Filed 3/26/14 Salmon Protection and Watershed Network v. County of Marin CA1/3
(unmodified opn. attached)

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                 FIRST APPELLATE DISTRICT
                                         DIVISION THREE


SALMON PROTECTION AND                                     A137062
WATERSHED NETWORK,                                        (Marin County
                                                          Super. Ct. No. CIV 1004866)
        Plaintiff and Appellant,
v.                                                        ORDER MODIFYING OPINION AND
                                                          DENYING PUBLICATION AND
COUNTY OF MARIN et al.,                                   REHEARING, AND
                                                          RECOMMENDATION TO SUPREME
        Defendants and Respondents.                       COURT; NO CHANGE IN JUDGMENT


THE COURT:
It is ordered that the opinion filed herein on March 5, 2014, be modified in the following
respect:

       On page 24, line 3 of the Disposition, after the words “supplemental EIR,” add
“with respect to the San Geronimo watershed only” so that the Disposition, which retains
the footnote, reads:
               The judgment is reversed. The matter is remanded with instructions to enter
        a writ of mandate directing the county to set aside its approval of the 2007 CWP
        and certification of the related EIR, pending preparation of a supplemental EIR
        with respect to the San Geronimo watershed only that analyzes cumulative
        impacts in conformity with Guidelines section 15130, subdivision (b) and this
        opinion, and that describes mitigation measures in conformity with Guidelines
        section 15126.4 and this opinion or makes other findings in conformity with
        Guidelines section 15091.

        Since this court’s opinion does not meet the standard for publication as set forth in
rule 8.1105(c) of the California Rules of Court, the requests to partially publish the
opinion are denied. Pursuant to rule 8.1120(b) of the California Rules of Court, the clerk
is directed to forward to the Clerk of the Supreme Court the requests for publication, the
opinion, and a copy of this order.

        The petition for rehearing is denied. There is no change in the judgment.
Filed 3/5/14 Salmon Protection and Watershed Network v. County of Marin CA1/3 (unmodified version)

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


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


                                       FIRST APPELLATE DISTRICT


                                                DIVISION THREE




SALMON PROTECTION AND
WATERSHED NETWORK,
         Plaintiff and Appellant,
                                                                         A137062
v.
COUNTY OF MARIN et al.,
         Defendants and Respondents.                                     (Marin County
                                                                         Super. Ct. No. CIV 1004866)




         Salmon Protection and Watershed Network (SPAWN) appeals from the denial of
its petition for a writ of mandate challenging the sufficiency of the environmental impact
report (EIR) certified by the Marin County Board of Supervisors for the 2007 update of
the Marin Countywide General Plan (2007 CWP or the plan). Although the operative
petition contains five causes of action attacking on various grounds the sufficiency of the
EIR’s treatment of the impacts of the plan on coho salmon and steelhead trout, on appeal


                                                             1
SPAWN argues only that the EIR fails to properly analyze the plan’s cumulative impacts
on these threatened salmonids, and that the EIR relies on an inadequate measure to
mitigate the impacts of development in the San Geronimo Valley watershed.1 The trial
court denied the petition for a writ of mandate, but in response to a sixth cause of action
alleging that the county had failed to adopt a stream conservation area ordinance that the
EIR identifies as a mitigation measure, enjoined the county from approving any
development applications within stream conservation areas in the San Geronimo Valley
watershed until the ordinance is adopted. SPAWN appeals from the denial of the petition
and the county cross-appeals from the injunction.

       We conclude that the EIR is deficient and that the injunction should not have been
entered.

                                       Background

2007 Marin Countywide Plan

       Since 1973, Marin County (the county) has adopted four countywide plans. Prior
to the 2007 update, the countywide plan was last revised in 1994. The 2007 CWP
describes itself as a comprehensive update of the 1994 CWP to address changed
conditions since the adoption of the 1994 plan. The 2007 plan envisions that in the
unincorporated portion of Marin County, which includes San Geronimo Valley, by 2030
there will be an approximate 20 percent growth in housing units and 40 percent increase
in developed nonresidential floor area. Relative to the 1994 CWP, the 2007 CWP

1
  Following the county’s certification of the EIR, SPAWN and the county agreed to toll
the statutory period for filing a judicial challenge to the EIR, to permit settlement
discussions. Although not settling the disputes now before us, the negotiations narrowed
the issues in contention. This court upheld the validity of the tolling agreement in Salmon
Protection and Watershed Network v. County of Marin (2012) 205 Cal.App.4th 195.
Pursuant to the terms of the tolling agreement, SPAWN’s challenge is “limited to the
application of the Countywide Plan and [EIR] only to the San Geronimo Watershed.” The
San Geronimo Valley watershed is a sub-watershed consisting of 9.3 square miles, or
5,952 acres, within the larger Lagunitas Creek watershed in Marin County.


                                             2
proposes a net decrease of 6,744 acres of residential land use and a decrease in the
number of residential units.

       Both the 1994 and 2007 plans recognize the importance of local streams and
creeks as habitat for coho salmon and steelhead trout. SPAWN’s appellate brief quotes
from the 1994 CWP: “Riparian systems, streams, and their riparian and woodland habitat
are irreplaceable and should be officially recognized and protected as essential
environmental resources, because of their values for erosion control, water quality, fish
and wildlife, aesthetics, recreation, and the health of human communities.” The 2007
CWP articulates goals, policies and implementing programs. Among its stated goals is a
“preserved and restored natural environment” in which “Marin watersheds, natural
habitats, wildlife corridors, and open space will be protected, restored, and enhanced.”
The plan recognizes that “[a] number of sensitive natural communities and species are
becoming increasingly rare,” including coho and steelhead, and that “[n]atural
communities, habitats, and corridors essential to wildlife health and movement and plant
dispersal are vulnerable.” Where inadequate buffers and intensive development threaten
streams, “[r]iparian corridors, marshlands, and wetlands can be altered by filling,
draining, removal of vegetative cover, and other modifications, eliminating their habitat
values and functions.” Thus, the plan states, “[t]he continued health and restoration of
streams and riparian resources has become an increasingly important policy objective
with the designation of the coho salmon and steelhead trout as special-status species by
the State and federal governments.”

