Sierra Club et al v. Tahoe Regional Planning Agency

Filing 56

ORDER signed by Judge John A. Mendez on 4/4/14. The Court DENIES Plaintiffs' Motion for Summary Judgment and GRANTS Defendant's Cross-Motion for Summary Judgment. (Mena-Sanchez, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SIERRA CLUB and FRIENDS OF THE WEST SHORE, No. 2:13-cv-00267 JAM EFB 12 Plaintiffs, 13 v. 14 15 TAHOE REGIONAL PLANNING AGENCY, 16 ORDER DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S CROSSMOTION FOR SUMMARY JUDGMENT Defendant. 17 18 This matter is before the Court on Plaintiffs Sierra Club 19 and Friends of the West Shore’s (collectively “Plaintiffs”) 20 Motion for Summary Judgment (Doc. #25) and Defendant Tahoe 21 Regional Planning Agency’s (“TRPA”) (“Defendant”) Cross Motion 22 for Summary Judgment and Opposition (Doc. #36). 23 opposed Defendant’s cross motion (Doc. #41) and Defendant replied 24 (Doc. #45). 25 Court on March 26, 2014. Plaintiffs Oral argument on these motions was held before the 26 27 28 I. UNDISPUTED FACTUAL AND PROCEDURAL BACKGROUND In 1968, California and Nevada entered into the Tahoe 1 1 Regional Planning Compact (the “Compact”) to protect the Lake 2 Tahoe Area Basin (“LTAB”). 3 Statement of Undisputed Facts (“DRUDF”) (Doc. #36-3) ¶ 18. 4 Compact created the Tahoe Regional Planning Agency (“TRPA” or 5 “Defendant”) to serve as the land use and environmental resource 6 planning agency for the region. 7 California extensively amended the 1969 Compact. 8 The amended Compact requires TRPA to develop environmental 9 threshold carrying capacities, and to ensure that all planning Defendant’s Response to Plaintiffs’ DRUDF ¶ 18. The In 1980, Nevada and DRUDF ¶ 19. 10 and development in the LTAB region is consistent with achieving 11 and maintaining these thresholds. 12 “an environmental standard necessary to maintain a significant 13 scenic, recreational, educational, scientific, or natural value 14 of the region or to maintain public health and safety within the 15 region.” 16 Regional Plan, which has guided all land-use planning and 17 development within the LTAB region. 18 Defendant’s Statement of Undisputed Facts (“PRUDF”) (Doc. #41-1) 19 ¶ 26. 20 the 1987 Regional Plan, was adopted in May 1987. 21 Compact, Art. II(i). DRUDF ¶ 20. A “threshold” is In 1987, TRPA enacted the Plaintiffs’ Response to The TRPA Code of Ordinances (“Code”), which implemented Under the Code, TRPA may not amend the Regional Plan unless 22 it finds that the Plan, “as amended, achieves and maintains the 23 thresholds.” 24 requires TRPA to prepare and consider a detailed Environmental 25 Impact Statement (“EIS”) before approving or carrying out any 26 project that may have significant effect on the environment. 27 Compact, Art. VII(a)(2). 28 significant environmental impacts, any significant adverse Code § 4.5, at AR668. Article VII of the Compact The EIS must include the project’s 2 1 environmental effects that cannot be avoided if the project is 2 implemented, alternatives to the project, and mitigation measures 3 that “must be implemented to assure meeting standards of the 4 region.” 5 Compact, Art. VII(a)(2). On December 12, 2012, TRPA certified the Final EIS for the 6 Regional Plan Update (“RPU”) and approved the RPU. 7 Key components of the RPU include TRPA’s adoption of a Regional 8 Transportation Plan and the incorporation of Lake Tahoe’s Total 9 Maximum Daily Load (“TMDL”). PRUDF ¶ 2. PRUDF ¶ 1. The TMDL is “a water 10 quality restoration plan” that “quantifies the source and amount 11 of fine sediment and nutrient loading from various land-uses and 12 outlines an implementation plan to achieve . . . existing water 13 quality standards.” 14 characterize the RPU differently. 15 RPU’s “central strategy . . . is to loosen development 16 restrictions and incentivize redevelopment in urban core areas, 17 while removing existing development in sensitive outlying areas, 18 on the theory that this would enable more environmentally 19 sensible development and land-use overall.” 