Second District Court of Appeal Upholds Program-Level Functionally Equivalent CEQA Document

On March 30, 2015, California’s Second District Court of Appeal published a decision upholding a functionally equivalent CEQA document prepared by a regional water quality control board under a certified regulatory program.

The short CEQA segment of the decision, Conway et al. v. State Water Resources Control Board et al., is noteworthy for its express application of CEQA’s program EIR concept in the context of a certified regulatory program exempt from CEQA’s EIR requirements.

Certain state programs are exempt from CEQA’s EIR and negative declaration requirements if they are certified by the Secretary for Natural Resources as functionally equivalent to CEQA compliance. In this instance, a regional quality control board amended a water quality control plan to establish total maximum daily load (TMDL) pollutant limits for a lake near Oxnard, California. Because CEQA review of such amendments is governed by a certified regulatory program, the agency prepared a functionally equivalent CEQA document to support its adoption of the TMDLs.

The Plaintiffs claimed the CEQA document should have analyzed effects associated with dredging activities designed to achieve the proposed TMDL pollutant limits. The court disagreed. The TMDLs represented a goal for pollutant levels that by themselves did not prohibit or require any actions, such as grading. And grading had not yet been identified as the only practical remediation method to achieve the TMDLs.

Rather, the CEQA document prepared for the TMDLs was functionally equivalent to a first-tier program EIR prepared for a program, plan or policy that relies on subsequent EIRs to analyze application of the program to a particular project. Dredging would not be addressed until the agency prepared a second-tier environmental impact review of a memorandum of agreement (MOA) providing for implementation of the TMDLs. That review would include a full analysis of dredging if the MOA identified dredging as the chosen remediation method. The court therefore rejected the CEQA claim.

Conclusion

While liberating in some respects, certified regulatory programs can be difficult to work with because the degree to which CEQA’s substantive and procedural requirements apply is sometimes obscure. This decision adds some clarity by expressly applying CEQA’s program EIR concept in the context of a certified regulatory program.