City of Sacramento v. State Water Resources Control Board (2 Cal. App. 4th 960, 1992)

Opinion

PUGLIA, P. J.—J.—

In this appeal we consider whether annual rice pesticide plans devised by the California Department of Food and Agriculture (DFA) for implementation in California’s Central Valley are subject to the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; hereafter CEQA).

The State Water Resources Control Board (State Board), Regional Water Quality Control Board for the Central Valley Region (Regional Board) and DFA (hereafter collectively defendants) appeal from a judgment of the superior court granting a writ of mandate requiring the Regional Board to comply with CEQA in connection with its review and approval of these annual plans. On appeal, defendants contend the trial court lacked jurisdiction to issue the writ because the plaintiffs failed to exhaust their administrative remedies. They further contend CEQA is inapplicable to the Regional Board’s review because DFA is the appropriate lead agency and its pesticide regulatory duties are exempt from CEQA. Finding merit in this latter contention, we shall reverse.

I

We begin with a brief discussion of the interrelation between California water quality law and the law regulating the agricultural use of pesticides and herbicides, particularly as it applies to rice farming. The Porter-Cologne Water Quality Control Act (Wat. Code § 13000 et seq.; hereafter the Porter-Cologne Act) establishes a coordinated statewide program of water quality control overseen by the State Board and administered by nine regional boards. (Wat. Code, §§ 13140, 13200 et seq.) Under the Porter-Cologne Act, the regional boards are required to formulate water quality control plans for the state’s 16 water basins. (Wat. Code, § 13240.) These “basin plans” are then subject to review by the State Board (Wat. Code, §§ 13245,13246) and, when approved, are binding on all state offices, departments and boards whose activities may affect water quality (Wat. Code, § 13247).

Any person or entity discharging or proposing to discharge waste which could affect water quality must file a report with the appropriate regional board. (Wat. Code, § 13260.) The regional board may then prescribe discharge requirements consistent with water quality objectives contained in the applicable basin plan. (Wat. Code, §§ 13263,13377.) In the event of threatened or actual discharges in violation of requirements prescribed by a regional board, the board may issue cease and desist orders. (Wat. Code, § 13301.)

The Central Valley Region contains three water basins: the Sacramento River Basin, the Sacramento-San Joaquin Delta Basin, and the San Joaquin Basin. In 1975, the Regional Board formulated, and the State Board approved, a water quality plan covering these three basins. Among the objectives in this plan for the Sacramento-San Joaquin Delta Basin is the following: “The total concentration of all pesticides shall not exceed 0.6 [parts per billion (ppb)] as determined by the summation of individual pesticide concentrations.”

DFA is invested by law with the responsibility for regulating the production and use of pesticides and herbicides throughout the state. Under division 6 (Pest Control Operations) and portions of division 7 (Agricultural Chemicals, Livestock Remedies, and Commercial Feeds) of the Food and Agriculture Code, DFA is directed “[tjo provide for the proper, safe, and efficient use of pesticides essential for production of food and fiber and for protection of the public health and safety.” (Food & Agr. Code, § 11501, subd. (a).) DFA is further directed to “protect the environment from environmentally harmful pesticides by prohibiting, regulating, or controlling uses of such pesticides” and “encourage the development and implementation of pest management systems, stressing application of biological and cultural pest control techniques with selective pesticides when necessary to achieve acceptable levels of control with the least possible harm to nontarget organisms and the environment.” (Food & Agr. Code, § 11501, subds. (b), (f).)

In addition to responsibility for licensing and regulation of pesticide applicators (Food & Agr. Code, § 11401 et seq.) and control of pesticide residue on produce (Food & Agr. Code, § 12501 et seq.), DFA is empowered to register all economic poisons, including pesticides and herbicides. (Food & Agr. Code, § 12811 et seq.) As part of this registration process, DFA is directed to “eliminate from use in the state any economic poison which endangers the agricultural or nonagricultural environment, is not beneficial for the purposes for which it is sold, or is misrepresented.” (Food & Agr. Code, § 12824.) Restrictions may be placed on the use of a particular economic poison, including “limitations on quantity, area and manner of application.” (Food & Agr. Code, § 12824.) DFA is also empowered to cancel the registration of an economic poison “[f]or which there is a reasonably effective and practicable alternate material or procedure which is demonstrably less destructive to the environment” (Food & Agr. Code, § 12825, subd. (c).)

