Citations
- 234 Cal. App. 4th 214
Full opinion text
Opinion
NICHOLSON, Acting P. J.
Facing for the first time a requirement to review for environmental impacts its statutorily mandated fish hatchery and stocking enterprise that has been in operation for more than 100 years, California’s Department of Fish and Wildlife (the Department) chose to use a program environmental impact report (EIR) to analyze the enterprise’s impacts on a statewide basis. Instead of addressing impacts on specific locations the Department stocked, the EIR addressed the enterprise’s continuing and potential impacts on individual species that could be located at many locations. The EIR formulated, and the Department adopted, protocols and plans for discovering site-specific impacts at each of the nearly 1,000 water bodies the Department stocks and the 24 hatcheries it oversees, and it committed to mitigating the impacts discovered from those reviews. If, through using the protocols, the Department discovered impacts that were not addressed in the EIR, the Department committed to review and mitigate those impacts as required by environmental law. The Department addressed unavoidable impacts in a statement of overriding considerations.
Because the stocking and hatchery enterprise was ongoing and mandated by statute, the EIR considered the existing enterprise exclusive of any proposed mitigation measures as the environmental baseline and as the no project alternative. It did not evaluate an alternative that would cease all stocking and hatchery operations. In addition to the ongoing operations, the EIR evaluated the ongoing enterprise as proposed to be mitigated and a project that further curtailed mountain lake stocking as alternatives.
The EIR also reviewed other Department stocking programs that involve private fish vendors. The EIR proposed, and the Department adopted as mitigation measures, new qualification requirements and monitoring and reporting obligations private vendors would have to satisfy if they wanted to continue to participate in the stocking programs.
In these appeals, we address whether the EIR complies with the California Environmental Quality Act (Pub. Resources, § 21000 et seq.; CEQA). We also address whether the Department’s imposition of these mitigation measures on private fish vendors violated the requirements of the Administrative Procedure Act (Gov. Code, § 11340 et seq.; the APA).
In cases Nos. C072486 and C073011, plaintiffs, Center for Biological Diversity and Californians for Alternatives to Toxics et al., respectively, argue the EIR is flawed because it (1) did not perform site-specific review for each site in the state the Department stocks with fish; (2) deferred forming mitigation measures to the future formulation of protocols and management plans; (3) relied on the current stocking enterprise as the environmental baseline; and (4) did not review a reasonable range of alternatives, including a no project alternative consisting of ceasing all hatchery and stocking operations. We disagree with plaintiffs. Given the history, nature, and scope of the project under review, the Department did not abuse its discretion in the manner it organized the EIR, analyzed the project, and mitigated its numerous impacts. We affirm the trial court’s judgment in these appeals.
In case No. C072790, plaintiff California Association for Recreational Fishing contends the Department violated the APA by imposing the qualification requirements and the monitoring and reporting obligations on private fish vendors without complying with the APA’s notice and hearing procedures. We conclude each measure qualified as a regulation under the APA that the Department did not properly adopt as such. We reverse the trial court’s judgment in this appeal.
FACTS AND PROCEDURAL HISTORY
Since the late 1800’s, the State of California has constructed and operated fish hatcheries, and it has stocked millions of trout, salmon, and steelhead reared in those hatcheries into water bodies throughout the state. State statute mandates the Department implement and oversee this enterprise. (Fish & G. Code, §§ 1120, 1725 et seq., 13007.) The Department stocks millions of pounds of fish each year at close to 1,000 locations.
Currently, the Department operates 14 trout hatcheries and 10 salmon and steelhead hatcheries throughout the state. The trout hatcheries raise fish for stocking in inland waters to provide recreational opportunities for anglers, and to conserve and restore native fish species. The salmon and steelhead hatcheries provide salmon and steelhead to mitigate the loss of wild anadromous fish habitat and upstream spawning areas caused by dam construction, to mitigate fish loss at state-operated pumping facilities in the Sacramento-San Joaquin Delta, and to enhance native anadromous fish populations for recreational and commercial fishing.
The hatchery and stocking enterprise predates CEQA. After CEQA’s enactment in 1970, the Secretary of Natural Resources determined the Department’s hatchery and stocking enterprise was categorically exempt from complying with CEQA. (CEQA Guidelines, § 15301, subd. (j).) As a result, the Department did not conduct any type of environmental review for the enterprise.
During the past two decades, concerns arose regarding the hatchery and stocking enterprise’s impact on native and wild animals and their habitat. Scientific evidence indicated frogs and other amphibians in high mountain lakes were more vulnerable to predation by stocked nonnative trout, contributing to declining amphibian populations. Scientific evidence also indicated planting hatchery salmonids led to genetic hybridization of wild and hatchery anadromous fish, reducing their genetic diversity and strength, and ultimately their populations.
In 2001, the Department began addressing these concerns. To assess the impact that stocking high mountain lakes had on amphibians and other wildlife, the Department began surveying the lakes to determine the presence of several native amphibian and reptile species, fish species, and their habitat, and to assess watershed characteristics (the high mountain lakes project). These mountain lakes and streams were originally without fish, but they were extensively stocked with nonnative trout over the past century, to the extent that most of the lakes now have extant trout populations. The Department ceased stocking most high mountain lakes in the state until the surveys were conducted. As of January 2010, the Department had completed more than 16,000 surveys at approximately 11,000 sites.
