Backcountry Against Dumps v. State Water Resources Control Bd. CA3 ( 2015 )

Filed 6/16/15 Backcountry Against Dumps v. State Water Resources Control Bd. CA3
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
BACKCOUNTRY AGAINST DUMPS et al.,
Plaintiffs and Appellants, C072073
v. (Super. Ct. No.
34201180000787CUWMGDS)
STATE WATER RESOURCES CONTROL
BOARD, ORDER MODIFYING
OPINION AND DENYING
Defendant and Respondent; PETITION FOR REHEARING
SAN DIEGO GAS & ELECTRIC COMPANY, [NO CHANGE IN JUDGMENT]
Real Party in Interest and Respondent.
THE COURT:
The opinion filed May 19, 2015, in the above cause is modified as follows:
On page 28, delete footnote 8, which will require renumbering of all subsequent
footnotes.
On page 29, delete the first paragraph and replace it with the following paragraph:
Petitioners also argue they need not have exhausted administrative remedies with respect
to their findings claim because the claim presented “no new facts,” but instead raised “a question
of law.” In support of this argument, petitioners cite federal authority interpreting NEPA. For
example, in Dept. of Transportation v. Public Citizen (2004) 541 U.S. 752, the United States
Supreme Court explained that “an EIS’ flaws might be so obvious that there is no need for a
commentator to point them out specifically in order to preserve its ability to challenge a
1
proposed action,” but held that not to be the case there. (Id. at p. 765.) In ’Ilio’ulaokalani
Coalition v. Rumsfeld (9th Cir. 2006) 464 F.3d 1083, the Court of Appeals for the Ninth Circuit
held a NEPA violation was sufficiently “obvious” where “[t]he Army had independent
knowledge of the very issue” raised by the plaintiffs in the lawsuit, i.e., sufficiency of the
alternatives considered in the programmatic environmental impact statement (PEIS), despite the
fact that the plaintiffs did not submit comments to the Army during the PEIS process. (Id. at pp.
1091-1093.) Here, while federal case law interpreting NEPA may be “view[ed] as persuasive
authority when interpreting CEQA” (Western Placer Citizens for an Agricultural and Rural
Environment v. County of Placer (2012) 144 Cal. App. 4th 890, 902-903), none of the cases relied
upon by petitioners involved a challenge to the adequacy of findings. More persuasive is our
decision in People ex rel. California Regional Water Quality Control Bd. v. Barry (1987) 194
Cal. App. 3d 158, a case also relied upon by petitioners, in which we held the defendant therein
failed to exhaust administrative remedies with respect to his “claim that the regional board made
inadequate findings” because the error “was correctable by the state board, but [the defendant]
never tendered the issue to that board in his petition for review.” (Id. at pp. 178-179.) Similarly,
here, the alleged inadequacies in the CEQA findings were correctable by the Board in the
reconsideration petition. Because petitioners did not give the Board the opportunity to correct
the claimed error, they did not exhaust administrative remedies with respect to this claim.
This modification does not change the judgment.
The petition for rehearing is denied.
BUTZ , Acting P.J.
MURRAY , J.
HOCH , J.
2
Filed 5/19/15 (unmodified version)
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
BACKCOUNTRY AGAINST DUMPS et al.,
Plaintiffs and Appellants, C072073
v. (Super. Ct. No.
34201180000787CUWMGDS)
STATE WATER RESOURCES CONTROL
BOARD,
Defendant and Respondent;
SAN DIEGO GAS & ELECTRIC COMPANY,
Real Party in Interest and Respondent.
This is an action brought under the California Environmental Quality Act (CEQA)
(Pub. Resources Code, § 21000 et seq.).1 Backcountry Against Dumps, East County
Community Action Coalition, and Donna Tisdale (petitioners) challenge whether a water
1 Undesignated statutory references are to the Public Resources Code.
1
quality certification order (Order) issued by the State Water Resources Control Board
(Board) under section 401 of the Clean Water Act (CWA) (codified in 33 U.S.C.
§ 1341(a)(1)) certifying the construction and operation by real party in interest San Diego
Gas & Electric Company (SDG&E) of the Sunrise Powerlink Project (Sunrise Powerlink
or the Project) would comply with applicable provisions of the CWA, subject to various
conditions contained in the Order.2 Acting as a responsible agency under CEQA, the
Board reviewed the Sunrise Powerlink Final Environmental Impact Report/Final
Environmental Impact Statement (Final EIR/EIS), which was certified by the California
Public Utilities Commission (CPUC), as the lead agency under CEQA, and the federal
Bureau of Land Management (BLM), as the lead agency under the National
Environmental Policy Act (NEPA). The Board found the mitigation measures contained
in the Final EIR/EIS, supplemented by the conditions imposed by the Order, were
“adequate to reduce water quality impacts to less than significant levels.”
On appeal of the trial court’s denial of their petition for writ of mandate,
petitioners contend: (1) the Board “violate[d] CEQA when it issued a conclusory, one
and one-quarter page Findings that failed to: [(a)] recognize each significant effect of the
Project, (b) identify specific mitigation measures for each of those effects or explain why
mitigation was infeasible, and (c) reveal the specific bases for the Board’s approval”; and
(2) the Board “violate[d] its own regulations when it (a) failed to give [petitioners] proper
notice of the Order and (b) improperly denied [petitioners’] reconsideration petition as
‘untimely’ even though it was filed within 20 days after the Board belatedly gave [them]
2 A fourth petitioner, The Protect Our Communities Foundation (Protect Our
Communities), initially joined in this appeal. We dismissed the appeal, as to this
appellant only, after the parties executed and filed in this court a stipulation to dismiss the
appeal as to Protect Our Communities. (Cal. Rules of Court, rule 8.244(c).)
2
required notice and 30 days after the Order’s approval date published on the Board’s
website.”
We affirm the judgment. As we explain, with respect to the CEQA claim,
petitioners failed to exhaust administrative remedies. With respect to the notice claim,
the Board concedes it did not timely provide petitioners with notice of the Order and
then mistakenly rejected their reconsideration petition as untimely. However, when the
Board realized its mistake, it accepted the reconsideration petition, held a hearing, and
concluded the petition did not raise any substantial issues appropriate for review. At no
point during this process did petitioners challenge the Board’s findings as inadequate.
Accordingly, the notice claim was rendered moot by the Board’s acceptance and review
of the reconsideration petition. Nor were petitioners harmed by the Board’s admitted
mistake in not providing them with timely notice of the challenged Order.3
BACKGROUND
Proposed Project and Initial Environmental Review4
In 2005, SDG&E proposed construction of a 150-mile transmission line between
Imperial and San Diego Counties (Proposed Project). The Proposed Project “would
consist of a new 91-mile, single-circuit 500 kilovolt (kV) overhead electric transmission
3 SDG&E requests that we take judicial notice of a March 13, 2012, letter from
California Independent System Operator to SDG&E, a March 27, 2012, letter from
United States Nuclear Regulatory Commission to SDG&E, and two decisions issued
by the United States Court of Appeals for the Ninth Circuit. Because the information
contained in these materials is unnecessary to resolve the issues on appeal, we deny
the request. (See Maral v. City of Live Oak (2013) 221 Cal. App. 4th 975, 984, fn. 2.)
4 In light of the fact petitioners do not challenge the adequacy of the environmental
documents underlying the Board’s decision to issue the water quality certification order,
we decline to provide a detailed summary of these documents. We provide only as much
detail as required to give the reader an understanding of the background facts.
3
line between the existing Imperial Valley Substation (in Imperial County near the City
of El Centro) to a proposed new Central East Substation (in central San Diego County,
southwest of the intersection of County Highways S22 and S2). Between the proposed
new Central East Substation and SDG&E’s existing Peñasquitos Substation (in the City
of San Diego), SDG&E would construct a new 59-mile 230 kV double-circuit and single-
circuit transmission line, portions of which would be underground.” The 500 kV portion
of the line would travel the length of Anza-Borrego Desert State Park (Anza-Borrego), a
distance of about 25 miles. SDG&E filed a right-of-way grant application with BLM and
an application for a certificate of public convenience and necessity with CPUC.
Thereafter, SDG&E filed an amended application accompanied by a proponent’s
environmental assessment (PEA) for the Proposed Project.