       To protect riparian areas, the 1994 CWP established the concept of “Stream
Conservation Areas” (SCA), many of which are to be found throughout the San
Geronimo Valley watershed, and it adopted numerous polices and implementation
measures to protect these areas. An SCA is defined as “the watercourse itself [of
perennial, intermittent, and ephemeral streams] between the tops of the banks and a strip
of land extending laterally outward from the top of both banks to the widths defined
below.” The 2007 update revises many provisions relating to the SCA’s. While the 1994


                                             3
plan did not always require a 50-foot strip within the setback from the stream, the 2007
CWP requires property owners in the “Inland Rural Corridor,” which includes the San
Geronimo Valley watershed, to “provide a development setback on each side of the top
of bank that is the greater of either (a) 50 feet landward from the outer edge of woody
riparian vegetation associated with the stream or (b) 100 feet landward from the top of
bank.” The 2007 CWP also newly requires a site assessment as part of the permitting
process and provides that “[a]n additional setback distance may be required based on the
results of a site assessment.”

       The plan specifies seven permissible uses of property within the area2 and
provides certain exceptions to the necessity of fully complying with SCA criteria and
standards. An exception may be allowed if a parcel falls entirely within an SCA or
development on the parcel entirely outside the SCA is either infeasible or would have
greater impacts on water quality, wildlife habitat, sensitive biological resources, or other
environmental constraints than development within the SCA, but in such cases a site
assessment by a qualified professional will be required and additional restrictions may be
imposed.

       To achieve the goals of enhancing native habitat and improving biodiversity, and
protecting sensitive biological resources , the 2007 CWP includes numerous policies3 and
implementing programs.4


2
  These are: “ Existing permitted or legal nonconforming structures or improvements,
their repair, and their retrofit within the existing footprint; Projects to improve fish and
wildlife habitat; Driveway, road and utility crossings, if no other location is feasible;
Water-monitoring installations; Passive recreation that does not significantly disturb
native species; Necessary water supply and flood control projects that minimize impacts
to stream function and to fish and wildlife habitat; Agricultural uses that do not result in
any of the following: a. The removal of woody riparian vegetation; b. The installation of
fencing with the SCA that prevents wildlife access to the riparian habitat within the SCA;
c. Animal confinement within the SCA; and d. A substantial increase in sedimentation.”
3
  The policies include, among many others, “Protect[ing] sensitive biological resources
. . . through careful environmental review of proposed development applications,

                                              4
The Environmental Impact Report

       The county circulated a draft EIR for the proposed 2007 CWP in January 2007.
Following the submission of comments and public hearings the final EIR was circulated
in June, 2007. Following the receipt of additional comments, public hearings and certain
modifications to the plan and to the EIR, the final EIR was certified in November 2007.
According to the EIR, it “is a program EIR under Section 15168 of the State CEQA
Guidelines. . . . As a program EIR, this document focuses on the overall effect of the
[2007 CWP]. This analysis does not examine the effects of site-specific projects that may

including consideration of cumulative impacts, participation in comprehensive habitat
management programs with other local and resource agencies, and continued acquisition
and management of open space lands that provide for permanent protection of important
natural habitats;” “Require[ing] environmental review pursuant to CEQA of development
applications to assess the impact of proposed development on native species and habitat
diversity, particularly special-status species, sensitive natural communities . . . .
Requir[ing] adequate mitigation measures for ensuring the protection of any sensitive
resources and achieving ‘no net loss’ of sensitive habitat acreage, values, and function;”
“Restrict[ing] or modify[ing] proposed development in areas that contain essential habitat
for special-status species, sensitive natural communities, . . . and riparian habitats . . . ;”
“Ensur[ing] that existing stream channels and riparian corridors continue to provide for
wildlife movement at roadway crossings . . . while maintaining or restoring natural
channel bottom;” “Restor[ing] and stabiliz[ing] stream channels;” and protecting riparian
vegetation and restoring damaged portions of SCA’s to their natural state.
4
  The programs include, among many others, “Work[ing] with other agencies to develop
a program to monitor trends in habitat loss, protection and restoration” and
“Establish[ing] cumulative thresholds for habitat loss for particularly vulnerable natural
communities” (Program BIO-1.b); “Requir[ing] site assessment by a qualified
professional [hired by the county but paid for by the project applicant] for development
applications that may adversely affect sensitive biological or wetland resources”
(Program BIO-2.a); “Continue to actively participate in the FishNet4C [multi-
county]program and work cooperatively with participating agencies to implement
recommendations to improve and restore aquatic habitat for listed anadromous fish
species and other fishery resources” (Program BIO-2.e); “Adopting a new SCA ordinance
that would implement the SCA standards for parcels traversed by or adjacent to a mapped
anadromous fish stream and tributary”(Program BIO-4.a); and “When removal of native
riparian vegetation is unavoidable in an SCA, and mitigation is required, require
establishment of native trees, shrubs, and ground covers within a period of five years . . .
[at] a minimum replacement or enhancement ratio of 2:1” (Program BIO-4.i).


                                              5
occur within the overall umbrella of this program in the future. The nature of general
plans is such that many proposed policies are intended to be general, with details to be
worked out during implementation. Thus, many of the impacts and mitigation measures
can only be described in general or qualitative terms. The analysis in this program EIR is
considered the first tier of environmental review, creating the foundation upon which
future, project-specific CEQA documents can build.”