The Department has used, and continues to use, the survey data to develop what it calls aquatic biodiversity management plans to govern stocking in mountain waters. Aquatic biodiversity management plans provide for maintaining recreational fisheries while recovering native animals, especially amphibians. They require future mountain lake stocking decisions to be based on the twin objectives of managing the lakes to maintain or restore native biodiversity and habitat quality, and providing for recreational opportunities, considering historical and future use patterns. Under the aquatic biodiversity management plans, lakes with existing populations of endangered or threatened amphibian species and other species the Department believes may be vulnerable to harm from stocking, referred to as “decision species,” generally will no longer be stocked with fish. If decision species exist within two kilometers of a lake, the Department will assess fishing use and the feasibility of removing the trout from the lake to determine if the lake could be converted to a fishless condition in order to benefit the decision species. Others lakes will be managed for recreational angling. As of January 2010, there were aquatic biodiversity management plans completed or in draft for 27 watershed areas, or “management units.”
To address the impacts hatchery salmon and steelhead have on wild populations of native anadromous fish, the Department began preparing what are called hatchery genetic management plans, creatures of federal regulation under the federal Endangered Species Act of 1973. (50 C.F.R. § 223.203(b)(5) (2014); 16 U.S.C. § 1531 et seq.) Hatchery genetic management plans require the Department to change the ways in which it collects fish for spawning and releases hatchery fish in order to maintain genetic integrity and reduce interactions between wild and hatchery fish. Hatchery genetic management plans must be approved by the National Marine Fisheries Service (NMFS), and as of January 2010, none prepared for California waters had been approved. In the interim, hatcheries that have draft hatchery genetic management plans are following them, and the Department and the NMFS continue to develop guidance and protocols for hatchery operations.
In 2005, the Legislature created a specific fund in the state treasury to finance the Department’s hatchery and stocking enterprise. (Stats. 2005, ch. 689, § 1, pp. 5439-5441 [enacting Fish & G. Code, § 13007].) The Legislature directed that fund proceeds be used by the Department in part to attain specific hatchery production goals. It initially required the Department to attain a goal of stocking 2.25 pounds of trout for each sport fishing license sold the previous year. (Ibid.) By July 2009, the statute required the Department to attain a goal of stocking 2.75 pounds of trout for each sport fishing license sold. (Stats. 2008, ch. 350, § 1, p. 2735.) In 2007, more than two million fishing licenses were sold, translating into a goal of stocking more than five million pounds of trout. By comparison, in 2008, the Department actually stocked 4.3 million pounds of trout.
In 2006, plaintiff Center for Biological Diversity (the Center) sued the Department, claiming the hatchery and stocking enterprise did not qualify for a categorical exemption from CEQA, and seeking a writ of mandate compelling the Department to review its hatchery and stocking enterprise in an EIR. That same year, the Department announced it would prepare an “environmental document describing impacts” of its hatchery and stocking enterprise and the protocols it used to determine where fish would be stocked, but it still contended the enterprise was exempt from CEQA.
In 2007, the trial court granted the Center’s petition for writ of mandate. It concluded the hatchery and stocking enterprise was not categorically exempt from CEQA because it likely caused significant environmental impacts. It ordered the Department to comply with CEQA and prepare an EIR on its enterprise. However, the court refused to enjoin the Department from operating the enterprise pending completion of the EIR. The Department did not appeal this judgment.
In 2008, the Department moved to modify the judgment to receive additional time to prepare the EIR. The Department had expanded the EIR’s scope beyond its hatchery and stocking enterprise to include other Department hatchery programs in part supported by federal funds that involved hatchery fish in other locations and from other vendors. That expansion required the EIR to be a combined EIR/environmental impact statement (EIS) under federal environmental law, and the Department did not have sufficient funds at the time to pay the estimated $1.8 million needed to complete the review. (For ease of reference, we will refer to the EIR/EIS as an EIR.)
The trial court granted the Department’s motion and extended the time to complete the EIR. However, it also ordered the Department to suspend stocking nonnative fish in fresh water bodies where surveys showed the presence of sensitive native aquatic or amphibian species, or where such surveys had not been completed.
The Department certified the final EIR in January 2010. It is a significant effort. It includes approximately 650 pages of discussion and an additional 1,800 pages of appendices, of which more than 1,250 pages are responses to public comments. The record also includes the reference material the Department relied upon to prepare the EIR, which totals some 43,700 pages.
The EIR has a broad scope. It is meant to cover the Department’s entire fish hatchery and stocking enterprise statewide. It also analyzes three other programs the Department administers: the Fishing in the City program (which provides fishing opportunities in urban areas), the Classroom Aquarium Education Project (which provides school children with opportunities to see fish hatch and grow), and the private stocking permit program (by which the Department authorizes fish stocking by private aquaculture facilities in private and public lakes and ponds).
Of significance here, the Department selected its current hatchery and stocking operations from 2004 through 2008 as an environmental baseline for its analysis in the EIR. Against this baseline, the EIR analyzed the enterprise’s impacts on hydrology, water supply, and water quality; biological resources; recreation and economics; and cultural resources. The EIR identified more than 200 impacts on biological resources, many of which were significant.
The EIR found trout stocking adversely impacted a number of frog species. Stocked fish may directly prey upon some native amphibians and reptiles, and may cause ecological changes that affect the competition for resources between fish and amphibians. To mitigate these impacts to less than significant, the EIR recommended the Department utilize a new protocol to determine whether to stock an inland water body with trout. Under the protocol, referred to as a prestocking evaluation protocol (the evaluation protocol), Department biologists would evaluate each stocking location within the range of a decision species in a stepwise fashion to determine whether interactions between stocked trout and decision species may occur, and to evaluate whether stocking may significantly impact the species. If the biologist determines a significant impact is likely, the Department will cease stocking at that location unless and until it develops and implements an aquatic biodiversity management plan for that location. If decision species are not present, stocking may proceed. A positive stocking determination is valid for five years unless new information necessitates a new evaluation protocol be performed.
