In a lengthy published decision filed February 10, 2015, and addressing consolidated appeals in three related actions, the Third District Court of Appeal affirmed the trial court’s judgment rejecting petitioner and appellant Center for Biological Diversity’s (CBD) CEQA challenge to the California Department of Fish and Wildlife’s (CDFW) Program EIR (PEIR) reviewing on a statewide basis environmental impacts of its statutorily mandated fish hatchery and stocking enterprise – an operation that has been ongoing for more than 100 years. Center for Biological Diversity v. Department of Fish and Wildlife (3d Dist. 2015) ___ Cal.App.4th ___, 2015 WL 543704. The case addresses a number of important CEQA issues, including the rules governing use of PEIRs, baseline setting, deferral of mitigation, and alternatives analysis. (The non-CEQA portions of the opinion, which are not summarized in detail herein, held three mitigation measures CDFW imposed on an urban fishing program and private stocking permits – and which detrimentally affected private fish farmers and vendors beyond CDFW’s internal management – were “underground regulations” improperly adopted without formal compliance with the Administrative Procedure Act.)
The case arose from operation of CDFW’s statutorily mandated statewide fish hatchery and stocking operations – ongoing since the late 1800’s – in conjunction with a never-appealed 2007 trial court judgment requiring it to prepare an EIR on those operations, and limiting but not wholly enjoining their continuation. Also pertinent are statutory directives that CDFW stock millions of pounds of trout annually, in amounts correlated to the number of sport fishing licenses sold. After time extensions and an expansion of the EIR into a broad Program EIR/EIS (PEIR) covering CDFW’s entire fish hatchery and stocking enterprises (at nearly 1,000 stocked water bodies and 24 hatcheries statewide), the document was certified in 2010. CBD then sued challenging it under CEQA.
While CEQA practitioners should read this decision in its entirety, notable points of the Court of Appeal’s opinion upholding CDFW’s PEIR include:
- Program EIR/level of specificity of analysis. “The level of specificity required in an EIR is determined by the nature of the project and the rule of reason.” (Citing Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 741-742.) The PEIR here contained a sufficient level of analysis for a program EIR, evaluating known impacts in a comprehensive fashion and providing for further environmental review where warranted. CDFW’s hatchery and stocking enterprise fit CEQA Guidelines § 15168(a)(4)’s description of a program EIR as one “prepared on a series of actions that can be characterized as one large project and are related . . . [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.” The advantages of using a program EIR include avoiding preparation of multiple EIRs for a program, dispensing with further environmental review of future activities within the program that are adequately covered by the PEIR, and simplifying later environmental review for program activities. CEQA does not specify the required level of analysis for a PEIR, which will correspond to the degree of specificity involved in the described underlying activity, and must generally be sufficient to provide the “decision makers with information which enables them to make a decision which intelligently takes account of environmental consequences.” The “sufficiency of an EIR is to be reviewed in light of what is reasonably feasible.” (Quoting § 15151.)
- A program EIR can also operate as a project EIR. CDFW’s PEIR satisfied the foregoing standards because 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.” The PEIR relied on “thousands of pages of compiled data, databases, reports, interviews, peer-reviewed scientific publications, and computer models” and “describe[d] in great detail the impacts hatcheries and stocking have on other wildlife on a statewide basis. In particular, it describes the impacts trout stocking has on the amphibian and reptile decision [i.e., special status] 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 PEIR’s detailed analysis and evaluation for each decision species potentially affected by the hatchery/stocking program rendered it sufficiently comprehensive to allow CDFW to proceed with its project in compliance with CEQA, as it “analyzes every impact that reasonably could occur by stocking fish in any water body in the state based on the information currently known” and, contrary to CBD’s arguments, “[s]ite-specific analysis will likely not reveal any unanticipated impacts” but “instead . . . will reveal whether the impacts discussed in the EIR are occurring at that site.”
