On February 26, 2021, Whit Manley will serve as a panelist at a webinar sponsored by the California Judicial Council addressing recent developments in CEQA. The Webinar is available to California Justices, Judges, and court staff, and is designed to keep the judiciary abreast of important recent CEQA case law.
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
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.
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
Veronika Morrison is an associate attorney in the Sacramento-based law firm of Remy Moose Manley, LLP, which specializes in environmental law, land use and planning, water law, initiatives and referenda, and administrative law generally. Ms. Morrison joined the firm in 2020.
Ms. Morrison received her Juris Doctorate from the University of California at Davis, King Hall School of Law in 2020, with certificates in environmental law and public service law. She attended on a full Dean’s Merit Scholarship. Ms. Morrison received her Bachelor of Arts degree in environmental studies from the University of California at Santa Cruz in 2017, graduating cum laude and with honors in the major. While in college, Ms. Morrison interned for the nonprofit Ecological Rights Foundation and the Hazardous Materials Surveillance Section of the Orange County Environmental Health Care Agency.
At King Hall, Ms. Morrison was a senior notes and comments editor of the UC Davis Law Review, a senior articles editor of Environs, the Environmental Law and Policy Journal, and a symposium committee member of the Environmental Law Society. Ms. Morrison’s Law Review note, Airbnbs & Coastal Access: Can the California Coastal Commission Reject City Ordinances that Ban Short-Term Rentals?, was published in the UC Davis Law Review and won the Patrick J. Hopkins Memorial Writing Award for best note. During law school, Ms. Morrison worked as a law clerk for Remy Moose Manley, LLP, practiced in the UC Davis Aoki Water Justice Clinic, and interned with Orange County Coastkeeper.