The EIR also found that stocking hatchery salmon and steelhead in waters with wild salmon and steelhead significantly and, in some cases, unavoidably impacted wild populations of native anadromous fish. Stocked fish may prey on and compete with some wild fish populations. They may also cause adverse effects on the long-term genetic fitness and diversity of some wild populations. To mitigate these impacts to the extent possible, the EIR called for the Department to continue to develop an expanded hatchery genetic management plan process to govern operation of the salmon and steelhead hatcheries in order to mitigate impacts on wild populations of native anadromous fish. The hatchery genetic management plan process would include developing and implementing with the NMFS a comprehensive plan to mitigate the impacts and protect decision species, and establishing an independent review panel for the hatcheries.
The EIR also determined stocking for other Department programs could adversely impact decision species. Stocking for the Fishing in the City program could cause some significant impacts. Stocking activities for this program introduce hatchery fish and warm water fish into some water bodies that may contain decision species, resulting in some instances of predation and competition for resources, the introduction of pathogens to native amphibian populations, and the spread of invasive species. To mitigate these impacts, the EIR proposed Department biologists use a protocol analogous to the evaluation protocol, called the private stocking permit evaluation protocol, prior to stocking any water body for the Fishing in the City program. If biologists identify any amphibians susceptible to pathogens in the water, they will not stock at that location. The EIR also proposed requiring private aquaculture facilities who participate in the program to monitor and report for invasive species in their stocks on a quarterly basis.
Approval of private stocking permits could also cause similar impacts to decision species. To mitigate these impacts, the EIR proposed that before the Department approves a private stocking permit, a Department biologist visit the water body proposed to be stocked and perform the private stocking permit evaluation protocol to determine if the body hosts any decision species, and, if it does, whether stocking in that body would significantly impact that species. If it would, the Department would not approve the permit application.
The EIR considered three project alternatives: (1) continue the existing hatchery and stocking enterprise without change, which the EIR treated as the no project alternative required by CEQA; (2) continue to operate the enterprise but in compliance with the mitigation measures proposed by the EIR to minimize the enterprise’s impacts on the environment, including use of evaluation protocols and aquatic biodiversity management plans for trout stocking and hatchery genetic management plans for salmon and steelhead stocking; and (3) permanently operate the enterprise as limited by the trial court during the EIR process, ceasing all stocking in fresh water lakes where decision species exist. The EIR named the second alternative as the preferred alternative.
The EIR did not consider closing the hatcheries or eliminating trout stocking as alternatives. It did not because ceasing operations did not meet what the Department believed was a statutory mandate under Fish and Game Code section 13007 to operate hatcheries to provide fish to meet recreational demand. Ceasing to stock would also place considerable pressure on native and wild stocks that already exist, and would eliminate a large portion of recreational fishing in the state.
In certifying the EIR, the Department approved the second alternative as the project it would undertake, and it adopted findings, a statement of overriding considerations, and a mitigation monitoring and reporting plan, as required by CEQA. As part of adopting the mitigation plan, the Department approved using the evaluation protocol and aquatic biodiversity management plans to mitigate impacts on native trout, the expanded hatchery genetic management plan process to mitigate impacts on wild salmon and steelhead, and the proposed protocols and monitoring and reporting requirements to mitigate impacts caused by the Fishing in the City program and the private stocking permit program.
The Center, plaintiffs Californians for Alternatives to Toxics et al. (collectively, the Center), and plaintiff California Association for Recreational Fishing (the Association) each petitioned for a writ of mandate against the Department and its certification of the EIR. The Center alleged the EIR did not comply with CEQA. The Association alleged the Department imposed the mitigation measures on the Fishing in the City program and the private stocking permit program as underground regulations in violation of the APA.
The trial court denied each of the petitions. The petitioners appealed, and we consolidated the matters for purposes of decision and argument.
DISCUSSION
I
Standard of Review
Our standard of review is as follows:
“In reviewing an agency’s compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether there was a prejudicial abuse of discretion.’ (Pub. Resources Code, § 21168.5.) Such an abuse is established ‘if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ ([Pub. Resources Code,] § 21168.5; see Western States Petroleum Assn. v. Superior Court [(1995)] 9 Cal.4th [559,] 568 [38 Cal.Rptr.2d 139, 888 P.2d 1268]; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392-393 [253 Cal.Rptr. 426, 764 P.2d 278] (Laurel Heights I).)
“An appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court’s: The appellate court reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial review under CEQA is de nova. [Citations.] We therefore resolve the substantive CEQA issues . . . by independently determining whether the administrative record demonstrates any legal error by the [Department] and whether it contains substantial evidence to support the [Department’s] factual determinations.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at pp. 426-427, fns. omitted.)
II
Cases Nos. C072486 and C073011
The Center contends the Department did not comply with CEQA when it prepared and certified the EIR. because it allegedly and improperly:
1. Used a program EIR to approve future site-specific stocking decisions without performing site-specific review;
2. Deferred the formulation of mitigation measures for each future stocking decision to future use of the evaluation protocol, the aquatic biodiversity management plans, and the hatchery genetic management plans;
3. Relied upon the current hatchery and stocking enterprise as the environmental baseline; and
4. Omitted sufficient consideration of a reasonable range of project alternatives, including a no project alternative of no stocking, and a sufficient explanation for possible alternatives it chose not to review.
We address, and reject, each of these contentions.
A. The EIR’s level of analysis
The Center contends the Department improperly used a program EIR as a project or site-specific EIR. It argues the EIR’s level of review is insufficient to approve future stocking decisions because it does not contain site-specific environmental analysis. As a result, no further CEQA process is allegedly contemplated before final stocking decisions will be made for particular water bodies.
The Department contends the EIR’s level of analysis was appropriate. The level of specificity required in an EIR is determined by the nature of the project and the rule of reason. (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 741-742 [22 Cal.Rptr.2d 618].) The Department argues the Center’s contention would require it to conduct a separate environmental review for each stocking decision every year. The Department claims reading CEQA in that fashion would violate the governing rule of reason.