       The EIR states that land uses and development consistent with the plan “could
result in adverse effects to special-status species known from Marin County” and that
these effects would be a significant impact. “Conversion of existing natural habitat to
urban development, roadways and other infrastructure improvements could result in the
elimination of populations of special-status species where present within the limits of
proposed grading and development.”The report states that adoption and implementation
of programs specified in the plan to maintain up-to-date informational resources, require
site assessments, and coordinate environmental review with jurisdictional agencies and
the project applicant, which should occur within five years, will “substantially reduce
adverse effects to special status species.” However, to reduce the effects to less-than-
significant impacts, the EIR states that continued participation in the FishNet 4C multi-
county program will be necessary. Since the 2007 CWP does not call for continued
participation in the FishNet 4C program or implementation of the program’s
recommendations, the EIR includes a mitigation measure, to add to the 2007 CWP a new
policy, BIO-2: “Continue to actively participate in the FishNet 4C program and work
cooperatively with participating agencies to implement recommendations to improve and
restore aquatic habitat for listed anadromous fish species and other fishery resources.”
The report concludes that adoption of this measure, “together with effective
implementation of relevant programs, and oversight by regulatory agencies entrusted
with enforcement of State and federal regulations that address protection and
management of special-status species, would substantially reduce adverse effects to
special-status species resulting from land uses and development consistent with the



                                             6
[CWP update]. Therefore, this would be a less-than-significant project impact and the
project’s contribution to cumulative impacts would be less than cumulatively
considerable.”

       The EIR also identifies the effects of development and land use activities
upon “sensitive natural communities,” which includes riparian habitat, as a potential
significant impact of build-out consistent with the 2007 CWP. “The significance of a
potential impact on a sensitive natural community is dependent on a number of
factors, including its rarity, its contribution to other natural habitat values in the
vicinity, and the degree to which it is to be modified or eliminated as a result of
proposed development. Appropriate compensatory mitigation also depends on
feasibility of creating replacement habitat or restoring areas of sensitive natural
communities affected by proposed development. These various considerations are
not specifically acknowledged in the policies related to sensitive natural
communities, but are understood to be part of the site assessment and mitigation
programs utilized by qualified professionals and regulatory agencies. ” The report
states that “[u]pdated and expanded policies and programs in the [2007 CWP] would
serve to improve and strengthen protections for sensitive natural communities ,” but
that in order to mitigate these impacts to a less-than-significant level, it will be
necessary for the county to obtain funding to implement the habitat monitoring
program described in the plan as Program BIO-1.b. 5 Funding of that program,
“together with effective implementation of relevant programs and oversight by
regulatory agencies entrusted with enforcement of State and federal regulations
addressing the protection and management of sensitive natural communities, would
mitigate potential adverse impacts to sensitive natural communities associated with

5
 Mitigation Measure 4.6-2, as included in the EIR, is as follows: “In order to reduce the
impact to sensitive natural communities to a less-than-significant level, the County would
obtain funding for Program BIO-1.b (Develop Habitat Monitoring Programs), revise its
priority to medium, and improve the timeframe of its implementation to the medium-term
or sooner.”


                                             7
the [2007 CWP] to a less-than-significant level and the project's contribution to
cumulative impacts would be less than cumulatively considerable.”

      The section of the EIR dealing with cumulative impacts essentially repeats the
discussion from earlier sections of the report. The introduction to the cumulative
impacts section states, “Since cumulative development in the unincorporated area is
integrated into the project description itself, the analyses contained in [the
discussion summarized above] consider cumulative issues.” With respect to impacts
on biological resources, the report repeats, “The overall cumulative effect of
development would be dependent on the degree to which significant biological and
wetland resources are protected or mitigated for as part of individual development
projects throughout the county. This includes preservation of areas of sensitive
natural communities, protection of essential habitat for special-status plant and
animal species, and avoidance of wetlands. Further environmental review of any
specific development proposals would further serve to ensure that important
biological and wetland resources are identified, protected, and properly managed . . .
This environmental review should serve to prevent, minimize, or mitigate most
significant adverse development-related impacts. With respect to special-status-
species . . . and sensitive natural communities . . ., these would be significant
cumulative impacts. With implementation of the policies in the [2007 CWP] and the
mitigation measures prescribed for these two impacts, the [2007 CWP] contribution
to these impacts would be less than cumulatively considerable.”

      Among the revisions made to the EIR following circulation of the draft was
the inclusion of programs to encourage collaboration with other agencies and
interested parties. New Program BIO-4.m is to “[c]ontinue to collaborate with the
Marin Resource Conservation District to encourage and support the continued
implementation of the Marin Coastal Watersheds Permit Coordination Program,
especially the preparation of management and conservation plans where appropriate
for agricultural activities within the Stream Conservation Areas.” Program BIO-4.t


                                            8
is to “[c]ollaborate with local, regional, state, and federal organizations (Marin
Organic, MALT, SPAWN, Marin Audubon, RCD, Fish and Game, RWQCB, Sierra
Club, Farm Bureau, Trout Unlimited, and affected property owners) to address long
term habitat protection and develop funding mechanisms to address the issue.”

      Concurrently with certification of the EIR, the Board of Supervisors modified
Mitigation Measure 4.6-2 (see fn. 5, ante), finding that it was not feasible to assure
funding for the habitat funding program and striking from the mitigation measure the
requirement to obtain funding. The Board found that the impact on sensitive natural
communities therefore would not be mitigated to a less-than-significant level and
that “[s]pecial considerations make further mitigation measures or alternatives
infeasible.”

