Living Rivers Council v. State Water Resources Control Bd
A148400M
| Cal. Ct. App. | Oct 17, 2017Background
- The State Water Resources Control Board (Board) adopted a programmatic Policy (and Substitute Environmental Document, SED) to maintain instream flows in certain Northern California coastal streams, addressing impacts on salmonids.
- The Board’s permitting authority covers surface water and subterranean streams in known channels but not percolating groundwater; local agencies typically regulate percolating groundwater.
- The original 2010 SED identified that the Policy could induce some surface-water users to switch to groundwater pumping and treated potential groundwater-related surface-flow reductions as a significant indirect effect.
- Appendix D and a Stetson Engineers report mapped possible subterranean streams (Delineations) and discussed administrative zones as a mitigation tool; those Delineations were not included in the original Policy.
- A trial court found the SED deficient for failing to disclose and evaluate the Delineations and for not explaining limits on CEQA review of percolating groundwater, and directed the Board to vacate the Policy and supplement the analysis.
- The Board circulated a Revised SED (RSED) assessing Delineations, concluded adoption was infeasible for multiple practical and legal reasons, found the likelihood of significant surface-flow depletion from shifted pumping unlikely/speculative, and readopted the Policy; Living Rivers sued again under CEQA and lost in the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the RSED sent conflicting signals about the significance and likelihood of groundwater-pumping impacts | RSED both found potential significant impacts and also characterized those impacts as uncertain/unlikely, creating a misleading conflict that fails CEQA’s informational requirements | RSED clarified and revised the original SED’s analysis, explaining why a significant net reduction in surface flows is unlikely; programmatic uncertainty precludes precise predictions and does not require speculation | No conflict; RSED adequately explained changes and was not misleading—informational requirement satisfied |
| Whether the RSED inadequately described the Subterranean Stream Delineations so public comment was impaired | The Delineations were not clearly described as a mitigation option, preventing meaningful public comment | RSED explained the Delineations, the Board’s jurisdictional scope, and reasons for rejecting formal adoption; description was sufficient for informed comment | RSED provided adequate description to enable informed public participation |
| Whether the Board’s reasons for finding the Delineations infeasible were legally improper (e.g., reliance on uncertainty/likelihood) | Board improperly considered the likelihood/severity of impacts in assessing feasibility; feasibility should not consider probability of impact occurrence | Feasibility requires a measure be capable of being accomplished successfully; effectiveness (including likelihood and severity of the problem it would address), costs, time, and legal risk are relevant feasibility factors | Board’s feasibility determination was proper and supported—effectiveness, cost, time, legal risk and limited coverage justified rejection |
| Whether substantial evidence supports the Board’s factual findings (e.g., cost/time for map refinement, limited utility, alternative case-by-case use) | The Board lacked evidentiary support for its asserted costs, delay, and limited utility | Board relied on consultant analysis and reasonable inferences; substantial evidence supports conclusions | Substantial evidence supports the Board’s factual determinations; no prejudicial abuse of discretion |
Key Cases Cited
- Light v. State Water Resources Control Bd., 226 Cal.App.4th 1463 (explaining Board’s role and history)
- North Gualala Water Co. v. State Water Resources Control Bd., 139 Cal.App.4th 1577 (scope of Board jurisdiction over subterranean streams vs. percolating groundwater)
- Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova, 40 Cal.4th 412 (CEQA standard of review; independent review for informational deficiencies)
- Napa Citizens for Honest Government v. Napa County Bd. of Supervisors, 91 Cal.App.4th 342 (programmatic analysis evolution and informational sufficiency)
- City of Marina v. Board of Trustees of California State Univ., 39 Cal.4th 341 (limits on approving projects with unmitigated significant impacts)
- California Native Plant Society v. City of Santa Cruz, 177 Cal.App.4th 957 (feasibility includes balancing economic, environmental, social, technological factors)