The opinion
Filed 12/29/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
SANTA CLARA VALLEY WATER
DISTRICT,
Plaintiff and Appellant, A157127
v. (Contra Costa County
SAN FRANCISCO BAY REGIONAL Super. Ct. No. MSN17-1822)
WATER QUALITY CONTROL
BOARD,
Defendant and Respondent.
The Regional Water Quality Control Board, San Francisco Bay Region
(Board) ordered the Santa Clara Valley Water District (District) to mitigate
the environmental effects of a flood control project. The District filed a
petition for writ of administrative mandate challenging the order under the
Clean Water Act,1 the Porter-Cologne Water Quality Control Act (Porter-
Cologne Act; Wat. Code, § 13000 et seq.), and the California Environmental
Quality Act (CEQA; Pub. Resources Code, §§ 21000 et seq.).2 The trial court
denied the petition. As the District has failed to demonstrate reversible
error, we shall affirm.
For more on the Clean Water Act, including its official name, see
1
footnote 3, post.
2 Undesignated statutory citations are to the Public Resources Code.
1
BACKGROUND
Berryessa Creek in Santa Clara County drains from the Diablo Range
hills into a tributary of Coyote Creek and ultimately into San Francisco Bay.
Historically, one stretch of the creek known as Upper Berryessa Creek
overtopped its banks every 10 to 20 years and flooded nearby areas of
Milpitas and San Jose. In the 1980s, the United States Army Corps of
Engineers (the Corps) began working on plans to build a flood control project
on Berryessa Creek. However, the project did not move forward until 2013,
when the construction of a new BART station in the area, which could be
affected by a flood from the creek, sparked a renewed interest in the flood
control project. At that point, the Corps began conducting environmental
review under federal law for the project, which it completed in 2014. The
Corps’ environmental impact study named the District as the project sponsor.
Under the terms of an agreement between the Corps and the District, the
Corps was responsible for the design and construction of the project, and the
District was responsible for acquiring real property rights, making the land
available to the Corps, and conducting operations and maintenance of the
project.
In early 2015, Board staff visited the project site and submitted
comments on the Corps’ design. The comments suggested various changes for
the project to meet the Board’s environmental requirements, including that
the Corps’ project proposal should include mitigation of the project’s impacts
on wetlands. However, the Corps refused to make some of the requested
changes, because the changes exceeded the scope of the project’s
authorization from Congress and the Corps’ environmental review.
In September 2015, the District, as the lead agency for the project,
issued a draft environmental impact report (EIR) under CEQA. Board staff
2
submitted comments on the draft EIR, and the District issued a final EIR in
January 2016. The final EIR found that the project would have substantial
impacts on some aspects of water resources, but that those impacts could be
reduced to a less-than-significant level through the adoption of various
mitigation measures.
Meanwhile, in September 2015, the Corps applied to the Board under
section 401 of the Clean Water Act for a certificate that the project complied
with state law.3 (33 U.S.C. § 1341.) Such a certification is generally
necessary before a federal agency such as the Corps will approve a project
that involves a discharge into navigable waters. (33 U.S.C. § 1341(a)(1); but
see 33 U.S.C. § 1344(r) [allowing the discharge of dredged or fill material
without a 401 certification if the project meets certain requirements].)
Because the Corps’ application did not contain, among other things, a
proposal for compensatory mitigation to address project impacts on waters
and wetlands, the Board notified the Corps that its application was
incomplete. The state’s congressional delegation and the Governor’s office
then pressured the Board to approve the project, because the project was
needed to protect the BART station under construction and the project could
lose its federal funding if the Board did not issue the section 401 certificate
soon. As a compromise measure, the Board, the Corps, and the District
agreed that the Board would issue its section 401 certification quickly, so that
the Corps could proceed with construction. The Board made clear to the
3 The Clean Water Act is the common name for the Federal Water
Pollution Control Act (33 U.S.C. § 1251 et seq.), as amended in 1972 and
1977. (City of Burbank v. State Water Resources Control Bd. (2005) 35
Cal.4th 613, 620.) The section 401 certificate is named after the section of
the Clean Water Act in which it was enacted, which is codified at 33 U.S.C.
section 1341. Hereafter, all references to “section 401 certificate” or “section
401 certification” are to 33 U.S.C. section 1341.
3
District, however, that after issuing the section 401 certification, it would
subsequently issue waste discharge requirements (WDRs) under the Porter-
Cologne Act to address project design issues and other impacts that were not
handled under the section 401 certification.