We conclude the EIR contains a sufficient level of analysis for a program EIR. It evaluates the known impacts in a comprehensive fashion, and we read it to provide for further environmental review where warranted.
CEQA allows public agencies to use special types of EIR’s to simplify preparation and avoid duplication. (Californians for Alternatives to Toxics v. Department of Food & Agriculture (2005) 136 Cal.App.4th 1, 22, fn. 10 [38 Cal.Rptr.3d 638]; see 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed. 2014) § 10.2, p. 10-4 (rel. 3/14) (Kostka).)
One of those EIR’s is a program EIR. (CEQA Guidelines, § 15168.) “A program EIR is an EIR which may be prepared on a series of actions that can be characterized as one large project and are related [among other possibilities] [1] •• .[][].. • [a]s individual activities carried out under the same authorizing statutory or regulatory authority and having generally similar environmental effects which can be mitigated in similar ways.” (CEQA Guidelines, § 15168, subd. (a)(4).) The hatchery and stocking enterprise is such a project.
Using a program EIR can provide a public agency many advantages as it proceeds with its program. For one, the agency can avoid preparing multiple EIR’s for the program and its activities if the program EIR is comprehensive. “Preparation of a program EIR allows a public agency to characterize the overall program as the project that is proposed for approval. If a sufficiently comprehensive and specific program EIR is prepared, the agency may dispense with further environmental review of activities within the program that are adequately covered by the program EIR. ([CEQA Guidelines,] § 15168[, subd. ](c).)” (Kostka, supra, § 10.14, p. 10-20 (rev. 3/14).)
Program EIR’s have other advantages. They may be used to address impacts and mitigation measures that apply to the program as a whole to simplify later environmental review for program activities. (CEQA Guidelines, § 15168, subd. (d); Kostka, supra, § 10.14, p. 10-20 (rev. 3/14).) They may also be used to consider broad programmatic issues for related actions at an early planning stage when the agency has greater flexibility to deal with basic problems or cumulative impacts. (CEQA Guidelines, § 15168, subd. (b); Kostka, supra, § 10.14, p. 10-20 (rev. 3/14).)
The CEQA Guidelines do not specify the level of analysis required to be performed in a program EIR. Indeed, “[n]o ironclad rules can be imposed regarding the level of detail required .... EIR requirements must be ‘sufficiently flexible to encompass vastly different projects with varying levels of specificity.’ [Citation.]” (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners, supra, 18 Cal.App.4th at pp. 745-746.) “The degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the EIR.” (CEQA Guidelines, § 15146.)
Accordingly, the CEQA Guidelines require an EIR to provide sufficient information in light of what is reasonably feasible. “An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. . . . The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” (CEQA Guidelines, § 15151.) Certainly, a program EIR will better fulfill its purpose of reducing the need for subsequent environmental review the more comprehensive and specific the analysis it provides. (CEQA Guidelines, § 15168, subd. (c).)
The program EIR here satisfies these standards. It reviews and analyzes the hatchery and stocking enterprise specifically and comprehensively, but within reason. Given the nature and statewide scope of the project and the consistency of its impacts across the state, the analysis is adequate to serve as a program EIR that also operates as a project EIR.
Relying upon thousands of pages of compiled data, databases, reports, interviews, peer-reviewed scientific publications, and computer models, the EIR describes in great detail the impacts hatcheries and stocking have on other wildlife on a statewide basis. It reviews the impacts of hatchery operations and stocking in general and on each of the decision species. In particular, it describes the impacts trout stocking has on the amphibian and reptile decision species historically located at high mountain lakes, and the impacts salmon and steelhead stocking has on wild salmon and steelhead in waters with outlets to the ocean.
The EIR organizes its analysis of both stocking enterprises’ impacts on biological resources into six categories: (1) impacts related to predation, competition, and related changes in ecological relationships between stocked and native species; (2) impacts related to the catch of native fish by fishermen drawn to the area because the waters are stocked; (3) impacts related to invasive species and pathogens that are accidentally introduced during stocking operations; (4) impacts from interbreeding of hatchery and wild fish, altering the genetic composition of wild populations; (5) impacts that arise from accidental or otherwise unauthorized releases of hatchery trout; and (6) impacts caused by anglers during their pursuit of stocked trout. Within these categories, the EIR reviews the potential impact on each decision species.
Examples from the EIR illustrate the detailed analysis the document provides. Regarding the impacts stocking fish in mountain lakes has on decision species, the EIR states stocking mountain lakes is a factor that has led to the decline of native amphibians and reptiles in California. Amphibians and reptiles are substantially and adversely affected due to competition and predation with hatchery fish. Those found in formerly fishless areas lack adaptations for defense against predatory fish. Hatchery fish, besides preying on native amphibians and reptiles, may also cause ecological changes that affect the competition for resources.
The EIR analyzes stocking’s effect on each of the decision species. For example, the EIR describes lake stocking’s effect on the mountain yellow-legged frog. There are 451 trout stocking locations within this species’s range. The species has experienced serious population declines in the last century, and stocking is a primary factor in those declines. Introduced trout prey on the species as well as fragment and isolate their populations, reducing their ability to recolonize. The January 2010 EIR stated that recent assessments indicate only a small percentage of mountain yellow-legged frog sites represent healthy populations, and many may not persist without efforts to protect them.
As a result, the Department in 1999 began restoration efforts by removing introduced trout from select lakes. These efforts have resulted in substantial increases in the affected mountain yellow-legged frog populations. The Department is continuing to remove nonnative trout from other lakes. Field experiments suggest removing nonnative trout results in mountain yellow-legged populations recovering quickly.
