The opinion
Filed 2/10/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
CENTER FOR BIOLOGICAL DIVERSITY, C072486
Plaintiff and Appellant, (Super.Ct.No. 06CS01451)
v.
DEPARTMENT OF FISH AND WILDLIFE,
Defendant and Respondent.
CALIFORNIA ASSOCIATION FOR C072790
RECREATIONAL FISHING,
(Super.Ct.No. 34-2010-
Plaintiff and Appellant, 80000588CUWMGDS)
v.
DEPARTMENT OF FISH AND WILDLIFE,
Defendant and Respondent.
1
CALIFORNIANS FOR ALTERNATIVES TO C073011
TOXICS et al.,
(Super.Ct.No. 34-2010-
Plaintiffs and Appellants, 80000566CUWMGDS)
v.
DEPARTMENT OF FISH AND WILDLIFE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, Lloyd G.
Connelly, Judge. Affirmed in part and reversed in part.
Environmental Law Clinic, Deborah A. Sivas, and Alicia E. Thesing for Plaintiff
and Appellant Center for Biological Diversity.
Alston & Bird, Maureen F. Gorsen, Shiraz D. Tangri, Rebecca Harrington; Pacific
Legal Foundation, M. Reed Hopper, Damien M. Schiff, Joshua P. Thompson, and
Jonathan Wood for Plaintiff and Appellant California Association for Recreational
Fishing.
Wild Earth Advocates and Julia A. Olson for Plaintiffs and Appellants
Californians for Alternatives to Toxics et al.
Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney
General, Gavin G. McCabe, Randy L. Barrow, Russell B. Hildreth, and Marc N. Melnick,
Deputy Attorneys General, for Defendant and Respondent.
Facing for the first time a requirement to review for environmental impacts its
statutorily mandated fish hatchery and stocking enterprise that has been in operation for
more than 100 years, California’s Department of Fish and Wildlife (the Department)
chose to use a program environmental impact report (EIR) to analyze the enterprise’s
impacts on a statewide basis. Instead of addressing impacts on specific locations the
Department stocked, the EIR addressed the enterprise’s continuing and potential impacts
2
on individual species that could be located at many locations. The EIR formulated, and
the Department adopted, protocols and plans for discovering site-specific impacts at each
of the nearly 1,000 water bodies the Department stocks and the 24 hatcheries it oversees,
and it committed to mitigating the impacts discovered from those reviews. If, through
using the protocols, the Department discovered impacts that were not addressed in the
EIR, the Department committed to review and mitigate those impacts as required by
environmental law. The Department addressed unavoidable impacts in a statement of
overriding considerations.
Because the stocking and hatchery enterprise was ongoing and mandated by
statute, the EIR considered the existing enterprise exclusive of any proposed mitigation
measures as the environmental baseline and as the no project alternative. It did not
evaluate an alternative that would cease all stocking and hatchery operations. In addition
to the ongoing operations, the EIR evaluated the ongoing enterprise as proposed to be
mitigated and a project that further curtailed mountain lake stocking as alternatives.
The EIR also reviewed other Department stocking programs that involve private
fish vendors. The EIR proposed, and the Department adopted as mitigation measures,
new qualification requirements and monitoring and reporting obligations private vendors
would have to satisfy if they wanted to continue to participate in the stocking programs.
In these appeals, we address whether the EIR complies with the California
Environmental Quality Act (Pub. Resources, § 21000 et seq. (CEQA)). We also address
whether the Department’s imposition of these mitigation measures on private fish
vendors violated the requirements of the Administrative Procedure Act (Gov. Code, §
11340 et seq. (the APA)).
In case Nos. C072486 and C073011, plaintiffs, Center for Biological Diversity and
Californians for Alternatives to Toxics et al., respectively, argue the EIR is flawed
because it (1) did not perform site-specific review for each site in the state the
Department stocks with fish; (2) deferred forming mitigation measures to the future
3
formulation of protocols and management plans; (3) relied on the current stocking
enterprise as the environmental baseline; and (4) did not review a reasonable range of
alternatives, including a no project alternative consisting of ceasing all hatchery and
stocking operations. We disagree with the plaintiffs. Given the history, nature, and
scope of the project under review, the Department did not abuse its discretion in the
manner it organized the EIR, analyzed the project, and mitigated its numerous impacts.
We affirm the trial court’s judgment in these appeals.
In case No. C072790, plaintiff California Association for Recreational Fishing
contends the Department violated the APA by imposing the qualification requirements
and the monitoring and reporting obligations on private fish vendors without complying
with the APA’s notice and hearing procedures. We conclude each measure qualified as a
regulation under the APA that the Department did not properly adopt as such. We
reverse the trial court’s judgment in this appeal.
FACTS AND PROCEDURAL HISTORY
Since the late 1800’s, the State of California has constructed and operated fish
hatcheries, and it has stocked millions of trout, salmon, and steelhead reared in those
hatcheries into water bodies throughout the state. State statute mandates the Department
implement and oversee this enterprise. (Fish & G. Code, §§ 1120, 1725 et seq., 13007.) 1
The Department stocks millions of pounds of fish each year at close to 1,000 locations.
Currently, the Department operates 14 trout hatcheries and 10 salmon and
steelhead hatcheries throughout the state. The trout hatcheries raise fish for stocking in
inland waters to provide recreational opportunities for anglers, and to conserve and
restore native fish species. The salmon and steelhead hatcheries provide salmon and
1 We note the Department’s name at the time these actions were filed was the
Department of Fish and Game. The statutes under which the Department operates are
codified in what is still called the Fish and Game Code.
4
steelhead to mitigate the loss of wild anadromous fish habitat and upstream spawning
areas caused by dam construction, to mitigate fish loss at state-operated pumping
facilities in the Sacramento-San Joaquin Delta, and to enhance native anadromous fish
populations for recreational and commercial fishing.2
The hatchery and stocking enterprise predates CEQA. After CEQA’s enactment
in 1970, the Secretary of Natural Resources determined the Department’s hatchery and
stocking enterprise was categorically exempt from complying with CEQA. (CEQA
Guidelines, § 15301, subd. (j).)3 As a result, the Department did not conduct any type of
environmental review for the enterprise.
During the past two decades, concerns arose regarding the hatchery and stocking
enterprise’s impact on native and wild animals and their habitat. Scientific evidence
indicated frogs and other amphibians in high mountain lakes were more vulnerable to
predation by stocked nonnative trout, contributing to declining amphibian populations.
Scientific evidence also indicated planting hatchery salmonids led to genetic
hybridization of wild and hatchery anadromous fish, reducing their genetic diversity and
strength, and ultimately their populations.
In 2001, the Department began addressing these concerns. To assess the impact
stocking high mountain lakes had on amphibians and other wildlife, the Department
2 Anadromous fish are fish that ascend rivers from the sea for breeding. (Merriam-
Webster’s Collegiate Dict. (11th ed. 2006) p. 44, col. 1.)
3 The CEQA Guidelines are regulations adopted by the Secretary of the Natural
Resources Agency to implement CEQA. (Communities for a Better Environment v.
South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319, fn. 4.) They are
codified at title 14, chapter 3, of the California Code of Regulations (14 Cal. Code Regs.
§ 15000 et seq.). “In interpreting CEQA, we accord the Guidelines great weight except
where they are clearly unauthorized or erroneous. [Citations.]” (Vineyard Area Citizens
for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428, fn.
5.)
5
began surveying the lakes to determine the presence of several native amphibian and
reptile species, fish species, and their habitat, and to assess watershed characteristics (the
high mountain lakes project). These mountain lakes and streams were originally without
fish, but they were extensively stocked with nonnative trout over the past century, to the
extent that most of the lakes now have extant trout populations. The Department ceased
stocking most high mountain lakes in the state until the surveys were conducted. As of
January 2010, the Department had completed more than 16,000 surveys at approximately
11,000 sites.
The Department has used, and continues to use, the survey data to develop what it
calls aquatic biodiversity management plans to govern stocking in mountain waters.
Aquatic biodiversity management plans provide for maintaining recreational fisheries
while recovering native animals, especially amphibians. They require future mountain
lake stocking decisions to be based on the twin objectives of managing the lakes to
maintain or restore native biodiversity and habitat quality, and providing for recreational
opportunities considering historical and future use patterns. Under the aquatic
biodiversity management plans, lakes with existing populations of endangered or
threatened amphibian species and other species the Department believes may be
vulnerable to harm from stocking, referred to as “decision species,” generally will no
longer be stocked with fish. If decision species exist within two kilometers of a lake, the
Department will assess fishing use and the feasibility of removing the trout from the lake
to determine if the lake could be converted to a fishless condition in order to benefit the
decision species. Others lakes will be managed for recreational angling. As of January
2010, there were aquatic biodiversity management plans completed or in draft for 27
watershed areas, or “management units.”4
4 The Department asks us to take judicial notice of a final aquatic biodiversity
management plan, this one for the Desolation Wilderness Management Unit. It was not
6
To address the impacts hatchery salmon and steelhead have on wild populations of
native anadromous fish, the Department began preparing what are called hatchery genetic
management plans, creatures of federal regulation under the federal Endangered Species
Act. (50 C.F.R. § 223.203(b)(5); 16 U.S.C. § 1531 et seq.) Hatchery genetic
management plans require the Department to change the ways in which it collects fish for
spawning and releases hatchery fish in order to maintain genetic integrity and reduce
interactions between wild and hatchery fish. Hatchery genetic management plans must
be approved by the National Marine Fisheries Service (NMFS), and as of January 2010,
none prepared for California waters had been approved. In the interim, hatcheries that
have draft hatchery genetic management plans are following them, and the Department
and the NMFS continue to develop guidance and protocols for hatchery operations.
In 2005, the Legislature created a specific fund in the state treasury to finance the
Department’s hatchery and stocking enterprise. (Stats. 2005, ch. 689, § 1 [AB 7], pp.
5439-5441 [enacting Fish & G. Code, § 13007].) The Legislature directed that fund
proceeds be used by the Department in part to attain specific hatchery production goals.
It initially required the Department to attain a goal of stocking 2.25 pounds of trout for
each sport fishing license sold the previous year. (Ibid.) By July 2009, the statute
required the Department to attain a goal of stocking 2.75 pounds of trout for each sport
fishing license sold. (Stats. 2008, ch. 350, § 1, p. 2735.) In 2007, more than two million
fish licenses were sold, translating into a goal of stocking more than five million pounds
of trout. By comparison, in 2008, the Department actually stocked 4.3 million pounds of
trout.
In 2006, plaintiff Center for Biological Diversity (the Center) sued the
Department, claiming the hatchery and stocking enterprise did not qualify for a
presented to the trial court as it was finalized on December 19, 2012, after judgment was
executed. Because it was not before the trial court, we deny the request.
7
categorical exemption from CEQA, and seeking a writ of mandate compelling the
Department to review its hatchery and stocking enterprise in an EIR. That same year, the
Department announced it would prepare an “environmental document describing
impacts” of its hatchery and stocking enterprise and the protocols it used to determine
where fish would be stocked, but it still contended the enterprise was exempt from
CEQA.
In 2007, the trial court granted the Center’s petition for writ of mandate. It
concluded the hatchery and stocking enterprise was not categorically exempt from CEQA
because it likely caused significant environmental impacts. It ordered the Department to
comply with CEQA and prepare an EIR on its enterprise. However, the court refused to
enjoin the Department from operating the enterprise pending completion of the EIR. The
Department did not appeal this judgment.