Consistent with this agreement, the Board’s executive officer issued a
section 401 certificate for the project in March 2016. That certificate noted
that it was being issued to facilitate the construction schedule for the project
relative to the opening of the BART station. The certificate stated that the
Board would later consider adoption of WDRs to address, among other things,
“compensation” for impacts from the project, with the District to be named as
the responsible entity. The certificate further stated that the Board, as a
responsible agency under CEQA, found that environmental impacts during
the construction of the project that were within the Board’s purview would be
mitigated to less-than-significant levels. However, in the same paragraph
the certificate again stated that the Board would later consider WDRs to
address the need to “compensate for temporal and permanent losses of
functions and values” that were attributable to the project’s design,
operation, and maintenance. The District later admitted it understood when
the Board issued the certificate that the Board intended to pursue WDRs in a
separate proceeding, although the District did not think additional mitigation
and WDRs for the design were necessary and believed the mitigation would
relate only to the project’s operation.
In April 2017, after holding two hearings and taking public comment,
the Board issued a WDR order requiring the Corps and the District to provide
additional mitigation to compensate for the project’s impacts on water
quality. The order, which was issued when construction on the project was
almost complete, stated that it was rescinding and superseding the previous
4
section 401 certification and replacing it with a new certification and WDRs.
The order also stated that it was issued under the authority of section 13263,
subdivision (a) of the Water Code, which is part of the Porter-Cologne Act,
and title 23, California Code of Regulations, section 3857.
The order required the District and the Corps to provide off-site
mitigation of the project’s effects by enhancing about 15,000 linear feet or 15
acres of waters of the state. The Board was willing to allow one of the
District’s other planned projects to satisfy the mitigation requirement to
avoid forcing the District to fund and perform any additional projects, so the
order provided examples of potential mitigation projects that corresponded to
projects the District was already pursuing. The order addressed CEQA by
stating that the Board had considered the EIR and found that in combination
with the order’s mitigation requirements, impacts from the project’s
construction would be mitigated to less-than-significant levels. Following
issuance of the WDR order, the Board agreed with the District’s proposal to
use a specific planned project to satisfy the order.
The District sought review of the Board’s order from the State Water
Resources Control Board (State Board) in May 2017, but that request was
denied by operation of law in May 2018. (Cal. Code Regs., tit. 23, § 2050.5,
subd. (b).) While its petition for review before the State Board was pending,
the District filed a petition for writ of administrative mandamus under Code
of Civil Procedure section 1094.5 challenging the order under CEQA. After
the State Board denied the District’s petition for review by taking no action
on it within the time allotted by regulation (see Cal. Code Regs., tit. 23,
§ 2050.5, subd. (b)), the District amended its administrative writ petition to
add several causes of action challenging the order under section 401 of the
Clean Water Act, the Porter-Cologne Act, and other laws. Following briefing
5
on the merits and a hearing, the trial court denied the petition in February
2019 in a 24-page statement of decision. The District timely appealed from
the ensuing judgment.
DISCUSSION
The District offers four arguments as to why the trial court erred in
denying its administrative writ petition challenging the Board’s WDR order.
First, the District argues the Board’s attempted rescission and reissuance of
the section 401 certificate was invalid because it violated a one-year time
limit for action under section 401 of the Clean Water Act. Second, it contends
the Board had no authority to issue the order under the Porter-Cologne Act
because the project did not involve the discharge of any waste into state
waters. Third, it argues the Board’s failure to impose the mitigation
requirements as part of the Board’s CEQA review of the project barred it
from imposing those requirements later in its WDR order. Fourth, the
District contends the Board committed a prejudicial abuse of discretion
because its mitigation requirements are not supported by substantial
evidence. We consider each argument in turn.
Under the Porter-Cologne Act, we review the trial court’s factual
findings for substantial evidence and review de novo its rulings on questions
of law, such as the interpretation of statutes. (Coastal Environmental Rights
Foundation v. California Regional Water Quality Control Bd. (2017) 12
Cal.App.5th 178, 190.) For the District’s CEQA challenge, we review the
Board’s action, not the trial court’s decision, and we review the Board’s
factual findings for substantial evidence but determine de novo whether the
Board followed the correct procedures. (Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412,
427; Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512.)
6
I. Clean Water Act
Section 401 of the Clean Water Act provides that before a federal
license or permit can be issued for a project that may result in a discharge
into intrastate navigable waters, the applicant must apply to the state where
the discharge will originate for a certification that the project will not violate
certain water quality standards, including those set in the state’s own laws.
(33 U.S.C. § 1341(a)(1); S.D. Warren Co. v. Maine Bd. of Environmental
Protection (2006) 547 U.S. 370, 374.) The state’s section 401 certification may
impose conditions or limitations on the applicant that then become binding
under federal law. (33 U.S.C. § 1341(d); Keating v. F.E.R.C. (D.C. Cir. 1991)
927 F.2d 616, 623.) However, if a state “fails or refuses to act on a request for
certification, within a reasonable period of time (which shall not exceed one
year) after receipt of such request, the certification requirements of this
subsection shall be waived with respect to such Federal application.” (33
U.S.C. § 1341(a)(1).) The applicant cannot obtain a federal license or permit
unless the state has either issued the certificate or waived its authority to do
so by failing to take action within the reasonable period of time. (Ibid.) The
Corps’ regulations generally require it to comply with this certification
requirement for its own projects like the one at issue here, even though
technically the Corps does not issue itself a federal permit. (33 C.F.R.
