In a published opinion filed September 28, 2017, the First District Court of Appeal affirmed the Alameda County Superior Court’s judgment denying appellant Living Rivers Council’s (LRC) writ petition challenging the State Water Resources Control Board’s (the “SWRCB” or “Board”) approval of a policy designed to maintain instream flows in coastal streams north of San Francisco.  Living Rivers Council v. State Water Resources Control Board (1st Dist., Div. 5, 2017) _______ Cal.App.5th ________.  The Court of Appeal upheld the SWRCB’s Revised Substitute Environmental Document (RSED) against LRC’s CEQA challenges, which related to the RSED’s analysis of potential indirect environmental effects of surface water users switching to groundwater pumping as a result of the policy.

As relevant legal background, the SWRCB administers the State’s water resources and has permitting authority over diversions from surface waters and subterraneous streams that flow through known and definite channels, but it lacks permitting authority over percolating groundwater.  It has authority to prevent unreasonable or wasteful water use regardless of source.  Legislation enacted in 2004 (Wat. Code, § 1259.4) requires the SWRCB to adopt principles and guidelines for maintaining instream flows of Northern California coastal streams.

In 2010, the SWRCB adopted a “Policy for Maintaining Instream Flows in Northern California Coastal Streams” (the “Policy”) and (pursuant to its certified regulatory program) a programmatic Substitute Environmental Document (SED) to analyze that Policy’s environmental effects.  The Policy established a number of principles to limit surface water diversions and maintain instream flows in coastal streams in Marin and Sonoma Counties, and parts of Mendocino, Humboldt and Napa Counties, in order to protect native fish populations and habitat.  In prior litigation, LRC successfully challenged the adequacy of the SED’s analysis of the Policy’s potential indirect environmental impacts from inducing increased groundwater pumping by water users in the Policy area; the trial court issued a writ directing the SWRCB (1) to evaluate the use of Subterranean Stream Delineations prepared by its water engineer as a potentially feasible mitigation measure to address adverse percolating groundwater pumping impacts, and (2) to disclose additional information regarding the Board’s limited legal authority to address such impacts.  In response to the writ, the Board vacated the Policy and circulated revisions to various sections of the SED, a supplemental analysis of potential impacts of groundwater pumping as an alternative water source due to Policy adoption, and revisions to its responses to comments, which collectively constituted the RSED.

The RSED concluded the Subterranean Stream Delineations would not be a feasible mitigation measure for numerous reasons:  (1) the likelihood of affected water users switching to groundwater pumping was uncertain; (2) such a potential shift was unlikely to significantly reduce surface water flows; (3) the Delineations represented a small portion of Policy area watersheds and would not assist the Board in regulating groundwater pumping outside those areas; (4) the Delineations were incomplete and unverified; (5) the Board could use the Delineations on a case-by-case basis even if not adopted as part of the Policy; and (6) the Board would regulate unacceptable impacts associated with groundwater pumping under its authority to prohibit unreasonable water use.  The RSED’s supplemental analysis of potential groundwater pumping impacts emphasized that the SED’s prior analysis on the topic was misleading to the extent it did not explain that any shift from surface water diversions to groundwater pumping was unlikely to cause a significant reduction in surface water flows, and that the Policy would neither cause nor approve additional surface water diversions, but, to the contrary, would restrict them.  The RSED acknowledged potential impacts to agricultural lands and well production rates from lowering the groundwater table, and potential delayed reduction in summer month surface flows, but concluded the latter impact was speculative and unlikely to occur in the Policy area.  The RSED contained additional hydrological analysis supporting its conclusion that while surface water diversions had a “one-to-one” impact on surface water flows, groundwater extractions could only result in an equal or lesser rate of surface water depletion depending on complex factors related to the particular well at issue.  Ultimately, the Board readopted the Policy without significant amendments, and without adopting the Subterranean Stream Delineations as a mitigation measure, based on the SED’s analysis, and it adopted a statement of overriding considerations.

LRC next filed a 2014 CEQA writ petition challenging the Board’s readopted Policy and RSED, which the trial court denied.  On appeal, LRC argued:  (1) the RSED’s conclusions that increased groundwater pumping was uncertain or unlikely conflicted with its finding that such pumping could have significant environmental effects; (2) the RSED failed to adequately describe or discuss the issue of potential adoption of the Subterranean Stream Delineations as a mitigation measure; and (3) the RSED’s finding that the Subterranean Stream Delineations were infeasible as a mitigation measure was erroneous as a matter of law.