Chapter 3 of division 7 of the Food and Agriculture Code (§ 14001 et seq.) concerns the regulation of restricted materials. Restricted materials are designated by DFA based on various criteria, including “[d]anger of impairment of public health,” “[h]azard to the environment from drift onto streams, lakes, and wildlife sanctuaries,” and “[hjazards related to persistent residues in the soil resulting ultimately in contamination of the air, waterways, estuaries or lakes, with consequent damage to fish, wild birds, and other wildlife.” (Food & Agr. Code, § 14004.5, subds. (a), (d), & (e).) DFA is mandated to adopt regulations which “shall prescribe the time when, and the conditions under which, a restricted material may be used or possessed in different areas of the state, and may prohibit its use or possession in those areas.” (Food & Agr. Code, § 14006.) No restricted material may be used without a permit issued by a DFA commissioner. (Food & Agr. Code, § 14006.5.)

Rice farming in the Central Valley Region involves the use of flooded fields on which pesticides are applied to control the growth of water grasses and plant pests. These flooded fields containing pesticides eventually drain into the Sacramento River. Three of the pesticides used in rice farming, bentazon (Basagran), molinate (Ordram), and thiobencarb (Bolero), have been designated by DFA as restricted materials subject to regulation. (Cal. Code Regs., tit. 3, § 6400, subd. (n) (10), (11), (12).) This regulation includes not only the application of these pesticides but also the later discharge of pesticide laden water from rice fields into the Sacramento River.

Each year, DFA prepares a plan of anticipated pesticide use in the Central Valley (rice pesticide plan) for the upcoming rice growing season and submits this plan to the Regional Board for review. After a rice pesticide plan is approved by the Regional Board, it is implemented through DFA’s regulation and permit powers.

II

At the December 11, 1987, meeting of the Regional Board, plaintiffs City of Sacramento (City), Lloyd Connelly (Connelly), and the Sacramento Environmental Health Coalition (SEHC) (hereafter collectively plaintiffs) presented comments regarding consideration of DFA’s proposed 1988 rice pesticide plan. City obtains its water supply for residential and other uses from the Sacramento River at a point within the Sacramento River Basin downstream from the discharge points used by rice growers in the Central Valley Region. Connelly is a state legislator and City resident. SEHC is an unincorporated association of individuals whose drinking water originates from the Sacramento River and “who have joined together to seek means to improve environmental quality in the Sacramento Region.” Notwithstanding plaintiffs’ comments, the Regional Board voted to approve the 1988 rice pesticide plan with certain conditions. At the January 29, 1988, Regional Board meeting, DFA indicated one of the conditions suggested by the Regional Board had been met.

On February 26, 1988, SEHC filed a petition with the State Board objecting to the 1988 rice pesticide plan and claiming the Regional Board “failed to comply with the environmental impact assessment procedures mandated by [CEQA]” before approving the program. On April 7, City filed a petition with the State Board in support of SEHC’s petition. On April 12, the State Board notified City its petition was untimely but would be considered as comments by an interested person. However, the State Board took no further action on SEHC’s petition until October 21, 1988, when SEHC was notified its petition would not be considered.

Plaintiffs filed this writ proceeding on April 21, 1989. In their petition, plaintiffs alleged defendants effected a de facto amendment to the 1975 basin plan for the Sacramento-San Joaquin Delta Basin by repeatedly failing to enforce the 0.6 ppb objective for cumulative pesticide concentrations and are further attempting formally to amend the basin plan, in both instances without complying with CEQA. The petition sought an order requiring compliance with the 0.6 ppb objective and compliance with CEQA regarding these alleged amendments to the basin plan.

After extensive briefing and argument by counsel, the trial court entered an order granting a writ of mandate requiring the Regional Board “to institute proceedings and analysis pursuant to CEQA in connection with its review of the rice [pesticide plan] for 1990 and subsequent years.” The order further required the Regional Board, in the event proposed discharges exceed the objective of 0.6 ppb, to include in its analysis of the plan any potentially significant environmental effects caused by failure to enforce the objective. In a subsequent order, the trial court granted $50,000 in attorney’s fees to Connelly and SEHC. Defendants’ appeals from that order and from the judgment granting mandate relief have been consolidated.

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We first address defendants’ suggestion this matter has been rendered moot by subsequent Regional Board action. On January 26, 1990, the Regional Board issued Resolution No. 90-028 eliminating file 0.6 ppb water quality objective for the Sacramento-San Joaquin Delta Basin and setting new objectives. On February 15, 1990, the State Board approved this amended basin plan. However, the writ of mandate issued by the trial court is not limited to enforcement of the 0.6 ppb cumulative pesticide objective. The judgment appealed from orders issuance of a writ requiring the Regional Board to comply with CEQA in connection with each annual review of a rice pesticide plan beginning in 1990. Annual review by the Regional Board presumably will continue regardless of a change in the water quality objectives sought to be attained. This matter is therefore not moot.