§ 335.2.)
The District argues the Board’s rescission and reissuance of the 2016
section 401 certification violated the one-year limit for a certificate under
section 401 and was therefore invalid. (See 33 U.S.C. § 1341(a)(1).) This may
be correct. (See, e.g., City of Shoreacres v. Texas Com. of Environmental
Quality (Tex.Ct.App. 2005) 166 S.W.3d 825, 834–835 [“states are not
authorized under the Clean Water Act to unilaterally revoke, modify, or
7
amend a state water quality certification after the certification process for a
federal permit is complete”]; Airport Communities Coalition v. Graves (W.D.
Wash. 2003) 280 F.Supp.2d 1207, 1215 [“the plain language of the statute . . .
reflects clear congressional intent that federal agencies only be bound by
state certification conditions issued within one year after notice”].) However,
we need not examine this issue in detail because the District has not shown
that the allegedly invalid rescission and reissuance of the section 401
certification would justify reversal. As we explain in further detail in
Sections II and III, infra, the Porter-Cologne Act provides sufficient
independent authority for the Board’s WDR order.4 (Wat. Code, § 13263,
subd. (a)(1) [regional board shall prescribe requirements for discharges of
waste into waters of the state]; Cal. Code of Regs., tit. 23, § 3857 [regional
4 In its supplemental brief addressing this court’s question as to
whether either the Clean Water Act or Porter-Cologne Act is alone sufficient
to support the WDR order, the District argues only that neither law is
independently sufficient because the order does not specify which law
authorizes each of its particular mitigation requirements. The District’s sole
authority for this contention is the general principle that Code of Civil
Procedure section 1094.5 requires an agency to “set forth findings to bridge
the analytic gap between the raw evidence and ultimate decision or order” in
order to facilitate meaningful judicial review. (Topanga Assn. for a Scenic
Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515 (Topanga
Assn.).) Even assuming the District is correct that this principle requires the
Board to specify the legal basis for the requirements in its order, the order
here meets the test because it states that it is issued under both section 401
of the Clean Water Act (33 U.S.C. § 1341) and section 13263 of the Porter-
Cologne Act. Right or wrong, the order’s citation to these statutes is
sufficiently clear to allow for judicial review of the Board’s reasoning and does
not force us to “grope through the record to determine whether some
combination of credible evidentiary items which supported some line of
factual and legal conclusions supported the ultimate order or decision of the”
Board. (Id. at p. 516.)
8
board’s authority to issue a section 401 certification is not intended to
prevent it from issuing waste discharge requirements].)
II. Porter-Cologne Act
The goal of the Porter-Cologne Act “is ‘to attain the highest water
quality which is reasonable, considering all demands being made and to be
made on those waters and the total values involved, beneficial and
detrimental, economic and social, tangible and intangible.’ ([Wat. Code,]
§ 13000.) The task of accomplishing this belongs to the [State Board] and the
nine Regional Water Quality Control Boards . . . .” (City of Burbank v. State
Water Resources Control Bd., supra, 35 Cal.4th at p. 619.) To that end,
anyone “discharging waste, or proposing to discharge waste, within any
region that could affect the quality of the waters of the state” must file with
the appropriate regional board a report of the discharge. (Wat. Code,
§ 13260, subd. (a)(1).) Then, the “regional board, after any necessary hearing,
shall prescribe requirements as to the nature of any proposed discharge . . .
with relation to the conditions existing in the disposal area or receiving
waters upon, or into which, the discharge is made or proposed.” (Wat. Code,
§ 13263, subd. (a), italics added.) Water Code section 13050, subdivision (d),
states that waste for these purposes “includes sewage and any and all other
waste substances, liquid, solid, gaseous, or radioactive, associated with
human habitation, or of human or animal origin, or from any producing,
manufacturing, or processing operation, including waste placed within
containers of whatever nature prior to, and for purposes of, disposal.”
The trial court followed Lake Madrone Water Dist. v. State Water
Resources Control Bd. (1989) 209 Cal.App.3d 163 (Lake Madrone) to conclude
the project’s sedimentation effects qualified as the discharge of waste. In
that case, sediment accumulated at the bottom of a reservoir and the dam
9
operator then used valves in the dam to flush the sediment into the stream
below the dam. (Id. at 166.) The court held that “concentrated silt or
sediment associated with human habitation and harmful to the aquatic
environment is ‘waste’ under” Water Code section 13050. (Id. at p. 169.)
Lake Madrone reasoned that while the silt in an unconcentrated form was
innocuous, it became waste when it became so concentrated through the
construction and operation of the dam that its discharge from the dam was
deadly to aquatic life. (Id. at pp. 169–170.)