The Court of Appeal rejected all these arguments and affirmed the trial court’s judgment denying LRC’s writ petition.  First, the Board’s programmatic environmental review satisfied CEQA’s informational requirements on the subject of groundwater pumping as a potential significant impact.  The RSED was internally consistent, explained its reasoning and where it differed from the SED in detail, and disclosed to readers that “while…[groundwater] diversions could potentially reduce stream flow, a significant net reduction in flows was unlikely given the information available.”  Per the Court: “The uncertainty regarding the number of water users likely to resort to groundwater diversion as a result of the Policy arises from the situation analyzed by the RSED, not from omissions or inconsistencies in the RSED itself.”

Second, assuming for the sake of argument – and expressly without deciding – that LRC’s challenge to the RSED’s discussion of the Subterranean Stream Delineations as a potential mitigation measure was an alleged “informational deficiency” to be independently reviewed as procedural error, rather than a “scope-of-analysis” issue deferentially reviewed for substantial evidence support, the Court nonetheless found no error.  Per the Court:  “The RSED provided several reasons for the Board’s decisions to forego the adoption of the maps as part of the Policy as a mitigation measure.  While reasonable minds can differ as to whether the Subterranean Stream Delineations should have been adopted as part of the Policy, their description in the RSED was adequate to enable informed public comment on that issue.”

Third, and finally, the Court held the SWRCB’s conclusion that the Subterranean Stream Delineations were infeasible as a mitigation measure was not legally erroneous.  “Feasibility” is defined in CEQA as meaning “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors” (citing Pub. Resources Code, § 21061.1, 14 Cal Code Regs., § 15364), and the Court noted that “[m]itigation measures are suggestions which may or may not be adopted by the decision makers” and that “[t]here is no requirement in CEQA that mitigation measures be adopted.”  (Quoting No Slo Transit, Inc. v. City of Long Beach (1987) 197 Cal.App.3d 241, 256.)  To the contrary, it is well established that: “When identified mitigation measures are infeasible, the project may be approved upon a finding that unavoidable impacts are acceptable because of overriding considerations.”  (Citing  Pub. Resources Code, § 21081(a)(3), (b); 14 Cal. Code Regs., §§ 15043, 15091, 15093; California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 982.)

The Court expressly rejected LRC’s novel legal argument that, while the likelihood and severity of an indirect impact are relevant to its reasonable foreseeability, and thus to whether it must be analyzed in an EIR, those factors cannot be considered in evaluating the feasibility of an identified mitigation measure.  Since a mitigation measure must be capable of being successfully accomplished, i.e., actually effective in mitigating the relevant environmental effect, the likelihood of an indirect effect occurring and its severity if it does occur are relevant factors in assessing a measure’s likely success in protecting the environment.  Per the Court:  “[W]hile the question of an effect’s significance is binary in nature, in the sense that a significant environmental effect must be analyzed regardless of how significant it is, we see nothing wrong with an agency considering the likelihood or severity of an indirect effect when determining whether a  proposed mitigation measure will be successful in ameliorating that effect.”  The Court noted that “feasibility” for CEQA purposes “encompasses “desirability” to the extent that desirability is based on a balancing of the relevant economic, environmental, social, and technological factors.”  (Quoting Native Plant, supra, 177 Cal.App.4th at 1001.)  It thus held:  “The likelihood and severity of an indirect significant effect may render a potential mitigating measure either desirable or undesirable when balanced against its cost and the difficulty of its implementation.”  Further, the Court observed that the CEQA statute would appear to require “consideration of a measure’s effectiveness when determining its feasibility.”  (Citing Pub. Resources Code, § 21061.1.)

The Court noted that even were it to assume the likelihood of an impact’s occurrence is not a factor affecting the feasibility of a measure designed to mitigate it, the Board’s actions viewed in context were proper and legal.  Among the many practical reasons supporting its infeasibility finding regarding the Subterranean Stream Delineations were that they covered only a small part of the Policy area; they were incomplete and would require additional refinement taking between 3.5 and 12.8 years and costing between $1.3 and $5 million; they would likely be litigated if adopted; and they could be used (to the extent useful) without being formally adopted as a part of the Policy as a mitigation measure.  In sum, “[LRC’s] argument that the Delineations would in fact be effective amounts to a policy disagreement that does not vitiate the RSED’s factual conclusions.”

 

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