In 2008, the Department moved to modify the judgment to receive additional time
to prepare the EIR. The Department had expanded the EIR’s scope beyond its hatchery
and stocking enterprise to include other Department hatchery programs in part supported
by federal funds that involved hatchery fish in other locations and from other vendors.
That expansion required the EIR to be a combined EIR/environmental impact statement
(EIS) under federal environmental law, and the Department did not have sufficient funds
at the time to pay the estimated $1.8 million needed to complete the review. (For ease of
reference, we will refer to the EIR/EIS as an EIR.)
The trial court granted the Department’s motion and extended the time to complete
the EIR. However, it also ordered the Department to suspend stocking nonnative fish in
fresh water bodies where surveys showed the presence of sensitive native aquatic or
amphibian species, or where such surveys had not been completed.
The Department certified the final EIR in January 2010. It is a significant effort.
It includes approximately 650 pages of discussion and an additional 1,800 pages of
appendices, of which more than 1,250 pages are responses to public comments. The
8
record also includes the reference material the Department relied upon to prepare the
EIR, which totals some 43,700 pages.
The EIR has a broad scope. It is meant to cover the Department’s entire fish
hatchery and stocking enterprise statewide. It also analyzes three other programs the
Department administers: the Fishing in the City program (which provides fishing
opportunities in urban areas), the Classroom Aquarium Education Project (which
provides school children with opportunities to see fish hatch and grow), and the Private
Stocking Permit Program (by which the Department authorizes fish stocking by private
aquaculture facilities in private and public lakes and ponds).
Of significance here, the Department selected its current hatchery and stocking
operations from 2004 through 2008 as an environmental baseline for its analysis in the
EIR. Against this baseline, the EIR analyzed the enterprise’s impacts on hydrology,
water supply, and water quality; biological resources; recreation and economics; and
cultural resources. The EIR identified more than 200 impacts on biological resources,
many of which were significant.
The EIR found trout stocking adversely impacted a number of frog species.
Stocked fish may directly prey upon some native amphibians and reptiles, and may cause
ecological changes that affect the competition for resources between fish and amphibians.
To mitigate these impacts to less than significant, the EIR recommended the Department
utilize a new protocol to determine whether to stock an inland water body with trout.
Under the protocol, referred to as a pre-stocking evaluation protocol (the evaluation
protocol), Department biologists would evaluate each stocking location within the range
of a decision species in a stepwise fashion to determine whether interactions between
stocked trout and decision species may occur, and to evaluate whether stocking may
significantly impact the species. If the biologist determines a significant impact is likely,
the Department will cease stocking at that location unless and until it develops and
implements an aquatic biodiversity management plan for that location. If decision
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species are not present, stocking may proceed. A positive stocking determination is valid
for five years unless new information necessitates a new evaluation protocol be
performed.
The EIR also found that stocking hatchery salmon and steelhead in waters with
wild salmon and steelhead significantly and, in some cases, unavoidably impacted wild
populations of native anadromous fish. Stocked fish may prey on and compete with
some wild fish populations. They may also cause adverse effects on the long-term
genetic fitness and diversity of some wild populations. To mitigate these impacts to the
extent possible, the EIR called for the Department to continue to develop an expanded
hatchery genetic management plan process to govern operation of the salmon and
steelhead hatcheries in order to mitigate impacts on wild populations of native
anadromous fish. The hatchery genetic management plan process would include
developing and implementing with the NMFS a comprehensive plan to mitigate the
impacts and protect decision species, and establishing an independent review panel for
the hatcheries.
The EIR also determined stocking for other Department programs could adversely
impact decision species. Stocking for the Fishing in the City program could cause some
significant impacts. Stocking activities for this program introduce hatchery fish and
warm water fish into some water bodies that may contain decision species, resulting in
some instances of predation and competition for resources, the introduction of pathogens
to native amphibian populations, and the spread of invasive species. To mitigate these
impacts, the EIR proposed Department biologists use a protocol analogous to the
evaluation protocol, called the private stocking permit evaluation protocol, prior to
stocking any water body for the Fishing in the City program. If biologists identify any
amphibians susceptible to pathogens in the water, they will not stock at that location.
The EIR also proposed requiring private aquaculture facilities who participate in the
program to monitor and report for invasive species in their stocks on a quarterly basis.
10
Approval of private stocking permits could also cause similar impacts to decision
species. To mitigate these impacts, the EIR proposed that before the Department
approves a private stocking permit, a Department biologist visit the water body proposed
to be stocked and perform the private stocking permit evaluation protocol to determine if
the body hosts any decision species, and, if it does, whether stocking in that body would
significantly impact that species. If it would, the Department would not approve the
permit application.
The EIR considered three project alternatives: (1) continue the existing hatchery
and stocking enterprise without change, which the EIR treated as the no project
alternative required by CEQA; (2) continue to operate the enterprise but in compliance
with the mitigation measures proposed by the EIR to minimize the enterprise’s impacts
on the environment, including use of evaluation protocols and aquatic biodiversity
management plans for trout stocking and hatchery genetic management plans for salmon
and steelhead stocking; and (3) permanently operate the enterprise as limited by the trial
court during the EIR process, ceasing all stocking in fresh water lakes where decision
species exist. The EIR named the second alternative as the preferred alternative.
The EIR did not consider closing the hatcheries or eliminating trout stocking as
alternatives. It did not because ceasing operations did not meet what the Department
believed was a statutory mandate under Fish and Game Code section 13007 to operate
hatcheries to provide fish to meet recreational demand. Ceasing to stock would also
place considerable pressure on native and wild stocks that already exist, and would
eliminate a large portion of recreational fishing in the state.
In certifying the EIR, the Department approved the second alternative as the
project it would undertake, and it adopted findings, a statement of overriding
considerations, and a mitigation monitoring and reporting plan, as required by CEQA.
As part of adopting the mitigation plan, the Department approved using the evaluation
protocol and aquatic biodiversity management plans to mitigate impacts on native trout,
11
the expanded hatchery genetic management plan process to mitigate impacts on wild
salmon and steelhead, and the proposed protocols and monitoring and reporting
requirements to mitigate impacts caused by the Fishing in the City program and the
Private Stocking Permit Program.
The Center, plaintiffs Californians for Alternatives to Toxics et al. (collectively,
the Center), and plaintiff California Association for Recreational Fishing (the
Association) each petitioned for a writ of mandate against the Department and its
certification of the EIR. The Center alleged the EIR did not comply with CEQA. The
Association alleged the Department imposed the mitigation measures on the Fishing in
the City Program and the Private Stocking Permit Program as underground regulations in
violation of the APA.
The trial court denied each of the petitions. The petitioners appealed, and we
consolidated the matters for purposes of decision and argument.
DISCUSSION
I
Standard of Review
Our standard of review is as follows:
“In reviewing an agency’s compliance with CEQA in the course of its legislative
or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether there was a
prejudicial abuse of discretion.’ (Pub. Resources Code, § 21168.5.) Such an abuse is
established ‘if the agency has not proceeded in a manner required by law or if the
determination or decision is not supported by substantial evidence.’ ([Pub. Resources
Code,] § 21168.5; see Western States Petroleum Assn. v. Superior Court [(1995)] 9
Cal.4th [559,] 568; Laurel Heights Improvement Assn. v. Regents of University of
California (1988) 47 Cal.3d 376, 392-393 (Laurel Heights I).)
“An appellate court’s review of the administrative record for legal error and
substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial
12
court’s: The appellate court reviews the agency’s action, not the trial court’s decision; in
that sense appellate judicial review under CEQA is de novo. [Citations.] We therefore
resolve the substantive CEQA issues . . . by independently determining whether the
administrative record demonstrates any legal error by the [Department] and whether it
contains substantial evidence to support the [Department’s] factual determinations.”
(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra,
40 Cal.4th at pp. 426-427, fns. omitted.)
II
Case Nos. C072486 and C073011
The Center contends the Department did not comply with CEQA when it prepared
and certified the EIR because it allegedly and improperly:
1. Used a program EIR to approve future site-specific stocking decisions
without performing site-specific review;
2. Deferred the formulation of mitigation measures for each future stocking
decision to future use of the evaluation protocol, the aquatic biodiversity management
plans, and the hatchery genetic management plans;
3. Relied upon the current hatchery and stocking enterprise as the
environmental baseline; and
4. Omitted sufficient consideration of a reasonable range of project
alternatives, including a no project alternative of no stocking, and a sufficient explanation
for possible alternatives it chose not to review.
We address, and reject, each of these contentions.
A. The EIR’s level of analysis
The Center contends the Department improperly used a program EIR as a project
or site-specific EIR. It argues the EIR’s level of review is insufficient to approve future
stocking decisions because it does not contain site-specific environmental analysis. As a
13
result, no further CEQA process is allegedly contemplated before final stocking decisions
will be made for particular water bodies.
The Department contends the EIR’s level of analysis was appropriate. The level
of specificity required in an EIR is determined by the nature of the project and the rule of
reason. (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18
Cal.App.4th 729, 741-742.) The Department argues the Center’s contention would
require it to conduct separate environmental review for each stocking decision every
year. The Department claims reading CEQA in that fashion would violate the governing
rule of reason.
We conclude the EIR contains a sufficient level of analysis for a program EIR. It
evaluates the known impacts in a comprehensive fashion, and we read it to provide for
further environmental review where warranted.
CEQA allows public agencies to use special types of EIR’s to simplify preparation
and avoid duplication. (Californians for Alternatives to Toxics v. Department of Food &
Agriculture (2005) 136 Cal.App.4th 1, 22, fn. 10; see 1 Kostka & Zischke, Practice
Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed. 2014) § 10.2, p. 10-4
(Kostka).)
One of those EIR’s is a program EIR. (CEQA Guidelines, § 15168.) “A program
EIR is an EIR which may be prepared on a series of actions that can be characterized as
one large project and are related [among other possibilities] [¶] [a]s individual activities
carried out under the same authorizing statutory or regulatory authority and having
generally similar environmental effects which can be mitigated in similar ways.” (CEQA
Guidelines, § 15168, subd. (a)(4).) The hatchery and stocking enterprise is such a
project.
Using a program EIR can provide a public agency many advantages as it proceeds
with its program. For one, the agency can avoid preparing multiple EIR’s for the
program and its activities if the program EIR is comprehensive. “Preparation of a
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program EIR allows a public agency to characterize the overall program as the project
that is proposed for approval. If a sufficiently comprehensive and specific program EIR
is prepared, the agency may dispense with further environmental review of activities
within the program that are adequately covered by the program EIR. ([CEQA
Guidelines,] § 15168, subd. (c).)” (Kostka, supra, § 10.14, p. 10-20.)
Program EIR’s have other advantages. They may be used to address impacts and
mitigation measures that apply to the program as a whole to simplify later environmental
review for program activities. (CEQA Guidelines, § 15168, subd. (d); Kostka, supra, §
10.14, p. 10-20.) They may also be used to consider broad programmatic issues for
related actions at an early planning stage when the agency has greater flexibility to deal
with basic problems or cumulative impacts. (CEQA Guidelines, § 15168, subd. (b);
Kostka, supra, § 10.14, p. 10-20.)