IV

Defendants contend the trial court lacked jurisdiction to consider plaintiffs’ writ petition because plaintiffs failed to exhaust their administrative remedies. Under the exhaustion doctrine, “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.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292 [109 P.2d 942, 132 A.L.R. 715].) This is a jurisdictional prerequisite, not a matter of judicial discretion (id. at p. 293), and applies to actions seeking both ordinary and administrative mandamus (Leff v. City of Monterey Park (1990) 218 Cal.App.3d 674, 680-681 [267 Cal.Rptr. 343]). The exhaustion doctrine is codified in CEQA in Public Resources Code section 21177.

Defendants contend plaintiffs failed to exhaust their administrative remedies by not seeking review by the State Board within 30 days of the Regional Board’s decision approving the 1988 rice pesticide plan. Water Code section 13320 permits “[a]ny aggrieved person” to petition the State Board for review within 30 days of certain action or inaction by a regional board. Plaintiffs counter that Water Code section 13320 is inapplicable because their claims are based on CEQA, not the Porter-Cologne Act. In Committee for a Progressive Gilroy v. State Water Resources Control Bd. (1987) 192 Cal.App.3d 847 [237 Cal.Rptr. 723], this court held the CEQA statute of limitations applies when review is sought on CEQA grounds. Under CEQA, an action is timely if brought within 180 days of public agency approval, without CEQA review, of a project which might have a significant effect on the environment. (Pub. Resources Code, § 21167, subd. (a).) However, this statutory period applies only to actions seeking review by a superior court after available administrative remedies have been exhausted. Consideration of whether such exhaustion has occurred in a given case will depend upon the procedures applicable to the public agency in question.

The parties focus their arguments regarding internal review procedures on the timeliness of petitions filed by plaintiffs with the State Board. However, this presupposes the water boards are the appropriate agencies for CEQA compliance in this instance. As we shall explain, this assumption is unwarranted.

V

CEQA embodies a comprehensive statutory scheme requiring environmental analysis of discretionary projects proposed to be carried out or approved by public agencies. (Pub. Resources Code, § 21080, subd. (a).) The underlying purpose of the act is “to compel government at all levels to make decisions with environmental consequences in mind.” (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283 [118 Cal.Rptr. 249, 529 P.2d 1017].)

Under CEQA, a “lead agency” is required to determine whether an environmental impact report (EIR) will be required for a given project (Pub. Resources Code, § 21080.1) and, if so, to seek input from other agencies regarding the desired content of such report (Pub. Resources Code, §§ 21080.4, subd. (a), 21104). The lead agency must then prepare the EIR and include it in any report on the project. (Pub. Resources Code, § 21105; Bakman v. Department of Transportation (1979) 99 Cal.App.3d 665, 679 [160 Cal.Rptr. 583].) If, however, the lead agency determines an EIR is unnecessary because the proposed project will not have a significant effect on the environment, it must prepare a “negative declaration” to that effect. (Pub. Resources Code, § 21080, subd. (c).)

Under CEQA, “lead agency” is defined as “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, italics added.) By contrast, a “responsible agency” is defined as “a public agency, other than the lead agency, which has responsibility for carrying out or approving a project.” (Pub. Resources Code, § 21069.) Where a lead agency is obligated under CEQA to prepare an EIR, a responsible agency is obligated to consider such report prior to approving a project. (Pub. Resources Code, § 21061.)

Under certain conditions, a responsible agency which is called upon to approve a project may be required to step into the shoes of the lead agency. This can occur where the lead agency has not prepared environmental documents, the documents prepared are inadequate or subsequent environmental documents are required. (Cal. Code Regs., tit. 14, § 15052, subd. (a).) The responsible agency will then be required to assume the duties of the lead agency.

Assuming an annual rice pesticide plan is a “project” under CEQA, as the trial court found, defendants contend DFA, not the Regional Board, is the lead agency for preparation of an EIR because DFA is primarily responsible for pesticide regulation. Plaintiffs counter that, while DFA may be primarily responsible for regulating pesticide application, the Regional Board is primarily responsible for regulating the discharge of pesticides into waters of the Central Valley Region.

Regulations promulgated by the Secretary of the Resources Agency pursuant to CEQA establish criteria for determining the lead agency for a given project. Where the project is to be carried out by nongovernmental entities, the lead agency will normally be the public agency “with the greatest responsibility for supervising or approving the project as a whole.” (Cal. Code Regs., tit. 14, § 15051, subd. (b).) Usually this is the agency with the broadest governmental powers. (Cal. Code Regs., tit. 14, § 15051, subd. (b)(1).) However, where two or more public agencies have relatively equal responsibility, “the agency which will act first on the project in question shall be the lead agency.” (Cal. Code Regs., tit. 14, § 15051, subd. (c).) This is consistent with the legislative goal of assuring environmental impact assessment in governmental planning at the earliest possible time. (Citizens Task Force on Sohio v. Board of Harbor Comrs. (1979) 23 Cal.3d 812, 814 [153 Cal.Rptr. 584, 591 P.2d 1236].) Where the identity of the lead agency cannot be determined by the foregoing criteria, the possible candidates may simply agree among themselves which will be the lead agency. (Cal. Code Regs., tit. 14, § 15051, subd. (d).)

