First Appellate District Approves Responsible Agency’s Imposition of Mitigation Not Considered in the EIR

In an opinion filed on December 29, 2020, the First Appellate District in Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board upheld a Responsible Agency’s imposition of additional mitigation more than a year after it had issued an initial approval for the project.  Although the court was careful to say that it was addressing “unique circumstances” that would “seldom arise,” the decision is potentially problematic for project proponents, and especially for public agencies trying to pursue necessary public-infrastructure projects.

In January 2016, the Santa Clara Valley Water District (the “Water District”) certified an environmental impact report (EIR) under the California Environmental Quality Act (CEQA) for a flood-control project on Berryessa Creek (the “Project”) that would, among other things, provide protection for a new BART station that was under construction.  Under pressure from a State congressional delegation and the Governor’s office, due to concerns about losing federal funding for the Project, the Regional Water Quality Control Board, San Francisco Bay Region (the “Regional Board”) agreed to issue certification that the Project complied with State law water quality standards pursuant to section 401 of the Clean Water Act (“Section 401 Certification”).  The Regional Board made this agreement on the understanding that it would subsequently issue waste discharge requirements (WDRs) under the Porter-Cologne Water Quality Control Act (“Porter-Cologne”) to address impacts not addressed in the Section 401 Certification.  In March 2016, the Regional Board issued a Section 401 Certification, which stated that the Regional Board would later consider adoption of WDRs to address the issues it identified.  Then, in April 2017, the Regional Board issued WDRs requiring a significant amount of additional off-site mitigation to compensate for the Project’s impacts on water quality.  The Regional Board’s WDR Order, issued when construction on the Project was almost complete, also stated that it was rescinding and superseding the Board’s prior Section 401 Certification.  The Water District alleged that the additional off-site mitigation would cost $15,000,000 in additional Project costs.

The Water District filed a petition challenging the Regional Board’s 2017 actions under the Clean Water Act (CWA), Porter-Cologne, and CEQA.  After the trial court denied the petition, the appellate court affirmed the trial court based on the following findings.

  1. No violation of the CWA or Porter-Cologne

Under CWA Section 401, certifications must be issued “within a reasonable amount of time (which shall not exceed one year) after receipt of such request” (33 U.S.C. § 1341(a)(1)), and the Water District argued that the Regional Board improperly rescinded and reissued the original March 2016 Section 401 Certification for the Project over one year later.  The appellate court concluded that although CWA Section 401 anticipates a one-year time limit and the Regional Board “may” have violated this requirement, the court did not need to examine this issue in detail because the Water District failed to show that the Regional Board’s actions justified reversal.  In relation, the appellate court reasoned that Porter-Cologne separately provides the Water Board with independent authority to prescribe requirements tied to project impacts and the discharge of wastes in WDR orders.

The Water District also argued the Regional Board did not have the authority under California Water Code section 13263 to issue WDRs for the Project because the Project’s sedimentation effects did not involve the discharge of any “waste” into state waters.  The appellate court agreed with the trial court and held that the Water Board still had jurisdiction to impose mitigation requirements related to the Project pursuant to Water Code section 13263(a), because the Project would lead to increased sedimentation (i.e., “waste”) in Berryessa Creek that would be left behind, obstruct water flows, and occasionally require periodic removal.

  1. The Regional Board, acting as a Responsible Agency, did not violate CEQA by imposing additional mitigation long after the Board’s EIR had become final.

The Water District argued that the Regional Board, as a Responsible Agency under CEQA, could not impose new mitigation after the conclusion of the CEQA process.

Although the Regional Board had not challenged the adequacy of the EIR, the appellate court relied on what it termed the “savings clause” in Public Resources Code section 21174, which states that CEQA does not limit the power of an agency to enforce any law that it is permitted or required to enforce.  Relying on this “savings clause,” the court found that the Regional Board had independent authority to impose the additional mitigation pursuant to Porter-Cologne.  The court also dismissed the concerns of the Water District and its amici that allowing Responsible Agencies to defer the imposition of costly mitigation until long after the conclusion of the CEQA process would defeat the purpose of an EIR and impose additional costs and unpredictability on project proponents.  The court reasoned that this concern should “seldom arise” because government agencies will discharge their duties in good faith and CEQA can generally be used to challenge a two-stage approval process.  In contrast, this case presented “unique circumstances” in which timing considerations required, and the Water District agreed to, a two-stage approval process.

  1. The Water District failed to show that the trial court’s order regarding the additional off-site mitigation was not supported by evidence in the record.

The Water District also challenged as excessive the Regional Board’s requirement in the WDRs for 15 off-site acres of wetlands mitigation to compensate for Project impacts to approximately 9.8 acres of wetlands.  Because this factual finding by the trial court is reviewed under the substantial evidence standard, the trial court’s factual finding will be sustained unless shown to lack substantial evidentiary support.  The appellate court found that the Water District had failed to cite evidence in the record sufficient to rebut the presumption that the trial court’s order lacked substantial evidentiary support.

[View source.]

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