The CEQA Guidelines do not specify the level of analysis required to be
performed in a program EIR. Indeed, “[n]o ironclad rules can be imposed regarding the
level of detail required . . . . EIR requirements must be ‘sufficiently flexible to
encompass vastly different projects with varying levels of specificity.’ [Citation.]” (Al
Larson Boat Shop, Inc. v. Board of Harbor Commissioners, supra, 18 Cal.App.4th at pp.
745-746.) “The degree of specificity required in an EIR will correspond to the degree of
specificity involved in the underlying activity which is described in the EIR.” (CEQA
Guidelines, § 15146.)
Accordingly, the CEQA Guidelines require an EIR to provide sufficient
information in light of what is reasonably feasible. “An EIR should be prepared with a
sufficient degree of analysis to provide decisionmakers with information which enables
them to make a decision which intelligently takes account of environmental
consequences. An evaluation of the environmental effects of a proposed project need not
be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is
reasonably feasible. . . . The courts have looked not for perfection but for adequacy,
15
completeness, and a good faith effort at full disclosure.” (CEQA Guidelines, § 15151.)
Certainly, a program EIR will better fulfill its purpose of reducing the need for
subsequent environmental review the more comprehensive and specific the analysis it
provides. (CEQA Guidelines, § 15168, subd. (c).)
The program EIR here satisfies these standards. It reviews and analyzes the
hatchery and stocking enterprise specifically and comprehensively, but within reason.
Given the nature and statewide scope of the project and the consistency of its impacts
across the state, the analysis is adequate to serve as a program EIR that also operates as a
project EIR.
Relying upon thousands of pages of compiled data, databases, reports, interviews,
peer-reviewed scientific publications, and computer models, the EIR describes in great
detail the impacts hatcheries and stocking have on other wildlife on a statewide basis. It
reviews the impacts of hatchery operations and stocking in general and on each of the
decision species. In particular, it describes the impacts trout stocking has on the
amphibian and reptile decision species historically located at high mountain lakes, and
the impacts salmon and steelhead stocking has on wild salmon and steelhead in waters
with outlets to the ocean.
The EIR organizes its analysis of both stocking enterprises’ impacts on biological
resources into six categories: (1) impacts related to predation, competition, and related
changes in ecological relationships between stocked and native species; (2) impacts
related to the catch of native fish by fishermen drawn to the area because the waters are
stocked; (3) impacts related to invasive species and pathogens that are accidentally
introduced during stocking operations; (4) impacts from interbreeding of hatchery and
wild fish, altering the genetic composition of wild populations; (5) impacts that arise
from accidental or otherwise unauthorized releases of hatchery trout; and (6) impacts
caused by anglers during their pursuit of stocked trout. Within these categories, the EIR
reviews the potential impact on each decision species.
16
Examples from the EIR illustrate the detailed analysis the document provides.
Regarding the impacts stocking fish in mountain lakes has on decision species, the EIR
states stocking mountain lakes is a factor that has led to the decline of native amphibians
and reptiles in California. Amphibians and reptiles are substantially and adversely
affected due to competition and predation with hatchery fish. Those found in formerly
fishless areas lack adaptations for defense against predatory fish. Hatchery fish, besides
preying on native amphibians and reptiles, may also cause ecological changes that affect
the competition for resources.
The EIR analyzes stocking’s effect on each of the decision species. For example,
the EIR describes lake stocking’s effect on the mountain yellow-legged frog. There are
451 trout stocking locations within this species’ range. The species has experienced
serious population declines in the last century, and stocking is a primary factor in those
declines. Introduced trout prey on the species as well as fragment and isolate their
populations, reducing their ability to recolonize. The January 2010 EIR stated that recent
assessments indicate only a small percentage of mountain yellow-legged frog sites
represent healthy populations, and many may not persist without efforts to protect them.
As a result, the Department in 1999 began restoration efforts by removing
introduced trout from select lakes. These efforts have resulted in substantial increases in
the affected mountain yellow-legged frog populations. The Department is continuing to
remove nonnative trout from other lakes. Field experiments suggest removing nonnative
trout results in mountain yellow-legged populations recovering quickly.
The EIR concludes trout stocking’s effect on mountain yellow-legged frogs is
potentially significant. To mitigate the effect, the EIR directs the Department to utilize
the evaluation protocol at each location where stocking is planned to occur within the
species’ range. If the potential for trout and mountain yellow-legged frogs to interact
exists, and if that potential could result in a substantial impact on the frog, trout will not
17
be stocked at that location unless and until the Department adopts an aquatic biodiversity
management plan for that location to mitigate the impact.
The EIR repeats this type of analysis and evaluation for each decision species.
And the analysis applies wherever the species is located.
The EIR also details the effects hatchery salmon and steelhead have on wild
populations of native anadromous fish. The EIR states stocking hatchery fish can
increase the likelihood of predation and competition with wild fish, depending on a
number of factors, including the age, size, feeding habits, and density of the fish. The
EIR analyzes whether this impact occurs with any of the decision species, and it
concludes the impact is significant and unavoidable in certain strains of salmon and
steelhead.
The EIR states all aspects of the hatchery enterprise have the potential to adversely
affect the long-term genetic fitness and diversity of wild populations of salmon and
steelhead that occupy stocked waters. This occurs from capturing native fish that might
otherwise spawn in natural waters, rearing fish in artificial channels and reducing their
ability to survive in natural conditions, and interbreeding. These factors may cause loss
of genetic diversity within and among populations, and reduced fitness, productivity, and
abundance. The EIR analyzes these possible effects on each decision salmon and
steelhead population group, and finds many of them to be significant and unavoidable.
For example, the EIR states stocking has had, and will continue to have, a
significant effect on the genetic integrity of Chinook salmon populations that run in
Central Valley rivers in the fall and late fall. This population is genetically homogenized,
and that homogenization has often been attributed to the long history of hatchery stocking
and to frequent stock transfers between hatcheries. There is a high incidence of straying
by these hatchery fish. Some studies suggest hatchery fall-run Chinook have replaced
locally adapted populations, a result of a significant gene flow from hatchery stocking
programs to the wild fish and a reduced abundance of productive wild fish. The EIR
18
concludes this population is clearly experiencing a significant impact. “Excessive
hatchery adults have been demonstrated or are probable in all areas currently supporting
at least some wild production of fall-run or late fall-run Chinook salmon.” The hatchery
enterprises are causing, and will continue to cause, significant environmental effects on
this population.
To mitigate these impacts, the EIR directs the Department to continue working
with the NMFS to complete the hatchery genetic management plans. However, even
with mitigating the effects by developing and operating under a hatchery genetic
management plan, the effects would be unavoidable.
The EIR repeats this type of analysis and evaluation for each decision species of
wild salmon and steelhead.
In this manner, the EIR disclosed and evaluated all known impacts from hatchery
operations and stocking to each decision species. It did so comprehensively and
specifically to each species. It allows the Department to go forward with its enterprise,
knowing the likely impacts from any stocking decision it makes should it find a decision
species in the water body to be stocked.
The Center contends the EIR is inadequate to serve as a project EIR because it
does not contain site-specific analysis for each water body to be stocked, and it
improperly defers that analysis until the Department performs the evaluation protocol for
each site. It argues our decision in Friends of Mammoth v. Town of Mammoth Lakes
Redevelopment Agency (2000) 82 Cal.App.4th 511 (Mammoth Lakes) compels a site-
specific analysis be performed before the Department can implement its enterprise at
each water body it stocks. We disagree, because unlike the EIR at issue in Mammoth
Lakes, this EIR is sufficiently comprehensive, as just described, to enable the Department
to go forward with its project in compliance with CEQA.
In Mammoth Lakes, we determined a program EIR prepared for a proposed
redevelopment plan was inadequate under CEQA. The redevelopment plan contained
19
detailed descriptions of 72 different projects to be developed under the plan, but the EIR
did not review the potential impacts from any of those projects. We wrote: “[B]ecause a
redevelopment plan EIR [under the CEQA Guidelines that existed then] is not a true first
tier EIR, and because the Town’s redevelopment plan was as detailed as it was, CEQA
required the Town’s redevelopment plan EIR to contain more analysis of the 72 proposed
projects than it did. The Town’s failure to analyze the impacts caused by each proposed
project, to the extent information was known or reasonably could have been known about
each project, constituted a failure to proceed in the manner required by CEQA.”
(Mammoth Lakes, supra, 82 Cal.App.4th at p. 535.)
Unlike in Mammoth Lakes, the program EIR here analyzes every impact that
reasonably could occur by stocking fish in any water body in the state based on the
information currently known. Due to the nature of the project, the EIR explains what the
impacts will likely be to decision species at any site where the Department operates
hatcheries and stocks fish. Site-specific analysis will likely not reveal any unanticipated
impacts; instead, it will reveal whether the impacts discussed in the EIR are occurring at
that site.
The Center complains that if site-specific analysis is not done now, it may never
be done, or if done, will not be done in a manner that allows public input. CEQA,
however, does not require an additional site-specific environmental review document if
the agency determines the site-specific impacts were sufficiently addressed in the
program EIR, nor does it require that determination to be made in a public process. Only
if the agency discovers new impacts will they be addressed in a public process.
When a program EIR is used to avoid preparing subsequent EIR’s, such as here,
the public agency must examine site-specific program activities “in the light of the
program EIR to determine whether an additional environmental document must be
prepared.” (CEQA Guidelines, § 15168, subd. (c).) If the site-specific activity will not
create effects or require mitigation measures that were not discussed in the program EIR,
20
the public agency is not required to prepare any other site-specific environmental
document. (CEQA Guidelines, § 15168, subd. (c)(2.)
Specifically, the rules governing environmental review of subsequent program
activities under a program EIR are as follows:
“(1) If a later activity would have effects that were not examined in the program
EIR, a new initial study would need to be prepared leading to either an EIR or a negative
declaration.
“(2) If the agency finds that pursuant to [CEQA Guidelines] Section 15162, no
new effects could occur or no new mitigation measures would be required, the agency
can approve the activity as being within the scope of the project covered by the program
EIR, and no new environmental document would be required.
“(3) An agency shall incorporate feasible mitigation measures and alternatives
developed in the program EIR into subsequent actions in the program.
“(4) Where the subsequent activities involve site specific operations, the agency
should use a written checklist or similar device to document the evaluation of the site and
the activity to determine whether the environmental effects of the operation were covered
in the program EIR.
“(5) A program EIR will be most helpful in dealing with subsequent activities if it
deals with the effects of the program as specifically and comprehensively as possible.
With a good and detailed analysis of the program, many subsequent activities could be
found to be within the scope of the project described in the program EIR, and no further
environmental documents would be required.” (CEQA Guidelines, § 15168, subd. (c),
italics added.)
In effect, after a sufficiently comprehensive and specific program EIR has been
certified, CEQA allows much of the initial site-specific review to occur outside a formal
CEQA process and beyond public view. CEQA does not require the Department to
engage in a public process when it determines whether the impacts from a site-specific
21
project were addressed and adequately mitigated in the program EIR. And if the
Department finds the impacts were addressed, it need not prepare a new environmental
document at all.