20 Statement of Undisputed Facts (“PSUF”) (Doc. #25-2) ¶ 33. 21 Defendant contends that the RPU “achieves Threshold Standards by 22 incorporating contemporary planning principles, current science, 23 and . . . focusing on redevelopment incentives to convert 24 substandard legacy development into modern, environmentally 25 beneficial, visually attractive, walkable, bikeable communities.” 26 Def.’s Cross-Mot. at 5. 27 based regulatory approach,” rather than the 1987 Plan’s focus on 28 limiting “impervious surface coverage.” PRUDF ¶ 52. Plaintiffs and Defendant Plaintiffs contend that the Plaintiffs’ Defendant emphasizes “TMDL’s science- 3 Id. 1 On February 11, 2013, Plaintiffs filed their Complaint (Doc. 2 #1) in this Court. The Complaint includes the following causes 3 of action: (1) “Delegation of TRPA’s project approval and review 4 duties in violation of the Compact;” (2) “Failure of Regional 5 Plan to establish and ensure compliance with minimum regional 6 standards;” (3) “Failure to properly make threshold findings 7 pursuant to the Compact and Code sections 4.5 and 4.6;” and (4) 8 “Failure to adequately analyze significant impacts in violation 9 of the Compact.” In a June 14, 2013 Order (Doc. #18), the Court 10 dismissed Plaintiffs’ state law claims with prejudice and 11 dismissed Plaintiffs’ first cause of action without prejudice, on 12 ripeness grounds. 13 14 II. LEGAL STANDARDS 15 A. Standard of Review 16 Under the Compact, the standard of review for legislative 17 actions is “whether the act or decision has been arbitrary, 18 capricious, or lacking substantial evidentiary support or whether 19 the agency has failed to proceed in a manner required by law.” 20 Compact, Art. VI(j)(5). 21 review of agency action under the Administrative Procedure Act 22 (“APA”). 23 Agency, 739 F. Supp. 2d 1260, 1267 (E.D. Cal. 2010) aff'd in 24 part, vacated in part, remanded, 469 F. App'x 621 (9th Cir. 25 2012). 26 Review under the Compact largely mirrors League to Save Lake Tahoe v. Tahoe Reg'l Planning Under the APA, an agency decision will be set aside only if 27 it is “arbitrary, capricious, an abuse of discretion, or 28 otherwise not in accordance with law.” 4 5 U.S.C. § 706(s)(A). 1 “Review under the arbitrary and capricious standard is narrow, 2 and the reviewing court may not substitute its judgment for that 3 of the agency.” 4 F.3d 1147, 1156 (9th Cir. 2006). 5 a decision as arbitrary and capricious only if the agency relied 6 on factors Congress did not intend it to consider, has entirely 7 failed to consider an important aspect of the problem, or offered 8 an explanation ‘that runs counter to the evidence before the 9 agency or is so implausible that it could not be ascribed to a 10 11 Earth Island Inst. v. U.S. Forest Serv., 442 Rather, the Court “will reverse difference in view or the product of agency expertise.’” Id. The National Environmental Policy Act (“NEPA”) does not 12 directly apply to TRPA. See Glenbrook Homeowners Ass'n v. Tahoe 13 Reg'l Planning Agency, 425 F.3d 611, 615 (9th Cir. 2005) 14 (explaining that NEPA regulations do not apply to the Compact). 15 However, cases interpreting NEPA may “inform interpretation of 16 the Compact . . . where those cases rest on language analogous to 17 that used in the Compact.” 18 F.Supp.2d at 1274. 19 Environmental Quality Act (“CEQA”) may provide persuasive 20 authority. 21 (noting that “like CEQA and NEPA, the Compact serves to inform 22 the public and to protect the environment in a general sense”). League to Save Lake Tahoe, 739 Similarly, cases interpreting the California See League to Save Lake Tahoe, 739 F.Supp.2d at 1276 23 B. Disposition at the Summary Judgment Stage 24 Rule 56(a) of the Federal Rules of Civil Procedure (“FRCP”) 25 provides that “a court shall grant summary judgment if the movant 26 shows there is no genuine issue of material fact and that the 27 movant is entitled to judgment as a matter of law.” 28 issue is “genuine” when the evidence is such that a reasonable 5 A factual 1 jury could return a verdict for the non-moving party. 