Post-EIR Developments

      As indicated in footnote 1, ante, following certification of the EIR, the parties
agreed to toll the limitations period for filing an action challenging the sufficiency
of the EIR. During the period prior to the filing of this action, several additional
steps were taken by the county, in part pursuant to agreements reached with
SPAWN, to study and mitigate the effects on salmonids of further development in
the San Geronimo Valley Watershed. A moratorium on the issuance of permits for
development in SCA’s was imposed through February 11, 2010. The county funded
and there were prepared by outside contractors first an “Existing Conditions Report”
detailing findings of research and monitoring programs in the Lagunitas and San
Geronimo watersheds, and then a comprehensive “San Geronimo Valley Salmon
Enhancement Plan: A Guidance Document” (SEP), dated February 9, 2010. The
SEP, according to its executive summary, “presents science-based recommendations
to improve and maintain habitat conditions that will support viable populations of




                                            9
salmon and steelhead trout in San Geronimo Valley.” 6 The SEP makes 17
recommendations for enhancing salmon habitat, which apparently are consistent
with guidelines released at about the same time by the National Oceanic and
Atmospheric Administration. Among the data presented in the SEP is a tabulation of
the undeveloped parcels in San Geronimo Valley, the number of allowable units
permitted by the 2007 CWP, and projected changes in total impervious areas from
allowable buildout in seven planning reaches of the San Geronimo Valley
watershed. 7 In October 2008 the county entered a contract for the preparation of an
“updated Cumulative Impact Evaluation for the Marin Countywide Plan and EIR”;
by subsequent amendments the completion date for this study was extended to
January 30, 2014. Since approval of the EIR, the county has also, among other
things, modified its native tree ordinance to implement a program included in the
2007 CWP, and has recently adopted a stream conservation ordinance as
contemplated in the 2007 CWP which is itself being challenged for alleged failure to
comply with CEQA.

The Litigation

       SPAWN filed the present action challenging the sufficiency of the EIR on
September 14, 2010. One year later, on October 21, 2011, SPAWN filed an amended
petition adding a cause of action challenging the county’s failure to adopt a stream
conservation area ordinance within the time frame prescribed as a mitigation
measure in the 2007 CWP.

       The trial court ultimately upheld the adequacy of the EIR, ruling in part as
follows: “As a policy and planning document the CWP, and the [final EIR] which

6
 The summary points out, “This plan is not a regulatory document. It is not being
presented to the County for approval. Any new policies or ordinances informed by the
Plan would require a full public process and approval by the Board of Supervisors.”
7
  The percent increases in total impervious areas over existing levels range from 1 percent
to 16 percent.


                                            10
reviewed it, cannot be expected to provide the detailed, quantitative data on ‘the
actual amount of habitat that will have to be removed to accommodate future
development in the SCAs in San Geronimo, or how that loss of habitat will be
offset’ as petitioners demand . . ., since the county is unable to predict with
certainty, either the form or size the improvements will take, or on which parcels the
structures will be built. [¶] At the time of EIR certification, information of how
much habitat will be disturbed or must be replaced is too speculative, and the
quantitative detail petitioners urge is neither necessary to satisfy the informational
content required by CEQA for a program EIR, nor was it reasonably available at the
time of preparation of the program EIR. That desired detail must wait for the
county’s development review of the site-specific applications, at which time, the
owner will need to hire a qualified professional to perform ‘a detailed parcel -by-
parcel assessment [] in order to accurately locate sensitive resources and assess
potential impacts resulting from development consistent with the [2007 CWP]. . . .’
[¶] The court finds the information in the [final EIR] accurately reflects the severity,
scope, and significance of these cumulative impacts of the proposed development on
the protected species and sensitive habitats, and contains the requisite specificity
upon which the public and policymakers can make informed, environmentally-
conscious decisions when later reviewing applications for site-specific projects.”

      The trial court also denied SPAWN’s request to compel the Board of
Supervisors to adopt a stream conservation area ordinance, but entered an injunction
prohibiting the Board from approving any applications for development within the
stream conservation areas in the San Geronimo Valley watershed (with certain
limited exceptions) until such an ordinance has been adopted.

      As indicated above, SPAWN has timely appealed from the denial of its
petition and the county has timely appealed from the injunction.




                                           11
                                         Discussion

SPAWN’s appeal

       SPAWN makes two principal arguments on appeal. SPAWN contends that the
EIR does not comply with the California Environmental Quality Act, Public Resources
Code section 21000 et. seq. (CEQA) and the CEQA Guidelines (Cal. Code Regs., tit. 14)
(Guidelines) in that it fails to properly analyze the cumulative impacts on threatened
salmonids of development in the San Geronimo Valley watershed contemplated by the
2007 CWP, and that the EIR relies on an inadequate mitigation measure to reduce the
impacts of development to a less-than-significant level. 8

       1. Cumulative impacts

       Spawn argues that “while the EIR recognizes the precarious status of salmonids in
the Lagunitas watershed, it does not analyze or disclose the cumulative impacts of
development permitted by the Plan on riparian habitat or on coho and steelhead
populations. Instead of evaluating impacts, through either a quantitative or narrative
analysis, the EIR relies on loose, development-friendly policies and future project-
specific review.” The EIR, SPAWN contends, “does not assess how much habitat will be
adversely affected by implementation of the County’s development policies, or where
those impacts will likely occur. . . . . [G]iven that the EIR defers all analysis and
mitigation to future individual site-by-site permitting determinations, under a county
policy that allows open-ended ‘infeasibility’ and other discretionary exemptions to the
setback requirements, additional salmonid habitat degradation is virtually certain to
occur. That impact, however, is never estimated or evaluated anywhere in the EIR.”
SPAWN points out that the EIR estimates that approximately 913 new housing units will
be built within stream conservation areas throughout the county, but that “the EIR does

8
 SPAWN makes a third argument, that the court erred in failing to issue a writ of
mandate to compel the county to comply with its mandatory duty to adopt a stream
conservation ordinance. The issues raised by this argument are considered in connection
with the county’s cross-appeal.