“To hold that a project-specific EIR must be prepared for all activities proposed
after the certification of the program EIR, even where the subsequent activity is ‘within
the scope of the project described in the program EIR’ ([CEQA] Guidelines, § 15168,
subd. (c)(5)), would be directly contrary to one of the essential purposes of program
EIR’s, i.e., to streamline environmental review of projects within the scope of a
previously completed program EIR. We conclude that a program EIR may serve as the
EIR for a subsequently proposed project to the extent it contemplates and adequately
analyzes the potential environmental impacts of the project . . . .” (Citizens for
Responsible Equitable Environmental Development v. City of San Diego Redevelopment
Agency (2005) 134 Cal.App.4th 598, 615.)
The Center contends the evaluation protocol is an inadequate and untimely method
for performing site-specific review. To the contrary, the evaluation protocol is a type of
“written checklist or similar device” CEQA allows an agency to use to document site-
specific impacts and determine whether those impacts were sufficiently analyzed in the
program EIR. (CEQA Guidelines, § 15168, subd. (c)(2), (4).)
Before the Department will stock a high mountain lake, it will utilize the
evaluation protocol to determine if any decision species are present in that water body. If
a decision species is present, the Department will determine whether stocking will have a
substantial environmental affect on the species. This review will by necessity include
application of the impacts analysis contained in the EIR, as well as a determination of any
other impacts that may not have been addressed in the EIR. This is exactly the type of
process CEQA requires an agency to utilize outside of public review when it intends to
approve a site-specific project that is part of a program previously reviewed in a program
EIR. If the Department upon using the evaluation protocol discovers an impact that was
22
not sufficiently addressed in the EIR, it will then be obligated to begin a CEQA process,
but only if the Department intends to approve the activity.
The Department has complied with CEQA in preparing a sufficiently adequate
program EIR that reviews in a reasonable manner the impacts the enterprise will have on
decision species throughout the state, and that will allow it to proceed with its enterprise,
subject to the requirements of CEQA.
B. Deferral of formulating mitigation measures
The Center contends the EIR impermissibly defers the formulation of mitigation
measures. It allegedly does this by proposing the Department rely upon the future
development of aquatic biodiversity management plans and hatchery genetic
management plans to mitigate impacts as a basis for approving future stocking now. The
Center claims CEQA prohibits agencies from approving EIR’s that defer formulation of
mitigation measures to the future development of a plan. The Center acknowledges
CEQA allows such deferral if the EIR specifies performance standards that future
mitigation must meet, but it contends no such standards guide the development of future
aquatic biodiversity management plans and hatchery genetic management plans.
We disagree with the Center. The EIR does not impermissibly defer formulation
of mitigation measures, as it provides sufficient performance standards for future
mitigation to meet. It commits the Department to render impacts on inland decision
species insignificant before it plants any fish in the high mountain lakes, and it commits
the Department to mitigate impacts on wild populations of native anadromous fish by
bringing salmon and steelhead planting into conformity with governing federal
regulations.
CEQA requires an EIR to propose and describe mitigation measures to minimize a
project’s significant environmental impacts. (Pub. Resources Code, §§ 21002.1, subd.
(a); 21100, subd. (b)(3).) Any action, whether it be part of the project or imposed as a
condition of approval, that is designed to avoid, minimize, rectify, or reduce or eliminate
23
a significant environmental impact or to compensate for the impact qualifies as a
mitigation measure. (CEQA Guidelines, §§ 15126.4, subd. (a)(1); 15370.)
Generally, CEQA requires mitigation measures to be formulated in an EIR and not
deferred to the development of future plans or measures, but there is an exception to that
rule. “Formulation of mitigation measures should not be deferred until some future time.
However, measures may specify performance standards which would mitigate the
significant effect of the project and which may be accomplished in more than one
specified way.” (CEQA Guidelines, § 15126.4, subd. (a)(1)(B).)
“ ‘Impermissible deferral of mitigation measures occurs when an EIR puts off
analysis or orders a report without either setting standards or demonstrating how the
impact can be mitigated in the manner described in the EIR.’ [Citation.]” (Clover Valley
Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, 236.)
“[W]hen, for practical reasons, mitigation measures cannot be fully formulated at
the time of project approval, the lead agency may commit itself to devising them at a later
time, provided the measures are required to ‘satisfy specific performance criteria
articulated at the time of project approval.’ (Sacramento Old City Assn. v. City Council
(1991) 229 Cal.App.3d 1011, 1028–1029, [original italics].) In other words, ‘[d]eferral
of the specifics of mitigation is permissible where the local entity commits itself to
mitigation and lists the alternatives to be considered, analyzed and possibly incorporated
in the mitigation plan. [Citation.] On the other hand, an agency goes too far when it
simply requires a project applicant to obtain a biological report and then comply with any
recommendations that may be made in the report. [Citation.]’ (Defend the Bay v. City of
Irvine (2004) 119 Cal.App.4th 1261, 1275.)
“In sum, ‘it is sufficient to articulate specific performance criteria and make
further [project] approvals contingent on finding a way to meet them.’ (Endangered
Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 793.)
Essentially, the rule prohibiting deferred mitigation prohibits loose or open-ended
24
performance criteria. Deferred mitigation measures must ensure that the applicant will be
required to find some way to reduce impacts to less than significant levels. If the
measures are loose or open-ended, such that they afford the applicant a means of
avoiding mitigation during project implementation, it would be unreasonable to conclude
that implementing the measures will reduce impacts to less than significant levels.”
(Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899,
944-945 (Rialto Citizens), original italics.)
However, “when a public agency has evaluated the potentially significant impacts
of a project and has identified measures that will mitigate those impacts, the agency does
not have to commit to any particular mitigation measure in the EIR, as long as it commits
to mitigating the significant impacts of the project. Moreover, . . . the details of exactly
how mitigation will be achieved under the identified measures can be deferred pending
completion of a future study.” (California Native Plant Society v. City of Rancho
Cordova (2009) 172 Cal.App.4th 603, 621.)
The Center contends the Department could have formulated site-specific
mitigation measures in the program EIR had it performed site-specific reviews, and there
was no justification for its decision not to do either. Even if the Department could defer
forming site-specific mitigation measures, the Center claims the EIR still fails because it
does not contain specific performance standards or a commitment to mitigate the impacts.
We have already concluded the EIR, as a program EIR, was not required to
perform site-specific review. We are left with the Center’s assertion that the EIR does
not contain specific performance standards for the ultimate mitigation measures to meet
or a commitment to mitigate. We disagree with the Center’s claim.
CEQA does not define how specific the performance standards set forth in an EIR
must be in order to defer formulating mitigation measures. However, Rialto Citizens,
supra, 208 Cal.App.4th 899, a decision of Division Two of the Fourth Appellate District
Court of Appeal, provides persuasive reasoning that supports our conclusion the EIR did
25
not improperly defer formulating mitigation measures. Rialto Citizens concerned the
adequacy of mitigation measures proposed by an EIR for a large retail development
project. Five special status plant species and three special status wildlife species had the
potential to occur on the project site. (Id. at p. 942.) To mitigate the project’s impacts to
those species, the EIR proposed the following mitigation measures: for the five plant
species, the EIR required a botanist to survey each site. If less than 20 individuals of any
of the species were found, no further action was required. If 20 or more were found, the
EIR required the botanist to prepare a plan providing for the salvage and transportation of
the plants to another location on the project site in permanent open space. The new
location had to be maintained and protected for a period of three years. The plan had to
include performance criteria, but at a minimum there had to be no less than 80 percent
establishment of the individual plants at the end of three years. If those criteria were not
met, the monitoring period would be extended another two years. The plan had to be
submitted and approved prior to site grading. In addition, if the surveys discovered any
state or federal threatened or endangered species, the project would be subject to formal
consultation and permitting requirements under state and federal endangered species law.
(Id. at p. 943.)
For the three wildlife species, the EIR proposed separate sets of mitigation
measures; one for two federally endangered kangaroo rat species, and one for the
burrowing owl. (Rialto Citizens, supra, 208 Cal.App.4th at pp. 943-944.) To mitigate
impacts on the two kangaroo rat species, the EIR required a mammalogist to survey the
site for habitat prior to the issuance of grading permits and determine whether trapping
efforts were necessary. If habitats were found, trapping efforts would proceed following
federal protocols. If actual species were found, the project applicant would engage in
formal consultation and permitting with the appropriate federal agency as required under
federal endangered species law to determine appropriate off-site mitigation. (Id. at p.
943.)
26
To mitigate impacts on the burrowing owl, the EIR required a biologist to survey
the site prior to grading to identify burrows and occupied burrows by using a protocol
approved by federal and state environmental agencies. After the initial survey, the
biologist must conduct four additional surveys focusing on owls during the owl’s
breeding season. If no owls were located, no further mitigation was required. If owls
were observed, the project applicant was required to consult with the city to determine
appropriate mitigation, based on conditions at the site. (Rialto Citizens, supra, 208
Cal.App.4th at p. 944.)
A citizens group alleged the EIR improperly deferred formulation of mitigation
measures, but the Court of Appeal held it did not. It determined these mitigation
measures were sufficiently definite to ensure the impacts would be mitigated, and the EIR
did not improperly defer formulation of the measures. The requirement to prepare a plant
salvage and transportation plan to mitigate for impacts on the plant species was not an
improper deferral. The EIR included sufficient performance standards for the salvage
plan (maintaining the plant species in an open space area for three to five years if 20 or
more individual plants of any species are found prior to grading) to ensure development
and operation of the plan will reduce impacts on the plant species to less than significant
levels. (Rialto Citizens, supra, 208 Cal.App.4th at p. 946.)
The measures protecting the endangered kangaroo rat species and any other
endangered or threatened plant species were also adequate, as they required the project
applicant to comply with applicable government consulting and permitting regulations.
Complying with government regulations as a mitigation measure is not an improper
deferral. (Rialto Citizens, supra, 208 Cal.App.4th at pp. 945-946.)
Finally, and most significantly here, the Court of Appeal held the EIR’s proposed
mitigation measures for impacts on the burrowing owl were not improper deferrals. Even
though the EIR did not specify exactly what would be done if any burrowing owls were
found, by requiring the applicant to conduct five surveys and consult with the city to
27
determine proper mitigation if any owls were found, the EIR committed the applicant and
the City to find a way to render any impact insignificant before the City issued a grading
permit. (Rialto Citizens, supra, 208 Cal.App.4th at pp. 946-947.)
The mitigation measures at issue here pass muster in the same fashion the
measures at issue in Rialto Citizens survived. The mitigation measures for trout stocking
in mountain lakes commit the Department to mitigating impacts to insignificance before
the Department recommences stocking. The mitigation measures for the salmon and
steelhead stocking commit the Department to mitigate impacts in compliance with federal
regulation and to the extent possible for impacts which are unavoidable and cannot
feasibly be mitigated fully.
Requiring the Department to survey each mountain lake using the evaluation
protocol and to develop an aquatic biodiversity management plan before it stocks any
mountain lake where impacts may occur did not impermissibly defer formulating
mitigation measures. Rather, it committed the Department to mitigate potential impacts
before they occurred. Impacts on mountain lake fish were completely but temporarily
mitigated when the trial court and the EIR prohibited the Department from conducting
any stocking in the lakes. Stocking will not resume unless and until the Department
surveys each lake, and, if any decision species existing in the lake could be adversely
affected by stocking, adopts an aquatic biodiversity management plan to govern stocking
in that lake. The Department’s inability to stock until each lake has been surveyed and an
aquatic biodiversity management plan is adopted for any lake where significant impacts
may occur commits the Department to mitigating the impacts should it decide to stock in
any lake. The Department has no discretion to go forward without first mitigating the
impacts.