2 v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). 3 Villiarmo In this case, each party submitted its own statement of 4 undisputed facts as well as a response to the opposing party’s 5 statement of undisputed facts. 6 disposition at the summary judgment stage is appropriate, given 7 that this is an administrative record case. 8 on which legal conclusions should be drawn from the 9 administrative record, but do not dispute the administrative 10 record itself. 11 However, both parties agree that The parties disagree stage is appropriate. Therefore, disposition at the summary judgment 12 C. Judicial Notice 13 Plaintiffs request judicial notice of several documents 14 related to the Douglas County South Shore Area Plan, all of which 15 post-date the approval of the RPU. 16 concerns whether TRPA’s decision to approve the RPU was supported 17 by the administrative record, the post-dated documents are not 18 relevant. 19 Agency, 739 F. Supp. 2d 1260, 1264 n.1 (E.D. Cal. 2010) aff'd in 20 part, vacated in part, remanded, 469 F. App'x 621 (9th Cir. 2012) 21 (declining to take judicial notice of post-dated documents in an 22 administrative record case); see also, Rybachek v. U.S. Envtl. 23 Prot. Agency, 904 F.2d 1276, 1296 (9th Cir.1990) (noting that it 24 is not “appropriate . . . to use post-decision information as a 25 new rationalization either for sustaining or attacking the 26 Agency's decision”). 27 judicial notice of all post-dated documents relating to the 28 Douglas County South Shore Area Plan are denied. (Doc. #26, 40). As this case League to Save Lake Tahoe v. Tahoe Reg'l Planning Accordingly, Plaintiffs’ requests for 6 1 Plaintiffs also request judicial notice of the California 2 Air Resources Board’s (“CARB”) 2011 “Amendments to the Area 3 Designations for State Ambient Air Quality Standards.” 4 #26). 5 redesignation of the Tahoe Basin as ‘nonattainment transitional’ 6 for ozone pollution.” 7 (Doc. #42). 8 administrative record case, review of extra-record materials is 9 only appropriate if “necessary to explain agency decisions.” 10 Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 11 1443, 1450 (9th Cir. 1996). 12 Draft EIS “specifically references” CARB’s designation of the 13 region as “nonattainment transitional.” 14 information in the proffered document “can be extracted from the 15 record,” judicial notice is not necessary. Sw. Ctr. for 16 Biological Diversity, 100 F.3d at 1450-51. Accordingly, 17 Plaintiffs’ request for judicial notice of the CARB document is 18 denied. 19 (Doc. Plaintiffs note that this document demonstrates “CARB’s Pls.’ Reply to Def.’s Opp. to RJN at 3 The Ninth Circuit has held that, in an Sw. As acknowledged by Plaintiffs, the AR11759. As the The Nevada Department of Conservation and Natural Resources 20 (one of the amici) also requests that the Court take judicial 21 notice of a December 19th, 2013 Proclamation by the Nevada 22 Governor. 23 of the RPU, the request for judicial notice is denied for the 24 reasons discussed above. 25 F.Supp.2d at 1264 n.1 (declining to take judicial notice of post- 26 dated documents in an administrative record case). (Doc. #47). As this document post-dates the approval League to Save Lake Tahoe, 739 27 28 7 1 2 III. OPINION The parties raise four basic issues in their respective 3 motions for summary judgment, which focus on TMDL and 4 concentrated coverage, soil conservation, BMPs, and the ozone 5 threshold. 6 of Defendant on all four issues as explained below. Each is discussed in turn. The Court finds in favor 7 A. 8 Plaintiffs argue that TRPA’s failure to analyze the impacts 9 TMDL and Concentrated Coverage of concentrating impervious coverage was arbitrary and 10 capricious. 