In January 2008, a draft environmental impact report/environmental impact
statement (Draft EIR/EIS) was issued jointly by CPUC and BLM, as lead agencies under
CEQA and NEPA, respectively. The Draft EIR/EIS identified three basic objectives of
the Proposed Project: “maintain reliability in the delivery of power to the San Diego
region”; “reduce the cost of energy in the region”; and “accommodate the delivery of
renewable energy to meet State and federal renewable energy goals from geothermal and
solar resources in the Imperial Valley and wind and other sources in San Diego County.”
In more than 7,500 pages, the Draft EIR/EIS discussed the environmental setting and
impacts of the Proposed Project and 27 alternatives (i.e., 18 alternative route segments
along the Proposed Project route, 4 routes following portions of an existing southwest
powerlink, 2 non-wires alternatives, 2 alternatives including components of a Lake
Elsinore advanced pumped storage project (LEAPS), and a no project/no action
alternative), as well as connected and future foreseeable projects. A 90-day public
comment period on the Draft EIR/EIS ended in April 2008. The Board commented on
the Draft EIR/EIS with respect to impacts to water quality.
4
In July 2008, CPUC and BLM issued a recirculated draft environmental impact
report/supplemental draft environmental impact statement (Recirculated/Supplemental
Draft EIR/EIS) to address certain changes to a related wind project in northern Mexico.5
A 45-day public comment period on the Recirculated/Supplemental Draft EIR/EIS ended
in August 2008.
In October 2008, CPUC and BLM issued the Final EIR/EIS, consisting of the
Draft EIR/EIS, the Recirculated/Supplemental Draft EIR/EIS, comments received on
these documents, and responses to the comments. The Final EIR/EIS totaled over 11,000
pages. Adding to the analysis in the Draft EIR/EIS, the Final EIR/EIS evaluated and
compared the environmental impacts of eight transmission and/or generation alternatives.
The Final EIR/EIS also included a mitigation monitoring, compliance, and reporting
program (Mitigation Monitoring Program) with mitigation measures recommended for
the Proposed Project and all alternatives.
In December 2008, CPUC certified the Final EIR/EIS, granted SDG&E’s
application for a certificate of public convenience and necessity to construct Sunrise
Powerlink using one of the alternative routes analyzed in the Final EIR/EIS―the Final
Environmentally Superior Southern Route (Final Southern Route)―and adopted the
Mitigation Monitoring Program recommended for the Final Southern Route in the Final
EIR/EIS. BLM approved the Project the following month. With respect to
environmental impact, CPUC’s decision explained: “The Final EIR/EIS ranks the [Final
5 The Draft EIR/EIS assumed the wind project would generate approximately 250
megawatts (MW) of electricity based on an existing power purchase agreement.
However, a subsequent application for a presidential permit (APP) submitted to the
United States Department of Energy disclosed the project could generate approximately
1,250 MW of electricity. An addendum to the APP added construction of a new 230 kV
transmission line to the project.
5
Southern Route] fourth among all the alternatives studied . . . . Running a total of 123
miles, this alternative is substantially shorter than the Proposed Project or other Northern
Routes and avoids Anza-Borrego. It crosses 19.2 miles of National Forest land but does
so within acceptable land use zones and makes use of a Draft Department of Energy
Section 368 West-wide Energy Corridor. In addition, the alternative is collocated with
the Southwest Powerlink for only 36 miles, in an area of comparatively low fire risk. [¶]
The Final EIR/EIS modifies the route proposed in the Draft EIR/EIS to avoid both the
Campo and La Posta Reservations. . . . [¶] The [Final Southern Route] also contains
modifications to avoid Forest Service land use zones that do not allow transmission lines
or new access roads. Commission staff and BLM consulted extensively with the Forest
Service and SDG&E to identify route modifications within Cleveland National Forest to
minimize impacts to Forest Service resources and avoid incompatible land use zones.”
(Fns. omitted.)
CPUC’s decision further explained: “The Final EIR/EIS concludes that three
alternatives―the All-Source Generation Alternative, the In-Area Renewable Alternative,
and the LEAPS Transmission-Only Alternative―have fewer significant unmitigable
impacts than the [Final Southern Route]. However, we find that [these] alternatives . . .
are not feasible when we consider certain other considerations, including meeting
California’s broader policy goals.” One such goal was the achievement of greenhouse
gas (GHG) reductions through expanding the state’s renewable energy portfolio to
33 percent under the Renewables Portfolio Standard (RPS) in the shortest time with the
greatest economic benefits. CPUC explained, “[t]he three top ranked alternatives would
not facilitate even half the amount of renewable development that the [Final Southern
Route] will facilitate” and this route “will generate more economic benefits to ratepayers
than the top ranked alternatives.” CPUC concluded: “[T]he [Final Southern Route] will
facilitate our policy goal of renewable procurement at 33% RPS levels within a
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reasonable period of time with the greatest economic benefits at the lowest environmental
cost. While the Northern Routes analyzed in the EIR/EIS could achieve these benefits,
they would do so at significantly greater environmental expense.” CPUC also concluded
the Final Southern Route “will also provide unquantifiable benefits, including a more
robust southern California transmission system, long-term improvement of California’s
aging energy infrastructure, and insurance against unexpected high load growth in
SDG&E’s service area.”
In August 2009, Utility Consumers’ Action Network and Center for Biological
Diversity challenged CPUC’s decision under CEQA in a petition for writ of review filed
with the California Supreme Court. The petition was summarily denied.
Modification of the Project
Following approval of the Project, SDG&E began implementing the Mitigation
Monitoring Program, the final version of which was issued in April 2010, by conducting
pre-construction surveys and preparing the final design. Certain modifications to the
Project resulted from engineering requirements and from compliance with mitigation
measures contained in the Mitigation Monitoring Program, including resource avoidance
to minimize or avoid environmental impacts and relocation of project components to
accommodate landowner preferences.
In May 2010, SDG&E filed a Project Modification Report (PMR) with CPUC and
BLM. The PMR explained: “The modifications described in this PMR are the result of
SDG&E’s implementation of measures in the [Mitigation Monitoring Program] to avoid
and minimize impacts to sensitive resources, reduce or eliminate engineering constraints,
and accommodate landowner location preferences where possible. They include changes
in the alignment, placement of towers and poles, size and location of temporary work
areas, number and size of temporary construction yards, number and length of new access
roads, and construction methods (conventional or helicopter).” The modified project
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spanned a shorter distance (117 miles) than the Project approved by CPUC and BLM and
included fewer structures, wire stringing sites, new access roads, and construction yards.
The modified project also decreased the size of one of the substations. While the
modified project increased the number of tower staging access pads, this was due to an
increase in the number of transmission towers that would be built by helicopter to allow
for fewer new access roads and less ground disturbance. The modified project also
increased the number of reconductoring replacement poles due to upgrades that were
approved as part of the Final Southern Route. The PMR concluded the modified project
“would reduce but not eliminate significant impacts associated with the [Final Southern
Route] and would not result in any new significant impacts.”
In September 2010, CPUC determined the proposed modifications did not
require supplemental environmental review under CEQA because there were no
“new significant impacts or impacts that are more severe than those disclosed in the
Final EIR/EIS used to approve the [Final Southern Route].” BLM reached the same
conclusion under NEPA.
With respect to impacts to jurisdictional waters, CPUC and BLM explained: “As
stated in Section D.2.6 [of the Final EIR/EIS], Jurisdictional Waters and Wetlands,
impacts to jurisdictional areas were not clearly defined until a final route was selected
that includes project-specific features and final engineering. At that time, a formal
delineation was conducted to determine those impacts so that SDG&E could apply for
permits from the [appropriate entities, including the Board]. Since a formal delineation
had not been conducted at the time of publication of the [Final EIR/EIS], the precise
presence and extent of waters and wetlands was unknown. However, the [Final EIR/EIS]
considered impacts to [a variety of] vegetation communities that generally occur in
jurisdictional areas . . . . [¶] Impacts to jurisdictional waters were considered significant
but mitigable for the [Final Southern Route]. Mitigation Measure B-1c, Conduct
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biological monitoring, and B-2a, Provide restoration/compensation for affected
jurisdictional areas, identified in the Final EIR/EIS for this impact would also be required
for the modified project and would be adequate to ensure that impacts to jurisdictional
waters would still be Class II consistent with the Final EIR/EIS. Overall, permanent
impacts to waters of the U.S. were reduced from 14.49 acres with the [Final Southern
Route] to 3.77 acres with the modified project. Temporary impacts to waters of the U.S.
were reduced from 80.21 acres with the [Final Southern Route] to 11.02 acres with the
modified project. Permanent impacts to waters of the State were reduced from 15.39
acres with the [Final Southern Route] to 4.14 acres with the modified project, and
temporary impacts were reduced from 82.81 acres with the [Final Southern Route] to
12.01 acres with the modified project.”