Also, the EIR provides sufficient performance standards to ensure the aquatic
biodiversity management plans will mitigate impacts in mountain lakes to insignificance.
The EIR directs the plans to end stocking in most mountain lakes that contain decision
28
species or their habitat. The plans are to be designed to recover native wildlife,
especially amphibians, as well as maintain some recreational fisheries.
The EIR directs aquatic biodiversity management plans to satisfy three objectives.
First, they are to “[m]anage high elevation aquatic resources in a manner that maintains
or restores native biodiversity and habitat quality, supports viable populations of native
species, and provides for recreational opportunities considering historical and future use
patterns. In some areas, most or all of the waters may be managed as natural resources
with little or no angling available. Likewise, in areas of high recreational demand, most
or all of the waters may be managed for recreational angling.”
Second, all stocking allotments and changes must be based on site-specific data
preferably collected within the previous five years.
Third, for each mountain lake, stocking is to be guided by the following relevant
principles: (1) Lakes with extant or existing populations of decision species should
generally not be stocked with fish. Moreover, if decision species populations exist within
two kilometers of the lake, the Department must assess the feasibility of removing all
trout from that lake to convert it to a fishless condition in order to benefit the decision
species.
(2) After achieving these native biodiversity objectives, mountain lakes are to be
managed to optimize angling quality and opportunity within a given basin.
These mitigation measures inform the Department how it is to mitigate any
impacts on decision species. In most circumstances, it is not to stock lakes where
decision species exist, and, additionally, it is to remove all trout from such lakes where it
is feasible. These standards are sufficient to inform the Department what it is to do and
what it must accomplish, and they commit the Department to mitigating impacts before
proceeding with the enterprise.
Requiring the Department to implement hatchery genetic management plans also
did not impermissibly defer formulating mitigation measures for impacts on anadromous
29
fish. Indeed, the EIR determined many of the impacts on anadromous fish were
unavoidable and could not feasibly be mitigated to less than significant. In compliance
with CEQA, the Department adopted findings of fact stating the impacts could not be
feasibly mitigated or that mitigation was the ultimate responsibility of another federal
agency. The Department also adopted a statement of overriding considerations by which
it expressly declared it was approving the project, despite its environmental harm,
because of the project’s overriding benefits and the Department’s statutory mandate. At
that point, there was no additional mitigation to be done. The Center does not challenge
these findings.
The Department agreed to lessen impacts to the extent reasonably feasible by
developing hatchery genetic management plans for approval by the NMFS. By doing so,
the Department relied upon federal regulations requiring a state to develop hatchery
genetic management plans in order to continue hatchery and stocking operations as
exempt from take prohibitions imposed by the federal Endangered Species Act in waters
populated by endangered anadromous species. (50 C.F.R. § 223.203(b)(5).) The plan
must effectively protect and achieve “a level of salmonid productivity commensurate
with the conservation of the listed salmonids.” (50 C.F.R. § 223.203(b)(5)(vi).) It must
ensure broodstock collection programs meet a listed species’ conservation needs before
they can be used to sustain recreational and commercial fisheries. (50 C.F.R.
§ 223.203(b)(5)(i)(C).)
The hatchery genetic management plan must also minimize the impacts hatchery
fish have on wild fish. (50 C.F.R. § 223.203(b)(5)(i)(E).) It must ensure hatchery
programs and harvest management are designed to provide as few biological risks as
possible on listed species. (50 C.F.R. § 223.203(b)(5)(i)(F).) It must require adequate
hatchery facilities to exist to maintain population diversity and avoid hatchery-influenced
selection or domestication. (50 C.F.R. § 223.203(b)(5)(i)(G).) And the plan must be
approved by the NMFS. (50 C.F.R. § 223.203(b)(5)(K)(v).)
30
These regulations provide sufficient performance standards to satisfy CEQA.
“[A] condition requiring compliance with regulations is a common and reasonable
mitigation measure and may be proper where it is reasonable to expect compliance.
[Citations.]” (Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th
884, 906.) Here, it is reasonable to expect compliance, as the Department previously
initiated developing hatchery genetic management plans, and it continues to work with
the NMFS to obtain its approval. Otherwise, it may run afoul of federal law. There is no
doubt the Department is committed to mitigating its impacts on anadromous fish to the
extent it feasibly can by adopting and implementing hatchery genetic management plans.
Thus, requiring the Department to adopt the plans as a mitigation measure was not an
improper deferral of formulating mitigation.
Asserting the EIR improperly defers formulating mitigation measures, the Center
claims the issue is governed by Preserve Wild Santee v. City of Santee (2012) 210
Cal.App.4th 260 (Preserve Wild Santee), in which Division One of the Fourth District
Court of Appeal invalidated an EIR for improperly deferring formulation of mitigation
measures. We find the case distinguishable. The relevant issue in Preserve Wild Santee
concerned a proposed residential development’s impacts on an endangered butterfly
species. The EIR required the developer to create a habitat preserve by means of a
conservation easement that would be managed long term under a habitat management
plan. The EIR established broad and general goals for the management plan to achieve.
It required the plan to accomplish “ ‘the goal of maintaining appropriate, high-value
native plant communities,’ ” “ ‘address management and monitoring of vegetation
communities through specific minimum survey and management requirements,’ ” and
describe how impacts to vegetation communities will be avoided. (Id. at p. 272.) It also
required the plan to include a specific section providing for the active management of the
endangered butterfly within the preserve. (Ibid.)
31
The city circulated a draft version of a habitat management plan. The draft plan
concluded the biological resources within the preserve would be managed by allowing
ecological processes to occur naturally while managing the effects of human recreational
uses of the land by such activities as maintaining trails and fences and removing
nonnative vegetation. (Preserve Wild Santee, supra, 210 Cal.App.4th at pp. 272-273.)
Regarding the endangered butterfly, the draft plan stated the key consideration was
proper vegetation management. Without specifying any particular actions, the plan
called for promoting butterfly habitat where host and nectar plants were present, creating
other habitat sites, and keeping habitat open by means of periodic fire or other vegetation
management, such as grazing. However, the plan indicated the timing and other specifics
for undertaking these management activities would be subject to the preserve manager’s
discretion. It also did not discuss the fact its call for prescribed burns or grazing
conflicted with the city’s prior decision not to permit prescribed burns or grazing in the
project’s open space area. (Preserve Wild Santee, supra, 210 Cal.App.4th at p. 273.)
The Court of Appeal held the EIR improperly deferred formulating mitigation
measures. Although the EIR contained measures to mitigate the loss of the butterfly’s
habitat, it did not describe any actions for actively managing the butterfly within the
preserve, nor did it specify any performance standards or other guidelines for the active
management requirement. As a result, the EIR left the success or failure of mitigating the
project’s impacts on the butterfly to an unformulated plan’s eventual directives for
actively managing the butterfly within the preserve, and to the preserve manager’s
discretion to implement the plan. “ ‘An EIR is inadequate if “[t]he success or failure of
mitigation efforts . . . may largely depend upon management plans that have not yet been
formulated, and have not been subject to analysis and review within the EIR.” ’
[Citations.]” (Preserve Wild Santee, supra, 210 Cal.App.4th at p. 281.)
Unlike in Preserve Wild Santee, the EIR here did not leave the success of its
mitigation measures only to an unformulated plan and executive discretion to implement
32
the plan. Instead, the EIR, the Department, and the court directed all stocking in high
mountain lakes be ceased unless and until an aquatic biodiversity management plan was
adopted with its objectives of ending stocking in mountain lakes where decision species
would be substantially affected, of removing trout from those lakes where feasible, and
then managing lakes for recreation purposes. The Department has no discretion to
continue stocking until mitigation measures are in place.
Similarly, the Department relied upon federal regulations to develop mitigation
measures for impacts on anadromous fish. The Department’s commitment to comply
with federal regulations to develop hatchery genetic management plans ensures impacts
on wild salmon and steelhead will be reduced to the extent reasonably feasible. Preserve
Wild Santee does not apply here.
The Center also contends relying on the aquatic biodiversity management plans is
inadequate because the plans could allow recreational angling to continue in some lakes.
This argument ignores the EIR and the enterprise’s scope and the other objectives of
aquatic biodiversity management plans. The EIR’s scope is statewide, as the enterprise is
statewide. Given that size and scope, the Department reasonably determined to mitigate
impacts on a statewide and watershed-wide basis by means of the plans, and to mitigate
on a site-specific basis by means of the evaluation protocol. To the extent fishing and
stocking continue to create impacts, those impacts are addressed in the statement of
overriding considerations. In addition, the aquatic biodiversity management plans’
objectives call for restoring species and habitat and removing trout where feasible first
before addressing recreational needs. As a result, mitigating the impacts takes priority
over providing recreational opportunities.
We conclude the EIR did not improperly defer formulation of mitigation
measures.
33
C. Using the existing enterprise as the environmental baseline
The EIR used the Department’s hatchery and stocking enterprise from 2004
through 2008 as the environmental baseline against which all impacts from continuing
the project would be compared. The EIR states that because the proposed project being
evaluated is the continuation of the existing stocking enterprise, “the environmental
baseline necessarily includes the implementation of the Program in substantially its
present form.”
The Center contends the baseline was invalid under CEQA, as it equated the
proposed project -- continuing the hatchery and stocking enterprise -- with the current
environmental condition. The Center asserts the EIR must use the existing environmental
conditions -- absent the project -- as the baseline.
We disagree. CEQA and case authority hold the baseline for a continuing project
is the current environmental condition including the project, even if the project has not
undergone prior environmental review.
CEQA requires an EIR to “focus on impacts to the existing environment, not
hypothetical situations.” (County of Amador v. El Dorado County Water Agency (1999)
76 Cal.App.4th 931, 955.) “[T]he impacts of a proposed project are ordinarily to be
compared to the actual environmental conditions existing at the time of CEQA
analysis . . . .” (Communities for a Better Environment v. South Coast Air Quality
Management Dist., supra, 48 Cal.4th at p. 321 (Communities).)
To accomplish this, CEQA directs an EIR to include what is called an
environmental baseline, a description of the project site’s physical and environmental
conditions at the time the EIR is prepared. “An EIR must include a description of the
physical environmental conditions in the vicinity of the project, as they exist at the time
the notice of preparation is published . . . from both a local and regional perspective.
This environmental setting will normally constitute the baseline physical conditions by
34
which a lead agency determines whether an impact is significant.” (Guidelines, § 15125,
subd. (a).)
The “normal” rule is that the baseline must reflect the “physical conditions
existing at the time [the] environmental analysis” begins. (Communities, supra, 48
Cal.4th at pp. 320, 323.) This is so even if the current condition includes unauthorized
and even environmentally harmful conditions that never received, and, as a result of
being incorporated into the baseline, may never receive environmental review. (Citizens
for East Shore Parks v. California State Lands Com. (2011) 202 Cal.App.4th 549, 561
(East Shore Parks).)