11 shift to the TMDL model was supported by substantial evidence and 12 is entitled to deference. 13 Pls.’ Mot. at 7. Defendant argues that the RPU’s Def.’s Cross-Mot. at 8. The RPU emphasizes the TMDL model, and moves away from the 14 “Bailey” model, which was implemented by the 1987 Regional Plan. 15 PRUDF ¶ 2. 16 limiting impervious surface coverage (i.e., concrete, asphalt, 17 etc.) in the Lake Tahoe region. 18 approach imposes strict limits on the percentage of area coverage 19 allowed on nine different soil types, depending on their 20 “capability” rating. 21 reduce the total flow of pollutants into Lake Tahoe, and rejects 22 the Bailey model’s strict limits on impervious surface coverage. 23 PRUDF ¶ 52. 24 The Bailey model, named after its author, focuses on Id. Pls.’ Mot. at 8. The Bailey In contrast, the TMDL model aims to Plaintiffs first argue that TRPA’s failure to conduct a 25 watershed-level analysis on the effect of geologically- 26 concentrated coverage was arbitrary and capricious. 27 at 9. 28 administrative record that concentrating coverage in single Pls.’ Mot. Plaintiffs contend that substantial evidence exists in the 8 1 watershed areas is environmentally harmful, even if region-wide 2 total coverage does not increase. 3 argue that a watershed-level analysis of concentrated coverage 4 was feasible and that TRPA’s decision to conduct only a region- 5 wide study was unreasonable. 6 responds that watershed-level analyses were not feasible, and 7 that it created and studied a Center-level model in response to 8 Plaintiffs’ concerns. 9 maintains that it is entitled to substantial deference in Pls.’ Mot. at 11. Pls.’ Mot. at 12. Plaintiffs Def.’s Cross-Mot. at 9. Defendant Defendant also 10 choosing the methodology for its environmental studies. 11 Cross-Mot. at 10. 12 Def.’s The Court must be “at its most deferential” when reviewing 13 “scientific judgments and technical analyses within the agency's 14 expertise.” 15 1051 (9th Cir. 2012). 16 an EIS is based on the best scientific methodology.” 17 Survival v. Surface Transp. Bd., 705 F.3d 1073, 1088 (9th Cir. 18 2013). 19 in reviewing TRPA’s scientific methodology, including the scope 20 and scale of its studies. 21 1051. 22 Native Ecosystems Council v. Weldon, 697 F.3d 1043, The Court is “not . . . to decide whether Alaska Accordingly, the Court must be “at its most deferential” Native Ecosystems Council, 697 F.3d at TRPA’s decision to use the TMDL model rather than the Bailey 23 model was an exercise of its scientific expertise. 24 Plaintiffs may prefer the Bailey model of coverage-based 25 limitations, Defendant’s choice of the TMDL model is supported by 26 substantial evidence in the administrative record and addresses 27 Plaintiffs’ concerns over concentrated coverage. 28 (Tahoe Basin Impervious Coverage Study’s finding that 9 Although See AR128193 1 “concentrating development and limiting the development footprint 2 has the potential to reduce . . . environmental impact”). 3 Moreover, the Final EIS included a lengthy explanation of why 4 watershed-level analyses were neither feasible nor necessary. 5 AR5089-96. 6 TMDL model, and an agency is not required to address “every 7 possible scientific uncertainty.” 8 v. Surface Transp. Bd., 668 F.3d 1067, 1085 (9th Cir. 2011). 9 response to public comments by Plaintiffs, the Final EIS included TRPA conducted extensive scientific studies under the N. Plains Res. Council, Inc. In 10 a Pollutant Load Reduction Model (“PLRM”) which “provided 11 estimates of existing and future pollutant loading from areas 12 designated as “Centers” in the RPU. 13 on the exact scale requested by Plaintiffs, the PLRM simulation 14 represents an effort by TRPA to address Plaintiffs’ concerns 15 about localized concentration of coverage. 