In March 2011, Center for Biological Diversity and petitioners herein challenged
CPUC’s decision to forego preparation of a supplemental or subsequent EIR (SEIR) to
address the aforementioned modifications in a petition for writ of review, mandamus or
other appropriate relief filed with the California Supreme Court. This petition was also
summarily denied.
Water Quality Certification
In October 2009, after the Project was approved and before issuance of the PMR,
SDG&E filed an application with the Board for a water quality certification under
section 401 of the CWA.6 The Board forwarded a copy of the application to petitioners,
who submitted a comment letter arguing: the Board should delay decision on the
certification application until all pending lawsuits are resolved; the application did not
6 Under section 401 of the CWA, any applicant for a federal license or permit to
conduct any activity that may result in a discharge into navigable waters must provide the
federal licensing agency with a certification from the appropriate authority (in this case,
the Board), that the discharge will comply with federal water pollution control statutes.
9
adequately address concerns regarding stormwater runoff and failed to present adequate
information regarding proposed permanent pull sites, temporary construction and
maintenance pads, and impacts to endangered and threatened species; certain portions of
the application were inconsistent with the United States Fish and Wildlife Service’s
Biological Opinion for the Project; and a map of past and future projects was incomplete.
In August 2010, after the PMR was filed with CPUC, SDG&E filed a revised application
for the water quality certification with the Board.
In November 2010, after CPUC determined the modifications in the PMR did not
require supplemental environmental review under CEQA, the Board issued the Order
granting the requested water quality certification, subject to 35 conditions.7 The Order
7 In addition to 3 standard and 11 administrative conditions, the Order imposed the
following 21 conditions:
“1. Construction and operation of the Project shall adhere to all Mitigation
Measures . . . found in the [Final EIR/EIS] issued October 17, 2008. . . . Changes to the
[Final EIR/EIS] that may affect the [Board’s] findings pursuant to CEQA, shall result in
additional review, and possible modification, revocation, or denial of certification.
“2. Construction, operation, documentation and reporting for the Project shall
be in compliance with the [Mitigation Monitoring Program], dated April 1, 2010, and any
subsequent revisions to the [Mitigation Monitoring Program] that may be prepared in
order to correct minor inconsistencies, typographical errors, etc. SDG&E is responsible
for successfully implementing all the adopted mitigation measures in the [Mitigation
Monitoring Program].
“3. . . . [T]he Contact List containing all contact information for all key Project
personnel for all Project segments, including all environmental monitors, shall be
provided to the [Board]. No work on the Project that may result in a discharge to a water
of the State shall be permitted until the Contact List is received by the [Board]. The
[Board] shall be provided with any update to this Contact List in a timely manner as
personnel changes occur.
10
“4. . . . [I]f an unplanned construction activity violates, or threatens to violate,
water quality standards, SDG&E shall cause work to be stopped in that area immediately
(as long as it can be done safely) until the [Board] can be contacted to resolve the
potential violation.
“5. . . . [E]mergency repairs may be required during the construction and
maintenance of the Project to address situations that potentially or immediately threaten
the integrity of the Project facilities. For response to emergencies that affect or have the
potential to affect waters of the State, all applicable communication protocols and
[mitigation measures] shall be followed to the fullest extent practicable. Once the
emergency has abated, any unavoidable environmental damage shall be reported to the
Project biological construction monitor, who shall notify the [Board] within 24 hours. If
required by the [Board], SDG&E shall develop an emergency response plan following
cessation of the emergency in order to mitigate for any significant water quality effects
caused by the emergency response consistent with all applicable MMs and any permits
issued for the Project.
“6. . . . [A] General Permit for Storm Water Discharges Associated with
Construction Activity (NPDES permit) authorization . . . shall be obtained. No work on
the Project that may result in a discharge to a water of the State shall be permitted until
this authorization is obtained. SDG&E shall establish and implement a Stormwater
Pollution Prevention Plan or plans (SWPPP), to minimize the hydrologic impacts of
Project. Construction of the Project shall be conducted in compliance with all SWPPPs
submitted by SDG&E for the Project.
“7. Compensatory mitigation for effects due to the construction and operation
of the Project . . . shall be guided by, documented, and reported in compliance with Final
Project Habitat Mitigation and Monitoring Plans (HMMPs) to be approved by the
[Board] and other relevant state and federal agencies. State and federal regulations
require mitigation for impacts to waters of the State, including waters of the U.S. The
Final HMMP will describe how the mitigation will be accomplished, including
preservation, restoration and enhancement activities, monitoring and performance
criteria, and management of compensatory mitigation areas.
“Pending approval of the Final HMMPs, the Conceptual HMMP revised October
2010, including all attachments and appendices, shall be accepted as a provisional
HMMP for the Project, in consideration of the complexity of the ongoing transactions
and planning associated with the proposed compensatory mitigation properties.
Substantial changes to the Conceptual HMMP’s provisions may result in additional
review period, and modification, suspension, or denial of certification.
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“All details for the Final HMMPs, except those specified in Condition 8 below,
shall be submitted to the [Board] within 120 days of the issuance of this Certification
unless an extension is requested by SDG&E and granted by the [Board] before the 120
days have expired. Failure to meet this deadline may result in revocation of this
Certification. . . .
“8. Property and interests in real property obtained for compensatory
mitigation shall be subject to approval by the [Board]. Management plans, as
presented in the HMMPs for each parcel proposed as compensatory mitigation, will be
subject to approval by the [Board]. These plans will, at a minimum, provide detailed
information of the following:
“a. Mitigation objectives, including a summary of the aquatic resource type,
and acreage and/or stream reach length to be provided, the method of compensation (i.e.,
restoration, establishment, enhancement, and/or preservation), and the manner in which
the project will properly function within a watershed to offset permitted impacts to waters
of the State.
“b. Compensation Plan’s scope of work.
“c. Method(s) of site protection through legal and real estate arrangements and
instruments.
“d. Access to all mitigation sites for vector control purposes, if deemed
necessary by the appropriate vector control agency, and for on-going maintenance and
mitigation compliance review by authorized staff of any regulatory agencies.
“e. Complete baseline information of all sites, including a full description of
the sites’ resources and ecological conditions, contributions to water quality and a
description of how unavoidable impacts are offset by the acquisition and management of
the sites.
“f. Performance standards, including documentation of the sites’ maintenance
and improvement of ecological and hydrologic functions.
“g. Plans for maintenance and long-term management, including a schedule
and work plan of sufficient detail to ensure that all actions needed for accomplishment of
site management goals are planned and implemented.
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“h. A site monitoring plan of sufficient detail and duration to provide a record
of the condition of the sites over time. The monitoring plan will account for all
personnel, equipment and actions needed to observe, document and report in perpetuity
all site characteristics which are intended to provide compensation for ecological and
hydrological services lost due to Project construction and operation. The monitoring plan
will specify the level and frequency of monitoring to be conducted at the sites. The
monitoring plan will include an adaptive management element to provide for orderly
management response to problems and changing conditions.
“i. Budget projections to ensure that site endowments are sufficient to provide
for all necessary expenses entailed in the implementation of the plan.
“j. Specification, in detail, of all financial assurances proposed to ensure
implementation of all of the plans’ elements in perpetuity.
“k. Any additional information deemed necessary by the [Board] or other
relevant state or federal Agency.
“The Final HMMPs shall be submitted to the [Board] within 12 months of the
issuance of this Certification unless an extension is requested by the SDG&E and granted
by the [Board] before the 12 months have expired. Failure to meet this deadline may
result in revocation of this Certification. . . .
“Full title and ownership or land transfer agreements for all compensatory
mitigation properties shall be finalized before energization of Sunrise Powerlink
Transmission Line, unless an extension is requested by the SDG&E and granted
by the [Board]. . . .