The District argues the Board did not have authority to issue WDRs for
the project because the project’s sedimentation effects do not constitute the
discharge of waste. However, the District does not challenge Lake Madrone’s
interpretation of waste as potentially including silt and sediment, nor does it
raise a challenge to the sufficiency of the evidence as to the trial court’s
factual findings relating to its interpretation of the term “waste.” Instead, its
argument is aimed at the legal question of whether something like sediment
must be useless, unneeded, left over, or discarded to qualify as waste under
Water Code section 13050 and Lake Madrone. The District posits that this
requirement is not met here because the project’s effect of collecting sediment
does not qualify as the discarding or discharging of a useless substance.
We need not decide whether the District’s interpretation is correct
because we conclude that even if sediment has to be useless, left over, or
discarded for its discharge to be covered under Water Code section 13263,
that test would be met here. Although the District correctly notes that the
project will not move sediment within the creek in precisely the same way
that the dam valves in Lake Madrone transferred concentrated sediment to
particular areas below the dam, the District admits that the project’s
widening of the creek bed will slow the flow of water and lead to increased
10
sedimentation that will be concentrated in the creek instead of carried
downstream. This additional sediment that will be left behind is not useful
or needed because it obstructs the flow of water in the creek and, as the trial
court found, would likely require periodic removal that could disrupt the
generation of plants and wildlife in the creek. Thus, even under the District’s
preferred definition of the term, the project will involve the discharge of
waste under Water Code section 13050.5 The Board therefore had
jurisdiction to impose mitigation requirements related to the project. (Wat.
Code, § 13263, subd. (a).)
III. CEQA
The District next contends that the Board’s failure to impose mitigation
requirements through the avenues available to it under CEQA barred the
Board from later imposing those requirements through the WDRs under the
Porter-Cologne Act.
“ ‘With narrow exceptions, CEQA requires an EIR whenever a public
agency proposes to approve or to carry out a project that may have a
significant effect on the environment.’ ” (Banning Ranch Conservancy v. City
of Newport Beach (2012) 211 Cal.App.4th 1209, 1220.) The lead agency on a
5 The District observes that the Board’s order stated that the increased
sediment could provide more wildlife habitat. However, the District fails to
mention that the Board’s order also noted that this benefit would not be
realized if the sediment must be removed at such a volume and frequency
that it prevents the development of a low-flow channel. To the extent the
District intends with this argument to challenge the sufficiency of the
evidence supporting the trial court’s order, we reject it because the District
has failed to summarize all of the evidence favorable and unfavorable to the
trial court’s order. (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409
[“ ‘A party who challenges the sufficiency of the evidence to support a
particular finding must summarize the evidence on that point, favorable and
unfavorable, and show how and why it is insufficient’ ”].)
11
project is responsible for preparing an EIR. (Banning Ranch Conservancy v.
City of Newport Beach (2017) 2 Cal.5th 918, 927; § 21100, subd. (a); Cal. Code
of Regs., tit. 14 (CEQA Guidelines), §§ 15082, 15087, 15089.) “Under CEQA,
when a project involves two or more public agencies, ordinarily only one
agency can serve as the lead agency. ([CEQA] Guidelines, §§ 15050,
15051.)[6] CEQA thus distinguishes lead agencies from responsible agencies:
whereas the lead agency has ‘principal responsibility’ for the project, a
responsible agency is ‘a public agency, other than the lead agency, which has
responsibility for carrying out or approving a project.’ (Pub. Resources Code,
§§ 21067, 21069.)” (Planning & Conservation League v. Castaic Lake Water
Agency (2009) 180 Cal.App.4th 210, 239.)
The District’s CEQA argument rests on CEQA Guidelines section
15096, which governs the division of responsibility for CEQA compliance
between lead and responsible agencies. As subdivision (a) of that provision
explains, “[a] responsible agency complies with CEQA by considering the EIR
or negative declaration prepared by the lead agency and by reaching its own
conclusions on whether and how to approve the project involved.” (CEQA
Guidelines, § 15096, subd. (a).) The District contends the Board’s mitigation
requirements in the WDR order ran afoul of CEQA Guidelines section 15096,
subdivision (e), which states, “If a responsible agency believes that the final
EIR or negative declaration prepared by the lead agency is not adequate for
use by the responsible agency, the responsible agency must either: [¶] (1)
Take the issue to court within 30 days after the lead agency files a notice of
determination; [¶] (2) Be deemed to have waived any objection to the
6“ ‘In interpreting CEQA, we accord the Guidelines great weight except
where they are clearly unauthorized or erroneous.’ ” (In re Bay-Delta etc.
(2008) 43 Cal.4th 1143, 1163, fn. 7.)
12
adequacy of the EIR or negative declaration; [¶] (3) Prepare a subsequent
EIR if permissible under [CEQA Guidelines] Section 15162; or [¶] (4) Assume
the lead agency role as provided in [CEQA Guidelines] Section 15052[, subd.]
(a)(3).”