16 For these reasons, the cases cited by Plaintiffs, in which 17 agencies conducted little or no environmental review, are not 18 applicable. 19 668 F.3d at 1079 and Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 20 1062 (9th Cir. 2002)). 21 PRUDF ¶ 142. Although not AR5103 (Final EIS). Pls.’ Mot. at 9, 13 (citing N. Plains Res. Council, Furthermore, the region-wide scale of the TMDL model is 22 consistent with the regional scale of the RPU itself. 23 degree of specificity required in an [Environmental Impact 24 Report] will correspond to the degree of specificity involved in 25 the underlying activity which is described in the EIR.” 26 Club v. Tahoe Reg'l Planning Agency, 916 F. Supp. 2d 1098, 1154 27 (E.D. Cal. 2013); see also, State of Cal. v. Block, 690 F.2d 753, 28 761 (9th Cir. 1982) (noting that the degree of detail required 10 “The Sierra 1 “in an EIS depends upon the nature and scope of the proposed 2 action”). 3 temporarily defer a site-level analysis was reasonable. 4 of Yosemite Valley v. Norton, 348 F.3d 789, 800 (9th Cir. 2003) 5 (an EIS for a program-wide plan must provide “sufficient detail 6 to foster informed decision-making,” but “site-specific impacts 7 need not be fully evaluated” until site-level projects are 8 proposed). 9 require additional environmental analysis, including evaluation As the RPU is a region-wide plan, TRPA’s decision to Friends Under the RPU, “smaller-scale planning efforts would 10 of coverage at a more localized scale.” 11 Such local-level analyses would occur “in response to proposals 12 for implementing programs or specific development or public works 13 projects.” 14 AR5090 (Final EIS). AR11550 (Draft EIS). Plaintiffs’ reliance on TRPA’s prior practices, which 15 acknowledged the potential harm of concentrating coverage, is 16 unpersuasive. 17 1988 and 1989 Water Quality Management Plans “recognize[e] the 18 potential harm that can be caused by concentrating coverage” and 19 emphasize the importance of preventing “any given . . . 20 geographic subregion from absorbing a disproportionate amount of 21 . . . land coverage.” 22 AR141391). 23 years old and were written prior to “the advent of the TMDL.” 24 Def.’s Cross-Mot. at 11. 25 Pls.’ Mot. at 11. Plaintiffs note that TRPA’s Pls.’ Mot. at 11 (citing AR2070 and However, as Defendant notes, these documents are 25 Plaintiffs’ argument that “TMDL compliance is not mandatory 26 in Nevada” is misguided. Pls.’ Reply at 6. 27 Water Act (“CWA”) requires that Nevada “have a continuing 28 planning process” to meet its obligations under the TMDL model. 11 The federal Clean 1 33 U.S.C. § 1313(e). 2 obligations, the Environmental Protection Agency is authorized by 3 the CWA to establish, and enforce, its own TMDL standard in 4 Nevada. 5 2013 WL 6513826, at *2 (D.D.C. Dec. 13, 2013). 6 Nevada’s reliance on non-binding Memoranda of Agreement to 7 implement the TMDL does not affect its statutory obligations 8 under the CWA, and does not call into question the RPU’s reliance 9 on the TMDL. 10 B. 11 A second argument put forth by Plaintiffs is that the EIS 12 “failed to examine the cumulative impacts to soil conservation 13 resulting from increased development and concentrated coverage in 14 centers.” 15 contention raises a procedural defense that Plaintiffs failed to 16 raise a “soil conservation argument” in their opening brief, and 17 are, therefore, prohibited from raising it for the first time in 18 their reply brief. 19 the claim quoted above, Plaintiffs’ opening brief contains an 20 extensive discussion on TRPA’s responsibility to meet the “soil 21 conservation threshold,” which protects “soil and ecological 22 balance.” 23 Plaintiffs failed to exhaust their administrative remedies, as 24 the argument was never raised during the administrative process. 25 Def.’s Reply at 2. 