Opinion
E045894.
6-25-2009
FRIENDS OF THE NORTHERN SAN JACINTO VALLEY, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF FISH AND GAME et al., Defendants and Respondents; CALIFORNIA WATERFOWL ASSOCIATION, Real Party in Interest and Respondent.
Suan L. Nash for Plaintiff and Appellant. Edmund G. Brown, Jr., Attorney General, Mary E. Hackenbracht, Assistant Attorney General, and Kathleen A. Kenealy and Marc Luesebrink, Deputy Attorneys General, for Defendants and Respondents. No appearance for Real Party in Interest and Respondent.
Not to be Published in Official Reports
Defendant and respondent, California Wildlife Conservation Board (the Board), a state board, approved an application by real party in interest and respondent, California Waterfowl Association (CWA), a nonprofit organization, to enhance and restore wetlands on certain property owned and controlled by defendant and respondent, California Department of Fish and Game (the Department). Plaintiff and appellant, Friends of the Northern San Jacinto Valley (Northfriends), filed a petition for writ of mandate in the superior court seeking to set aside the Boards approval and to enjoin the Department from issuing any permits for the project or allowing any other action that would affect the environmental integrity of the project site. Northfriends alleged that the Board approved of the project without complying with its obligations under the California Environmental Quality Act (CEQA). After a hearing, the trial court denied the petition and entered judgment for the Board and the Department.
In its appellate briefs, appellant refers to itself as "Northfriends." For the sake of convenience, we will use the same term.
In addition, Northfriends sought to compel the Department to enforce certain requirements of the Fish and Game Code. Because Northfriends does not assert any argument on appeal as to this claim, we treat it as abandoned. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
In support of the petition, Northfriends submitted certain documents that are not part of the administrative record. Although these documents are included within a bound volume titled, "Administrative Record," they are separately tabbed and paginated (beginning with the designation "DOC") to distinguish them from the documents that are part of the administrative record. The trial court noted that it would not consider such materials in connection with the CEQA claims. The Department and the Board contend that we should likewise refuse to consider these documents. Northfriends did not respond to this argument. Although there are exceptions to the general rule that extra-record evidence is not admissible in traditional mandamus actions, they do not apply here. (See Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 576-579.) Accordingly, we will not consider these documents as evidence in support of the petition.
On appeal, Northfriends contends that the Board was either a "lead agency" or "responsible agency" with respect to the project and therefore required to comply with the obligations corresponding to such status prior to approving CWAs application. The Board and the Department contend that the Boards approval was lawful because it was conditioned upon subsequent compliance with CEQA. The government agencies further argue that recent actions involving the project have rendered the appeal moot. We reject the mootness argument and, in light of recent judicial decisions in which the use of CEQA compliance conditions as a means of delaying environment review were disapproved, reverse the judgment.
In its opening brief, Northfriends also argues that the negative declaration prepared by the Department is inappropriate because there is a fair argument that an environmental impact report (EIR) must be prepared. However, in its reply brief, Northfriends asserts that the issuance of a mitigated negative declaration in 2008 "completely replaced" the 2007 negative declaration and, as a result, "there are no legal or factual issues for the court to resolve regarding the substantive quality of the 2007 [negative declaration]." Therefore, we consider issues regarding the negative declaration abandoned. Northfriends further asserts in its reply brief that the 2008 mitigated negative declaration is not legally valid. To the extent that Northfriends is challenging the mitigated negative declaration in this appeal, our decision regarding the Boards approval of CWAs application renders this challenge moot.
I. Summary of Facts
The Department is an agency of the State of California with jurisdiction over the fish and wildlife resources of the state. The Board is a statutorily created board within the Department. (See Fish & G. Code, § 1320.) The Boards purposes include the study and determination of areas within the state that are essential and suitable for wildlife preservation and recreation. (Id., § 1345.) It has the power to "award grants or loans to nonprofit organizations, local governmental agencies, federal agencies, and state agencies for the purposes of fish and wildlife habitat restoration, enhancement, management, protection and improvement of riparian resources . . . ." (Id., § 1350, subd. (c).) Among the sources of funds available to the Board for enhancement and restoration of wetlands is the Habitat Conservation Fund, which was created by initiative measure in 1990. (See id., §§ 2786, subd. (d), 2787, subd. (e); see generally id., § 2785 et seq.)
The Board consists of the president of the Fish and Game Commission, the Director of the Department of Fish and Game, and the Director of Finance. (Fish & G. Code, § 1320.)
The Board has been funding the acquisition of land in the San Jacinto Valley and expanding what is known as the San Jacinto Wildlife Area (SJWA) since 1986. The SJWA is described in a document that appears to have been prepared by the staff of the Board as "the biological heart of the [San Jacinto] valley, containing the best remnants of [diverse] habitats and nearly all of the shallow Mystic Lake." The same document states that it "is listed as an Important Bird Area by the National Audubon Society, where it is identified as `quite simply one of the most important bird areas in southern California." The Department owns and manages the property.