According to the District, the Board’s decision to impose additional
mitigation requirements indicates that it disagreed with the EIR’s conclusion
that the mitigation measures identified in the EIR would reduce the project’s
significant impacts on the environment to less-than-significant levels.
Because the Board failed to raise this disagreement through one of the
avenues specified in CEQA Guidelines section 15096, subdivision (e) (filing
suit, preparing a subsequent EIR if permissible, or assuming the lead agency
role), the District maintains the Board must be deemed to have waived its
mitigation concerns under CEQA Guidelines section 15096, subdivision (e)(2),
thereby preventing the Board from exercising its Porter-Cologne Act
authority to issue the WDR order. The District further contends that absent
a challenge to an EIR within the statutory period via an administrate writ
petition, CEQA’s interest in finality takes precedence and the EIR must be
conclusively presumed valid unless it was fundamentally inaccurate or
misleading.
Before turning to the merits of the District’s arguments, we note at the
outset that the issue of whether CEQA bars the Board’s attempt to impose
additional mitigation requirements arose here out of the Board’s apparent
violation of CEQA. The Board said in its section 401 certification that it was
approving the construction of the project under CEQA, but at the same time
noted that the EIR lacked the detail necessary to assess long-term impacts
and stated the Board’s intent to address the need for compensation of such
impacts later that year. Then, in its WDR order, which it issued when
13
construction on the project was almost complete, the Board purported to
make findings under CEQA again and addressed all of the project’s impacts.
This approach does not appear to comply with the rule that “an agency
cannot formally approve a project, or commit itself to approve it, without
complying with CEQA before doing so.” (1 Kostka & Zischke, Practice Under
the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed. 2019) § 4.15; see also
Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 138 [applying the
“general principle that before conducting CEQA review, agencies must not
‘take any action’ that significantly furthers a project ‘in a manner that
forecloses alternatives or mitigation measures that would ordinarily be part
of CEQA review of that public project,’ ” including the alternative of not
moving forward with a project].) The result of this sequence is that the
District is arguing that CEQA makes binding the Board’s explicitly
unfinished CEQA findings in the initial section 401 certification, such that
the Board is barred from taking the additional actions that were specifically
outlined in the certification. The Board, meanwhile, argues that CEQA
allowed the Board to conduct additional environmental review after it had
approved the project, even though under CEQA that approval should have
occurred only after the completion of all environmental review.
In any event, whatever the flaws in its CEQA procedure, the Board has
the better of the dispute as the parties have framed it. CEQA Guidelines
section 15096 may prevent a responsible agency from requiring additional
environmental review after a lead agency has completed its CEQA review, so
long as the responsible agency does not have its own independent authority
to enforce or administer an environmental law. (See Ogden Environmental
Services v. City of San Diego (S.D. Cal. 1988) 687 F.Supp. 1436, 1451–1453.)
But here, the Board has independent authority—and indeed the obligation—
14
to administer and enforce the Porter-Cologne Act. (Wat. Code, § 13263, subd.
(a) [regional board “shall prescribe requirements as to the nature of any
proposed discharge, existing discharge, or material change in an existing
discharge,” italics added].)7
In these circumstances, CEQA’s savings clause in Public Resources
Code section 21174 makes clear that CEQA does not prevent the Board from
discharging its Porter-Cologne Act responsibilities. Section 21174 provides in
relevant part: “No provision of this division is a limitation or restriction on
the power or authority of any public agency in the enforcement or
administration of any provision of law which it is specifically permitted or
required to enforce or administer . . . .” (§ 21174.) The trial court relied on
section 21174 in its ruling that the Board’s duties under CEQA did not
deprive the Board of its independent authority under other laws to impose
the mitigation requirements in its order. The Board likewise relies on section
21174 in this court. And yet the District does not even mention section 21174
in its briefing.
Section 21174 directly refutes the District’s argument. The District’s
position boils down to the contention that CEQA, through CEQA Guidelines
section 15096, subdivision (e), limits or restricts the Board’s power to
administer and enforce the Porter-Cologne Act. As section 21174 provides
that no provision of CEQA has this effect, the District’s interpretation of
CEQA Guidelines section 15096, subdivision (e) in this context is incorrect.
7 As explained above (see Section I, supra), we have rejected for similar
reasons the District’s claim that the alleged violation of the one-year
timeframe in section 401 of the Clean Water Act deprived the Board of its
independent authority to issue the WDR order pursuant to the Porter-
Cologne Act. (33 U.S.C. § 1341; Wat. Code, § 13263, subd. (a); Cal. Code of
Regs., tit. 23, § 3857).
15
The Legislature did not intend for the EIR process under CEQA to be used to
defeat an agency’s authority under other statutes. The District’s attempts to
demonstrate the finality and preclusive effect of its EIR under CEQA are
therefore fruitless.8 (See, e.g., Johnson v. City of Loma Linda (2000) 24
Cal.4th 61, 69–70; Ione Valley Land, Air, & Water Defense Alliance, LLC v.