                                              12
not discuss how much of this buildout will occur within the Lagunitas Creek watershed
proper or San Geronimo Valley more specifically.” “But even more important,” the
argument continues, “the buildout projections alone provide no clue as to how much
salmonid habitat could actually be destroyed or degraded by new impervious surfaces
(driveways, roofs, patios, etc.) or the expansion of existing facilities. . . . . the EIR never
attempts to identify how much of the San Geronimo Valley’s spawning and nursing areas
are at risk under the new Plan.”Further, SPAWN asserts, the EIR fails to provide a
baseline against which to analyze the impact of future development; the EIR contains no
analysis or quantification of existing impervious surface area, sediment production, or
instream shelter. The supplemental studies prepared or planned to be prepared after
certification of the EIR, SPAWN contends, “proposed to do the very analysis that should
have been completed in the EIR.”

       The county argues, correctly, that a program EIR need not contain the degree of
specificity required of a project EIR and that the analysis of impacts often may be
deferred until the preparation of a tiered impact report when the details of a particular
project are known and can be intelligently analyzed. “Where a lead agency is using the
tiering process in connection with an EIR for a large-scale planning approval, such as a
general plan or component thereof . . . , the development of detailed, site-specific
information may not be feasible but can be deferred, in many instances, until such time as
the lead agency prepares a future environmental document in connection with a project of
more limited geographical scale, as long as deferral does not prevent adequate
identification of significant effects of the planning approval at hand.” (Guidelines,
§ 15152, subd. (c); see, e.g., In re Bay-Delta Programmatic Environmental Impact
Report Coordinated Proceedings (2008) 43 Cal.4th 1143, 1170 (In re Bay-Delta EIR);
Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 374 (Rio
Vista).) The county argues that the ultimate impact on salmonids, and on biological
resources in general, will depend on the nature of the buildout that subsequently is
proposed in the San Geronimo Valley watershed and the extent to which the policies and



                                               13
implementing measures described in the 2007 CWP are incorporated in permits for
projects yet to be defined. The County thus defends the sufficiency of the conclusion in
the EIR that “[t]he overall cumulative effect of development [on biological resources]
would be dependent on the degree to which significant biological and wetland resources
are protected or mitigated for as part of individual development projects throughout the
county.”

       The county largely misconstrues SPAWN’s contention in arguing against its
asserted “position that a detailed watershed analysis, on a parcel by parcel basis, is
essential for programmatic review of a general plan.” The issue is not whether a “parcel
by parcel” analysis is required at this point – SPAWN makes no such contention. Such an
analysis obviously is an impossibility at this planning stage. The question is whether the
program EIR must contain a more meaningful analysis of the cumulative impacts on
fishlife of projected development in the watershed. Because the specifics of subsequent
construction projects will remain unknown as each project seeks permit approval, the
implication of the county’s position is that no analysis of the cumulative impacts of
development in the watershed will ever be made; the cumulative impact will not be
known until the last development has been proposed. The Guidelines point out, however,
that one of the advantages of a program EIR is that it “[e]nsure[s] consideration of
cumulative impacts that might be slighted in a case-by-case analysis.” (Guidelines,
§ 15168, subd. (b)(2).) “[A] program EIR is designed for analyzing program-wide effects,
broad policy alternatives and mitigation measures, cumulative impacts and basic policy
considerations, as opposed to specific projects within the program.” (Friends of
Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th
511, 533-534.) The final clause of section 15152, quoted above, is that the development
of site-specific information can be deferred “as long as deferral does not prevent adequate
identification of significant effects of the planning approval at hand.” (Guidelines,
§ 15152, subd. (c).) As stated in the comment from the California Regional Water
Quality Control Board, which opined that the draft EIR did not sufficiently address



                                             14
cumulative impacts of the plan, “It is the cumulative impacts of the projects that most
frequently lead to the decline of a species, not the individual projects.”

       The EIR here does provide some data concerning the extent of potential
development that the 2007 CWP forecasts in the areas critical to the salmonid population.
305 residential units may be located in sites that may adversely affect “special-status
plant and animal species,” 74 housing units may be located where they may affect
“sensitive natural communities,” and 913 housing units may be located on parcels “that
qualify as a SCA.” The EIR breaks these numbers down into the number of units that
may be located on parcels that are 0.5 acres or less in size, on which development would
likely result in significant adverse impacts because of limited siting flexibility, 0.5 to 2
acres in size, and greater than 2 acres in size, on which there is some siting flexibility to
avoid causing adverse impacts. The EIR also discloses the projected square footage of
additional nonresidential floor area in these locations, and that only a minimal portion
will be on parcels less than 0.5 acres in size. But neither the countywide plan nor the EIR
go further to estimate or evaluate in any meaningful terms by how much such
construction is likely to affect the streams abutting these sites. While it is undoubtedly
true, as the EIR states, that the degree of impact will “depend on the details of specific
development plans,” the report fails to estimate the maximum potential impact, the range
of potential impacts, or the likely net impact if the policies and implementation programs
described in the 2007 CWP are applied. What, for example, is the maximum amount of
impervious surface that may reasonably be placed in the watershed under the plan? With
application of the policies and programs described in the plan, will any salmonid habitat
be eliminated and if so, what is a reasonable estimate of the loss, and what variables will
determine its extent? While the 2007 CWP provides that noncompliance with SCA
standards may be permitted if a parcel falls entirely within an SCA or development on the
parcel entirely outside the SCA is either infeasible or would have greater impacts than
development within the SCA, how many and what size of lots are estimated to fall within
this exception and what is the significance of such exceptions?