In November 2006, the CWA applied to the Board for a grant of $677,000 to enhance and restore 520 acres of the SJWA to improve habitat conditions. According to the application, "existing habitat will be redesigned and infrastructure will be added to allow for wetland management that is currently not possible. The proposed project will construct a master delivery and drainage system. The water delivery system will allow for independent delivery to all of the wetland units. The drainage system will also allow for independent drainage and a lift pump and pipeline will be added to allow for recirculation of water throughout the units." In particular, the project involves the following activity: transporting "165,000+ cubic yards of soil to enhance and restore wetland topography, construct necessary perimeter levees, develop wetland diversity, provide infrastructure for water management, and create upland buffers"; constructing "islands, submerged berms, and peninsulas to further diversify wetland unit topography and plant species diversity"; installing "36 concrete water control structures to allow for efficient and precise water management"; purchasing and installing "a lift pump to recirculate water"; drilling a "new deep well and install[ing] a new electric pump to help supply a dependable source of water to the project area"; adding "irrigation valves and pipelines from the new well, lift pump and the existing deep well for improved water movement"; transplanting "hard-stemmed bulrush (tules) throughout the enhanced and restored wetlands to establish beneficial emergent cover"; and planting "perennial grasses . . . on 35-50 acres of uplands for nesting cover establishment." The Department will be responsible for maintenance and repairs related to the project and for annual biological monitoring.
The proposed starting date for the project stated in the application was March 2007 and the completion date was September 2008. Under the heading, "Is the Project Ready to Go?," the applicant is asked whether the landowner is willing to allow the construction of the project and agreeable to maintaining the project for at least 25 years. CWA responded, "Yes. The project is a state owned wildlife area which is under protection." In response to the question whether the applicant has "obtained the necessary permits and completed the environmental documents for the projects," CWA stated: "Yes. All necessary permits are being obtained and all required environmental documents are being completed."
The two parts to this response are in conflict. The first part—the unequivocal "yes"—indicates that the permits have been obtained and environmental documents have been completed. The second part indicates that the same are "being obtained" and "being completed," which implies that they have not been obtained or completed.
In a January 2007 letter, a director of the Department informed the Board that the Department "fully supports" CWAs application "and recommends that [the Board] take appropriate action to provide funds for the project."
The project was described in a public notice of a meeting of the Board to be held on February 15, 2007. In that notice, the Board stated that the project is exempt from CEQA "as a minor alteration to land" (see Cal. Code Regs., tit. 14, § 15304 (Guidelines)) and that "the appropriate Notice of Exemption will be filed with the State Clearinghouse."
At the February 15, 2007, meeting, the Board: approved of the "project as proposed"; allocated $680,000 for the project from the Habitat Conservation Fund; "authorize[d] staff to enter into appropriate agreements necessary to accomplish this project"; and "authorize[d] staff and the Department . . . to proceed substantially as planned." The minutes of the meeting state that, "although this agenda originally noted that the Board would be handling the CEQA documents, [a project manager for the Board] clarified that the CWA and the [Department] would be responsible for obtaining all of the appropriate documents and permits."
On February 26, 2007, the Board and CWA thereafter entered into a written "Grant Agreement." Under this agreement, the Board agreed to provide up to $680,000 to CWA "to restore 307 acres and enhance 213 acres of wetland and riparian habitat, located on the Department[s] . . . [SJWA]." The work is to be completed by December 31, 2008. Under the heading, "STATEMENT OF WORK (Grantee Responsibility)," CWA "is responsible for obtaining all necessary permissions and approvals, and complying with all regulations, ordinances and statutes that apply to the project and any work performed pursuant to this Grant Agreement." CWA is also required to "work and consult with the Department . . . on implementing the construction and restoration effort." The funds may not be distributed until CWA fulfills these responsibilities.
The Grant Agreement further provides that CWA "is not authorized to commence work and the [Board] shall not be obligated to disburse any funds under this Agreement until the [CWA] has received a `Notice to Proceed from the [Board]." The agreement was executed by a representative of CWA on January 8, 2007, and by John Donnelly, Interim Executive Director of the Board, on February 26, 2007. The following day, Donnelly sent a letter to CWA enclosing the agreement and stating: "This is your Notice to Proceed in accordance with the terms and conditions of the agreement." Donnelly further stated that "[a]ll materials must be ordered and work completed by December 31, 2008." It does not appear from the record that any of the contingencies or grantee responsibilities described in the agreement were satisfied prior to the issuance of this notice to proceed.