“9. Compensation for Permanent and Temporary Impacts: The compensatory
mitigation ratio for permanent and temporary impacts to waters of the State shall
be as shown in Tables 1 and 2 below. [Tables omitted.] Exact mitigation ratios achieved
under the Final HMMPs may vary slightly, but shall not be substantially lower than those
presented in this Certification. Details for compliance with this condition shall be
specified in the Final HMMPs as described in Conditions 7 and 8. [¶] . . . [¶]
“10. [A]ny impacts associated with unauthorized activity (e.g., exceeding
approved construction footprints into a wetland) shall be mitigated at a 5:1 ratio (all ratios
are expressed as mitigation: impact), except in Flat-Tailed Horned Lizard Management
Areas (FTHL MA) where a ratio of 5.5:1 shall apply. Restoration of the unauthorized
impacts shall be credited at a 1:1 ratio (i.e., mitigated by in-place habitat restoration); the
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remaining 4:1 (or 4.5:1 in FTHL MA) shall be acquired off-site as restoration or
enhancement mitigation sites. If, preservation sites are offered as off-site compensatory
mitigation for unauthorized activity, the minimum acceptable ratio shall be 11:1. Details
for compliance with this Condition shall be specified in the final HMMP as described
in Conditions 7 and 8.
“11. Parcels proposed for compensatory mitigation through preservation must
meet the criteria found in the Code of Federal Regulations, title 33, section 332.3(h).
“12. Where on-site restoration of vegetation and landforms are planned, SDG&E
shall identify a qualified Habitat Restoration Specialist who shall prepare a Habitat
Restoration Plan . . . . The Habitat Restoration Plan shall be subject to approval by the
[Board]. SDG&E shall be responsible for the implementation of the Habitat Restoration
Plan.
“13. Construction and operation of Project shall comport with the ‘2009/2010
Weed Control Plan for the Environmentally Superior Southern Route of the SDG&E
Sunrise Powerlink Project’ as prepared by RECON Environmental, dated September 2,
2009 . . . .
“14. All construction, maintenance, and removal of roads shall be conducted in a
manner tha[t] avoids and minimizes road-related erosion and hydromodification. At a
minimum, road construction and maintenance for the Project shall be conducted in
accordance with [various specified documents].
“Road construction, maintenance, or removal specifications that may be
conditions of the U.S. Forest Service Special Use Permit or the [BLM] Right of Way
Grant shall super[s]ede documents cited above in condition 14.
“Any specifications found in the documents cited above in condition 14 which
may be at variance with the mitigation measures specified in the [Final EIR/EIS] or the
conditions of this Certification Order shall be superseded by those mitigation measures or
conditions.
“15. Through-cut roads can be a significant source of discharge of fill into
streams and wetlands. (Through-cut roads are roads of any gradient, with or without
sideboard ditches on one or both sides, with a running surface that is lower than the
surrounding terrain on both sides of the road.) . . . Drainage for through-cut roads shall be
as specified for water bars for all roads in the Sunrise Basis of Design Road Report . . . .
When a need is encountered for construction or maintenance of new or existing through-
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certified that “as long as all of the conditions listed in this Certification or incorporated
by reference are met, any discharge from the Project will comply with the applicable
cut roads of any gradient that are not described in [that report], the [Board] shall be
notified of the circumstance and provided with a description of the site and the provisions
for drainage of the site for approval.
“16. To avoid potential adverse effects to watershed functions by the Project’s
temporary and permanent access roads, structure pads and other facilities, . . . historic
runoff patterns shall be maintained where possible.
“17. Appropriate soil erosion prevention and control Best Management
Practices [(BMPs)] shall be implemented throughout the construction and maintenance of
the Project. Erosion control BMPs shall be implemented to the minimum standards
presented in the SDG&E Water Quality Construction Best Management Practices
Manual.
“18. The discharge of petroleum products or other pollutants to surface waters
that may result in violation of water quality standards is prohibited. Activities shall not
cause visible oil, grease, or foam in the work area or downstream.
“19. Fueling, lubrication, maintenance, storage, and staging of vehicles and
equipment shall not occur in or within 200 feet of any waters of the State or any area that
could affect a water of the State. Fueling, lubrication, maintenance, storage, and staging
of vehicles, and equipment shall not result in a discharge or a threatened discharge to any
waters of the State.
“20. Variances for minor changes to the approved Project plans issued according
to the procedures specified in the [Mitigation Monitoring Program] shall be recognized
by this Certification Order as part of the Project. Mitigation for impacts to waters of the
State that may occur as a result of approved variances shall be provided according to the
[Mitigation Monitoring Program], HMP, and all conditions of this Certification Order.
Accounting of any additional or new permanent or temporary impacts to waters of the
State which may have occurred as a result of approved variances shall be provided at the
end of construction so that appropriate mitigation can be obtained and documented.
“21. Reporting -- Notifications and reports shall be directed to: Program
Manager, Certification and Wetlands Program at the . . . State and appropriate Regional
Water Board offices.”
15
provisions of [CWA] sections 301 (Effluent Limitations), 302 (Water Quality Related
Effluent Limitations), 303 (Water Quality Standards and Implementation Plans), 306
(National Standards of Performance), and 307 (Toxic and Pretreatment Effluent
Standards).” The Order also explained the certification would “serve as Waste Discharge
Requirements pursuant to the Porter-Cologne Water Quality Control Act.”
In an attachment to the Order, the Board “determined that different or additional
mitigation measures would not substantially lessen or avoid any significant effect of the
Project on water quality” and the “mitigation measures for significant and potentially
significant water quality impacts in the [Final EIR/EIS], supplemented with the
provisions in the [Order], are adequate to reduce water quality impacts to less than
significant levels.”
The Board also made the following findings: “On December 18, 2008, the
[CPUC], as lead agency, certified the [Final EIR/EIS] for the Project in accordance with
[CEQA]. The [Board], as a responsible agency, consulted with the CPUC, reviewed and
submitted comments on the draft environmental document, and designated appropriate
staff to attend meetings and coordinate with the CPUC. In making its determinations and
findings, the [Board] must presume that the [Final EIR/EIS] comports with the
requirements of CEQA and is valid. [Citation.] As such, the [Board] has reviewed and
considered the environmental documents and all proposed mitigation measures. [¶] . . .
[¶] The [Project] will cause permanent impact to waters of the State by filling one
wetland area, building numerous access roads which cross streams, and by constructing
numerous tower pads in or immediately adjacent to streams. The Project will also cause
temporary impacts to waters of the State by the installation of numerous temporary
construction areas, temporary fly yards, and temporary access road crossings of streams.
Potential temporary impacts from construction activities, such as spills and leaks, could
also occur. [¶] Avoidance and minimization mitigation measures for significant and
16
potentially significant water quality impacts that will or could arise as a result of these
activities include development of a Construction Stormwater Pollution Prevention Plan
(SWPPP) with accidental spill control procedures, establishment of an environmental
training program, adoption of BMPs for prevention and control of erosion, and
development of a Habitat Mitigation and Monitoring Plan. Avoidance and minimization
measures also include Project routing adjustments to minimize or eliminate numerous
stream crossings. [¶] Compensatory mitigation for significant and potentially significant
water quality impacts includes the acquisition of four properties and funding for transfer
of ownership of existing State lands to Anza Borrego State Park for preservation as park
land designated for protection of wildlife habitats (the primary beneficial use affected by
project impacts to dry washes). Funding for management of all sites in perpetuity is also
provided for all mitigation sites, as specified in site-specific Habitat Management Plans
for all compensatory mitigation sites that are to be developed.”
Petition for Reconsideration
The challenged Order was signed on November 9, 2010. The following day,
David Hogan, staff biologist with Protect Our Communities, sent an e-mail to Clifford
Harvey, the Board’s environmental scientist and staff contact for the Sunrise Powerlink
certification process, asking about the status of SDG&E’s application for water quality
certification. Harvey responded the same day and advised Hogan that “the technically
conditioned 401 certification for the Sunrise Project has been signed” and would be
distributed “to the applicant, other interested regulatory agencies and for public release . .