                                              15
       The cases that have upheld deferred consideration of certain issues when
evaluating a general plan do not suggest that such cumulative impacts may be deferred or
ignored. For example, in Rio Vista the court approved an EIR prepared for adoption of a
hazardous waste management plan despite the failure to provide a description of potential
future facilities and the deferral of an analysis of the environmental impacts, mitigation
measures and alternatives that would relate to the particular facility. (Rio Vista, supra, 5
Cal.App.4th at p. 374.) Similarly, in Bay-Delta the Supreme Court upheld a program
environmental impact statement/environmental impact report for a long-term plan to
restore the California Delta although it deferred an analysis of the environmental impacts
of supplying water from particular sources that had not yet been determined. (In re Bay-
Delta, supra, 43 Cal.4th at p. 1170.) In these and other cases (e.g., Al Larson Boat Shop,
Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729), the deferred
analysis related to the particular impacts that would follow from the selection of a
particular project. In such cases, there is an “understanding that additional detail will be
forthcoming when specific second-tier projects are under consideration.” (In re Bay-
Delta, supra, 43 Cal.4th at p. 1172.) What is missing in the present case, however, is not
an analysis of how salmonids will be affected by the construction of a single building, but
a meaningful analysis of the likely cumulative impacts of a widespread buildout,
regardless of the details of individual projects. There will be little additional information
with which to evaluate cumulative impacts as each successive project is proposed; to the
contrary, the ability to evaluate and respond to cumulative impacts will decline with each
succeeding project. A more comparable case is Stanislaus Natural Heritage Project v.
County of Stanislaus (1996) 48 Cal.App.4th 182, which held that an EIR for a 5,000
residential-unit development planned in four phases was deficient for failing to analyze
the impacts of supplying water to the project until after adoption of the plan to build the
project. The county in that case “could not make an informed decision on whether to
adopt the [plan] without being informed, to some reasonable degree, of the environmental
consequences of supplying water” to the development. (Id. at p. 199.) “No matter what
subsequent environmental review might take place, and no matter what additional


                                              16
mitigation measures might be adopted to ameliorate adverse environmental impacts on
each of the four ‘phases’ of planned development,” deferring the analysis of the impacts
of supplying water until after approval of the development plan “would appear to be
putting the cart before the horse.” (Id. at pp. 199-200.)

       In short, while the EIR here confirms that the policies and measures laid out in the
2007 CWP will tend to reduce the adverse ecological impacts of development within the
San Geronimo Valley watershed, and that the extent of the impacts will depend on the
details of future development plans, the report provides no help to decision-makers or the
public to understand the likely consequences, or at least the range of potential
consequences, of a buildout within the watershed of the scope described in the
countywide plan. Providing that long-term view is the point of a cumulative impact
analysis and, as indicated above, the ability to make that analysis is one of the advantages
of using a program EIR. Whatever else the county may be doing (or may have done
subsequent to the approval of the EIR) to study and respond to these issues, the program
EIR that is now before us fails to provide the information—if no more than rationally-
based estimates—necessary to make informed judgments about the advisability, so far as
the San Geronimo Valley watershed is concerned, of adopting the countywide plan. In
approving the EIR despite its failure to provide this critical information, the county
prejudicially abused its discretion by failing to proceed in the manner required by CEQA.
(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007)
40 Cal.4th 412, 435; Association of Irritated Residents v. County of Madera (2003) 107
Cal.App.4th 1383, 1390-1392.)

       2. Inadequate mitigation measure

       Although not fully described in the EIR itself, the administrative record contains a
2001 report describing the Fishery Network of the Central Coastal California Counties
(FishNet 4C) as “a county-based, regional salmonid protection and restoration program,
created under a Memorandum of Agreement between the six Central California Coastal



                                             17
Counties of Mendocino, Sonoma, Marin, San Mateo, Santa Cruz and Monterey. A prime
objective of the FishNet 4C program has been to evaluate county land management
practices and written policies relative to protecting salmonid populations, and to make
recommendations for improving those practices and policies.” According to a 2004 report
prepared for FishNet 4C, the goal of the program is “[t]o facilitate effective local actions
that will maintain and improve our region’s water quality and riparian habitat, provide
increased assistance and education and education for local government and the private
sector, and encourage cooperation and coordination between all levels of regulatory
responsibility for fishery restoration.”

          The EIR concludes that “[w]hile adoption and implementation of the . . . policies
and programs [described in the 2007 CWP] would substantially reduce adverse effects to
special status species in unincorporated Marin County, continued participation in the
FishNet 4C program and implementation of four programs in the [2007 CWP] would be
required to reduce this impact to a less-than-significant level.” Because the draft of the
2007 CWP did not call for continued participation in the FishNet 4C program or
implementation of its recommendations, the EIR proposes as Mitigation Measure 4.6-1
the following: “Continue to actively participate in the FishNet 4C program and work
cooperatively with participating agencies to implement recommendations to improve and
restore aquatic habitat for listed anadromous fish species and other fishery resources.”
Adoption of this measure (as well as effective implementation of the other programs
described in the plan), the EIR states, “would substantially reduce adverse effects to
special-status species resulting from land uses and development consistent with the
[CWP].” In approving the EIR, the Board of Supervisors adopted Mitigation Measure
4.6-1 and found that in doing so, “[t]he impact is mitigated to a less-than-significant
level.”

          SPAWN contends that Mitigation Measure 4.6-1 is not “the kind of specific,
concrete, and enforceable mitigation measure necessary to reach a finding of
insignificance.”In defending the adequacy of the mitigation measure, the County


                                              18
describes at length reports and recommendations that have previously been issued by or
at the behest of the FishNet 4C program, which have led to the adoption of specific
salutary measures by the county. These include the county’s entry into a multi-agency
agreement for the maintenance of unpaved roads in the Lagunitas Creek watershed, to
control the runoff of sedimentation into streams, and the adoption of several policies and
programs in the 2007 CWP that follow from recommendations of the FishNet 4C
program. Yet, as pointed out by the California Regional Water Quality Control Board,
which is “extremely supportive” of the FishNet 4C program, it “is a strictly voluntary
program and the County is not required to adopt their recommendations.” However
constructive the coordinated efforts of the FishNet 4C program may have been, and are
likely to be in the future, SPAWN is correct that merely committing to “actively
participate” in the program and cooperate with other agencies is not a sufficient
mitigation measure to justify a finding that the significant impact of buildout on
threatened salmonids will be mitigated to a less-than-significant level.