The facts in East Shore Parks, a decision of the First Appellate District’s Division
One, are similar to those we face, and the case’s holding and analysis apply here. The
case concerned the renewal of a lease to operate a marine terminal built on state land near
an oil refinery. The terminal had been in use since 1902, and the State Lands
Commission had granted its operator a 50-year ground lease in 1947. Thus, no CEQA
study had examined the terminal’s construction or operation, or any improvements the
operator had made to the terminal during the lease term. (East Shore Parks, supra, 202
Cal.App.4th at pp. 553-554.) Before approving a lease renewal in 1997 to allow the
operator to continue operating the terminal, the Commission determined the renewal
required CEQA review in an EIR. During the course of preparing the EIR, the
Commission decided the appropriate environmental baseline was the existing, actual use
and operation of the terminal. Using this baseline, the EIR concluded the renewal could
result in significant environmental impacts due to potential oil spills. The Commission
certified the EIR and approved the renewal in 2009. (Id. at pp. 554-555 & fn. 2.)
Opponents to the lease sued, claiming the EIR violated CEQA by incorporating
the ongoing use of the terminal into the environmental baseline. (East Shore Parks,
supra, 202 Cal.App.4th at pp. 556, 557-558.) The Court of Appeal disagreed. It
35
concluded the Commission complied with CEQA when it used a baseline that included
the terminal’s use and operation. (Id. at p. 558.)
The court relied on a long line of appellate cases that hold the EIR uses the actual
environmental conditions existing at the time of CEQA analysis as a baseline, even when
the actual conditions are in violation of current regulatory provisions or were not subject
to previous CEQA review. “For example, in Riverwatch v. County of San Diego (1999)
76 Cal.App.4th 1428 (Riverwatch), [Division One of the Fourth Appellate District]
approved the county’s chosen baseline, which included illegal development that had
occurred at a mining operation seeking a use permit. The respondents could not, said the
court, essentially turn back the clock and insist upon a baseline that excluded existing
conditions. (Id. at pp. 1452-1453.) How present conditions come to exist may interest
enforcement agencies, but that is irrelevant to CEQA baseline determinations -- even if it
means preexisting development will escape environmental review under CEQA.
(Riverwatch, at pp. 1452-1453.) In Fat [v. County of Sacramento (2002)] 97 Cal.App.4th
1270 [(Fat)], the [Third Appellate District] upheld the county’s choice of a baseline
reflecting present-day conditions to evaluate the impact of a proposed airport expansion.
Even though ‘the Airport developed over a period of nearly 30 years without County
authorization, there was evidence of environmental damage during that period, and the
Airport had been the subject of at least two zoning enforcement actions . . . ,’ the county
acted within its discretion using current airport operations as the baseline for CEQA
review. (Fat, at pp. 1280-1281.) Similarly, in Eureka Citizens for Responsible
Government v. City of Eureka (2007) 147 Cal.App.4th 357 [(Eureka)], [Division Five of
the First Appellate District] upheld a project description for CEQA purposes that took
into account an existing playground built contrary to code. ‘While any alleged code
violations in the construction of the playground may have been relevant to the City’s
consideration of the variance requested, it was not a CEQA consideration.’ (Eureka, at p.
371, italics omitted; see also Fairview Neighbors v. County of Ventura (1999) 70
36
Cal.App.4th 238, 242-243 [EIR prepared in conjunction for application to expand mining
operation ‘properly discussed the existing physical condition of the affected area as
including the long-operating mine’]; Bloom v. McGurk (1994) 26 Cal.App.4th 1307,
1312-1316 & fn. 3 [‘ “existing facility” ’ for categorical exemption purposes means a
facility ‘as it exists at the time of the agency’s determination, rather than . . . at the time
CEQA was enacted’; this is consistent ‘with cases that have required potential impacts to
be examined in light of the environment as it exists when a project is approved’].)” (East
Shore Parks, supra, 202 Cal.App.4th at pp. 559-560; cf. Communities, supra, 48 Cal.4th
at p. 322 [EIR set improper baseline by relying on what uses could occur under current
permit as opposed to the uses that were actually occurring].)
Based on these holdings, the East Shore Parks court concluded the baseline used
by the Commission was correct. It reflected “ ‘what was actually happening’ at the site
of the proposed project (Communities, supra, 48 Cal.4th at p. 322) -- that is, an operating
marine terminal. [Citations.] Indeed, we note that in Riverwatch and Fat, the appellate
courts held even unlawful prior development and activity was properly included within
the CEQA baselines for evaluation of proposed projects. Here, in contrast, the ‘ “ ‘real
. . . on the ground’ ” ’ terminal operations (Communities, supra, 48 Cal.4th at p. 321)
included in the baseline were entirely lawful.” (East Shore Parks, supra, 202
Cal.App.4th at p. 560.)
Plaintiffs in East Shore Parks argued the baseline should exclude use of the
marine terminal and the physical structure itself. Otherwise the terminal would never
undergo environmental review. They also claimed the line of appellate cases the court
relied on did not apply because those cases involved expansions to existing projects. The
Center makes the same arguments here. The East Shore Parks court rejected these
arguments, and we do, too, for the same reasons: “[P]laintiffs claim the baseline here
should reflect conditions that have not existed at the locale for more than a century. This
is so, say plaintiffs, because if the baseline does not exclude current conditions, there will
37
never be full environmental review of the marine terminal, since it predates CEQA. [¶]
However, neither the statute, nor any CEQA case, supports plaintiffs’ revisionist
approach to the baseline. To the contrary, the CEQA Guidelines require a ‘description of
the physical conditions in the vicinity of the project, as they exist at the time the notice of
preparation [of an EIR] is published’ and specify ‘[t]his environmental setting will
normally constitute the baseline. . . .” (CEQA Guidelines, § 15125, subd. (a), italics
added.) The cases further make clear the baseline must include existing conditions, even
when those conditions have never been reviewed and are unlawful. (See Fat, supra, 97
Cal.App.4th at pp. 1280-1281; Riverwatch, supra, 76 Cal.App.4th at pp. 1452-1453; see
also Communities, supra, 48 Cal.4th at p. 321 & fn. 7.) That Fat and Riverwatch
involved applications to expand and not merely renew operations, is immaterial. In both,
baselines reflecting current conditions, including unauthorized and even environmentally
harmful conditions, meant those conditions would never receive environmental review.”
(East Shore Parks, supra, 202 Cal.App.4th at pp. 560-561, fn. omitted.) These
arguments apply equally here.
The Center claims the holding of these cases runs afoul of CEQA because the
Supreme Court in Communities, supra, 48 Cal.4th 310, stated the EIR must describe the
baseline “absent the project” under review. (Id. at p. 315.) The high court, however,
clarified that the project under review there, the addition of a new refining process to an
oil refinery, could not be characterized as the refinery’s continued operation. It required
installing new equipment, and modifying and increasing operation of other equipment in
order to add the new process. It was, in short, a new project. (Id. at p. 326.) The
Communities court did not face the issue here -- review of a continuing project that was
not planned to undergo expansion or modification.
The Center claims the stocking enterprise is distinguishable from the cases cited
above because the Department decides each year whether and where to stock -- in other
words, the hatchery and stocking enterprise is not a continuing program. The facts
38
disprove this assertion, as the enterprise has been running for more than 100 years.
Adjustments are made, but a program EIR allows for adjustments to be made without
having to prepare a new environmental document with every change. Indeed here, the
Department proposes to make no changes to its enterprise except as feasible to mitigate
the enterprise’s environmental impacts.
The Center’s concern that the enterprise’s environmental impacts will never be
reviewed if the current project is used as the baseline is also disproved by the facts. The
EIR does what the Center seeks. Despite using the existing enterprise as the baseline, the
EIR describes, as much as reasonably possible, the impacts hatcheries and stocking have
had statewide on the environment and the decision species from the enterprise’s inception
more than a century ago up to this time, and it proposes how to mitigate those continuing
impacts, even to the extent of removing fish from lakes that have been populated for
decades, and, in many cases, not restocking them again. The Department’s use of the
current project as its baseline did not violate CEQA or prevent the EIR from analyzing
the project’s environmental impacts.
D. Adequacy of range of alternatives and the no project alternative
The Center contends the EIR violates CEQA by not considering a no project
alternative of no stocking anywhere, or a reasonable range of alternative projects. It also
asserts the EIR failed to explain why it chose not to review other alternatives suggested
by the Center and others. We conclude the EIR meets CEQA’s requirements for
reviewing alternatives.
CEQA requires an EIR to “describe a range of reasonable alternatives to the
project, or to the location of the project, which would feasibly attain most of the basic
objectives of the project but would avoid or substantially lessen any of the significant
effects of the project, and evaluate the comparative merits of the alternatives. An EIR
need not consider every conceivable alternative to a project. Rather it must consider a
reasonable range of potentially feasible alternatives that will foster informed
39
decisionmaking and public participation. An EIR is not required to consider alternatives
which are infeasible. The lead agency is responsible for selecting a range of project
alternatives for examination and must publicly disclose its reasoning for selecting those
alternatives. There is no ironclad rule governing the nature or scope of the alternatives to
be discussed other than the rule of reason. [Citations.]” (CEQA Guidelines, § 15126.6,
subd. (a).)
In addition to analyzing a range of reasonable alternatives, the EIR must also
examine a no project alternative. “The purpose of describing and analyzing a no project
alternative is to allow decisionmakers to compare the impacts of approving the proposed
project with the impacts of not approving the proposed project. . . .” (CEQA Guidelines,
§ 15126.6, subd. (e)(1).) “The ‘no project’ analysis shall discuss the existing conditions
. . . as well as what would be reasonably expected to occur in the foreseeable future if the
project were not approved, based on current plans and consistent with available
infrastructure and community services. . . .” (CEQA Guidelines, § 15126.6, subd. (e)(2).)
1. The no project alternative
The EIR reviewed the baseline project, continuing the existing enterprise without
making any changes, as the no project alternative. It stated consideration of this
alternative as the no project alternative was consistent with the CEQA Guidelines. (See
CEQA Guidelines, § 15126.6, subd. (e)(3)(A).) This alternative would include the
elimination of federal funding used to operate certain hatcheries. Loss of the funding
would result in a continued but constrained enterprise, with impacts on other Department
programs whose funding would be used to support the stocking enterprise. The EIR did
not review a no stocking alternative, although it has already ceased stocking in many
lakes by the trial court’s order.
The Center faults the EIR for considering the baseline project as the no project
alternative. It claims the EIR was required to consider the elimination of the stocking
enterprise as the no project alternative. We disagree. Under CEQA, where the EIR is
40
reviewing an existing operation or changes to that operation, the no project alternative is
the existing operation. Moreover, where a statutory mandate leaves a state agency no
discretion to cease or discontinue an existing operation, the no project alternative is the
statutorily mandated project.
The purpose of a no project alternative “is to allow decisionmakers to compare the
impacts of approving the proposed project with the impacts of not approving the
proposed project.” (CEQA Guidelines, § 15126.6, subd. (e)(1).) Discussing a no project
alternative in an EIR “provides the decision makers and the public with specific
information about the environment if the project is not approved. It is a factually based
forecast of the environmental impacts of preserving the status quo. It thus provides the
decision makers with a base line against which they can measure the environmental
advantages and disadvantages of the project and alternatives to the project.” (Planning &
Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892,
917-918, italics added.)