The Grant Agreement was amended in August 2007 to add the following language to the end of this sentence: "with the exception of the agreed upon Survey and Design work as shown on the attached BUDGET." It does not appear that the amendment is material to this appeal.
On May 14, 2007, a "Senior Environmental Scientist" with the Department signed a "Negative Declaration" regarding the project. According to this document, the Department is the lead agency regarding the project. The negative declaration states: "Except for temporary disturbances (noise, dust) caused by the construction of the habitat, this project will not have any significant or detrimental effects on the environment or surrounding areas." The negative declaration was submitted to the Governors Office of Planning and Research, State Clearinghouse and Planning Unit, on May 22, 2007, which distributed the documents to certain state agencies for review. It does not appear from the record that the negative declaration was submitted to, or reviewed by, the Board. The review period closed on June 20, 2007. No state agency submitted any comments to the document prior to that date.
According to a document that appears to have been issued by the Governors Office of Planning and Research, State Clearinghouse and Planning Unit, the negative declaration was submitted to "Caltrans, District 8; Department of Conservation; Department of Water Resources; Native American Heritage Comission; Department of Parks and Recreation; Regional Water Quality Control Board, Region 8; Resources Agency; State Lands Commission."
After the expiration of the review period, the State Clearinghouse received written comments from the Native American Heritage Commission. It does not appear from the briefing in this case that these comments are relevant to this appeal.
II. ANALYSIS
A. Standard of Review
In reviewing an agencys compliance with CEQA, our "inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (Pub. Resources Code, § 21168.5; see also Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427.) "`Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, "scrupulously enforc[ing] all legislatively mandated CEQA requirements" [citation], we accord greater deference to the agencys substantive factual conclusions. [Citation.]" (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 131 (Save Tara).) A claim that an agency approved a project with potentially significant environmental effects before considering a CEQA document is an issue concerning procedural error that is to be decided by the courts independently. (Id. at p. 131 & fn. 10.)
B. The Boards Noncompliance With CEQA
In this case, there is no dispute that the restoration and enhancement of wetlands on the SJWA as proposed by CWA is a "project" for purposes of CEQA. Nor do the parties dispute that the project is subject to (i.e., not exempt from) CEQA.
A project for purposes of CEQA "means an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: [¶] (a) An activity directly undertaken by any public agency. [¶] (b) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. [¶] (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies." (Pub. Resources Code, § 21065.)
When, as here, proposed activity constitutes a nonexempt project for purposes of CEQA, the lead agency with respect to the project must determine whether the project may have a significant effect on the environment. (Pub. Resources Code, § 21080.1; Guidelines, § 15063, subd. (a).) Except in cases where it is clear that an EIR will be required, the lead agency must conduct an initial study to assist it in making this determination. (Guidelines, § 15063, subd. (a).) If the agency determines that the project may have a significant effect on the environment, an EIR must be prepared. (Pub. Resources Code, §§ 21080, subd. (d), 21100, subd. (a).) If the project will not have a significant effect on the environment, the lead agency must adopt a negative declaration to that effect. (Id., § 21080, subd. (c); Guidelines, § 15070, subd. (a).) The agency may also adopt a mitigated negative declaration when the initial study identifies potentially significant effects on the environment, but revisions to the project are made such that the project, as revised, will not have a significant effect on the environment. (Pub. Resources Code, § 21080, subd. (c); Guidelines, § 15070, subd. (b).)
A "lead agency" is "the public agency which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment." (Pub. Resources Code, § 21067.) In making the determination as to whether the project may have a significant effect on the environment, the lead agency must consult with "responsible" agencies. (Id., § 21080.3; Guidelines, § 15063, subd. (g).) A "responsible agency" is "a public agency, other than the lead agency, which has responsibility for carrying out or approving a project." (Pub. Resources Code, § 21069.) As Division One of this court recently explained: "`[B]efore reaching a decision on the project, the decision-making body of the responsible agency must consider the environmental effects of the project as shown in the EIR or negative declaration and feasible mitigation measures or alternatives within the agencys powers. [Citation.] If the responsible agency finds that any alternatives or mitigation measures within its powers are feasible and would substantially lessen or avoid a significant effect of the project, the responsible agency may not approve the project as proposed, but must adopt the feasible mitigation measures or alternatives. [Citation.] Each responsible agency must certify that its decision-making body reviewed and considered the information in the EIR or negative declaration on the project. [Citation.] [Citation.]" (RiverWatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186, 1202 (RiverWatch ); see generally Guidelines, § 15096.) A responsible agency that fails to do so "has not complied with CEQA and its approval must be set aside." (RiverWatch, supra, at p. 1207.)