. early next week.” As promised, on November 15, 2010, the Board sent the Order to
SDG&E and to various interested entities, but did not send the Order to petitioners. On
November 30, 2010, in another e-mail, Harvey advised Hogan the Order was posted on
the Board’s Website. On December 20, 2010, petitioners submitted a petition for
reconsideration with the Board, which was rejected as untimely because it was submitted
17
more than 30 days after the challenged Order was signed. (See Cal. Code Regs., tit. 23, §
3867, subd. (c).)
The Board filed a notice of determination on January 11, 2011, which was revised
January 13, 2011. Petitioners responded on February 7, 2011, by filing the present
CEQA action with the trial court. Thereafter, on March 28, 2011, the Board rescinded
the previous rejection of the reconsideration petition. In a letter to petitioners’ attorney,
the Board’s assistant chief counsel explained: “I believed that the [Board] had sent notice
of the certification action to all interested parties within three days of the certification
action, as required by California Code of Regulations, title 23, section 3859,
subdivision (a). You subsequently filed a [CEQA action], in which you alleged that the
[Board] had failed to send notice of the certification action to interested parties. As I was
unaware of any failure to send notice of the certification action when I rejected the
petition for reconsideration, I have reconsidered the timeliness issue and have concluded
that I will tentatively treat the petition for reconsideration as having been timely
submitted.”
The reconsideration petition challenged the Order under the California Code of
Regulations, title 23, section 3856(f), which states that “the certifying agency shall be
provided with and have ample time to properly review a final copy of valid CEQA
documentation before taking a certification action.” Petitioners argued, “the [Final
EIR/EIS] is inadequate under CEQA and does not constitute a valid CEQA document on
which the Board may rely. Not only does the [Final EIR/EIS] fail to comply with CEQA
with respect to [Sunrise Powerlink] as it was defined in the [Final EIR/EIS], it fails to
describe and analyze the environmental impacts of the project in its current form, after its
transformation by the PMR.” Petitioners continued: “CEQA requires agencies to
prepare an SEIR if ‘substantial changes are proposed in the project’ or ‘substantial
changes occur with respect to the circumstances under which the project is being
18
undertaken’ and either of these ‘will require major revisions in the environmental impact
report.’ [Citations.] An SEIR is also required where new information that could not have
been previously known subsequently becomes available. [Citation.] The modified
Project involves a multitude of significant new changes, circumstances, and information,
thus requiring an SEIR.” Thus, argued petitioners, “the Board’s Order providing water
quality certification for [Sunrise Powerlink] was improper and should be rescinded”
because “the Board was not provided with a valid CEQA document, let alone given
ample time to properly review it.”
In September 2011, the Board sent petitioners a draft order on the reconsideration
petition which, when approved, would dismiss the petition “for failure to raise any
substantial issue appropriate for review.” The draft order stated petitioners’ contention to
be “that the Executive Director’s issuance of the water quality certification was in error[]
because it was done [in] reliance [on] a flawed, insufficient environmental impact report
and that the [Board] should have required the [CPUC] to prepare [an SEIR] due to
modifications made to the Project’s route and methods by which the Project will be
constructed.” The draft order then explained: “The CPUC’s [Final EIR/EIS] contained
over 120 mitigation measures, many of which required avoidance and minimization of
environmental effects. After the [Final EIR/EIS’s] adoption, SDG&E completed the
engineering and design of the Project. In compliance with the [Final EIR/EIS’s]
mitigation measures, the Project’s route and construction methods were altered in order
to avoid or minimize environmental impacts. SDG&E submitted these changes to the
CPUC in a [PMR] on May 14, 2010. Though not required, the CPUC publicly noticed
and accepted comments on the PMR. The CPUC published its final analysis of the PMR
in a Project Modifications Report Memorandum (Memorandum) in September 2010. The
Memorandum analyzed each modification, both collectively and individually, and
concluded that no supplemental environmental review was necessary. [¶] The Division
19
of Water Quality staff reviewed and considered the [Final EIR/EIS], the PMR, and the
Memorandum along with numerous other documents when it drafted the water quality
certification and recommended it be signed by the Executive Officer. In response to the
petition for reconsideration, the Office of Chief Counsel and Division of Water Quality
have again reviewed the administrative record in this matter, along with the Petitioners’
allegations and SDG&E’s response to the petition. The [Board] has complete discretion
to determine whether a petition raises substantial issues that are appropriate for review,
and to dismiss petitions that fail to raise such issues. We have concluded that the petition
for reconsideration does not raise any substantial issues appropriate for review.” (Fn.
omitted.)
In response, petitioners submitted comments accusing the Board of “a long list of
dismissive and disingenuous actions apparently intended to stifle [their] ability to voice
their concerns about the [Project],” including the failure to send the water quality
certification to petitioners and the initial rejection of the reconsideration petition as
untimely. With respect to the Board’s conclusion that the petition failed to raise any
substantial issues appropriate for review, petitioners argued: “[T]he Board was not
provided with a valid CEQA document because the Project was substantially and
repeatedly modified after its [Final EIR/EIS] was prepared. The lack of a valid CEQA
document is a substantial issue warranting the Board’s review. [¶] The importance of the
Board’s proper CEQA review is underscored by the significant environmental impacts
that the Project will have. As the Board’s own CEQA Findings for the [Project] admit,
the Project would have numerous substantial, permanent impacts on water resources: [¶]
[‘]The [Project] will cause permanent impact to waters of the State by filling one wetland
area, building numerous access roads which cross streams, and by constructing numerous
tower pads in or immediately adjacent to streams. The Project will also cause temporary
impacts to waters of the State by the installation of numerous temporary construction
20
areas, temporary fly yards, and temporary access road crossings of streams. Potential
temporary impacts from construction activities, such as spills and leaks, could also
occur.[’] [¶] The Project’s significant environmental degradation, the [Final EIR/EIS’s]
notable errors and omissions, and the Board’s consequent failure to adequately address
and mitigate the Project’s impacts, present substantial issues appropriate for the Board’s
review.”
On October 4, 2011, the Board held a hearing on the reconsideration petition. At
no point during the hearing did counsel for petitioners argue the Board’s CEQA findings
were inadequate. The Board adopted the order dismissing the petition for
reconsideration.
CEQA Action
As previously stated, petitioners filed this CEQA action in the trial court on
February 7, 2011. The operative first amended petition for writ of mandate and
complaint for declaratory and injunctive relief asserted two causes of action. In the first,
petitioners sought to set aside the Board’s decision to reject their reconsideration petition
as untimely. In the second, petitioners sought to set aside the Order issuing the water
quality certification, alleging: (1) “the [Final EIR/EIS] is gravely inadequate because it
lacks biological and hydrological surveys and other environmental information necessary
to accurately evaluate and mitigate the Project’s impacts”; (2) CPUC “must prepare [an
SEIR]” because “substantial new information has become available and substantial
changes in the Project and the circumstances surrounding it have occurred since the
[Final EIR/EIS] was certified and CPUC approved the Project”; and (3) “[t]he Board’s
CEQA findings for the [Project] are inadequate. The Board fails to identify and issue a
separate finding for each significant effect of the Project, as required. Instead, in its
paltry one-and-a-quarter page findings, the Board cursorily lists some of the Project’s
water-related impacts and then, in a separate paragraph, lists some of the mitigation
21
measures that would be used to reduce or avoid the impacts. Further, the Board does not
specify which measures are intended to mitigate which impacts, or how they would do
so.” Petitioners’ allegations concerning the adequacy of the Final EIR/EIS and CPUC’s
failure to prepare an SEIR for the Project are not relevant to the contentions raised on
appeal and will not be further discussed.
The matter was heard on July 6, 2012. After entertaining oral argument, the trial
court took the matter under submission. On July 26, 2012, the trial court denied the
petition. The trial court concluded petitioners’ first cause of action was moot because,
after petitioners filed the present petition seeking a writ of mandate directing the Board to
decide the reconsideration petition, the Board acknowledged it erroneously rejected this
petition as untimely, held a hearing, and rendered a decision. With respect to the second
cause of action, the trial court concluded petitioners’ claim that the Board’s CEQA
findings were inadequate was “barred due to [their] failure to exhaust administrative
remedies,” explaining: “Petitioners failed to challenge the adequacy of the [Board’s]
findings at the administrative level, despite having several opportunities to do so.”
