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Third District Court of Appeal Upholds CDFW Program EIR

February 13, 2015

On February 10, California’s Third District Court of Appeal issued a decision upholding a program EIR prepared by the California Department of Fish and Wildlife (CDFW) to assess the environmental impacts of its statutorily mandated fish hatchery and stocking program on native amphibian species and native wild salmon and steelhead.

The decision, Center for Biological Diversity et al. v. Dep’t of Fish and Wildlife, is generally consistent with existing CEQA case law in its treatment of program EIR, mitigation deferral, baseline, and alternatives claims. However, its discussion of mitigation for an ongoing project raises an important question commonly encountered in CEQA practice. The program EIR’s detailed analysis, and now its perpetuation in case law, may also raise the bar on program EIR specificity standards. 

Use of a program EIR as a project or site-specific EIR

With regard to the program EIR claim, the court deemed the CEQA document to be sufficiently comprehensive and detailed to cover future site-specific actions. The EIR included a detailed description of the effects of the fish hatchery and stocking operations, both generally and as applied to individual species, with protocols and management plans designed for application at each location where activities were proposed within a species’ range. The court concluded that site-specific analysis was unlikely to reveal any unanticipated impacts because the EIR exhaustively assessed the potential impacts of CDFW’s entire operation and included mitigation measures for use at the site-specific level. The court also stated that subsequent site-specific review could occur without further public participation, because the protocols and management plans required by the EIR were the kinds of written checklists CEQA allows an agency to use to determine whether site-specific impacts are sufficiently analyzed in an EIR or whether supplementation is required.

Deferral of formulation of mitigation measures

The court upheld the EIR’s deferred formulation of mitigation measures because the EIR incorporated appropriate performance standards. Management plans designed to mitigate impacts on wild native salmon and steelhead were appropriate because they relied on federal regulations and National Marine Fisheries Service approval. Management plans for the mitigation of trout stocking impacts on certain amphibian species were also appropriate: impacts would be mitigated to insignificance by specific performance standards requiring removal of existing introduced trout where feasible and a prohibition “in most cases” against the stocking of lakes occupied by the amphibian species.

Use of existing project as the environmental baseline

The court closely followed recent precedent to hold that it was appropriate to include the long-standing fish hatchery and stocking enterprise (which had been in existence for over 100 years) as part of the existing circumstances environmental baseline of the EIR. The project did not include expansion or modification of the existing operations and, despite using the existing circumstances baseline, the EIR still thoroughly assessed the statewide impacts of the project over the past century and made proposals to mitigate them.

No action alternative and range of alternatives

The EIR’s no action alternative assumed existing operations would continue without any changes and did not contemplate the elimination of existing operations. The Court deemed this to be appropriate, both in a general sense when reviewing an existing operation (or changes to it), and also more particularly in light of the fact that the stocking program is mandated by state statute: where all alternatives must be feasible, the cessation of the stocking program is legally infeasible under statutes that deprive CDFW of the legal authority to discontinue its stocking program.

The EIR considered three variations of the existing hatchery and stocking enterprise in its range of alternatives. The court held the range of alternatives to be reasonable because both action alternatives would provide environmental benefits over existing operations. The fact that one alternative was based on a trial court order to suspend certain operations was irrelevant. 

Conclusion

The Third Appellate District’s decision is generally consistent with existing precedent. The program EIR holding could prove helpful in working through the sometimes difficult task of determining just how much detail a program EIR requires to cover subsequent, project-specific actions, although the exhaustive detail and extent of the EIR’s analysis in this regard may have the unintended consequence of setting the bar higher on specificity.

The mitigation deferral holding adds to a growing case law supporting a broader interpretation of performance standards, particularly with regard to qualitative standards that are not conditioned on compliance with existing regulations.

Finally, the court made an interesting attempt to bolster its approval of an existing circumstances baseline with a kind of “no harm, no foul” observation that the EIR also mitigated effects below the existing circumstances baseline. But CEQA requires feasible mitigation of significant effects down to (or at least close to) the environmental baseline, not below it. The court might have avoided creating confusion – and perhaps shortened its mitigation deferral analysis – by pointing out that CEQA required little, if any, mitigation of CDFW’s existing operations under an appropriately determined existing circumstances baseline.