When a project involves a proposed change to an ongoing operation, or even the
continuation of an ongoing operation, a decision to reject the project would leave the
operation in place. In such a situation, CEQA defines the no project alternative as a
continuation of the existing operation. (Kostka, supra, § 15.20, p. 15-28.) The CEQA
Guidelines state: “The ‘no project’ analysis shall discuss the existing conditions at the
time the notice of preparation is published, or if no notice of preparation is published, at
the time environmental analysis is commenced, as well as what would be reasonably
expected to occur in the foreseeable future if the project were not approved, based on
current plans and consistent with available infrastructure and community services.”
(CEQA Guidelines, § 15126.6, subd. (e)(2).)
“When the project is the revision of an existing land use or regulatory plan, policy
or ongoing operation, the ‘no project’ alternative will be the continuation of the existing
plan, policy or operation into the future. Typically this is a situation where other projects
41
initiated under the existing plan will continue while the new plan is developed. Thus, the
projected impacts of the proposed plan or alternative plans would be compared to the
impacts that would occur under the existing plan.” (CEQA Guidelines, § 15126.6, subd.
(e)(3)(A).)
“After defining the no project alternative . . . , the lead agency should proceed to
analyze the impacts of the no project alternative by projecting what would reasonably be
expected to occur in the foreseeable future if the project were not approved, based on
current plans and consistent with available infrastructure and community services.”
(CEQA Guidelines, § 15126.6, subd. (e)(3)(C).)
Under these rules, an ongoing operation such as the Department’s hatchery and
stocking enterprise is the no project alternative, as the status quo is the enterprise’s
continuation without undergoing any changes. The EIR is not the approval of a new
program; it is the review of an ongoing one.
The Center asserts stocking is a new project because the Department must decide
every year to approve the enterprise, but this assertion is incorrect. The Department
approved this enterprise decades ago, and what is decided each year is where to stock, not
whether to stock at all.
Indeed, a determination to cease all stocking is not a feasible alternative under
CEQA, and thus need not be reviewed in detail in the EIR. As a result, the no project
alternative is by definition the continuing stocking enterprise in this instance. As used in
CEQA, “ ‘[f]easible’ means capable of being accomplished in a successful manner within
a reasonable period of time, taking into account economic, environmental, legal, social,
and technological factors.” (CEQA Guidelines, § 15364, italics added.) “[A]n
alternative is not feasible where there is no way to legally implement it.” (Uphold Our
Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 602, citing Sequoyah Hills
Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704, 714-715.)
42
The Legislature has mandated the Department to operate hatcheries and stock
water bodies, and it gave the Department no authority to cease those activities. Fish and
Game Code section 13007 requires the Department to use state revenues to attain
hatchery production and stocking goals imposed by the statute of millions of pounds of
trout per year. (Fish & G. Code, § 13007, subd. (b).) When the trial court required the
Department to prepare the EIR, it acknowledged Fish and Game Code section 13007
directed the Department “to release certain minimum quantities of trout each year.” The
Department retained discretion only “to determine where it will [stock], and how much
trout to plant in any given location.”
Fish and Game Code section 1120 also mandates the Department to establish fish
hatcheries for stocking the state’s waters. The statute reads: The [Fish & Wildlife
Commission] shall establish fish hatcheries for stocking the waters of this State with fish.
The department shall maintain and operate such hatcheries.” (Fish & G. Code, § 1120.)
The Trout and Steelhead Conservation and Management Planning Act of 1979
(Fish & G. Code, § 1725 et seq.) further reflects the statutory mandate to raise and stock
fish. The act declares as a matter of state policy that “[h]atchery production and stocking
of California's waters started over 140 years ago and is an enduring part of California’s
history and attempts to steward its natural resources. [¶] . . . Sustainable and adaptive
management provides and improves recreational angling opportunities while protecting
and maintaining native and wild trout fisheries, other species, and their mutual habitat.”
(Fish & G. Code, § 1726.1, subds. (a), (b).) The act obligates the Department to prepare
a Strategic Plan for Trout Management that, among other things, establishes
“ecologically and environmentally sustainable hatchery and stocking practices for native
trout.” (Fish & G. Code, § 1728, subd. (c)(4).)
Under these statutes, the Department has no legal authority to discontinue its
hatchery and production enterprise. Because the Department cannot legally implement a
no stocking alternative, it is an infeasible alternative, and the Department was under no
43
obligation to review it in detail in the EIR. Review of the existing enterprise satisfied the
requirement to analyze a no project alternative.
2. Range of alternatives
As its range of alternatives, the EIR reviewed three different versions of
continuing the hatchery and stocking enterprise: (1) continuing the existing enterprise
without making any changes (the no project alternative); (2) continuing the existing
enterprise with the environmental mitigations proposed in the EIR; and (3) continuing the
existing enterprise according to the restrictions set by the trial judge’s interim order when
it granted the Department additional time to prepare the EIR but prohibited stocking fish
in fresh water bodies where decision species existed. The Center claims the EIR failed to
analyze a reasonable range of feasible alternatives. We disagree.
“[I]f a reasonable basis for the choices the agency makes is found in the EIR or
elsewhere in the record, a reviewing court will defer to the agency’s selection of
alternatives.” (Kostka, supra, § 15.17, p. 15-24.) “The selection will be upheld, unless
the challenger demonstrates ‘that the alternatives are manifestly unreasonable and that
they do not contribute to a reasonable range of alternatives.’ [Citation.]” (California
Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 988.) “CEQA
does not require that an agency consider specific alternatives that are proposed by
members of the public or other outside agencies.” (City of Maywood v. Los Angeles
Unified School Dist. (2012) 208 Cal.App.4th 362, 420.)
To develop a range of alternatives, the Department used the enterprise’s objectives
of meeting the production goals of Fish and Game Code section 13007, providing for
fishing opportunities, mitigating impacts caused by development as well as the enterprise
itself, and providing for long-term recovery and survival of native fish. It found most of
the alternatives suggested to it in the scoping process did not meet these basic criteria.
Where possible, it incorporated some of the suggested elements into the broader
alternatives it reviewed in the EIR. As a result, the range of alternatives reviewed in the
44
EIR provided the Department with feasible alternatives to consider that met the project’s
objectives and mitigated its impacts. The Center has not shown the range of alternatives
in this circumstance was unreasonable.
The Center argues the EIR did not consider a reasonable range, as the first
alternative was just the continuation of the enterprise, the second alternative allegedly did
not provide any environmental advantages, and the third alternative prevents further
studies from being performed. But both the second and third alternative did provide
environmental advantages over continuing the enterprise unchanged. Contrary to the
Center’s contention, the second alternative assumes no stocking will occur in lakes
populated with decision species unless and until an aquatic biodiversity management plan
is approved, and those plans will limit stocking to prevent impacts to any decision
species. Many lakes will no longer be stocked. Expansion into other lakes will occur
according to the evaluation protocol to prevent impacts on decision species.
Alternative three also provides environmental benefit, as it permanently prevents
stocking in all high mountain lakes where decision species are known to exist, or where
surveys to determine their existence were not completed. The Center complains this
alternative is not reasonable because it is based on a court order, but there can be no
denying this alternative prevents the enterprise from detrimentally impacting decision
species, as no stocking will occur in those waters.
Under these circumstances, the range was reasonable. It provided the Department
with two alternatives, both environmentally superior over the continuing enterprise, by
which to mitigate impacts.
3. Rejection of other alternatives
The EIR briefly considered but ultimately rejected for detailed analysis four
additional alternatives. One was to eliminate all Department-operated hatcheries. The
Department eliminated this alternative because it did not meet Fish and Game Code
section 13007’s requirement to use state revenues to meet fish stocking goals. A second
45
rejected alternative called for eliminating trout stocking in flowing waters, as the State of
Montana has apparently done. The Department eliminated this alternative because
fishing demand in California exceeds that in Montana, and eliminating stocking in
flowing waters would eliminate a large proportion of recreational fishing opportunities
and would put considerable pressure on native and wild stocks.
A third rejected alternative was to establish permanent stocking closures.
Although the Department rejected this alternative in full, it incorporated the principal of
no longer stocking certain areas in two of the alternatives the EIR considered in detail. A
fourth rejected alternative proposed developing and operating conservation and
restoration trout hatcheries. The Department noted there were already some hatcheries
that provided for conservation and restoration on an as-needed basis; however, other
Department policies require the use of other management actions to preserve and restore
native trout populations.
The Center faults the EIR for not including these or other suggested alternatives or
explaining in more detail why the other alternatives were rejected. However, an EIR
need only “indentify any alternatives that were considered by the lead agency but were
rejected as infeasible during the scoping process and briefly explain the reasons
underlying the lead agency’s determination.” (CEQA Guidelines, § 15126.6, subd. (c).
The EIR complied with this directive. The Department did not abuse its discretion in
complying with CEQA’s requirements for consideration of alternatives.
In sum, we conclude the Department did not abuse its discretion in preparing and
certifying the EIR.
III
Case No. C072790
The Association contends three mitigation measures imposed by the Department
on the Fishing in the City Program and private stocking permit applications are actually
underground regulations -- regulations adopted without complying with the notice and
46
procedure requirements imposed by the APA. We conclude the three measures are
underground regulations.
A. Additional background information
1. Fishing in the City program
Fishing in the City is a program implemented by the Department to provide
angling opportunities in urban areas. Under the program, the Department stocks fish in
urban lakes and ponds. Department biologists select the water bodies to be stocked, and
the Department contracts with vendors to provide and stock the fish.
The Fishing in the City program is not mandated by statute. However, a statute
requires the Department to use all funds allocated for purchasing fish for the program to
purchase the fish from private registered aquaculture facilities pursuant to the rules of the
Public Contract Code unless the private facilities are unable to provide the fish or their
fish are diseased. (Fish & G. Code, § 1123.5.)
The Department adopted two mitigation measures proposed by the EIR, BIO-226
and BIO-229, to mitigate impacts the Fishing in the City program may have on any
decision species. BIO-226 requires Department biologists to evaluate water bodies
proposed for stocking under the Fishing in the City program to determine the presence of
any decision species by using a stocking protocol similar to the evaluation protocol called
the private stocking permit evaluation protocol. If decision species may occur, the
biologist must consider whether stocking hatchery fish in the water body would adversely
affect those species or their habitat. This review process must be implemented in each
region sponsoring Fishing in the City programs.
The other mitigation measure, BIO-229, requires private aquaculture facilities
participating in the Fishing in the City program to monitor and report the existence of
invasive species at their facilities. The monitoring shall be done quarterly by a qualified
person using Department standards, and reports shall be submitted to the Department.
47
Presently, the facilities are to monitor for New Zealand mudsnails, quagga mussels, and
zebra mussels.
2. Private stocking permits
Under state statute, a person may apply to the Department for a permit to stock
fish in a stream or lake. (Fish & G. Code, § 6401.) Department regulations prohibit
private stocking of fish which are parasitized, diseased, or of an unauthorized species.
(Cal. Code Regs., tit. 14, § 238.5, subd. (a).) They also prohibit stocking any species of
fish in any water in which such stocking is contrary to the Department’s fishery
management plans. (Cal. Code Regs., tit. 14, § 238.5, subd. (d)(3).)