       The Guidelines explain that “[m]itigation measures must be fully enforceable
through permit conditions, agreements, or other legally-binding instruments.” (Guidelines
§ 15126.4, subd. (a)(2).) “Numerous cases illustrate that reliance on tentative plans for
future mitigation after completion of the CEQA process significantly undermines
CEQA’s goals of full disclosure and informed decisionmaking; and consequently, these
mitigation plans have been overturned on judicial review as constituting improper
deferral of environmental assessment.” (Communities for a Better Environment v. City of
Richmond (2010) 184 Cal.App.4th 70, 92 & cases cited at pp. 92-93; see also San
Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 670-
671.) “An EIR may not defer the formulation of mitigation measures to a future time, but
mitigation measures may specify performance standards which would mitigate the
project’s significant effects and may be accomplished in more than one specified way.”
(Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 280.) “Thus, ‘ “ ‘for
[the] kinds of impacts for which mitigation is known to be feasible, but where practical



                                             19
considerations prohibit devising such measures early in the planning process (e.g., at the
general plan amendment or rezone stage), the agency can commit itself to eventually
devising measures that will satisfy specific performance criteria articulated at the time of
project approval.’ ” ’ ” (Id. at p. 280.)

       Mitigation Measure 4.6-1 thus is deficient in multiple respects. It defines no
specific measures to be taken to reduce the impact of buildout on the threatened fish
species, nor does it specify performance standards by which to evaluate measures that
may be recommended by FishNet 4C. Moreover, while the county has committed itself to
be cooperative, it has not committed to adopt recommendations made by FishNet 4C,
whatever those may be. In San Joaquin Raptor Rescue Center v. County of Merced,
supra, 149 Cal.App.4th at p. 670, the Court of Appeal held that “[t]he fact that the future
management plans would be prepared only after consultation with wildlife agencies does
not cure these basic errors under CEQA, since no adequate criteria or standards are set
forth.” The same is true here: the fact that mitigation measures may be promulgated
following consultation with and recommendations by the multi-county program provides
no adequate criteria by which to evaluate either the sufficiency of such measures or the
extent to which the impacts of future construction in the watershed will be mitigated by
those measures. It may be true, as the county argues, that there is “substantial evidence in
the record that its participation in the FishNet 4C program reduced impacts to fish.”
Despite what these efforts may have accomplished to date, the fact remains, as the EIR
determined, that future buildout in the watershed continues to pose a significant threat to
survival of the salmonids. Mitigation Measure 4.6-1simply defers the formulation of
meaningful mitigation measures to abate this significant impact and fails to comply with
the mandates of CEQA.

The County’s Cross-appeal

       The 2007 CWP states as its Policy BIO-4.1, restricting land use in stream
conservation areas by requiring setbacks from the streams and requiring the use of best



                                             20
management practices. Among the programs designed to implement this policy is BIO-
4.a, adoption of a new SCA ordinance. 9 The EIR states that BIO-4.a is among the
programs that must be implemented to reduce the impact of development to sensitive
natural communities in unincorporated Marin County to a less-than-significant level.
Because the measure “would be implemented within five years,” the EIR states, it
“therefore could be relied upon to reduce this impact.” The sixth cause of action added to
SPAWN’s petition in October 2011alleges that “[t]he County’s failure to adopt
implementation program BIO-4.a, as required by the County’s EIR finding of
insignificant impacts and the CWP, constitutes a failure to act in violation of its legal
responsibility obligations under CEQA” and seeks a writ of mandate compelling the
county to “adopt the implementation program BIO-4.a, the expanded SCA ordinance.”

       The trial court reasoned that although the county did not dispute its mandatory
duty to adopt such an ordinance, “[t]he time frames contained in the CWP are
‘targets’ or best hope scenarios, and the law should not treat these goals as fixed,
mandatory limitation periods within which time the county must act. . . . .
[¶] Petitioners are essentially asking the county to move this program to the front of
the legislative line, without regard to the other competing and diverse needs of the
county’s residents. When to prepare and place for consideration the ordinance on the
legislative calendar is the consummate discretionary decision. . . . [¶] However,
because the CWP mandates and relies upon the enactment of this expanded SCA

9
  BIO-4.a in its entirety reads as follows: “Adopt Expanded SCA Ordinance. Adopt a
new SCA ordinance that would implement the SCA standards for parcels traversed by or
adjacent to a mapped anadromous fish stream and tributary. Such an ordinance could, by
way of example, require compliance with the incorporation of best management practices
into the proposed project and could consider modest additions to existing buildings that
would not result in significant impact to riparian resources, such as additions that do not
exceed 500 square feet of total floor area and that do not increase the existing horizontal
encroachment into the SCA, provided a site assessment first confirms the absence of
adverse impacts to riparian habitats. As part of the new ordinance, consider including
additional incentives, such as reduced fees or other similar incentives, to reduce the
extent of existing development within an SCA or improve conditions that may be
impacting sensitive resources.”

                                             21
ordinance to fulfill some of the county’s obligations under . . . [CEQA], good cause
exists to enjoin the county from approving any development applications for
building within the SCAs until the ordinance is adopted.” The court therefore denied
the petition for a writ of mandate but entered an order enjoining the county “from
approving . . . any application for development within the Stream Conservation
Area, as defined by the 2007 Countywide Plan Update, in the San Geroni mo Valley
Watershed [with limited exceptions] . . . until such time as the Streamside
Conservation Area Ordinance required by the 2007 Countywide Plan Update is
adopted by the Marin County Board of Supervisors. The injunction shall expire by
operation of law when the Board of Supervisors adopts the Stream Conservation
Area Ordinance.” The county appeals from the portion of the judgment granting this
injunction while SPAWN argues that the court erred in refusing to grant the writ of
mandate.