DISCUSSION
I
Failure to Exhaust Administrative Remedies
Petitioners contend the Board “violate[d] CEQA when it issued a conclusory, one
and one-quarter page Findings that failed to: [(a)] recognize each significant effect of the
Project, (b) identify specific mitigation measures for each of those effects or explain why
mitigation was infeasible, and (c) reveal the specific bases for the Board’s approval.” We
conclude petitioners failed to exhaust their administrative remedies with respect to this
claim.
22
A.
The Exhaustion Doctrine
“Exhaustion of administrative remedies is a jurisdictional prerequisite to
maintenance of a CEQA action.” (Bakersfield Citizens for Local Control v. City of
Bakersfield (2004) 124 Cal. App. 4th 1184, 1199; see § 21177.) “ ‘In brief, the rule is that
where an administrative remedy is provided by statute, relief must be sought from the
administrative body and this remedy exhausted before the courts will act.’ [Citation.]
The rule is a jurisdictional prerequisite in the sense that it ‘is not a matter of judicial
discretion, but is a fundamental rule of procedure laid down by courts of last resort,
followed under the doctrine of stare decisis, and binding upon all courts.’ [Citations.]”
(Citizens for Open Government v. City of Lodi (2006) 144 Cal. App. 4th 865, 874.)
Section 21177 codifies the doctrine for CEQA. Subdivision (a) of this section provides:
“No action or proceeding may be brought pursuant to Section 21167 unless the alleged
grounds for noncompliance with this division were presented to the public agency orally
or in writing by any person during the public comment period provided by this division
or prior to the close of the public hearing on the project before the issuance of the notice
of determination.” (§ 21177, subd. (a).) Thus, “the issues raised before a court must first
have been raised during the administrative process, although not necessarily by the
person who subsequently seeks judicial review.” (Citizens for Open Government v. City
of Lodi, supra, 144 Cal.App.4th at p. 875.)
Section 21177, subdivision (b), also provides: “No person shall maintain an action
or proceeding unless that person objected to the approval of the project orally or in
writing during the public comment period provided by this division or prior to the close
of the public hearing on the project before the filing of the notice of determination.”
Thus, “the availability of judicial review is restricted to parties who have objected to the
agency’s approval of the project.” (Citizens for Open Government v. City of Lodi, supra,
23
144 Cal.App.4th at p. 875.) Here, there is no dispute that petitioners objected to the
Board’s issuance of the Order granting the water quality certification. The question is
whether they, or anyone else, raised the adequacy of the Board’s CEQA findings as an
issue at the administrative level.
“The rationale for exhaustion is that the agency ‘ “is entitled to learn the
contentions of interested parties before litigation is instituted. If [plaintiffs] have
previously sought administrative relief . . . the [agency] will have had its opportunity to
act and to render litigation unnecessary, if it had chosen to do so.” ’ [Citation.]” (Mani
Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal. App. 4th 1385, 1394-
1395.) The doctrine also serves “ ‘ “to lighten the burden of overworked courts in cases
where administrative remedies are available and are as likely as the judicial remedy to
provide the wanted relief.” [Citation.] Even where the administrative remedy may not
resolve all issues or provide the precise relief requested by a plaintiff, the exhaustion
doctrine is still viewed with favor “because it facilitates the development of a complete
record that draws on administrative expertise and promotes judicial efficiency.”
[Citation.] It can serve as a preliminary administrative sifting process [citation],
unearthing the relevant evidence and providing a record which the court may review.
[Citation.]’ [Citation.]” (Sierra Club v. San Joaquin Local Agency Formation Com.
(1999) 21 Cal. 4th 489, 501.)
“The ‘exact issue’ must have been presented to the administrative agency to
satisfy the exhaustion requirement. [Citation.] However, ‘less specificity is required to
preserve an issue for appeal in an administrative proceeding than in a judicial proceeding’
because, although not the case here, parties in such proceedings generally are not
represented by counsel. [Citation.]” (Mani Brothers Real Estate Group v. City of Los
Angeles, supra, 153 Cal.App.4th at pp. 1394-1395.) Nevertheless, “comments must be
‘sufficiently specific so as to allow the [a]gency the opportunity to evaluate and respond
24
to them.’ [Citation.]” (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd.
of Directors (2013) 216 Cal. App. 4th 614, 631.)
“ ‘The petitioner bears the burden of demonstrating that the issues raised in the
judicial proceeding were first raised at the administrative level. [Citation.]’ [Citation.]
An appellate court employs a de novo standard of review when determining whether the
exhaustion of administrative remedies doctrine applies. [Citation.]” (Sierra Club v. City
of Orange (2008) 163 Cal. App. 4th 523, 535-536.)
B.
Analysis
Petitioners have not met their burden. “Consideration of whether . . . exhaustion
has occurred in a given case will depend upon the procedures applicable to the public
agency in question.” (City of Sacramento v. State Water Resources Control Bd. (1992) 2
Cal. App. 4th 960, 969.) Here, the Board acted as a “Responsible agency” in approving
the Sunrise Powerlink (see § 21069), and was obligated to consider the Final EIR/EIS
certified by CPUC, the “Lead agency” under CEQA (see § 21067), before doing so.
(§ 21061 [“environmental impact report . . . shall be considered by every public agency
prior to its approval or disapproval of a project”]; Cal. Code Regs., tit. 14, § 15096,
subd. (a) [“responsible agency complies with CEQA by considering the EIR or negative
declaration prepared by the lead agency and by reaching its own conclusions on whether
and how to approve the project involved”].)
The Board’s approval came in the form of the Order issuing the water quality
certification. As previously stated, the Board forwarded a copy of SDG&E’s application
for the certification to petitioners, who submitted a comment letter in response.
Obviously, petitioners’ comment on SDG&E’s application did not challenge the
adequacy of the Board’s CEQA findings, as the Board had not yet made any findings.
25
When the Board issued the water quality certification, with attached CEQA
findings, petitioners filed a petition for reconsideration. (See Cal. Code Regs., tit. 23,
§ 3867.) The reconsideration petition challenged the Order under the California Code of
Regulations, title 23, section 3856, subdivision (f), which states that “the certifying
agency shall be provided with and have ample time to properly review a final copy of
valid CEQA documentation before taking a certification action.” Petitioners argued,
“the [Final EIR/EIS] is inadequate under CEQA and does not constitute a valid CEQA
document on which the Board may rely. Not only does the [Final EIR/EIS] fail to
comply with CEQA with respect to [Sunrise Powerlink] as it was defined in the [Final
EIR/EIS], it fails to describe and analyze the environmental impacts of the project in its
current form, after its transformation by the PMR.” Petitioners continued: “CEQA
requires agencies to prepare an SEIR if ‘substantial changes are proposed in the project’
or ‘substantial changes occur with respect to the circumstances under which the project is
being undertaken’ and either of these ‘will require major revisions in the environmental
impact report.’ [Citations.] An SEIR is also required where new information that could
not have been previously known subsequently becomes available. [Citation.] The
modified Project involves a multitude of significant new changes, circumstances, and
information, thus requiring an SEIR.” Thus, argued petitioners, “the Board’s Order
providing water quality certification for [Sunrise Powerlink] was improper and should be
rescinded” because “the Board was not provided with a valid CEQA document, let alone
given ample time to properly review it.”
Even giving this argument a generous interpretation (see Porterville Citizens for
Responsible Hillside Development v. City of Porterville (2007) 157 Cal. App. 4th 885,
910), the reconsideration petition does not raise a challenge to the adequacy of the
Board’s CEQA findings “ ‘so as to allow the [Board] the opportunity to evaluate and
respond to [such a challenge.]’ ” (North Coast Rivers Alliance v. Marin Municipal Water
26
Dist. Bd. of Directors, supra, 216 Cal.App.4th at p. 631.) Instead, it challenges the
adequacy of the Final EIR/EIS, the failure of CPUC to prepare an SEIR following
modification of the Project, and the concomitant failure of the Board to review such an
SEIR before issuing its Order. Nor was an argument challenging the adequacy of the
Board’s CEQA findings made at the hearing on the reconsideration petition. Moreover,
while this issue need not have been raised by petitioners if sufficiently raised by someone
else (§ 21177, subd. (a)), petitioners do not argue on appeal that someone else raised the
issue of the adequacy of the Board’s CEQA findings at the administrative level. We must
therefore conclude petitioners failed to exhaust their administrative remedies with respect
to this claim.