County of Amador (2019) 33 Cal.App.5th 165, 171.) No matter how final and
unassailable the EIR might be under CEQA, because the Board’s WDR order
rests on the Porter-Cologne Act and not CEQA, section 21174 dictates that
the EIR’s finality cannot prevent the Board from exercising its independent
Porter-Cologne Act authority to protect water quality.
Other CEQA provisions confirm our interpretation. Section 21003,
subdivision (a) declares that it is state policy that “[l]ocal agencies integrate
the requirements of this division with planning and environmental review
procedures otherwise required by law or by local practice so that all those
procedures, to the maximum feasible extent, run concurrently, rather than
consecutively.” (§ 21003, subd. (a), italics added.) Similarly, CEQA
Guidelines section 15080, which is based in part on Public Resources Code
section 21003, states, “To the extent possible, the EIR process should be
combined with the existing planning, review, and project approval process
used by each public agency.” (CEQA Guidelines, § 15080, italics added.) The
limiting phrases “to the maximum feasible extent” and “[t]o the extent
possible” reflect an acknowledgement that even though unified CEQA review
and environmental regulation should be the norm, there may be times when
8 The District’s citations to cases holding that the completion of a
project can moot a CEQA challenge are also inapposite, because the Board’s
WDR order was not a CEQA challenge. (See, e.g., Santa Monica Baykeeper v.
City of Malibu (2011) 193 Cal.App.4th 1538, 1541.)
16
a public agency’s own environmental regulation can take place after CEQA
review, as permitted by section 21174.
While it ignores section 21174, the District briefly discusses Pacific
Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921
(Pacific Lumber), a case on which both the trial court and the Board relied.
Our Supreme Court there considered whether a regional board’s input into
the Department of Forestry and Fire Protection’s approval process for a
timber harvesting plan under the Z’berg–Nejedly Forest Practice Act of 1973
(§ 4511 et seq.; Forest Practice Act) provided the exclusive mechanism for a
regional water board to exercise its authority to regulate water quality issues
such a plan might raise. (Pacific Lumber, at p. 926.) The regional board’s
input consisted of assisting the director of the Department of Forestry and
Fire Protection in evaluating a proposed plan’s effects on water quality and, if
the regional board disagreed with the director’s approval of the plan,
appealing the approval to the Board of Forestry. (Id. at pp. 931–932.) The
California Supreme Court rejected the contention that the approval process
for timber harvesting plans displaced the regional board’s authority under
the Porter-Cologne Act, stating that the argument “suffer[ed] from a
fundamental flaw, in that it [ran] headlong into the Forest Practice Act’s
savings clause, which provides: ‘No provision of this chapter or any ruling,
requirement, or policy of the [Board of Forestry] is a limitation on . . . the
power of any state agency in the enforcement or administration of any
provision of law which it is specifically authorized or required to enforce or
administer.’ ” (Id. at p. 933, italics omitted.) The Court concluded that this
savings clause, “[a]s a direct and pellucid expression of legislative intent,”
controlled the relationship between the Forest Practice Act and the Porter-
Cologne Act. (Id. at p. 934.)
17
Pacific Lumber is not squarely on point, as the District points out,
because it did not involve CEQA and CEQA Guidelines section 15096,
subdivision (e) gave the Board here more formal authority over the District’s
project than the role the regional board exercised in Pacific Lumber.
Nonetheless, the savings clause at issue in Pacific Lumber is virtually
identical to section 21174, so Pacific Lumber is analogous and provides
helpful guidance. Like the provision at issue in Pacific Lumber, the “obvious
meaning” of section 21174 is that nothing in CEQA, including CEQA
Guidelines section 15096, subdivision (e) or the statutes on which it is based,
bars the Board from fulfilling its independent obligation to enforce the
Porter-Cologne Act. (Pacific Lumber, supra, 37 Cal.4th at p. 934.)
Pacific Lumber is also helpful in evaluating the District’s subsidiary
contention that California law prohibits a party to a first adjudicatory
proceeding from using a second proceeding to collaterally attack the findings
an agency made in the first. As Pacific Lumber stated, “[f]or an
administrative decision to have collateral estoppel effect, it and its prior
proceedings must possess a judicial character,” indicia of which include “a
hearing before an impartial decision maker; testimony given under oath or
affirmation; a party’s ability to subpoena, call, examine, and cross-examine
witnesses, to introduce documentary evidence, and to make oral and written
argument; the taking of a record of the proceeding; and a written statement
of reasons for the decision.” (Pacific Lumber, supra, 37 Cal.4th at p. 944.)
The Court there held the regional board’s involvement in the approval of the
timber harvesting plan did not possess a judicial character because it did not
possess many of the necessary indicia, such as the opportunity to cross-
examine witnesses, and because the regional board’s role was merely
consultative. (Ibid.) Pacific Lumber also refused to apply collateral estoppel
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because doing so would render meaningless the Forest Practice Act’s savings
clause. (Id. at p. 945.)