The EIR concludes trout stocking’s effect on mountain yellow-legged frogs is potentially significant. To mitigate the effect, the EIR directs the Department to utilize the evaluation protocol at each location where stocking is planned to occur within the species’s range. If the potential for trout and mountain yellow-legged frogs to interact exists, and if that potential could result in a substantial impact on the frog, trout will not be stocked at that location unless and until the Department adopts an aquatic biodiversity management plan for that location to mitigate the impact.
The EIR repeats this type of analysis and evaluation for each decision species. And the analysis applies wherever the species is located.
The EIR also details the effects hatchery salmon and steelhead have on wild populations of native anadromous fish. The EIR states stocking hatchery fish can increase the likelihood of predation and competition with wild fish, depending on a number of factors, including the age, size, feeding habits, and density of the fish. The EIR analyzes whether this impact occurs with any of the decision species, and it concludes the impact is significant and unavoidable in certain strains of salmon and steelhead.
The EIR states all aspects of the hatchery enterprise have the potential to adversely affect the long-term genetic fitness and diversity of wild populations of salmon and steelhead that occupy stocked waters. This occurs from capturing native fish that might otherwise spawn in natural waters, rearing fish in artificial channels and reducing their ability to survive in natural conditions, and interbreeding. These factors may cause loss of genetic diversity within and among populations, and reduced fitness, productivity, and abundance. The EIR analyzes these possible effects on each decision salmon and steelhead population group, and finds many of them to be significant and unavoidable.
For example, the EIR states stocking has had, and will continue to have, a significant effect on the genetic integrity of Chinook salmon populations that run in Central Valley rivers in the fall and late fall. This population is genetically homogenized, and that homogenization has often been attributed to the long history of hatchery stocking and to frequent stock transfers between hatcheries. There is a high incidence of straying by these hatchery fish. Some studies suggest hatchery fall-run Chinook have replaced locally adapted populations, a result of a significant gene flow from hatchery stocking programs to the wild fish and a reduced abundance of productive wild fish. The EIR concludes this population is clearly experiencing a significant impact. “Excessive hatchery adults have been demonstrated or are probable in all areas currently supporting at least some wild production of fall-run or late fall-run Chinook salmon.” The hatchery enterprises are causing, and will continue to cause, significant environmental effects on this population.
To mitigate these impacts, the EIR directs the Department to continue working with the NMFS to complete the hatchery genetic management plans. However, even with mitigating the effects by developing and operating under a hatchery genetic management plan, the effects would be unavoidable.
The EIR repeats this type of analysis and evaluation for each decision species of wild salmon and steelhead.
In this manner, the EIR disclosed and evaluated all known impacts from hatchery operations and stocking to each decision species. It did so comprehensively and specifically to each species. It allows the Department to go forward with its enterprise, knowing the likely impacts from any stocking decision it makes should it find a decision species in the water body to be stocked.
The Center contends the EIR is inadequate to serve as a project EIR because it does not contain site-specific analysis for each water body to be stocked, and it improperly defers that analysis until the Department performs the evaluation protocol for each site. It argues our decision in Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th 511 [98 Cal.Rptr.2d 334] (Mammoth Lakes) compels a site-specific analysis be performed before the Department can implement its enterprise at each water body it stocks. We disagree, because unlike the EIR at issue in Mammoth Lakes, this EIR is sufficiently comprehensive, as just described, to enable the Department to go forward with its project in compliance with CEQA.
In Mammoth Lakes, we determined a program EIR prepared for a proposed redevelopment plan was inadequate under CEQA. The redevelopment plan contained detailed descriptions of 72 different projects to be developed under the plan, but the EIR did not review the potential impacts from any of those projects. We wrote: “[Bjecause a redevelopment plan EIR [under the CEQA Guidelines that existed then] is not a true first tier EIR, and because the Town’s redevelopment plan was as detailed as it was, CEQA required the Town’s redevelopment plan EIR to contain more analysis of the 72 proposed projects than it did. The Town’s failure to analyze the impacts caused by each proposed project, to the extent information was known or reasonably could have been known about each project, constituted a failure to proceed in the manner required by CEQA.” (Mammoth Lakes, supra, 82 Cal.App.4th at p. 535.)
Unlike in Mammoth Lakes, the program EIR here analyzes every impact that reasonably could occur by stocking fish in any water body in the state based on the information currently known. Due to the nature of the project, the EIR explains what the impacts will likely be to decision species at any site where the Department operates hatcheries and stocks fish. Site-specific analysis will likely not reveal any unanticipated impacts; instead, it will reveal whether the impacts discussed in the EIR are occurring at that site.
The Center complains that if site-specific analysis is not done now, it may never be done, or if done, will not be done in a manner that allows public input. CEQA, however, does not require an additional site-specific environmental review document if the agency determines the site-specific impacts were sufficiently addressed in the program EIR, nor does it require that determination to be made in a public process. Only if the agency discovers new impacts will they be addressed in a public process.
When a program EIR is used to avoid preparing subsequent EIR’s, such as here, the public agency must examine site-specific program activities “in the light of the program EIR to determine whether an additional environmental document must be prepared.” (CEQA Guidelines, § 15168, subd. (c).) If the site-specific activity will not create effects or require mitigation measures that were not discussed in the program EIR, the public agency is not required to prepare any other site-specific environmental document. (CEQA Guidelines, § 15168, subd. (c)(2.)
Specifically, the rules governing environmental review of subsequent program activities under a program EIR are as follows:
“(1) If a later activity would have effects that were not examined in the program EIR, a new initial study would need to be prepared leading to either an EIR or a negative declaration.
“(2) If the agency finds that pursuant to [CEQA Guidelines] Section 15162, no new effects could occur or no new mitigation measures would be required, the agency can approve the activity as being within the scope of the project covered by the program EIR, and no new environmental document would be required.