- A sufficiently detailed program EIR can obviate subsequent site specific CEQA review. Notwithstanding CBD’s complaints, “CEQA . . . does not require an additional site-specific environmental review document if the agency determines the site-specific impacts were sufficiently addressed in the [PEIR], 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. [¶] . . . . If the site-specific activity will not create effects or require mitigation measures that were not discussed in the program EIR, the public agency is not required to prepare any other site-specific environmental document.” Otherwise, “a new initial study would need to be prepared leading to either an EIR or a negative declaration.” (§15168(c).) It is contemplated that a lead agency will incorporate feasible mitigation measures and alternatives developed in the PEIR into subsequent program actions; will use a checklist or similar device to evaluate subsequent site-specific activities and determine whether their effects were covered in the PEIR; and (where a specific and comprehensive PEIR has been prepared) will find many subsequent activities to be within the project’s scope and not to require further environmental documents. ()
- A sufficient PEIR allows evaluation of subsequent activities within the program to occur outside of any formal public process. “CEQA allows much of the initial site-specific review to occur outside a formal process and beyond public view.” The Court held the evaluation protocols provided in CDFW’s PEIR for performing site-specific reviews was “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 [PEIR]. If [CDFW] upon using the evaluation protocol discovers an impact that was not sufficiently addressed in the [P]EIR, it will then be obligated to begin a CEQA process, but only if [CDFW] intends to approve the activity,”
- Deferral of formulating mitigation measures is permissible where the agency commits to future mitigation achieving sufficient performance standards. In rejecting CBD’s contrary arguments, the Court held: “The [P]EIR does not impermissibly defer formulation of mitigation measures, as it provides sufficient performance standards for future mitigation to meet. It commits [CDFW] to render impacts on inland decision species insignificant before it plants any fish in the high mountain lakes, and it commits [CDFW] to mitigate impacts on wild populations of native anadromous fish by bringing salmon and steelhead planting into conformity with governing federal regulations.” CEQA’s rules governing deferred mitigation recognize that where practical reasons preclude fully formulating mitigation measures at the time of project approval, the agency may commit to devising specific measures later provided such measures are required to satisfy performance criteria or standards that would mitigate the adverse effects and which are articulated at the time of project approval. (Citing 14 Cal. Code Regs., § 15126.4(a)(1)(B); Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1028-1029.) “In sum, ‘it is sufficient to articulate specific performance criteria and make further [project] approvals contingent on finding a way to meet them.’ [Citation.] Essentially, the rule prohibiting deferred mitigation prohibits loose or open-ended 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 . . . .” (Quoting Rialto Citizens For Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 944-945, quotingEndangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 793.) Where the agency has evaluated potentially significant effects and identified measures to mitigate them, it need not commit to any particular mitigation measure in the EIR so long as it commits to mitigation of the project’s significant impacts, and “the details of exactly how mitigation will be achieved under the identified measures can be deferred pending completion of a future study.” (Quoting California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 621.)
- Post-approval, pre-impact species surveys plus commitment to comply with mitigating regulations or agency consultation is sufficient site-specific mitigation.Having rejected CBD’s arguments that CDFW needed to conduct site-specific review in its PEIR, the Court also rejected the cognate contention that further site-specific mitigation measures were required. It further rejected CBD’s assertions that the PEIR failed to contain performance standards or a commitment to mitigate. Observing “CEQA does not define how specific the performance standards set forth in an EIR must be in order to defer formulating mitigation measures[,]” the Court found guidance in the “persuasive reasoning” of Rialto Citizens, supra, 208 Cal.App.4th 899, 942-947, supporting its conclusion that no improper deferral had occurred here. In essence, it found that case held that pre-construction protocol surveys for the special status plant and wildlife species of concern there, combined with a commitment to achieving articulated performance criteria if species or habitat were found by the surveys, was adequate (and not improperly deferred) mitigation, even where certain mitigation (e.g., in the case of burrowing owls) consisted solely of consulting with the “[lead agency] city to determine appropriate mitigation, based on conditions at the site” if the subsequent surveys disclosed owl presence. Relevant principles included that measures which “required the project applicant to comply with applicable government consulting and permitting regulation” were proper mitigation measures and not improper deferral. For example, the Court noted that “[e]ven though the [Rialto Citizens case] 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 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.” The Court of Appeal found the mitigation measures CDFW imposed for trout, salmon and steelhead stocking in the case before it similarly passed CEQA muster, noting the measures for salmon/steelhead stocking “commit [CDFW] to mitigate impacts in compliance with federal regulation and to the extent possible for impacts which are unavoidable and cannot feasibly be mitigated fully.”