While the Board’s role here was more than consultative, both of Pacific
Lumber’s other considerations apply with full force. The District’s CEQA
proceedings did not involve a hearing before an impartial decision maker,
testimony under oath, or the opportunity to call, examine, and cross-examine
witnesses, and applying collateral estoppel would make the savings clause in
section 21174 meaningless. Like the trial court, we conclude the CEQA
proceedings on the District’s EIR did not collaterally estop the Board from
issuing its WDR order.
The District and its amici are concerned that the CEQA process will
become a meaningless exercise if responsible agencies with authority to
enforce environmental laws are permitted to impose additional
environmental mitigation requirements on projects after CEQA review is
complete. They worry that responsible agencies will go through the motions
of cooperating with a lead agency in the preparation of an EIR and then hold
their own proceedings later, imposing additional costs and unpredictability
on project proponents. In a related vein, they contend that allowing a
responsible agency to impose additional mitigation requirements outside of
CEQA would defeat the purpose of the EIR, which is supposed to be an
informational document that lead and responsible agencies use to make their
decisions. (See Laurel Heights Improvement Assn. v. Regents of University of
California (1988) 47 Cal.3d 376, 392 [“If CEQA is scrupulously followed, the
public will know the basis on which its responsible officials either approve or
reject environmentally significant action, and the public, being duly
informed, can respond accordingly to action with which it disagrees”].) The
amici even go so far as to accuse the Board of deliberately lying in the weeds,
19
without acknowledging that in the unique circumstances of this case it was
not feasible for the Board to formulate additional mitigation requirements
while at the same time meeting the timetable the District and key state and
federal stakeholders insisted upon, a set of circumstances the District
understood would lead to independent pursuit of WDRs by the Board.
We do not share these concerns, partly because they rest on an
unwarranted assumption that government agencies will not discharge their
CEQA responsibilities in good faith. More importantly, to the extent these
concerns have any validity, CEQA already provides the answer, as it requires
a public agency to complete CEQA review before committing itself to a project
in a way that limits consideration of project alternatives and mitigation
measures.9 (Save Tara v. City of West Hollywood, supra, 45 Cal.4th at p. 138;
1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act
(Cont.Ed.Bar 2d ed. 2019) § 4.15.) This rule would likely allow a project’s
opponents to sue to prevent an agency from dividing its approval into two
stages like the District—the project proponent—agreed the Board could do
here, so the scenario the District and its amici fear should seldom arise. In
this case, there is no indication that any outside party emerged to challenge
the two-stage approval process, but agencies cannot count on such a lack of
9 The District’s amici cite an amendment to Water Code section 13160
enacted this year that allows the State Board to issue a section 401
certification without completing CEQA review in some circumstances. (Wat.
Code, § 13160, subd. (b)(2); Stats. 2020, ch. 18, § 9, eff. June 29, 2020.) This
amendment is not relevant here, both because it took effect after the events
at issue in this case and because it concerns section 401 certifications, not
WDRs under the Porter-Cologne Act. We also note that the amendment only
addresses whether a regional board can issue a section 401 certificate and
then complete CEQA review, rather than the situation here, where the Board
completed CEQA review and then issued its WDR order. Section 21174
governs here.
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opposition in the future. In any event, even if these concerns had merit, they
are insufficient to overcome the plain language of section 21174, which the
amici, like the District, fail to address.
We also reject the amici’s argument that the Board’s failure to
challenge the District’s EIR deprived the Board and the public of the ability
to understand and comment on the Board’s WDR order in a public forum.
The Board’s WDR order was issued after a months-long period of consultation
with the District and the Corps, as well as two rounds of public comment and
two public hearings. Whatever the flaws in the Board’s process, the Board
did not limit the District’s participation in its environmental analysis or
defeat the public’s ability to understand and comment on the Board’s action,
so those CEQA aims were not thwarted here.
IV. Excessiveness of the Board’s mitigation requirements
The District raises sundry arguments against specific aspects of the
mitigation requirements the Board imposed in its WDR order, such as
whether substantial evidence supports the Board’s determination that the
creek would return to equilibrium in five to ten years after completion of the
project, or whether the Board’s requirement of mitigation of 15 off-site acres
of wetlands was disproportionate to the project’s effects on approximately 9.8
acres of wetlands alongside the creek. The District cites only a few
documents in the record that tenuously support its arguments, rather than
engaging in the extensive analysis of the evidence supporting and opposing
the trial court’s findings that is necessary for substantial evidence review.
(Huong Que, Inc. v. Luu, supra, 150 Cal.App.4th at p. 409). For example, the
District mentions that the Board relied on studies of ephemeral creeks to
conclude the creek channel could not reestablish itself for five to ten years.
