By Katherine J. Hart

Charles Conway Jr v. State Water Resources Control Board (March 30, 2015, B252688) ___ Cal.App.4th ___.

Functionally equivalent CEQA documents can be tiered in a manner similar to a regular EIR. This new CEQA decision involved a basin plan amendment (BPA) establishing a total maximum daily load (TMDL) of pollutants allowed in McGrath Lake. The BPA/TMDL was adopted by the Regional Water Quality Control Board (Regional Board) and approved by the State Water Resources Control Board (State Board) and U.S. Environmental Protection Agency (EPA). Landowners who own a portion of the lake were allocated a load under the TMDL, which would make them responsible for remediation of the lake pollution. The landowners challenged the Boards’ adoption of the TMDL on two grounds: first, that the Regional Board improperly set load allocations for concentrations of pollutants contained in the lake bed sediment, and that a TMDL can only regulate the movement of pollutants in the water column; and (2) that the Regional Board failed to comply with CEQA. The trial court denied the plaintiffs’ claims and the appellate court affirmed.

This article discusses the court’s analysis of the CEQA claim only.

A basin plan amendment adopting a TMDL is a certified regulatory program under CEQA. Certified regulatory programs are exempt from the requirement of an EIR; however, they are still subject to the policy goals and standards of CEQA. As a result, a substitute EIR – usually referred to as a functional equivalent document – was prepared by the Regional Board in conjunction with a TMDL.

In this case, the appellate court upheld the Regional Board’s preparation of a functional equivalent document for the TMDL. The appellate court held that only a first-tier analysis was necessary for the TMDL because a TMDL merely identifies goals for levels of one or more pollutants in a water body and does not, by itself, preclude or require any actions. In rejecting the appellants arguments that the functional equivalent documents failed to analyze the environmental and economic impacts associated with dredging, the court noted that the BPA specifically calls for the cooperation of various landowners and the Regional Board to cooperate in negotiating and executing a memorandum of agreement on how the TMDL for lake sediment should be implemented. Specifically, the court held that, “Until such a plan is formulated, a full environmental analysis of any particular method of remediation is premature.”

Katherine J. Hart is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.