“(3) An agency shall incorporate feasible mitigation measures and alternatives developed in the program EIR into subsequent actions in the program.
“(4) Where the subsequent activities involve site specific operations, the agency should use a written checklist or similar device to document the evaluation of the site and the activity to determine whether the environmental effects of the operation were covered in the program EIR.
“(5) A program EIR will be most helpful in dealing with subsequent activities if it deals with the effects of the program as specifically and comprehensively as possible. With a good and detailed analysis of the program, many subsequent activities could be found to be within the scope of the project described in the program EIR, and no further environmental documents would be required.” (CEQA Guidelines, § 15168, subd. (c), italics added.)
In effect, after a sufficiently comprehensive and specific program EIR has been certified, CEQA allows much of the initial site-specific review to occur outside a formal CEQA process and beyond public view. CEQA does not require the Department to engage in a public process when it determines whether the impacts from a site-specific project were addressed and adequately mitigated in the program EIR. And if the Department finds the impacts were addressed, it need not prepare a new environmental document at all.
“To hold that a project-specific EIR must be prepared for all activities proposed after the certification of the program EIR, even where the subsequent activity is ‘within the scope of the project described in the program EIR’ ([CEQA] Guidelines, § 15168, subd. (c)(5)), would be directly contrary to one of the essential purposes of program EIR’s, i.e., to streamline environmental review of projects within the scope of a previously completed program EIR. We conclude that a program EIR may serve as the EIR for a subsequently proposed project to the extent it contemplates and adequately analyzes the potential environmental impacts of the project. . . .” {Citizens for Responsible Equitable Environmental Development v. City of San Diego Redevelopment Agency (2005) 134 Cal.App.4th 598, 615 [36 Cal.Rptr.3d 249].)
The Center contends the evaluation protocol is an inadequate and untimely method for performing site-specific review. To the contrary, the evaluation protocol is a type of “written checklist or similar device” CEQA allows an agency to use to document site-specific impacts and determine whether those impacts were sufficiently analyzed in the program EIR. (CEQA Guidelines, § 15168, subd. (c)(4); see id., subd. (c)(2).)
Before the Department will stock a high mountain lake, it will utilize the evaluation protocol to determine if any decision species are present in that water body. If a decision species is present, the Department will determine whether stocking will have a substantial environmental affect on the species. This review will by necessity include application of the impacts analysis contained in the EIR, as well as a determination of any other impacts that may not have been addressed in the EIR. This is exactly the type of process CEQA requires an agency to utilize outside of public review when it intends to approve a site-specific project that is part of a program previously reviewed in a program EIR. If the Department upon using the evaluation protocol discovers an impact that was not sufficiently addressed in the EIR, it will then be obligated to begin a CEQA process, but only if the Department intends to approve the activity.
The Department has complied with CEQA in preparing a sufficiently adequate program EIR that reviews in a reasonable manner the impacts the enterprise will have on decision species throughout the state, and that will allow it to proceed with its enterprise, subject to the requirements of CEQA.
B. Deferral of formulating mitigation measures
The Center contends the EIR impermissibly defers the formulation of mitigation measures. It allegedly does this by proposing the Department rely upon the future development of aquatic biodiversity management plans and hatchery genetic management plans to mitigate impacts as a basis for approving future stocking now. The Center claims CEQA prohibits agencies from approving EIR’s that defer formulation of mitigation measures to the future development of a plan. The Center acknowledges CEQA allows such deferral if the EIR specifies performance standards that future mitigation must meet, but it contends no such standards guide the development of future aquatic biodiversity management plans and hatchery genetic management plans.
We disagree with the Center. The EIR does not impermissibly defer formulation of mitigation measures, as it provides sufficient performance standards for future mitigation to meet. It commits the Department to render impacts on inland decision species insignificant before it plants any fish in the high mountain lakes, and it commits the Department to mitigate impacts on wild populations of native anadromous fish by bringing salmon and steelhead planting into conformity with governing federal regulations.
CEQA requires an EIR to propose and describe mitigation measures to minimize a project’s significant environmental impacts. (Pub. Resources Code, §§ 21002.1, subd. (a), 21100, subd. (b)(3).) Any action, whether it be part of the project or imposed as a condition of approval, that is designed to avoid, minimize, rectify, or reduce or eliminate a significant environmental impact or to compensate for the impact qualifies as a mitigation measure. (CEQA Guidelines, §§ 15126.4, subd. (a)(1), 15370.)
Generally, CEQA requires mitigation measures to be formulated in an EIR and not deferred to the development of future plans or measures, but there is an exception to that rule. “Formulation of mitigation measures should not be deferred until some future time. However, measures may specify performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way.” (CEQA Guidelines, § 15126.4, subd. (a)(1)(B).)
“ ‘Impermissible deferral of mitigation measures occurs when an EIR puts off analysis or orders a report without either setting standards or demonstrating how the impact can be mitigated in the manner described in the EIR.’ [Citation.]” (Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, 236 [128 Cal.Rptr.3d 733].)
“[W]hen, for practical reasons, mitigation measures cannot be fully formulated at the time of project approval, the lead agency may commit itself to devising them at a later time, provided the measures are required to ‘satisfy specific performance criteria articulated at the time of project approval.’ (Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1028-1029 [280 Cal.Rptr. 478], [original italics].) In other words, ‘[d]eferral of the specifics of mitigation is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed and possibly incorporated in the mitigation plan. [Citation.] On the other hand, an agency goes too far when it simply requires a project applicant to obtain a biological report and then comply with any recommendations that may be made in the report. [Citation.]’ (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1275 [15 Cal.Rptr.3d 176].)