The Department adopted mitigation measure BIO-223b to address impacts private
stocking may have on decision species. BIO-233b requires a Department biologist,
before approving a private stocking permit application, to review the proposed stocking
water body for the presence of decision species by using the private stocking permit
evaluation protocol. If decision species are found, the biologist must determine whether
the proposed stocking would result in a substantial adverse effect on a decision species.
If it would, the biologist must deny the permit application.
B. Analysis
“Unless it is subject to one of the enumerated exceptions, every regulation must be
adopted consistent with the procedural requirements of the APA. (Gov. Code, § 11340 et
seq.) This requires, among other things, public notice and an opportunity for public
comment before the regulation takes effect. (Morning Star Co. v. State Bd. of
Equalization (2006) 38 Cal.4th 324, 333 (Morning Star).) A regulation that is adopted
inconsistently with the APA is an ‘underground regulation’ (Cal. Code Regs., tit. 1, §
250) and may be declared invalid by a court (Morning Star, supra, at p. 333; Gov. Code,
§ 11350). Such a declaration is what the [Association] seek[s] in this action.
“The APA defines a ‘regulation’ as a rule or standard of general application.
(Gov. Code, § 11342.600.) The state agency rule or standard is a regulation subject to the
48
APA if (1) it applies generally rather than to a specific case and (2) it implements,
interprets, or makes specific the law enforced or administered by the state agency
imposing the rule or standard.
“Several exceptions exempt regulations from the requirements of the APA. These
exceptions allow the state agency to enforce or impose the rule or standard without
promulgating it pursuant to the APA, even though the rule or standard fits the definition
of a ‘regulation.’ ” (Bollay v. California Office of Administrative Law (2011) 193
Cal.App.4th 103, 106-107 (Bollay).)
The Department claims the mitigation measures are exempt from the APA under
two exemptions: One exempts from the APA a regulation that “relates only to the
internal management of the state agency.” (Gov. Code, § 11340.9, subd. (d).) A second
exempts a regulation that “embodies the only legally tenable interpretation of a provision
of law.” (Gov. Code, § 11340.9, subd. (f).) We turn to decide whether the three
mitigation measures contested by the Association qualify under either of these
exemptions to the APA.
1. BIO-226
The Department claims BIO-226, the measure requiring Department biologists to
evaluate whether water bodies should be stocked for the Fishing in the City program, is
exempt from the APA as a rule governing the Department’s internal management
practices. It asserts the measure qualifies for this exemption because the rule applies only
to the Department and its biologists in making stocking decisions. Any impact on
venders who do not receive contracts to supply fish because a water body is not chosen
for the program is incidental.
To support its argument, the Department relies upon a case from this court,
Californians for Pesticide Reform v. California Dept. of Pesticide Regulation (2010) 184
Cal.App.4th 887 (Pesticide Reform), which held the internal management exemption
49
applied where an “agency’s rule does not require the individuals or entities affected to do
anything they are not already required to do . . . .” (Id. at p. 909.)
The Association contends Pesticide Reform is an outlier, and urges us to apply a
more narrow interpretation of the internal management exemption such as that given in
Grier v. Kizer (1990) 219 Cal.App.3d 422 (Grier) (disapproved on another ground by
Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 577 (Tidewater)), a
case from Division Three of the Second Appellate District that Pesticide Reform refused
to follow. Relying upon Armistead v. State Personnel Board (1978) 22 Cal.3d 198
(Armistead), Grier held the exemption applied only to purely internal rules which govern
an agency’s procedure, not to rules that had an external impact. According to Grier,
whether a rule requires affirmative conduct by an affected party is not dispositive.
(Grier, supra, 219 Cal.App.3d at p. 437.)
We need not resolve the disagreement between Pesticide Reform and Grier over
whether a rule must require affirmative conduct by an affected party in order to be
classified as a regulation subject to the APA. Instead, we further define the test first
expressed by Pesticide Reform, and conclude BIO-226 goes beyond the Department’s
internal management. In Pesticide Reform, a state statute required the state Department
of Pesticide Regulation to assess the risk of harm presented by pesticides used in the
state, determine whether they are toxic air contaminants, and adopt measures to control
them. The Department established a policy to prioritize pesticides in the order it would
review them. (Pesticide Reform, supra, 184 Cal.App.4th at pp. 893-894.) We concluded
the prioritization policy was exempt from the APA as an internal management policy
because it required no affirmative conduct by an affected party. (Id. at pp. 907-908.)
However, we emphasized that the “Department was authorized to evaluate all pesticides
in California, and the director was given the discretion to determine the order in which
the pesticides would be evaluated. . . . [T]he prioritization policy will not determine if
50
the pesticides will undergo review, but merely prioritize when the pesticides will undergo
review.” (Id. at p. 909.)
Unlike the policy at issue in Pesticide Reform, BIO-226 does not merely grant the
Department discretion to allocate or prioritize its own resources before performing a
statutory duty. It requires the Department to perform a new duty. The mitigation
measure is not a determination of when or in what order a water body will be evaluated;
it is a directive to evaluate all water bodies the Department proposes to include in the
Fishing in the City program, to do so in a particular manner, and to eliminate what could
be a significant number of water bodies from the program. BIO-226 does not concern
only internal affairs; it substantively affects a public program the Department
administers.
The mitigation measure also significantly affects numerous citizens, both those
who run established fish stocking businesses and those, especially children, who enjoy
participating in the Fishing in the City program. While BIO-226 does not require fish
farmers and vendors to engage in any affirmative conduct, it will detrimentally affect
them. Implementing BIO-226 will likely eliminate a number of water bodies from the
Fishing in the City program to the detriment of the farmers’ businesses and the citizens
who enjoy participating in the program -- an impact more detrimental than the impact
some may have experienced by the prioritization policy at issue in Pesticide Reform, or,
by analogy, a rule that merely prioritized when the Department would evaluate certain
water bodies.
“A major aim of the APA was to provide a procedure whereby people to be
affected may be heard on the merits of proposed rules.” (Armistead, supra, 22 Cal.3d at
p. 204.) Where the challenged policy goes beyond merely prioritizing or allocating
internal resources and may significantly affect others outside the agency, a fact situation
Pesticide Reform did not encounter, such a policy goes beyond the agency’s internal
management and is subject to adoption as a regulation under the APA. The Department
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should hear from the general public, as well as the citizens who operate fish stocking
businesses and those who participate in the Fishing in the City program who will be
affected by BIO-226, before it adopts and implements the measure.
2. BIO-229
The Department claims BIO-229, the measure requiring private fish vendors
participating in the Fishing in the City program to monitor and report any invasive
species, is exempt from the APA as the only legally tenable interpretation of a law.
Section 2301 of the Fish and Game Code and other regulations prohibit the possession or
transfer of New Zealand mudsnails and dreissenid mussels, a term which includes the
species of quagga mussels and zebra mussels. (Fish & G. Code, § 2301, subd. (a)(1);
Cal. Code Regs., tit. 14, § 671, subds. (a), (c)(9)(A), (c)(10).) Any entity that discovers
dreissenid mussels must report the discovery immediately to the Department. (Fish & G.
Code, § 2301, subd. (e).) The Department argues BIO-229 is exempt from the APA
because it merely applies these existing statutes and regulations to a particular situation.
The Department overstates the exception. Any rule that implements, interprets, or
makes specific the law being enforced is a regulation subject to the APA unless the rule is
the only legally tenable interpretation of the law. This exception is narrow. “[A]n
agency interpretation of a statute is not subject to the APA if it is ‘the only legally tenable
interpretation’ of the statute. (Gov. Code, § 11340.9, subd. (f).) That phrase has been
construed to apply only if the interpretation is ‘patently compelled by . . . the statute’s
plain language.’ (Morning Star, supra, at p. 337.) An interpretation is ‘patently
compelled’ when it ‘ “can reasonably be read only one way” [citation], such that the
agency’s actions or decisions, in applying the law are essentially rote, ministerial, or . . .
repetitive of . . . the statute’s plain language.’ (Id. at pp. 336-337.) By contrast,
‘interpretations that arise in the course of case-specific adjudication are not
regulations . . . .’ (Tidewater, supra, 14 Cal.4th at p. 571.)” (California Grocers Assn. v.
Department of Alcoholic Beverage Control (2013) 219 Cal.App.4th 1065, 1074.)
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“Under the ‘only legally tenable interpretation’ exception, the state agency need
not promulgate [a regulation] pursuant to the APA if the regulation essentially reiterates
the law. If the regulation departs from or embellishes upon the law, the state agency must
comply with the APA. [Citation.]” (Bollay, supra, 193 Cal.App.4th at p. 107.)
BIO-229 goes beyond simply reiterating the law or applying the law in a rote or
ministerial manner. It imposes on a class of persons a new affirmative duty to monitor
and report on a quarterly basis the existence of invasive species in their waters if they bid
for, and receive, a contract to supply fish for the Fishing in the City program. This new
duty is not a new duty patently compelled by Fish and Game Code section 2301. That
statute requires entities to report the discovery of invasive species, but it does not require
entities to monitor and report on a quarterly basis. In fact, the statute authorizes the
Department also to take a number of actions to stop dreissenid mussels from entering
state waters, including inspecting any containers or trailers that may carry dreissenid
mussels. If the Department can inspect for dreissenid mussels before a container of fish
is brought to a participating water site, it is not patently apparent from Fish and Game
Code section 2301 that requiring private parties to monitor and report on a regular basis
the existence of invasive species in their waters is the only legally tenable interpretation
of that statute. If the Department wants to adopt such a rule for its Fishing in the City
program, it needs to do so by regulation. (Fish & G. Code,. § 2301, subd. (g).)
3. BIO-233b
The Department argues BIO-233b, the measure effectively prohibiting the
issuance of private stocking permits if a Department biologist concludes the proposed
stocking would substantially and adversely affect any decision species, is exempt from
APA requirements as the only legally tenable interpretation of a provision of law.
Specifically, Department regulations prohibit any person from stocking any species of
fish in any water where such stocking is contrary to the Department’s fisheries
management programs. All applicants will be advised upon request of those management
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programs. (Cal. Code Regs., tit. 14, § 238.5.) The Department claims the requirement
for Department biologists to use an evaluation protocol before granting a private stocking
permit is the only tenable interpretation of its regulation.
We disagree. The Department’s interpretation is not the only interpretation it
could apply to the regulation, nor does its interpretation essentially repeat the regulation.
The regulation is silent regarding how it should be enforced. Another possible
interpretation the Department could reach would be to require the permit applicant to
submit a report from a qualified biologist certifying the nonexistence of any decision
species or that stocking would not have a significant adverse effect on decision species.
Because the Department’s interpretation is not the only reasonably tenable interpretation
of California Code of Regulations, title 14, section 238.5, it is a regulation that must be
adopted according to the APA’s procedures.
DISPOSITION
The judgments in case Nos. C072486 and C073011, appealed by the Center for
Biological Diversity and Californians for Alternatives to Toxics et al., are affirmed. The
Department is awarded its costs on appeal in these cases. (Cal. Rules of Court, rule
8.278(a).)
The judgment in case No. C072790, appealed by the California Association for
Recreational Fishing, is reversed. The Association is awarded its costs on appeal. (Cal.
Rules of Court, rule 8.278(a).)
NICHOLSON , Acting P. J.
We concur:
DUARTE , J.
HOCH , J.
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