Before examining the roles of the various agencies involved in the project under consideration here, it is necessary to understand the scope of that “project.” CEQA defines a project variously as “(a) Activities directly undertaken by any public agency, [f] (b) Activities undertaken by a person which are supported in whole or in part through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies. [][] (c)

Activities involving 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, italics added.)

The regulations further define a project as “the whole of an action, which has a potential for resulting in a physical change in the environment. . . .” (Cal. Code Regs., tit. 14, § 15378, subd. (a).) It is “the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies. The term ‘project’ does not mean each separate governmental approval.” (Cal. Code Regs., tit. 14, § 15378, subd. (c); Committee for a Progressive Gilroy v. State Water Resources Control Bd., supra, 192 Cal.App.3d at p. 863.)

Under the foregoing definition, the issuance of each permit for the use of pesticides or discharge of pesticide laden water might be considered a project. Instead, however, DFA and the Regional Board have devised a coordinated scheme to regulate the amount of pesticides used by rice farmers and discharged into the Sacramento River on an annual basis. DFA’s formulation of an annual rice pesticide plan includes consideration of the environmental effects of the overall amount of pesticides to be used. The Regional Board’s subsequent review and approval of such plan includes environmental consideration of the total discharge of pesticide-laden water. In this way, the environmental and other considerations associated with a given permit are subsumed within the broader considerations associated with the annual plan.

The project in question here is not simply the Regional Board’s approval of an annual rice pesticide plan. It is the formulation, approval and implementation of that plan which together have the potential for causing physical change to the environment. And because the application of pesticides to rice fields pursuant to an annual rice pesticide plan presupposes the discharge of pesticide residue into the Sacramento River, it is this entire process which must be considered for environmental impact purposes. This entire process is the project. (Cal. Code Regs., tit. 14, § 15378, subd. (a).)

We next consider the question of lead agency identification. Despite plaintiffs’ contention that DFA’s responsibility over pesticide regulation does not extend to regulating discharges into state waters, the statutory scheme described above establishes concomitant responsibility in DFA and the Regional Board for protecting state waters from pesticide pollution. The Regional Board’s responsibility is to protect state waters from all forms of pollution, while DFA’s responsibility is limited to pesticide pollution. However, DFA’s responsibility extends beyond water pollution to include the total environment. Thus, because the underlying purpose of an EIR is to analyze and inform regarding adverse effects to the environment as a whole (Pub. Resources Code, § 21061), DFA is in the best position to make such an assessment.

As the author of a given pesticide plan, DFA would also be the first in time to consider its environmental impact. (See Cal. Code Regs., tit. 14, § 15051, subd. (c).) Furthermore, in 1982 the State Board issued a pesticide guidance report acknowledging DFA as the lead agency for pesticide use. The following year, the Governor issued Executive Order No. D-15-83 reconfirming DFA “as the lead agency for pesticide regulation” and charging that agency “with the responsibility of ensuring the orderly regulation of pesticides to preserve their beneficial uses while protecting the quality of the total environment.”

For all the foregoing reasons, DFA is the logical choice for lead agency in connection with the annual rice pesticide plans.

VI

We consider next DFA’s obligation to comply with CEQA. In lieu of the requirement for preparing an EIR or negative declaration, CEQA provides a mechanism for the exemption of certain regulatory programs which themselves require a plan or other written documentation containing environmental information. (Pub. Resources Code, § 21080.5, subd. (a); Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 196 [132 Cal.Rptr. 377, 553 P.2d 537].) This exemption applies whenever a program has been certified by the Secretary of the Resources Agency. (Pub. Resources Code, § 21080.5, subd. (c).) After certification, the internal plan or other documentation containing environmental information is used for review purposes in lieu of an EIR. (Pub. Resources Code, § 21080.5, subd. (a).)

In 1978, the Legislature directed DFA to obtain certification of its pesticide regulatory program. (Stats. 1978, ch. 308, §§ 2-4, pp. 643-644.) Pursuant to this directive, DFA’s program was certified by the Secretary of the Resources Agency on December 28, 1979. (See People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 481 [204 Cal.Rptr. 897, 683 P.2d 1150].) This certification includes: “(1) The registration, evaluation and classification of pesticides. [1] (2) The adoption, amendment, or repeal of regulations and standards for the licensing and regulation of pesticide dealers and pest control operators and advisors. [