      Initially there is a question of mootness. On October 29, 2013 the county did
adopt an ordinance establishing permit procedures for development activities in the
SCA. In response to an inquiry from this court asking whether any issues had been
mooted, both parties answered in the negative, but for different reasons. The county
responded that it remains necessary to determine whether the injunction was
properly issued because SPAWN is requesting attorney fees based on having
obtained the injunction. SPAWN responded that the issue is not mooted because the
ordinance was adopted without completing any environmental review under CEQA
and that because another action has been filed challenging the ordinance on this
ground, the ordinance is nullified by a “poison pill” provision in the ordinance. This
provision reads “that this ordinance shall not be further enforced or applied should
litigation against the County of Marin challenging the validity of any part of this
ordinance or its environmental review by filed in a court of law.” Without passing
on the merits of these reasons, we deem it advisable to consider the substantive
issues that have been presented.



                                          22
       The county continues to acknowledge that it has a duty to enact the
implementing ordinance called for in program BIO-4a. “The county has always –
and so long as the countywide plan remains as currently written always will –
concede that this duty exists.” Having made this concession, the county fails to
address why, then, the court should not have granted the requested writ o f mandate
in light of its failure to have complied with that duty. Nor does SPAWN address the
reasons for which the trial court denied the writ of mandate. 10 In the absence of
responsive briefing, we shall adhere to the trial court’s reasoning, that it rema ins
within the discretion of the county to determine when to enact the required
ordinance, and therefore that there is no basis to issue a writ of mandate compelling
it to do so now. This conclusion is supported by the evidence that was proffered that
the county is not ignoring its duty to adopt such an ordinance and has been
conscientiously pursuing efforts preparatory to the adoption of the ordinance.

       Although there is an undeniable logic to the alternative remedy that the court
fashioned to respond to the delay in completing those efforts and adopting the
ordinance, there are both procedural and substantive reasons for which the
injunction cannot stand. Procedurally, there is no indication that the county received
notice that such an order was being considered or given the opportunity to address
its appropriateness. Moreover, the order may well affect the rights of those who own
property in the San Geronimo Valley watershed who seek construction permits and
they too were given no opportunity to address the impact and advisability of such an
injunction. Substantively, the necessary predicates for injunctive relief have not been


10
  SPAWN does suggest that Lincoln Place Tenants Assn. v. City of Los Angeles (2007)
155 Cal.App.4th 425 supports its contention that the failure to timely implement a
mitigation measure justifies issuance of a writ of mandate. In that case, however, the city
was failing to enforce a mitigation measure on which a construction project was
conditioned precluding the eviction of tenants and the writ was necessary to preclude
mass evictions. As pointed out post, no similar showing has been made here that the
County is about to authorize construction that would be prohibited by adoption of the
promised ordinance.

                                            23
established. The county asserts that “the CWP’s self implementing policies and
programs function fully and completely as an SCA ordinance would for development
applications. The only thing that an SCA ordinance would add in this case is perhaps
a more detailed and specific set of procedures (and fees) to follow for relevant
development applications within SCA’s. But the substantive standards to be applied
to those development applications . . . are all within the CWP with sufficient
specificity to be applied to all ‘development applications’ as required by Goal BIO-
4, (Riparian Conservation’), of which Implementing Program BIO-4.a, (the
ordinance) is part.”

      Both the 2007 CWP and the predecessor plan that presumably remains in
effect pending final approval of the 2007 update require setbacks within the SCA’s.
The 2007 CWP increases the necessary setback in some instances and also conta ins
additional restrictions on development in the SCA’s. As the County points out,
design review is required for all proposed development on vacant lots within the
SCA’s. (Marin County Code, § 22.42.045.) 11 No showing has been made that in the
absence of an injunction the County is likely to permit construction within the
SCA’s without the site-specific environmental review called for in the 2007 CWP, or
that it is likely to issue a permit for construction that does not conform to the
standards in the 1994 or the 2007 CWP. Indeed, there is no showing that any

11
   This code provision reads: “Design Review for Development Along Anadromous
Fish Streams and Tributaries. In those instances where a vacant legal lot of record in
the Countywide Plan's City-Centered, Baylands, or Inland Rural Corridor is proposed for
development, any proposed development within the Countywide Plan’s Stream
Conservation Area that adjoins a mapped anadromous fish stream and tributary shall be
subject to Design Review as provided by this chapter if the lot is zoned A, A-2, RA, H1,
O-A, RR, RE, R1, R2, C-1, A-P, or VCR, including all combined zoning districts.
Development includes all physical improvements, including buildings, structures, parking
and loading areas, driveways, retaining walls, fences, and trash enclosures. The
determination of the applicability of this requirement shall be based on the streams and
tributaries shown on the map entitled ‘Marin County Anadromous Fish Streams and
Tributaries,’ which is maintained and periodically updated by the Community
Development Agency.”


                                           24
applications have been or are likely to be submitted for permits authorizing
construction that does not conform to the standards prescribed in the 2007 CWP –
much less that any such application is likely to be approved. And, given the manner
in which the injunction came to be entered, there is no indication that consideration
was given to any harm to property owners or others that may be caused by such an
injunction. On the record before it, the trial court simply had no authority to add the
injunction to its judgment. (E.g., Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70
Cal.App.4th 1487, 1493; Dawson v. East Side Union High School Dist. (1994) 28
Cal.App.4th 998, 1041.)

                                      Disposition

      The judgment is reversed. The matter is remanded with instructions to enter a
writ of mandate directing the County to set aside its approval of the 2007 CWP and
certification of the related EIR, pending preparation of a supplemental EIR that
analyzes cumulative impacts in conformity with Guidelines section 15130,
subdivision (b) and this opinion, and that describes mitigation measures in
conformity with Guidelines section 15126.4 and this opinion or makes other findings
in conformity with Guidelines section 15091. 12



                                                Pollak, Acting P.J.

We concur:

      Siggins, J.

      Jenkins, J.




12
  SPAWN’s request that we take judicial notice of the “Recovery Plan for the
Evolutionarily Significant Unit of Central California Coast Coho Salmon” is denied.

                                           25