- Mitigation based on future management plans to be prepared in compliance with specifically articulated objectives or federal environmental regulations is proper, and does not constitute deferral. The Court explained that mitigation requiring CDFW to survey each mountain lake using the evaluation protocol prior to stocking and to develop an aquatic biodiversity management plan (ABMP) before stocking any lakes where impacts may occur was not impermissible deferral; the PEIR included sufficient performance standards to ensure the ABMPs will mitigate impacts to insignificance, including numerous objectives to support viable native species habitat and populations, recreational opportunities based on historic and future use, stocking allotments and changes to be based on recent site-specific data, and principles of not stocking (or removing trout from) lakes with populations of decision species. Similarly, impacts were mitigated by CDFW’s reliance on federal regulations requiring a state to develop hatchery genetic management plans (HGMPs) to contrive such operations exempt from the Federal ESA’s “take” prohibitions. Such plans were required to meet detailed federal regulatory requirements and be approved by the National Marine Fisheries Service (NMFS); the Court held such “regulations provide sufficient performance standards to satisfy CEQA.” The Court, found CBD’s case authority on improperly deferred mitigation distinguishable, and it stated: “There is no doubt [CDFW] is committed to mitigating its impacts on anadromous fish to the extent it feasibly can by adopting and implementing [HGMPs]. Thus, requiring [CDFW] to adopt the plans as a mitigation measure was not an improper deferral of formulating mitigation.” In short: “[CDFW]’s commitment to comply with federal regulations to develop [HGMPs] ensures impacts on wild salmon and steelhead will be reduced to the extent reasonably feasible.”
- Treating the ongoing enterprise as the environmental baseline was proper. The Court upheld the PEIR’s treatment of CDFW’s 2004-2008 hatchery and stocking enterprise as the “existing conditions” baseline against which project impacts were measured since the project being evaluated was continuation of the existing enterprise: “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.” Per the Court, “[t]he “normal” rule is that the baseline must reflect the “physical conditions at the time [the] environmental analysis” begins and “[t]his 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.” (Citing Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 321; Citizens for East Shore Parks v. California State Lands Com. (2011) 202 Cal.App.4th 549, 561.) (The Court of Appeal supported the latter point by quoting at length from pages 559-560 of the Citizens for East Shore Parks case, which contains an excellent discussion of collected cases on this aspect of the baseline rule.) The Court rejected as contrary to fact CBD’s arguments that CDFW’s 100-year plus running enterprise was not a “continuing program”: “Adjustments are made, but a program EIR allows for adjustments to be made without having to prepare a new environmental document with every change.”
- PEIR studied a reasonable range of alternatives. Finally, the Court of Appeal upheld the PEIR’s alternatives analysis as CEQA-compliant. No “ironclad rule” governs the nature or scope of alternatives except the “rule of reason.” The PEIR analyzed three alternatives: (1) “no project”/ continuing existing enterprise without change; (2) continuing the existing enterprise with the PEIR-proposed mitigations; and (3) continuing the existing enterprise as limited by the trial court’s interim order, i.e., prohibiting stocking in freshwater bodies where decision species existed. The Court found this was a reasonable range of alternatives and rejected CBD’s contention that an alternative eliminating all stocking was required to be analyzed. Here, “no stocking” was not a potentially (or legally) feasible alternative because, by statute, CDFW had no discretion to cease or discontinue its enterprises, i.e., “the no project alternative is the statutorily mandated project.” Per the Court: “[T]he status quo is the enterprise’s continuation without undergoing any changes. The EIR is not [for] the approval of a new program; it is the review of an ongoing one.” Regarding the range of alternatives studied, “a reviewing court will defer to the agency’s selection” which will be upheld unless “manifestly unreasonable[,]” and “CEQA does not require that an agency consider specific alternatives that are proposed by members of the public or other outside agencies.” (Quoting, for last point, City of Maywood v. Los Angeles United School Dist. (2012) 208 Cal.App.4th 362, 420.) Both the second and third alternatives provided environmental advantages over the “no project”/continuing operations alternative, and the studied range was reasonable under the circumstances. The PEIR also complied with CEQA’s directive to identify and briefly explain the reasons for rejecting infeasible alternatives considered and rejected during the scoping process.
This case presents an excellent example of the usefulness of properly-prepared program EIRs. It also includes useful summaries of CEQA’s baseline and alternatives analysis rules, and makes a very significant contribution to the existing CEQA jurisprudence illustrating circumstances in which the formulation of mitigation measures can properly be deferred.