But the District does not cite any of those studies in the record, and its only
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explanation for why they do not constitute substantial evidence is an
unsupported assertion that Upper Berryessa Creek differs significantly from
the studies. The District does not even mention the evidence the trial court
relied on to reject the District’s arguments, which included reports by the
Corps and others regarding stream restoration. This court is not obligated to
conduct an independent scouring of the record pertinent to the District’s
arguments, so we will not discuss these arguments in detail. (Ibid.) We
instead conclude that the District has failed to rebut the presumption that
the record contains evidence to support the trial court’s findings on these
points. (Ibid.)
We are also unpersuaded by the District’s argument that the Board
used an incorrect definition of “waters of the state” (Wat. Code, § 13260,
subd. (a)(1)) when it calculated that the District owed 15 acres of mitigation.
The trial court declined to rule on this issue because the Board’s order gave
the District the choice of mitigating 15 acres or 15,000 linear feet of waters of
the state and the District had not challenged the linear feet calculation. The
trial court further found the issue was “rendered speculative” by the Board’s
acceptance of the District’s proposal to use as mitigation a pre-existing
District project that impacted 16 acres of a lake and restored 11 acres of a
creek—effects that exceeded the 15-acre requirement. The trial court found
no indication that the District might propose a smaller mitigation project in
the future that would make it necessary to decide the correct acreage
measurement.
The District asserts in its opening brief that it is entitled to a
determination of a mitigation measure that is consistent with the proper
definition of “waters of the state,” but it does not explain why the linear feet
measurement alone is insufficient or what might entitle the District to a
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measurement of required mitigation in acres. Moreover, even if we were
inclined to consider the merits of whether the Board incorrectly calculated
the acreage of waters of the state that the project affected, the District’s
opening brief provides no authority or argument supporting its interpretation
of “waters of the state” that would demonstrate prejudice from the trial
court’s refusal to take up the issue. (Ramos v. Westlake Services LLC (2015)
242 Cal.App.4th 674, 683 [“ ‘When an appellant fails to raise a point, or
asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived’ ”]; People v. Watson (1956) 46 Cal.2d
818, 836 [error results in reversal only if it appears “reasonably probable” the
appellant would have obtained a more favorable outcome absent the error].)
Rather than citing to useful authority, the District simply asserts that “[t]he
Board’s number-out-of-a-hat system [for determining the required mitigation
measurement in acres] was more akin to one’s grandmother’s recipe for a
favorite family dish than an ascertainable standard for judicial review.”
In its reply brief, the District cites Topanga Assn., supra, 11 Cal.3d at
p. 515, and a CEQA provision to support its challenge to the merits of the
Board’s measurement of mitigation. Not only is this scant authority
inapposite, it comes too late. “ ‘[T]he rule is that points raised in the reply
brief for the first time will not be considered, unless good reason is shown for
failure to present them before.’ ” (Neighbours v. Buzz Oates Enterprises
(1990) 217 Cal.App.3d 325, 335, fn. 8.) In any event, the Board’s WDR order
does include the requisite “findings to bridge the analytic gap between the
raw evidence and the ultimate decision or order.” (Topanga Assn., supra, 11
Cal.3d at p. 515.) The order explains the facts and factors supporting the
Board’s decision to require a larger compensatory mitigation area (15 acres)
than the area impacted by the project (approximately 9.8 acres). Those
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reasons included that the mitigation would merely “enhance” riverine
functions (as opposed to “restor[ing] or “creat[ing] riverine wetland area and
functions”); the mitigation would be constructed within 12 months of the
project’s impacts, resulting in a “temporal loss of functions for one year”; the
project site would only “partially recover” from the project impacts within five
years; and it would take five years for the enhancement benefits from the
mitigation to be “fully achieved.” Accordingly, even if the District had
appropriately briefed this issue, there is no merit to its claim that the Board
arbitrarily pulled a number out of a hat when it required 15 acres of
compensatory mitigation.
DISPOSITION
The trial court’s judgment is affirmed.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (A157127)
24
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Edward G. Weil
Counsel: Santa Clara Valley Water District, Stanly Yamamoto, District
Counsel, Rita Chan, Assistant District Counsel; Briscoe
Ivester & Bazel LLP, Peter Prows; Greines, Martin, Stein &
Richland LLP, Timothy T. Coates, and Marc J. Poster for
Plaintiff and Appellant
Xavier Becerra, Attorney General of California, Robert W.
Byrne, Senior Assistant Attorney General, Myung J. Park,
Supervising Deputy Attorney General, Gary Alexander,
Deputy Attorney General, and Tiffany Yee, Deputy
Attorneys General for Defendant and Respondent
Greenberg Traurig LLP, William J. Goines; Harrison Law LLC,
Holly Harrison, and David Jorgensen for Association of
California Water Agencies, California State Association of
Counties, Imperial Irrigation District, and California Central
Valley Flood Control Association as Amici Curiae on behalf
of Plaintiff and Appellant
Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (A157127)
25