Nevertheless, petitioners argue that because the California Code of Regulations
provides that “[a]n aggrieved person may petition the [Board] to reconsider an action”
(Cal. Code Regs., tit. 23, § 3867, subd. (a), italics added), the reconsideration petition
was not required prior to filing the CEQA action. In support of this argument, petitioners
cite Sierra Club v. San Joaquin Local Agency Formation Com., supra, 21 Cal. 4th 489,
which held: “We hereby overrule [Alexander v. State Personnel Board. (1943) 22 Cal. 2d
198], and hold that, subject to limitations imposed by statute, the right to petition for
judicial review of a final decision of an administrative agency is not necessarily affected
by the party’s failure to file a request for reconsideration or rehearing before that
agency.” (Id. at p. 510.) However, the decision states immediately thereafter “this
conclusion does not mean the failure to request reconsideration or rehearing may never
serve as a bar to judicial review. Such a petition remains necessary, for example, to
introduce evidence or legal arguments before the administrative body that were not
brought to its attention as part of the original decisionmaking process. . . . Likewise, a
rehearing petition is necessary to call to the agency’s attention errors or omissions of fact
or law in the administrative decision itself that were not previously addressed in the
27
briefing, in order to give the agency the opportunity to correct its own mistakes before
these errors or omissions are presented to a court.” (Ibid.)
Here, petitioners did file a petition for reconsideration, but did not call to the
Board’s attention the adequacy of the CEQA findings in order to give the Board the
opportunity to correct the purported inadequacies. Thus, reconsideration was not
requested as to that issue. We need not decide whether the above-quoted limitation on
the court’s holding in Sierra Club v. San Joaquin Local Agency Formation Com.,
supra, 21 Cal. 4th 489, is itself a holding or merely dictum (see People v. Ranscht (2009)
173 Cal. App. 4th 1369, 1376 (dis. opn. of Benke, J.) [disagreeing with majority’s
conclusion that an express limitation placed by our Supreme Court on a prior holding
was dictum]) because, “[e]ven if properly characterized as dictum, statements of the
Supreme Court should be considered persuasive.” (United Steelworkers of America v.
Board of Education (1984) 162 Cal. App. 3d 823, 835; Hubbard v. Superior Court
(1997) 66 Cal. App. 4th 1163, 1169.) The court’s statement regarding the need to call to
the agency’s attention errors or omissions in an administrative decision before
challenging that decision in the courts was not “inadvertent, ill-considered or a matter
lightly to be disregarded.” (Jaramillo v. State of California (1978) 81 Cal. App. 3d 968,
971.)8
8 Petitioners also argue: “Although a plaintiff may not raise in court new facts that
were not presented to the agency for its review, there were no new facts in this case. At
issue were the agency’s own findings of fact, with which we can presume the Board was
fully conversant. Whether the agency’s findings fulfilled CEQA’s mandate is a question
of law―one with which we can presume the agency is also fully conversant.” To the
extent this qualifies as an argument, it may be disregarded as unsupported by any citation
to authority. (See Cassidy v. California Board of Accountancy (2013) 220 Cal. App. 4th
620, 628.) In any event, assuming petitioners’ assertions are correct, they fail to explain
why a new question of law may be raised in the trial court without first raising the
question with the Board.
28
Nor are we persuaded by petitioners’ reliance on People ex rel. California
Regional Water Quality Control Bd. v. Barry (1987) 194 Cal. App. 3d 158. Indeed, in that
case we held the defendant failed to exhaust administrative remedies with respect to his
“claim that the regional board made inadequate findings” because the error “was
correctable by the state board, but [the defendant] never tendered the issue to that board
in his petition for review.” (Id. at pp. 178-179.) Here, the alleged inadequacies in the
CEQA findings were correctable by the Board in the reconsideration petition. Because
petitioners did not give the Board the opportunity to correct the claimed error, they did
not exhaust administrative remedies with respect to this claim.
Petitioners further argue that “since the Board asserts ‘complete discretion to
determine whether a petition raises substantial issues that are appropriate for review,’ and
can simply decline to reconsider its decisions by claiming a lack of substantial issues, the
Board’s reconsideration process [is] an inadequate remedy, and need not be exhausted.”
In support of this argument, petitioners cite Endler v. Schutzbank (1968) 68 Cal. 2d 162
(Endler), Action Apartment Assn. v. Santa Monica Rent Control Bd. (2001) 94
Cal. App. 4th 587, and Ogo Associates v. City of Torrance (1974) 37 Cal. App. 3d 830.
These cases are readily distinguishable.
In Endler, supra, 68 Cal. 2d 162, the plaintiff alleged the commissioner of
corporations labeled him “a criminal on the basis of unproved accusations” and
“threaten[ed] disciplinary action against anyone who might employ him.” (Id. at p. 165.)
Our Supreme Court held the trial court erred in dismissing the plaintiff’s complaint.
(Ibid.) Rejecting the Attorney General’s argument that the plaintiff failed to exhaust
administrative remedies, the court explained the commissioner offered the plaintiff “a
manifestly defective ‘hearing’ . . . that would bind the commissioner only at his
discretion. Thus, if the hearing confirmed the commissioner’s suspicions, he would
continue to induce brokers not to hire the plaintiff; if the hearing vindicated the plaintiff’s
29
claims of innocence, the commissioner reserved the right to disregard it and to proceed as
though the plaintiff had been found guilty. However we might view the niceties of the
exhaustion of remedies doctrine, we cannot reconcile the Fourteenth Amendment’s
requirement of due process with this sort of heads-I-win, tails-you-lose procedure.” (Id.
at p. 168.) Here, petitioners do not argue the reconsideration procedure employed by the
Board violated their right to due process. After ultimately accepting the petition for
reconsideration, the Board gave all interested parties a noticed opportunity to appear and
to present written and oral comments pertinent to the issues raised in the petition. The
fact the Board is provided with discretion to “refuse to reconsider the action or failure to
act of the executive director . . . if the petition fails to raise substantial issues that are
appropriate for reconsideration” (Cal. Code Regs., tit. 23, § 3869, subd. (a)(1)) does not
make the Board’s reconsideration procedure analogous to the “heads-I-win, tails-you-lose
procedure” at issue in Endler.
In Action Apartment Assn. v. Santa Monica Rent Control Bd., supra, 94
Cal. App. 4th 587, the Court of Appeal held a group of landlords could challenge a local
regulation requiring them to pay tenants an interest rate of 3 percent per year on security
deposits―more than the rate being paid by the financial institutions holding the
deposits―without first seeking administrative relief through the general or individual
rent adjustment process because “general and individual rent adjustments do not offer an
available or adequate remedy” for the claimed unconstitutional taking of property. (Id. at
pp. 594, 610-612.) Here, a petition for reconsideration does offer petitioners an available
and adequate remedy: “Following examination of the petition and any necessary portion
of the record, the [Board] may,” among other things, “set aside or modify, if possible, the
previous action or take new appropriate action.” (Cal. Code Regs., tit. 23, § 3869,
subd. (a)(3).) The fact the Board concluded petitioners “fail[ed] to raise substantial
30
issues that are appropriate for reconsideration” (id., subd. (a)(1)) does not mean the
reconsideration procedure does not offer an adequate remedy.
In Ogo Associates v. City of Torrance, supra, 37 Cal. App. 3d 830, the Court of
Appeal held property developers could seek a writ of mandate compelling the City to
issue a permit to build an apartment project without first applying for a variance from a
zoning ordinance that prevented the project from going forward. The court explained the
failure to apply for the variance fell within an exception to the exhaustion doctrine, i.e.,
“when the aggrieved party can positively state what the administrative agency’s decision
in his [or her] particular case would be.” (Id. at p. 834.) Citing “overwhelming”
evidence that “the city council rezoned the . . . area because appellants planned to build
their project there,” the court explained, “it is inconceivable the city council would grant
a variance for the very project whose prospective existence brought about the enactment
of rezoning.” (Ibid.) Here, petitioners cannot positively state what the Board’s decision
would have been had they raised the issue advanced in the trial court and on appeal. The
Board’s decision―characterized by petitioners as a “perfunctory dismissal”―was
necessarily limited to the issues raised in the reconsideration petition. Had petitioners
challenged the CEQA findings as inadequate, the Board may well have modified the
Order to include more detailed findings.
