In an unpublished opinion, Salmon Protection and Watershed Network v. County of Marin, 2014 Cal. App. LEXIS 1578, the Court of Appeal, First District, reversed the trial court and granted an environmental group’s petition for a writ of mandate challenging the sufficiency of the EIR for Marin’s Countywide General Plan (CWP). The Court also overturned an injunction enjoining development along certain creeks in the San Geronimo Valley Watershed.

Recognizing the imminent growth in unincorporated areas of Marin County and the need to protect local creeks as a habitat for threatened species such as coho salmon and steelhead trout, Marin County updated its CWP in 2007. The EIR for the 2007 CWP is a program EIR under section 15168 of the CEQA Guidelines. Salmon Protection and Watershed Network (SPAWN) contended the EIR failed to comply with CEQA because the EIR improperly analyzed the cumulative effects of the CWP and inadequately mitigated the impacts of development.

Although program EIRs require less specificity than project EIRs, a program EIR still requires an analysis of the cumulative impacts of the program. While the EIR in this case did have some data regarding the forecasted development in areas critical to the salmonid population, the EIR failed to estimate the maximum impact or range of impacts of development under the 2007 CWP. Marin County argued the impacts depend on the degree to which resources are protected as part of each individual project, but the Court stated that under this logic, no analysis of the cumulative effects could ever be made because the cumulative effects would not be known until the last project has been proposed. The Court found the EIR did not provide sufficient analysis to assist decision-makers and the public in understanding the consequences of projects in the San Geronimo Valley Watershed under the 2007 CWP. Therefore, the Court required the County to prepare a supplemental EIR properly analyzing the impacts of the 2007 CWP.

The Court also found mitigation proposed for impacts to aquatic habitats to be inadequate. CEQA Guidelines section 15126.4, subdivision (a)(2) requires mitigation measures to be “fully enforceable through permit conditions, agreements, or other legally-binding instruments.” The EIR proposed Marin County “actively participate” and “work cooperatively to implement recommendations” of a coalition of Central Coast counties known as FishNet 4C. FishNet 4C’s mission is to facilitate actions that improve water quality and restore habitat for species such as coho salmon and steelhead trout, but the Court found merely participating in this mission was inadequate. Even though there was data to support FishNet 4C’s successful restoration of riparian habitat, there was nothing legally binding or enforceable regarding Marin County’s participation in FishNet 4C. Additionally, neither the EIR nor FishNet4C defined any specific measures to take regarding the species in San Geronimo Valley Watershed. The Court held that deferring specific mitigation measures in this manner failed to comply with CEQA.

Marin County, however, was successful in overturning the trial court’s injunction that prevented the County from approving any development in stream conservation areas in the San Geronimo Valley Watershed, as defined in the 2007 CWP. The trial court granted the injunction because the EIR stated that Marin County should adopt a new stream conservation area ordinance as mitigation to reduce the impact on these riparian habitats. Because the ordinance was required by the EIR, SPAWN argued – and the trial court agreed – the County should be prohibited from authorizing new development until the ordinance was implemented.

The Court overturned the injunction because the trial court ordered this remedy without giving the County any notice or an opportunity to address its pertinence. The injunction also significantly affected individuals seeking to develop projects in the area without giving them an opportunity to address the matter. The court also found no evidence to support the conclusion that an injunction was necessary. Because of these substantive and procedural flaws, the trial court did not have the authority to order an injunction enjoining development in the stream conservation areas.