26 in response to the Draft EIS expressing concern that failure to 27 adhere to soil conservation thresholds could disrupt the 28 “ecological balance” of the LTAB region and result in “vegetative If Nevada fails to meet its TMDL Food & Water Watch v. United States Envtl. Prot. Agency, Accordingly, Soil Conservation Pls.’ Mot. at 7. Defendant’s initial response to this Def.’s Reply at 2. Pls.’ Mot. at 8. However, in addition to Similarly, Defendant argues that However, Plaintiffs submitted public comments 12 1 disturbance” and “ecologic damage.” 2 Accordingly, Plaintiffs are not procedurally barred from raising 3 this argument. 4 AR4473 (Final EIS). Nonetheless, Plaintiffs’ contention that the EIS failed to 5 address soil conservation concerns is not supported by the 6 record. 7 improvements in “soil conditions” as well as “habitat for 8 vegetation and wildlife.” 9 concluded that the RPU would not have a significant effect on The Draft EIS concluded that the RPU would result in AR12038. Similarly, the Draft EIS 10 native vegetation growth, noting that “common plant . . . species 11 are relatively abundant locally and regionally and are not 12 considered limited by the availability of habitat” in the LTAB 13 region. 14 related impact is not as thorough as that of water-quality 15 impact, this is consistent with the fact that the vast majority 16 of comments, throughout the administrative process, focused on 17 RPU’s potential impact on water-quality. 18 the RPU would not have a significant effect on LTAB soil 19 conditions is supported by the record. AR12050. Although TRPA’s discussion of the RPU’s soil- TRPA’s conclusion that 20 To the extent that Plaintiffs’ soil conservation argument 21 depends on TRPA’s failure to study the effects of concentrated 22 coverage on a watershed-level scale, this argument fails for the 23 reasons discussed above. 24 to substantial deference in selecting the methodology and scale 25 of its environmental studies. 26 Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012). Supra at II(D)(1)(b). TRPA is entitled Native Ecosystems Council v. 27 C. BMPs 28 Plaintiffs contend that TRPA’s conclusion that the RPU will 13 1 not significantly affect water quality is arbitrary and 2 capricious due to its reliance on BMPs. 3 Plaintiffs note the historical lack of success in BMP 4 implementation and maintenance. 5 RPU includes a number of provisions that will result in 6 widespread implementation of new BMPs and more effective 7 maintenance of existing BMPs. 8 9 Id. Pls.’ Mot. at 15. Defendant responds that the Def.’s Cross-Mot. at 13. BMPs, or “best management practices,” are defined as “alternative structural and non-structural practices proven 10 effective in erosion control and management of surface runoff.” 11 PRSUF ¶ 159. 12 and (2) BMPs for new development or redevelopment. 13 The BMP Retrofit Program is a “nonpoint source pollution control 14 program” which is codified in the TRPA Code of Ordinances and 15 requires all existing past development to retrofit the site with 16 water-quality BMPs. 17 development must install and maintain BMPs as a condition of 18 project approval. 19 the RPU identifies BMPs as one of several key strategies to 20 attain pollutant load reduction goals. 21 There are two categories of BMPs: (1) BMP Retrofits PRSUF ¶ 162. PRSUF ¶ 163. PRSUF ¶ 163. Under the RPU, any new The TMDL approach proposed by PRSUF ¶173. According to Plaintiffs, the RPU’s reliance on BMPs is not 22 warranted given the “history of neglected BMP maintenance.” 23 Pls.’ Mot. at 20. 24 overlooks the distinction between BMP Retrofits and BMPs for new 25 development. 26 redevelopment must install and maintain BMPs as a condition of 27 project approval. 28 undisputed that the RPU will increase the installation of BMPs. However, Plaintiffs’ emphasis on maintenance It is undisputed that, under the RPU, any new or PRSUF ¶ 163. Moreover, it is further 14 1 PRSUF ¶ 184. 2 installation of BMPs at the onset of a development project could 3 dramatically reduce pollutant loads. 