that “the record does not contain substantial evidence to support the [EIR’s] conclusion that the Project’s n-pentane [fugitive] emissions will be limited to 410 pounds per day.” The EIR did not, in fact, include emissions calculations. But, the District countered that it provided total emissions numbers to Petitioner’s counsel under a public records act request prior to EIR certification. And, after EIR certification, it sent Petitioner’s counsel additional emissions data, albeit with some redactions. The District further argued that project compliance with permit requirements that limit daily fugitive emissions to 410 pounds per day provides substantial evidence to support the EIR’s conclusion that the project will not exceed that limitation. The Court agreed and cited to several cases for support, including Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884 and Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, where other courts held that “compliance with performance standards is a substitute for substantial evidence.” The Court also pointed out that the EIR contained several mitigation measures to lessen impacts from project fugitive emissions.

Mitigation Feasibility Assessment Lacks “Reasoned Analysis”

Petitioners then argued that additional feasible mitigation measures existed to further reduce fugitive emissions, provided by commenters on the Draft EIR, and that the District abused its discretion in finding them infeasible. The District countered  that the project’s required use of “‘best available technology’” and “‘state of the art equipment’” was enough to reduce impacts to less than significant, thereby rendering additional measures irrelevant. The Court, while not invalidating the District’s conclusion, required it to provide a “good faith, reasoned response” explaining why the specific technologies suggested by commenters, which are successfully used in other industrial facilities, could not be used for the project to further reduce impacts. Without such explanation, the Court contended that the EIR would not contain “a sufficient degree of analysis to enable decision makers to make an intelligent and informed decision,” pursuant to Guidelines section 15151.

– Casey Shorrock

Trial Court Rejects Challenge to EIR for Cadiz Valley Groundwater Recovery Project in San Bernardino County, Appeal Likely to Follow

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On May 1, 2014, the Orange County Superior Court ruled against petitioners in six related cases and upheld the EIR for the Cadiz Valley Water Conservation, Recovery, and Storage Project.  The court noted its concern over the designation of Santa Margarita Water District as the lead agency for the project under CEQA.  But it concluded that even if the County of San Bernardino would have been a more appropriate lead agency, these concerns did not provide sufficient grounds for the granting of any of the writs sought by petitioners Delaware Tetra and Center for Biological Diversity.

Cadiz, Inc., is a private corporation that owns approximately 34,000 acres in the Mojave Desert portion of eastern San Bernardino County.  A vast groundwater basin capable of holding an estimated 17-34 million acre feet (MAF) underlies the Cadiz property.  The groundwater recovery project would allow Cadiz to sell up to 2 MAF of water that would otherwise become saline and evaporate over the next 100 years.  The project involves pumping and delivering to water providers like the Santa Margarita Water District a total of 50,000 AF a year for 50 years. The participating water districts and water providers could also send their surplus surface water supplies to the Cadiz Valley Project to recharge the groundwater and store it until the water is needed in subsequent years.

Currently, six entities have signed purchase or option agreements with Cadiz: 1) Santa Margarita Water District, 2) Three Valleys Municipal Water District, 3) Suburban Water Systems, 4) Golden State Water Company, 5) Jurupa Community Services, and 6) California Water Service Company.  These entities will receive 80% of the project’s water supplies, while 20% is reserved for future use by water agencies in San Bernardino County.

The project drew CEQA challenges from both the private sector and environmental groups.  Petitioner Delaware Tetra Technologies owns a salt mining operation in the Cadiz and Fenner Valleys of San Bernardino County. The groundwater recovery project threatens the continued operation of the salt mine because it will reduce the flow of saline water that creates salt when it evaporates.

In other suits, petitioners Center for Biological Diversity (CBD) and other conservation groups asserted several CEQA claims, including concern over the potential environmental impacts on nearby springs in wilderness areas and the Mojave National Preserve.   They argue that the project would be growth-inducing because the Santa Margarita Water District will send the groundwater it purchases to support development in Orange County.  The Orange County Superior Court’s Ruling did not specify its rationale for rejecting petitioners’ CEQA arguments.  Instead, the court directed respondents Santa Margarita Water District and the County of San Bernardino to prepare proposed findings as to each petition reflecting that the court adopted the respondents’ arguments but noting that the court had some concerns regarding the lead agency designation.  Counsel for CBD has indicated that it will appeal the decision.