In an unpublished decision, Outfitter Properties v. State Water Resources Control Board (2012) 2012 Cal.App.Unpub.LEXIS 1986, the Third Appellate District Court (Court) upheld a trial court’s rejection of petitioner’s consolidated petition for writ of mandate, which sought to put a stop to the “Battle Creek Salmon and Steelhead Restoration Project” (Project). Several agencies, including the California Department of Fish and Game (DFG), State Water Resources Control Board (Board), and U.S. Fish and Wildlife Service (FWS) entered into an agreement with PG&E and signed a memorandum of understanding (MOU) outlining the Project, exploring alternatives, and settling on a five-dam proposal so as to restore the fish habitat while minimizing the loss of clean, renewable hydropower.

Petitioner presented seven claims under the California Environmental Quality Act (CEQA), all of which were rejected. The Court first declined to reach the issue of exhaustion because it determined it was more efficient to address the CEQA claims on their merits. In a footnote, however, the court recommended that the Board review its regulations to ensure parties have a clearly defined administrative remedy to address CEQA claims to leave no doubt that a petitioner must appeal a determination of the Executive Director to the Board. Second, the Court held that the Board, and not DFG, was properly designated as lead agency of the Project for CEQA purposes. While the Board does not have the primary authority to “carry out” the Project, it does have the primary authority to “approve of” the Project, and according to CEQA, the lead agency only needs to have the primary authority over one or the other. Moreover, the administrative record included an interagency agreement between DFG and the Board naming the Board as the lead agency. Third, the Court held that petitioner failed to show that changes to Project implementation caused any significant changes to the Project itself. The Court explained that even though the EIR was for a unified project, the later decision to develop the Project in phases did not substantially change the Project to the point where a supplemental EIR was required. Concerning petitioner’s fourth and fifth arguments, the Court found that the Board did not violate CEQA by failing to adopt a Statement of Overriding Considerations or by approving the Project before EIR was completed. The Court explained that the Board’s execution of the MOU was not a project approval pursuant to CEQA for two reasons: 1) it was conditioned on CEQA approval; 2) the EIR exhaustively discussed and considered alternatives, including no project. Because the Board had not yet approved the project pursuant to CEQA, the Board was not yet required to adopt a Statement of Overriding Considerations. Sixth, the Court explained that the Board as a whole did not need to certify the EIR, but could employ personnel necessary to exercise its duties as authorized by the Water Code. Thus, the certification of the EIR by the executive director alone was sufficient. And lastly, the Court held that DFG’s findings were adequate because the petitioner’s challenge simply repeated its unlawful project phasing argument.

Written By: Tina Thomas and Chris Butcher
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