The relationship between the lead agency and responsible agencies was described by the RiverWatch court as follows: "Although a lead agency is responsible for considering the effects of all activities involved in a project and, if required by CEQA, preparing the draft and final EIRs and certifying the final EIR for a project, a `responsible agency typically has permitting authority or approval power over some aspect of the overall project for which a lead agency is conducting CEQA review. [Citations.] . . . [¶] Responsible agencies have limited ability to conduct their own environmental review outside the processes initiated and managed by the lead agency. [Citations.] The responsible agency relies on the lead agencys environmental document in acting on whatever aspect of the project requires its approval. The responsible agency must, however, issue its own findings regarding the feasibility of relevant mitigation measures or project alternatives that can substantially lessen or avoid significant environmental effects. Furthermore, where necessary, a responsible agency must issue its own statement of overriding considerations. [Citations.] [Citation.]" (RiverWatch, supra, 170 Cal.App.4th at p. 1201.)
Here, the Board approved CWAs grant application and issued a notice to proceed in February 2007. The Department, purporting to act as the lead agency, determined in May 2007 that the project would not have a significant effect on the environment and prepared a negative declaration. According to Northfriends, this was too late: the Board was required to either prepare (as the lead agency) or review and consider (as the responsible agency) a CEQA document before it approved the project, not months afterward. The Department and the Board contend that because the Boards grant was contingent upon CWAs subsequent compliance with "statutes that apply to the project," the Boards approval of CWAs application and the entry into the Grant Agreement was not an "approval" of the project within the meaning of CEQA. In resolving these disputes, we are guided by two recent cases raising similar issues, both of which were decided after the trial courts decision in this case: Save Tara, supra, 45 Cal.4th 116 and RiverWatch, supra, 170 Cal.App.4th 1186.
Save Tara was also decided after the filing of Northfields opening brief on appeal. It is addressed in the Department and the Boards respondents brief and in Northfields reply brief. RiverWatch was decided by Division One of this court in January 2009. It is not discussed in the parties briefs.
In Save Tara, the City of West Hollywood voted to approve a "`Conditional Agreement for Conveyance of Development of Property." (Save Tara, supra, 45 Cal.4th at p. 124.) The agreement provided for the conveyance of certain property by the city to a developer, and for a $1 million loan to the developer, who would construct housing on the property. (Ibid.) The conveyance and the loan were subject to certain conditions, including the condition that "`[a]ll applicable requirements of CEQA . . . have been satisfied, as reaonsably determined by the City Manager and that `[d]eveloper shall have obtained all Entitledments." (Ibid., fn. omitted.) "The city manager, however, could waive these conditions." (Ibid.) A "predevelopment" loan of $475,000 to be provided by the city was not subject to the CEQA compliance condition. (Id. at pp. 124-125.)
After a petition for writ of mandate was filed challenging the failure to prepare an EIR prior to approval of the agreement, the city and the developer revised their agreement to omit the ability of the city manager to waive the CEQA condition and to recognize that the city "retained `complete discretion over . . . any actions necessary to comply with CEQA and that the agreement `imposes no duty on City to approve . . . any documents prepared pursuant to CEQA." (Save Tara, supra, 45 Cal.4th at p. 126.) The superior court denied the petition for writ of mandate, finding that an EIR was not required prior to approving the agreement "because `the Agreement is expressly conditioned on compliance with CEQA . . . [and] does not limit the project alternatives or possible mitigation measures. Thus, City `has not given its final approval to convey the property at issue to [the developer], nor has it given its final approval of the housing project itself." (Ibid.)
The California Supreme Court court began its analysis by pointing out the statutory obligation of lead agencies to prepare an EIR "`on any project that they intend to carry out or approve which may have a significant effect on the environment." (Save Tara, supra, 45 Cal.4th at p. 128, fn. omitted, quoting Pub. Resources Code, §§ 21100, subd. (a), 21151.) Approval, the court continued, "`means the decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by any person." (Save Tara, supra, at p. 129, quoting Guidelines, § 15352, subd. (a).) Regarding "`private projects, approval occurs upon the earliest commitment to issue or the issuance by the public agency of a discretionary contract, grant, subsidy, loan, or other form of financial assistance, lease, permit, license, certificate, or other entitlement for use of the project." (Save Tara, supra, at p. 129, quoting Guidelines, § 15352, subd. (b).) Quoting section 15004 of the Guidelines, the court observed "that `[c]hoosing the precise time for CEQA compliance involves a balancing of competing factors. EIRs and negative declarations should be prepared as early as feasible in the planning process to enable environmental considerations to influence project program and design and yet late enough to provide meaningful information for environmental assessment." (Save Tara, supra, at p. 129.)