Finally, petitioners argue they were not required to exhaust administrative
remedies because the Board lost jurisdiction to reconsider the challenged Order after it
initially rejected the petition for reconsideration as untimely and then filed the notice of
determination. The Board and SDG&E assert this argument should be rejected because it
was not raised in the trial court. (See Sea & Sage Audubon Society, Inc. v. Planning
Com. (1983) 34 Cal. 3d 412, 417 [“ ‘issues not raised in the trial court cannot be raised for
the first time on appeal’ ”].) However, while the argument was not advanced in
petitioners’ opening or reply trial briefs, petitioners’ counsel stated during oral argument
31
on the writ petition: “Once petitioners brought this matter within the proper jurisdiction
of this Court, the [Board] lost its jurisdiction to render any meaningful relief.” We need
not decide whether this statement preserved the argument petitioners now make on appeal
because, even assuming the Board lost jurisdiction to reconsider the Order when it
initially rejected the reconsideration petition as untimely and filed the notice of
determination, the Board had jurisdiction over the matter when the reconsideration
petition was submitted and nowhere in that petition did petitioners challenge the Board’s
CEQA findings as inadequate. Nor can petitioners legitimately claim they would have
raised this issue had the Board not erroneously rejected the petition as untimely because,
when the Board did accept the reconsideration petition and hold a hearing―whether or
not it had jurisdiction to do so―petitioners still did not raise the findings issue. Thus, the
admitted error the Board made in initially rejecting the reconsideration petition as
untimely, even assuming the error resulted in a loss of jurisdiction, does not excuse
petitioners from raising the issue of the adequacy of the Board’s CEQA findings in their
reconsideration petition.9
9 We also reject petitioners’ argument, raised for the first time in their reply brief,
that they fall within an exception to the exhaustion requirement found in section 21177,
subdivision (e). “ ‘[P]oints raised in the reply brief for the first time will not be
considered, unless good reason is shown for failure to present them before. [Citations.]’
[Citations.] ‘To withhold a point until the closing brief would deprive the respondent of
his [or her] opportunity to answer it or require the effort and delay of an additional brief
by permission.’ [Citation.]” (Sacramento Cable Television v. City of Sacramento (1991)
234 Cal. App. 3d 232, 244.) Petitioners offer no reason for failure to argue this in their
opening brief. And while we are not required to supply a reason for petitioners, it
appears the subdivision (e) argument was raised in reply because respondent Board first
cited section 21177 in their respondent’s brief, noting this provision codified the
exhaustion doctrine for CEQA. However, on appeal, the appellant―here,
petitioners―bears the burden of demonstrating reversible error (see Denham v. Superior
Court (1970) 2 Cal. 3d 557, 564; State Farm Fire & Casualty Co. v. Pietak (2001) 90
Cal. App. 4th 600, 610), and must do so by arguments raised in the opening brief unless
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We conclude petitioners failed to exhaust administrative remedies with respect to
their claim that the Board’s findings did not comply with CEQA.
II
Mootness of the Notice Claim
Petitioners also claim the Board “violate[d] its own regulations when it (a) failed
to give [them] proper notice of the Order and (b) improperly denied [the] reconsideration
petition as ‘untimely’ even though it was filed within 20 days after the Board belatedly
gave [them] required notice and 30 days after the Order’s approval date published on the
Board’s [W]ebsite.” With respect to this claim, the writ petition filed with the trial court
sought “declaratory relief declaring the Board’s purported rejection of [their]
reconsideration petition to be unlawful” and “a peremptory writ of mandate directing
[the] Board to make a decision on [their] timely reconsideration petition.” However, as
the trial court correctly noted, “subsequent to the filing of the writ petition, the [Board]
reviewed and acted on the reconsideration petition.” “No purpose would be served in
directing the doing of that which had already been done.” (Muller v. Municipal Court
(1956) 146 Cal. App. 2d 231, 232; Bruce v. Gregory (1967) 65 Cal. 2d 666, 671; see also
Environmental Protection Information Center, Inc. v. State Bd. of Forestry (1993) 20
Cal. App. 4th 27, 32 [“[m]andamus does not lie to compel that which is being done
voluntarily”].)
Nevertheless, petitioners argue the claim is not moot because the Board’s
“misconduct implicates the public interest, is capable of repetition, and is likely to evade
review.” We disagree. The Board fully acknowledges it is required to provide prompt
there is good reason for delaying an argument until reply (see Sacramento Cable
Television v. City of Sacramento, supra, 234 Cal.App.3d at p. 244). Petitioners’ apparent
failure to discover section 21177, and its subdivision (e) exception, until that section was
cited by respondent Board is not good reason.
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notice of its water quality certification orders to all interested parties (Cal. Code Regs.,
tit. 23, § 3859, subd. (a)), it failed to do so in this case, and it erroneously rejected
petitioners’ reconsideration petition as untimely. Thus, there is no issue to resolve, let
alone one that is “of substantial and continuing public interest that may otherwise evade
review.” (California Correctional Peace Officers Assn. v. State of California (2000) 82
Cal. App. 4th 294, 303-304; see also Californians for Alternatives to Toxics v. California
Dept. of Pesticide Regulation (2006) 136 Cal. App. 4th 1049, 1069.) Petitioners also
argue “a material issue as to the conduct’s lawfulness remains for court determination,”
i.e., whether they are in fact interested parties entitled to notice of the Order. Not so.
While SDG&E’s answer to the writ petition denied petitioners’ status as interested
parties, in SDG&E’s briefing before the trial court, the company effectively adopted the
Board’s argument regarding the notice issue, which expressly concedes the Board made a
“mistake regarding mailing notice of the Certification Order to petitioners as interested
parties.” (Italics added.) There is no dispute regarding petitioners’ status as interested
parties entitled to notice of the Order.
Finally, for the first time in their reply brief, petitioners assert the notice claim is
not moot because the Board lost jurisdiction to decide the petition for reconsideration
after initially rejecting the petition as untimely and filing the notice of determination. We
reject this argument for two reasons. First, as already explained, “ ‘points raised in the
reply brief for the first time will not be considered, unless good reason is shown for
failure to present them before. . . .’ ” (Sacramento Cable Television v. City of
Sacramento, supra, 234 Cal.App.3d at p. 244.) While petitioners argued in their opening
brief that they were not required to exhaust administrative remedies because the Board
lost jurisdiction to reconsider the challenged Order after rejecting the petition for
reconsideration and filing the notice of determination, they offer no reason for failing to
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argue the claimed loss of jurisdiction also prevented the notice claim from becoming
moot.
Second, petitioners fail to demonstrate they were harmed by the Board’s admitted
error in failing to provide timely notice of the challenged Order, which led to the Board’s
erroneous rejection of the reconsideration petition as untimely. Petitioners argue, “the
Board prejudiced [petitioners] by forcing them to complete their reconsideration petition
in ten fewer days than the thirty days required by law,” thereby depriving petitioners of
“sufficient time to identify and present all of the issues in their petition.” This 10-day
period comes from the fact petitioners were not informed the Order was posted on the
Board’s Website until November 30, 2010, and the Board’s Website listed November 18,
2010, as the date the Order was issued, causing petitioners to believe they had until
December 20, 2010, to submit the reconsideration petition. Petitioners do not persuade
us that had they had an extra 10 days to prepare the reconsideration petition, they would
have raised the findings issue. Indeed, as previously explained, when the Board did
accept the reconsideration petition―over three months later―petitioners still did not
raise the findings issue. Thus, the record provides us with no basis to conclude
petitioners “would have more fully identified the deficiencies in the Board’s Order,
including its CEQA findings,” and, “in turn, the trial court would have had no grounds on
which to dismiss [their] findings claim for failure to exhaust.”
We conclude the trial court properly dismissed the notice claim as moot. Nor
were petitioners prejudiced by the Board’s admitted mistake in not providing timely
notice of the challenged Order and initial rejection of the reconsideration petition as
untimely.
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DISPOSITION
The judgment is affirmed. The State Water Resources Control Board and San
Diego Gas & Electric Company are entitled to costs on appeal. (Cal. Rules of Court,
rule 8.278.)
HOCH , J.
We concur:
BUTZ , Acting P. J.
MURRAY , J.
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