“In sum, ‘it is sufficient to articulate specific performance criteria and make further [project] approvals contingent on finding a way to meet them.’ (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 793 [32 Cal.Rptr.3d 177].) Essentially, the rule prohibiting deferred mitigation prohibits loose or open-ended performance criteria. Deferred mitigation measures must ensure that the applicant will be required to find some way to reduce impacts to less than significant levels. If the measures are loose or open-ended, such that they afford the applicant a means of avoiding mitigation during project implementation, it would be unreasonable to conclude that implementing the measures will reduce impacts to less than significant levels.” (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 944-945 [146 Cal.Rptr.3d 12] (Rialto Citizens), original italics.)
However, “when a public agency has evaluated the potentially significant impacts of a project and has identified measures that will mitigate those impacts, the agency does not have to commit to any particular mitigation measure in the EIR, as long as it commits to mitigating the significant impacts of the project. Moreover, ... the details of exactly how mitigation will be achieved under the identified measures can be deferred pending completion of a future study.” (California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 621 [91 Cal.Rptr.3d 571].)
The Center contends the Department could have formulated site-specific mitigation measures in the program EIR had it performed site-specific reviews, and there was no justification for its decision not to do either. Even if the Department could defer forming site-specific mitigation measures, the Center claims the EIR still fails because it does not contain specific performance standards or a commitment to mitigate the impacts.
We have already concluded the EIR, as a program EIR, was not required to perform site-specific review. We are left with the Center’s assertion that the EIR does not contain specific performance standards for the ultimate mitigation measures to meet or a commitment to mitigate. We disagree with the Center’s claim.
CEQA does not define how specific the performance standards set forth in an EIR must be in order to defer formulating mitigation measures. However, Rialto Citizens, supra, 208 Cal.App.4th 899, a decision of Division Two of the Fourth Appellate District Court of Appeal, provides persuasive reasoning that supports our conclusion the EIR did not improperly defer formulating mitigation measures. Rialto Citizens concerned the adequacy of mitigation measures proposed by an EIR for a large retail development project. Five special status plant species and three special status wildlife species had the potential to occur on the project site. (Id. at p. 942.) To mitigate the project’s impacts to those species, the EIR proposed the following mitigation measures: for the five plant species, the EIR required a botanist to survey each site. If less than 20 individuals of any of the species were found, no further action was required. If 20 or more were found, the EIR required the botanist to prepare a plan providing for the salvage and transportation of the plants to another location on the project site in permanent open space. The new location had to be maintained and protected for a period of three years. The plan had to include performance criteria, but at a minimum there had to be no less than 80 percent establishment of the individual plants at the end of three years. If those criteria were not met, the monitoring period would be extended another two years. The plan had to be submitted and approved prior to site grading. In addition, if the surveys discovered any state or federal threatened or endangered species, the project would be subject to formal consultation and permitting requirements under state and federal endangered species law. (Id. at p. 943.)
For the three wildlife species, the EIR proposed separate sets of mitigation measures; one for two federally endangered kangaroo rat species, and one for the burrowing owl. (Rialto Citizens, supra, 208 Cal.App.4th at pp. 943-944.) To mitigate impacts on the two kangaroo rat species, the EIR required a mammalogist to survey the site for habitat prior to the issuance of grading permits and determine whether trapping efforts were necessary. If habitats were found, trapping efforts would proceed following federal protocols. If actual species were found, the project applicant would engage in formal consultation and permitting with the appropriate federal agency as required under federal endangered species law to determine appropriate offsite mitigation. (Id. at p. 943.)
To mitigate impacts on the burrowing owl, the EIR required a biologist to survey the site prior to grading to identify burrows and occupied burrows by using a protocol approved by federal and state environmental agencies. After the initial survey, the biologist must conduct four additional surveys focusing on owls during the owl’s breeding season. If no owls were located, no further mitigation was required. If owls were observed, the project applicant was required to consult with the city to determine appropriate mitigation, based on conditions at the site. (Rialto Citizens, supra, 208 Cal.App.4th at p. 944.)
A citizens group alleged the EIR improperly deferred formulation of mitigation measures, but the Court of Appeal held it did not. It determined these mitigation measures were sufficiently definite to ensure the impacts would be mitigated, and the EIR did not improperly defer formulation of the measures. The requirement to prepare a plant salvage and transportation plan to mitigate for impacts on the plant species was not an improper deferral. The EIR included sufficient performance standards for the salvage plan (maintaining the plant species in an open space area for three to five years if 20 or more individual plants of any species are found prior to grading) to ensure development and operation of the plan would reduce impacts on the plant species to less than significant levels. (Rialto Citizens, supra, 208 Cal.App.4th at p. 946.)
The measures protecting the endangered kangaroo rat species and any other endangered or threatened plant species were also adequate, as they required the project applicant to comply with applicable government consulting and permitting regulations. Complying with government regulations as a mitigation measure is not an improper deferral. (Rialto Citizens, supra, 208 Cal.App.4th at pp. 945-946.)
Finally, and most significantly here, the Court of Appeal held the EIR’s proposed mitigation measures for impacts on the burrowing owl were not improper deferrals. Even though the EIR did not specify exactly what would be done if any burrowing owls were found, by requiring the applicant to conduct five surveys and consult with the city to determine proper mitigation if any owls were found, the EIR committed the applicant and the city to find a way to render any impact insignificant before the city issued a grading permit. (Rialto Citizens, supra, 208 Cal.App.4th at pp. 946-947.)
The mitigation measures at issue here pass muster in the same fashion the measures at issue in Rialto Citizens survived. The mitigation measures for trout stocking in mountain lakes commit the Department to mitigating impacts to insignificance before the Department recommences stocking. The mitigation measures for the salmon and steelhead stocking commit the Department to mitigate impacts in compliance with federal regulation and to the extent possible for impacts which are unavoidable and cannot feasibly be mitigated fully.