Based upon these statutory and regulatory statements and judicial precedents, the Save Tara court "recognized two considerations of legislative policy important to the timing of mandated EIR preparation: (1) that CEQA not be interpreted to require an EIR before the project is well enough defined to allow for meaningful environmental evaluation; and (2) that CEQA not be interpreted as allowing an EIR to be delayed beyond the time when it can, as a practical matter, serve its intended function of informing and guiding decision makers." (Save Tara, supra, 45 Cal.4th at p. 130.) These policies help define the point when a project is "approved"; that is, the decision that "`commits the agency to a definite course of action in regard to a project." (Ibid., quoting Guidelines, § 15352, subd. (a).) "The problem," the court continued, "is to determine when an agencys favoring of and assistance to a project ripens into a `commit[ment]. To be consistent with CEQAs purposes, the line must be drawn neither so early that the burden of environmental review impedes the exploration and formulation of potentially meritorious projects, nor so late that such review loses its power to influence key public decisions about those projects." (Save Tara, supra, at pp. 130-131.) Drawing this line, the court held, is predominately a legal question to be decided by the courts. (Id. at p. 131.)
Turning to the issue raised by the use of a CEQA compliance condition in a development agreement, the court held: "A CEQA compliance condition can be a legitimate ingredient in a preliminary public-private agreement for exploration of a proposed project, but if the agreement, viewed in light of all the surrounding circumstances, commits the public agency as a practical matter to the project, the simple insertion of a CEQA compliance condition will not save the agreement from being considered an approval requiring prior environmental review." (Save Tara, supra, 45 Cal.4th at p. 132.) The court based this holding, in part, on the concern that once a government decision sets a project in motion, forces come into play that may make it difficult to change or reverse course: "A public entity that, in theory, retains legal discretion to reject a proposed project may, by executing a detailed and definite agreement with the private developer and by lending its political and financial assistance to the project, have as a practical matter committed itself to the project. When an agency has not only expressed its inclination to favor a project, but has increased the political stakes by publicly defending it over objections, putting its official weight behind it, devoting substantial public resources to it, and announcing a detailed agreement to go forward with the project, the agency will not be easily deterred from taking whatever steps remain toward the projects final approval." (Id. at p. 135.)
The court further explained that allowing an agency to postpone CEQA review would also "tend to undermine CEQAs goal of transparency in environmental decisionmaking. Besides informing the agency decision makers themselves, the EIR is intended `to demonstrate to an apprehensive citizenry that the agency has in fact analyzed and considered the ecological implications of its action. [Citations.] When an agency reaches a binding, detailed agreement with a private developer and publicly commits resources and governmental prestige to that project, the agencys reservation of CEQA review until a later, final approval stage is unlikely to convince public observers that before committing itself to the project the agency fully considered the projects environmental consequences. Rather than a `document of accountability [citation], the EIR may appear, under these circumstances, a document of post hoc rationalization." (Save Tara, supra, 45 Cal.4th at p. 136.)
On the other hand, the court explained, "approval" of a project "cannot be equated with the agencys mere interest in, or inclination to support, a project, no matter how well defined." (Save Tara, supra, 45 Cal.4th at p. 136.) "[R]equiring agencies to engage in the often lengthy and expensive process of EIR preparation before reaching even preliminary agreements with developers could unnecessarily burden public and private planning. CEQA review was not intended to be only an afterthought to project approval, but neither was it intended to place unneeded obstacles in the path of project formulation . . . ." (Id. at p. 137.)
Quoting a treatise on CEQA, the court offered the following guidance to courts reviewing conditional development agreements in this context: "`First, the analysis should consider whether, in taking the challenged action, the agency indicated that it would perform environmental review before it makes any further commitment to the project, and if so, whether the agency has nevertheless effectively circumscribed or limited its discretion with respect to that environmental review. Second, the analysis should consider the extent to which the record shows that the agency or its staff have committed significant resources to shaping the project. If, as a practical matter, the agency has foreclosed any meaningful options to going forward with the project, then for purposes of CEQA the agency has "approved" the project. ([Remy et al., Guide to CEQA (11th ed. 2006), p. 71].) As this passage suggests, we look both to the agreement itself and to the surrounding circumstances, as shown in the record of the decision, to determine whether an agencys authorization or execution of an agreement for development constitutes a `decision . . . which commits the agency to a definite course of action in regard to a project. [Citation.]" (Save Tara, supra, 45 Cal.4th at p. 139.)
