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California First District Court of Appeal Upholds State Water Board’s Substitute Environmental Document For Maintaining Instream Flows In Coastal Streams

The First District Court of Appeal rejected a challenge to the State Water Resources Control Board’s (SWRCB) approval of a policy designed to maintain instream flows in coastal streams north of San Francisco. The court held that the SWRCB’s Substitute Environmental Document was adequate under the California Environmental Quality Act (CEQA) and that the SWRCB properly rejected mitigation that was unlikely to reduce potential indirect impacts, which themselves, were unlikely to occur. [Living Rivers Council v. State Water Resources Control Board, ___Cal.App.5th___, Case No. A148400 (1st Dist. Sept. 28, 2017; modified Oct 17, 2017).]

Factual and Procedural Background

Enacted in 2004, Water Code § 1259.4 requires the SWRCB to “adopt principles and guidelines for maintaining instream flows” of northern California coastal streams “for the purposes of water right administration.” To comply with this statute, the SWRCB prepared a draft “Policy for Maintaining Instream Flows in Northern California Coastal Streams.” Among other things, the policy set limits on surface water diversions.

The SWRCB also issued a Substitute Environmental Document (SED), which served as the CEQA-equivalent document under the SWRCB’s certified regulatory program. The SED evaluated the policy’s potential effects on the environment at a programmatic, rather than project-specific, level. The SED conservatively determined that if a water diversion project could “conceivably” have a significant indirect environmental impact, the impact was assumed to be significant for purposes of CEQA.

An appendix to the SED, which evaluated the policy’s potential indirect impacts on water use, noted that the policy’s restrictions on surface water diversions could lead some users to divert water from other sources, including by pumping groundwater, which in turn, could lead to surface water impacts. Because the SWRCB has jurisdiction over subterranean streams—and could thus potentially reduce indirect impacts caused by groundwater pumping—the SWRCB requested its engineering consultant to prepare maps delineating subterranean streams in the policy area. In addition to the maps themselves, the consultant prepared a technical report that set forth a methodology to identify subterranean streams where groundwater use could deplete stream flows. The SWRCB did not disclose the maps for the related regulatory concept in the draft SED, but it did disclose, in response to public comment, that the mapping information was available.

The policy approved by the SWRCB did not incorporate the maps or require their use.

Following the SWRCB’s approval of the policy, Living Rivers Council filed a petition for writ of mandate seeking to vacate the policy based on alleged CEQA violations. The trial court held that the SED violated CEQA because it failed to disclose the subterranean stream delineations as a potential mitigation measure for possible increases in groundwater pumping indirectly caused by the project and because it failed to disclose that such possible increases in groundwater pumping would not likely undergo their own CEQA review.

Rescission of Policy and Revised SED

In response to the trial court’s ruling, the SWRCB rescinded the policy and prepared a revised SED to comply with the writ. The revised SED evaluated the subterranean stream delineations as a mitigation measure and concluded that they would not be feasible because, among other reasons, the likelihood of groundwater pumping as a result of the policy was uncertain; shifts from surface water diversions to groundwater were unlikely to cause a significant reduction in surface water flows; the SWRCB has jurisdiction over just a small portion of the affected area so the delineations would not provide much mitigation; and delineation maps with much more site-specific detail would be required for the mitigation to be effective. The revised SED also stated that the original SED was misleading because it failed to explain that a shift from surface water diversions to groundwater pumping was unlikely to cause significant reductions in surface water. In fact, the revised SED explained, the policy was not likely to cause water diversions to occur and, if anything, would only reduce surface water diversions.

After the SWRCB re-adopted the policy based on the revised SED, Living Rivers Council filed a new petition for writ of mandate challenging the revised SED under CEQA. The trial court denied the petition. Living Rivers Council appealed.

 The Court of Appeal’s Decision

 The Revised SED Was Not Misleading With Respect to Groundwater Pumping

On appeal, Living Rivers first argued that the revised SED was misleading with respect to groundwater pumping because it sent “conflicting signals” regarding whether policy-induced groundwater pumping would cause significant impacts to surface waters. Although both the SED and the revised SED found the policy could cause more people to pump groundwater, and additionally found the impacts on groundwater resources and surface flows would be “significant,” Living Rivers claimed that the revised document improperly equivocated by asserting these significant impacts were uncertain or unlikely. The Court of Appeal disagreed, holding that the drafters of the revised SED explained their reasoning in some detail and made clear the extent to which the revised SED differed from the original SED, and thus the revised SED fulfilled its informational purpose.

The Revised SED Adequately Described Subterranean Stream Delineations as a Potential Mitigation Measure

The court also rejected Living Rivers’ argument that the revised SED inadequately described subterranean stream delineations as a potential mitigation measure. The court explained that the revised SED described the ways in which groundwater pumping has the potential to affect surface water flows. The revised SED also explained the reasons why the SWRCB decided to forego the delineations as a mitigation measure. Although, as the court noted, “reasonable minds can differ” as to whether the stream delineations should have been adopted as part of the policy, the court held that the delineations had been sufficiently described in the SED to satisfy CEQA’s informational requirements.

The SWRCB’s Conclusion that Subterranean Stream Delineations Were Infeasible as a Mitigation Measure Was Not Erroneous

Finally, the court upheld the SWRCB’s rejection of the stream delineations as infeasible. Living Rivers argued that the likelihood and severity of an impact should not factor into a public agency’s decision as to whether a mitigation measure is infeasible. The court explained, however, that the likelihood and severity of an impact, when compared to the cost and difficulty of implementing the mitigation, are appropriate factors to consider in that they tend to show that the mitigation measure is undesirable. Moreover, the likelihood and severity of the impact was not the only factor the SWRCB considered in rejecting the stream delineations as mitigation. It also rejected the delineations based on practical considerations, such as the SWRCB’s limited jurisdiction over subterranean streams and the enormous costs (between $1.3 million and $5 million). The court concluded that Living Rivers’ argument that the mitigation would in fact be effective amounted only to a “policy disagreement” with the SWRCB, which could not be a basis to invalidate the SWRCB’s decision.

 Conclusion and Implications

This case provides guidance regarding the standard that must be satisfied to fulfill CEQA’s information-disclosure goals. The most important takeaway from this case, however, is the court’s clarification regarding the factors that may be considered when determining whether a mitigation measure is infeasible. As explained by the court, the likelihood and severity of a potential significant effect, compared to the cost and uncertainty in the efficacy of a mitigation measure, are appropriate considerations in determining whether a mitigation measure is infeasible under CEQA. The opinion is available here: ; and the modified opinion appears here: Stiles)