Requiring the Department to survey each mountain lake using the evaluation protocol and to develop an aquatic biodiversity management plan before it stocks any mountain lake where impacts may occur did not impermissibly defer formulating mitigation measures. Rather, it committed the Department to mitigate potential impacts before they occurred. Impacts on mountain lake fish were completely but temporarily mitigated when the trial court and the EIR prohibited the Department from conducting any stocking in the lakes. Stocking will not resume unless and until the Department surveys each lake, and, if any decision species existing in the lake could be adversely affected by stocking, adopts an aquatic biodiversity management plan to govern stocking in that lake. The Department’s inability to stock until each lake has been surveyed and an aquatic biodiversity management plan is adopted for any lake where significant impacts may occur commits the Department to mitigating the impacts should it decide to stock in any lake. The Department has no discretion to go forward without first mitigating the impacts.
Also, the EIR provides sufficient performance standards to ensure the aquatic biodiversity management plans will mitigate impacts in mountain lakes to insignificance. The EIR directs the plans to end stocking in most mountain lakes that contain decision species or their habitat. The plans are to be designed to recover native wildlife, especially amphibians, as well as maintain some recreational fisheries.
The EIR directs aquatic biodiversity management plans to satisfy three objectives. First, they are to “[mjanage high elevation aquatic resources in a manner that maintains or restores native biodiversity and habitat quality, supports viable populations of native species, and provides for recreational opportunities considering historical and future use patterns. In some areas, most or all of the waters may be managed as natural resources with little or no angling available. Likewise, in areas of high recreational demand, most or all of the waters may be managed for recreational angling.”
Second, all stocking allotments and changes must be based on site-specific data preferably collected within the previous five years.
Third, for each mountain lake, stocking is to be guided by the following relevant principles: (1) Lakes with extant or existing populations of decision species should generally not be stocked with fish. Moreover, if decision species populations exist within two kilometers of the lake, the Department must assess the feasibility of removing all trout from that lake to convert it to a fishless condition in order to benefit the decision species.
(2) After achieving these native biodiversity objectives, mountain lakes are to be managed to optimize angling quality and opportunity within a given basin.
These mitigation measures inform the Department how it is to mitigate any impacts on decision species. In most circumstances, it is not to stock lakes where decision species exist, and, additionally, it is to remove all trout from such lakes where it is feasible. These standards are sufficient to inform the Department what it is to do and what it must accomplish, and they commit the Department to mitigating impacts before proceeding with the enterprise.
Requiring the Department to implement hatchery genetic management plans also did not impermissibly defer formulating mitigation measures for impacts on anadromous fish. Indeed, the EIR determined many of the impacts on anadromous fish were unavoidable and could not feasibly be mitigated to less than significant. In compliance with CEQA, the Department adopted findings of fact stating the impacts could not be feasibly mitigated or that mitigation was the ultimate responsibility of another federal agency. The Department also adopted a statement of overriding considerations by which it expressly declared it was approving the project, despite its environmental harm, because of the project’s overriding benefits and the Department’s statutory mandate. At that point, there was no additional mitigation to be done. The Center does not challenge these findings.
The Department agreed to lessen impacts to the extent reasonably feasible by developing hatchery genetic management plans for approval by the NMFS. By doing so, the Department relied upon federal regulations requiring a state to develop hatchery genetic management plans in order to continue hatchery and stocking operations as exempt from take prohibitions imposed by the federal Endangered Species Act of 1973 in waters populated by endangered anadromous species. (50 C.F.R. § 223.203(b)(5) (2014).) The plan must effectively protect and achieve “a level of salmonid productivity commensurate with the conservation of the listed salmonids.” (50 C.F.R. § 223.203(b)(5)(vi) (2014).) It must ensure broodstock collection programs meet a listed species’s conservation needs before they can be used to sustain recreational and commercial fisheries. (50 C.F.R. § 223.203(b)(5)(i)(C) (2014).)
The hatchery genetic management plan must also minimize the impacts hatchery fish have on wild fish. (50 C.F.R. § 223.203(b)(5)(i)(E) (2014).) It must ensure hatchery programs and harvest management are designed to provide as few biological risks as possible on listed species. (50 C.F.R. § 223.203(b)(5)(i)(F) (2014).) It must require adequate hatchery facilities to exist to maintain population diversity and avoid hatchery-influenced selection or domestication. (50 C.F.R. § 223.203(b)(5)(i)(G) (2014).) And the plan must be approved by the NMFS. (50 C.F.R. § 223.203(b)(5)(i)(K)(v) (2014).)
These regulations provide sufficient performance standards to satisfy CEQA. “[A] condition requiring compliance with regulations is a common and reasonable mitigation measure, and may be proper where it is reasonable to expect compliance. [Citations.]” (Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 906 [124 Cal.Rptr.3d 755].) Here, it is reasonable to expect compliance, as the Department previously initiated developing hatchery genetic management plans, and it continues to work with the NMFS to obtain its approval. Otherwise, it may run afoul of federal law. There is no doubt the Department is committed to mitigating its impacts on anadromous fish to the extent it feasibly can by adopting and implementing hatchery genetic management plans. Thus, requiring the Department to adopt the plans as a mitigation measure was not an improper deferral of formulating mitigation.
Asserting the EIR improperly defers formulating mitigation measures, the Center claims the issue is governed by Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260 [148 Cal.Rptr.3d 310] (Preserve Wild Santee), in which Division One of the Fourth District Court of Appeal invalidated an EIR for improperly deferring formulation of mitigation measures. We find the case distinguishable. The relevant issue in Preserve Wild Santee concerned a proposed residential de