Save Tara was followed in RiverWatch. RiverWatch concerned the construction and operation of a proposed landfill and recycling center. In connection with the project, the Olivenhain Municipal Water District (the Water District) entered into an agreement with the owner of the landfill (GCL) to sell recycled water to GCL for use at the landfill. (RiverWatch, supra, 170 Cal.App.4th at p. 1196.) The Water District approved of and entered into the agreement without first reviewing the environmental impacts of GCLs use and transporation of the water. The agreement included the following provision: "`8. Completion of CEQA Review and Other Permits[.] [GCL] shall be solely responsible for complying with all [CEQA] and National Environmental Protection Act requirements necessary for [GCL]s receipt, use and transportation of the recycled water under this Agreement. [GCL] shall also be solely responsible for any and all permits required under any state, federal or local law for its receipt, use and transportation of recycled water under this Agreement." (Id. at p. 1197.)
Approximately five months after the parties entered into the agreement, the San Diego Department of Environmental Health (DEH), as the lead agency on the landfill project, issued a notice of a revised EIR that addressed the impacts of the proposed use of recycled water from the Water District. (RiverWatch, supra, 170 Cal.App.4th at p. 1197.) RiverWatch filed a petition for writ of mandate challenging the Water Districts approval of the agreement with GCL without first considering the environmental effects of the agreement. In denying the petition, the trial court stated: "`Because performance under the Agreement here is conditioned on CEQA compliance, the Agreement does not constitute an "approval" subject to CEQA review." (Id. at p. 1198.) The Court of Appeal reversed.
The court first held that the Water District was a "responsible agency" under CEQA with respect to the project. (RiverWatch, supra, 170 Cal.App.4th at pp. 1205-1206.) The court explained: "A `responsible agency is not limited to those public agencies that approve, or issue a permit for, an entire project (e.g., the entire Landfill project), but also includes those agencies that carry out or approve part of a proposed project subject to CEQA. Furthermore, the fact there are regulatory or other administrative agencies with oversight over recycled water or its use does not preclude [the Water District] from being a responsible agency. [Citations.] We are unpersuaded by GCLs unsupported argument that a public agency cannot be a responsible agency if it merely approves or enters into a contract necessary to carry out part of a project." (Id. at p. 1206.)
The RiverWatch court then discussed the Save Tara decision at length, setting forth the principles and analytical framework from that case that we have identified above. (RiverWatch, supra, 170 Cal.App.4th at pp. 1208-1212.) The court held that the Water Districts approval and execution of the agreement with GCL was an "approval of part of the Landfill project within the meaning of CEQA and its guidelines, as interpreted by Save Tara." (Id. at p. 1212, fn. omitted.) Regarding the provision in the agreement that GCL would have responsibility for CEQA compliance, the court stated that the "provision did not, in any reasonable construction, provide that [the Water District] retained its complete discretion under CEQA (as a responsible agency) to consider a final EIR certified by DEH and thereafter approve or disapprove its part of the Landfill project pursuant to the Agreement or to require mitigation measures or alternatives to its part of the project. . . . That section provides it is GCLs sole responsibility for complying with CEQA regarding GCLs receipt, use, and transportation of the recycled water it purchases from [the Water District] pursuant to the Agreement. It does not provide that [the Water District] is responsible for complying with CEQA (as a responsible agency) or even that [the Water Districts] performance of the Agreement is subject to [the Water Districts] broad discretion to approve or disapprove the Agreement or to require mitigation measures or alternatives to the water delivery and construction activities set forth in the Agreement after [the Water District] has considered a final EIR certified by DEH regarding the Landfill project." (Id. at pp. 1212-1213.) Moreover, the "Agreement omits any reference to [the Water Districts] duties, as a responsible agency regarding the Landfill project, to comply with CEQA (i.e., by considering the final EIR certified by DEH before approving and committing itself to the water delivery and construction activities provided for in the Agreement). Therefore, neither the February 17, 2006, approval of the Agreement by [the Water Districts] board, nor [the Water Districts] execution of the Agreement as of March 15, 2006, conditioned [the Water Districts] performance of the Agreement on [the Water Districts] subsequent exercise of its CEQA discretion to take other actions under CEQA after considering the final EIR certified by DEH." (Id. at p. 1214, fn. omitted.)
Finally, the court held that "even had the Agreement contained a condition pursuant to which [the Water District] retained its full discretion as a responsible agency under CEQA to consider a final EIR certified by DEH and take other action, that condition alone would not necessarily have precluded [the Water Districts] approval and execution of the Agreement from constituting an approval of the Landfill project. Rather, considering the circumstances surrounding [the Water Districts] approval and execution of the Agreement in accordance with Save Taras general approach as discussed above, the minutes of [the Water Districts] February 17, 2006, board meeting show the board did not acknowledge or otherwise recognize [the Water Districts] duties as a responsible agency under CEQA before approving the Agreement. At most, the minutes reflect the conclusory statement by GCLs counsel that GCL `looked at the traffic impact through the 4S Ranch community and found that there are no significant environmental impacts. The minutes do not contain any reference to the Revised Draft EIR then being prepared by DEH, or to [the Water Districts] duty under CEQA to consider the revised final EIR certified by DEH before approving the Agreement. Therefore, independently considering [the Water Districts] approval and execution of the Agreement and the surrounding circumstances, we conclude `as a practical matter, [the Water District] has committed itself to the [Landfill] project as . . . to . . . particular features [i.e., its obligation to provide GCL with recycled water under the Agreement], so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project. (Save Tara, supra, 45 Cal.4th at p. 139.) In so doing, [the Water District] violated its CEQA duties as a responsible agency. `A responsible agency [e.g., the Water District] complies with CEQA by considering the [final] EIR or negative declaration prepared [and certified] by the lead agency [e.g., DEH] and by reaching its own conclusions on whether and how to approve the project involved. ([Guidelines], § 15096, subd. (a).) Because [the Water District] did not comply with its CEQA duties before approving the Agreement, the Agreement must be set aside." (RiverWatch, supra, 170 Cal.App.4th at pp. 1214-1215.)
We now apply the principles set forth in Save Tara and RiverWatch to the present case. Initially, we note that the Board was, at a minimum, a responsible agency with respect to the project for purposes of CEQA. (See Pub. Resources Code, § 21069 [a responsible agency "has responsibility for carrying out or approving a project"].) It was the Board that approved CWAs application for the project and issued the notice to proceed. Although the parties dispute whether the Board was the lead agency in this case, there does not appear to be a dispute that the Board was at least a responsible agency with respect to the project. Thus, even if it did not have the obligations associated with being a lead agency, it was required to, at a minimum, consider the CEQA document prepared by the lead agency and the environmental effects of the project and possible alternatives and mitigation measures, comment on the document while in draft form, make findings regarding any significant effects of the project, and file a notice of determination prior to approving the project. (RiverWatch, supra, 170 Cal.App.4th at p. 1202; Guidelines, §§ 15050, subd. (b), 15096.) If it failed to do so, it "has not complied with CEQA and its approval must be set aside." (RiverWatch, supra, at p. 1207.)
The central issue in this case is whether the approval of CWAs grant application and the entry into the Grant Agreement constitute "approval" of the project for purposes of CEQA. In analyzing this issue, we keep in mind the policy considerations identified in Save Tara for determining when a decision by a public agency constitutes an approval for purposes of CEQA: "[T]he line must be drawn neither so early that the burden of environmental review impedes the exploration and formulation of potentially meritorious projects, nor so late that such review loses its power to influence key public decisions about those projects." (Save Tara, supra, 45 Cal.4th at pp. 130-131.) Here, by the time the Board was faced with the decision to approve or reject CWAs application, the project was sufficiently defined to allow for meaningful environmental review. The application is detailed in its description, specific as to the proposed restoration and enhancement activities, supported by design maps showing precise locations of new equipment and facilities, and includes an itemized budget. There is nothing in the application that suggests that further plans are necessary or forthcoming or that an environmental review of the project prior to the Boards consideration of the application would impede the exploration or formulation of the project. Clearly, the project was ripe for evaluating its impact on the environment.
Delaying the environmental review until after the Boards decision would have effectively rendered such review useless as a tool for influencing the Boards decision. Although the Grant Agreement prohibited CWA from commencing work until after the Board issued a "Notice to Proceed," that notice was issued the day after the Grant Agreement was fully executed without the benefit of any environmental review. Clearly, the issuance of the notice to proceed was not contingent upon any environmental review of the project. It further appears from the Grant Agreement that the only substantive actions left for the Board with respect to this project after issuing the notice to proceed are to review invoices, receive notice that a "State Project Manager" has approved of the work, and reimburse CWA for its expenses. It is clear from a review of the record that the Boards approval of CWAs application was not a preliminary step in a series of steps to be taken by the Board. There is nothing in the agreement or elsewhere in the record to suggest that the Board will ever perform, review, consider, or comment upon any environmental review of the project. Indeed, it does not appear from the record that the negative declaration that was subsequently prepared by the Department was ever even submitted to the Board for its review and comments.
The provision in the Grant Agreement reciting that CWA is responsible for obtaining all permits and approval and complying with all regulations, ordinances, and statutes does not save the Boards action. Initially, we note that the provision cannot be construed as a delegation of the Boards obligations under CEQA as a lead or responsible agency. (See Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 307.) Contractually requiring CWA to obtain applicable permits and to comply with the law does not absolve the Board of its obligations to review, consider, comment upon, make findings, and file a notice of determination as required by CEQA prior to approving of the project. Even if this provision is construed, as the Board and the Department urge, as imposing upon CWA the responsibility for obtaining the approvals required by CEQA, it appears that CWA could fulfill this condition any time prior to the time it submits invoices to the Board for work already performed. By that time, however, it would be too late for the Board to have any meaningful input as to the environmental impact of the project.
Significantly, nothing in the agreement or elsewhere in the record indicates or suggests that the Board retains its discretion to disapprove of CWAs application after an environmental review is performed. Like the deficient agreement in RiverWatch, the Grant Agreement in this case "does not provide that [the Board] is responsible for complying with CEQA (as a responsible agency) or even that [the Boards] performance of the [Grant] Agreement is subject to [the Boards] broad discretion to approve or disapprove the [Grant] Agreement or to require mitigation measures or alternatives to the [project] set forth in the [Grant] Agreement after [the Board] has considered a final EIR [or negative declaration] certified by [the Department] regarding the . . . project." (RiverWatch, supra, 170 Cal.App.4th at p. 1213.) It is clear from the agreement itself and the surrounding circumstances that the Boards approval of the application, the execution of the agreement, and the perfunctory issuance of the notice to proceed, taken together, "constitutes a `decision . . . which commits the [Board] to a definite course of action in regard to a project." (Save Tara, supra, 45 Cal.4th at p. 139, quoting Guidelines, § 15352.)
Based on our independent review of the record, we conclude that, "as a practical matter, [the Board] has committed itself to the project . . . so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project." (Save Tara, supra, 45 Cal.4th at p. 139; see also RiverWatch, supra, 170 Cal.App.4th at p. 1215.) It thus "approved" the project within the meaning of CEQA. Because the Board did not review or consider a CEQA document prior to its approval of the project, its approval of the project and the Grant Agreement must be set aside. (See RiverWatch, supra, at p. 1215.)
C. Mootness
The Board and the Department contend that this appeal is moot for three reasons: First, the work on the project "is largely complete"; second, to the extent work "is not complete[], [the Board] and [the Department] have suspended further work until after preparation of a Management Plan relating to the larger SJWA and preparation of further CEQA documents"; and third, the Grant Agreement "expire[d] on December 31, 2008." In support of its mootness argument, the agencies submit a memorandum from Curt Taucher, a regional manager of the Department to "Region 6 Staff" of the Department. This memorandum discusses the "preparation of a management plan for SJWA as it relates to proposed restoration projects, CEQA review for ongoing maintenance at SJWA and, potential future projects at SJWA." According to the memorandum, the Department has contracted with a third party to prepare "the apppriate CEQA document for the draft management plan," which will "include environmental review of any additional restoration work to be completed pursuant to a February 15, 2007, [the Board] grant and restoration work proposed for the SJWA . . . ."
The Board and the Department have requested that we take judicial notice of this memorandum. Northfriends did not oppose the request. We will grant the request for the limited purpose of evaluating the argument that the appeal is moot. (Evid. Code §§ 452, subd. (h), 459.)
The Board and the Departments first argument—that the project is "largely complete"—is not supported by the record. Indeed, the Taucher memorandum, which supports the agencies second argument, indicates that CWAs restoration project is ongoing and will be the subject of further CEQA review. The second argument—that work has been suspended until further CEQA documents are prepared—indicates that the appeal is not moot. That is, if further work is required and further CEQA documents are required, then there remains the issue of whether the Board must review and consider such documents prior to approving the project. The third argument—that the Grant Agreement has expired—is not persuasive. Although the Grant Agreement requires CWA to complete its work on the project by December 31, 2008, that does not mean that the work was in fact completed by that date. Again, the Taucher memorandum and the agencies second argument suggests that work has been suspended, not completed.
III. DISPOSITION
The judgment is reversed with directions to the trial court to issue a peremptory writ, consistent with the views expressed in this opinion, directing the respondents to: (1) vacate and set aside the approval of CWAs application; and (2) not take any further action with respect to the project without first complying with their obligations under CEQA. Northfriends shall recover its costs on appeal.
The "project," as defined in Northfriends petition for writ of mandate and as described in the arguments on appeal, refers to the work described in CWAs application for a grant from the WCB. During oral argument, Northfriends argued that the peremptory writ should preclude not only further work with respect to the project, but extend to any action on the project site. Although Northfriends did seek in its writ of mandate to enjoin any "actions which would affect the environmental integrity of the Project Site . . .," the arguments asserted on appeal have been focused on the validity of WCBs approval of the project. We therefore decline to reach issues concerning actions taken that are not encompassed within the project. Following remand, the trial court may consider whether a broader injunction is appropriate.
In its petition for writ of mandate, Northfriends sought the recovery of attorney fees pursuant to Code of Civil Procedure section 1021.5. We offer no opinion regarding the entitlement to such fees. On remand, the trial court shall, if requested, determine any issues raised by that request.
We concur:
Ramirez, P.J.
Miller, J.