4 significant difference in runoff and fine sediment particle 5 loading between building units with BMPs and those without BMPs). 6 Once installed, many BMPs – such as retaining walls, terracing, 7 and water spreading BMPs – can remain effective without regular 8 maintenance. 9 Ample evidence exists in the record that the mere AR128167-68 (data showing AR127031, 127024, 126991. Plaintiffs’ reliance on the past failures of BMPs also 10 overlooks the RPU’s inclusion of programs designed to incentivize 11 and improve the maintenance of BMPs. 12 model, credits to an urban jurisdiction for implementing BMPs may 13 not be awarded “without evidence that expected conditions are 14 being maintained.” AR107727 (2011-09 TMDL Lake Clarity Crediting 15 Program Handbook). Likewise, the RPU will “encourage the use of 16 area-wide [water] treatment facilities” which are expected to 17 result in “more efficient maintenance practices relative to 18 conducting maintenance activities on many smaller and widely 19 distributed individual parcels and sites.” 20 EIS). 21 areas that achieve the greatest load reduction,” which would 22 accelerate improvements in water quality in a more cost-effective 23 manner. 24 For example, under the TMDL AR5189-90 (Final Moreover, the RPU would “prioritize BMP Implementation in AR26253. Under the TRPA Code of Ordinances, BMP maintenance is 25 mandatory. AR1089 (Code § 60.4.9). 26 inspection and maintenance plan will be required” for any new 27 project that is granted a permit. 28 was entitled to conclude that its mandatory, incentivized BMP 15 Under the RPU, “a BMP AR126934 (BMP Handbook). TRPA 1 ordinance would be largely followed. 2 In Planning v. City Council, 200 Cal.App.3d 671, 680 (1988) 3 (noting that the creator of an EIR “is not obliged to speculate 4 about effects which might result from violations of its own 5 ordinances”). 6 use of BMPs to address potential environmental impacts. 7 Hapner v. Tidwell, 621 F.3d 1239, 1246 (9th Cir. 2010) (citing 8 agency’s use of BMPs to minimize soil disturbance during logging 9 operations); Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 See Towards Responsibility The Ninth Circuit has repeatedly upheld agencies’ See 10 F.3d 1005, 1015 (9th Cir. 2006) (holding that the implementation 11 of “specific and detailed” BMPs supported the agency’s finding 12 that the project’s effect on wildlife and watershed would not be 13 significant). 14 the grounds that they did not involve “evidence of past history 15 of noncompliance,” is unsuccessful. 16 discussed above, TRPA expressly acknowledged past failures in 17 maintenance, and incorporated that experience into updated BMP 18 guidelines. Plaintiffs’ attempt to distinguish these cases, on Pls.’ Reply at 3. As 19 D. Ozone Threshold 20 Plaintiffs’ final contention in support of their motion 21 herein is that TRPA’s conclusion that the RPU will attain and 22 maintain the ozone threshold, as required by the Compact, is 23 arbitrary, capricious and lacking substantial evidentiary 24 support. 25 conclusion that the RPU will attain and maintain the ozone 26 threshold is supported by substantial evidence. 27 Mot. at 19. 28 Pls.’ Mot. at 21. Defendant responds that its Def.’s Cross- Ozone is a pollutant that forms when precursor gases react 16 1 in sunlight. 2 and Nevada have all adopted ozone standards. 3 the Compact, TRPA is required to “provide for attaining and 4 maintaining” the most stringent of these standards. 5 Art. V(d). 6 RPU, will achieve and maintain the ozone threshold. 7 In evaluating air quality in the LTAB region, TRPA relies on four 8 data sets called “Threshold Indicators.” 9 EIS concluded that each of these four Threshold Indicators was PRSUF ¶ 190. The federal government, California, PRSUF ¶ 190. Under Compact, TRPA found that the Regional Plan, as amended by the PRSUF ¶ 216. PRSUF ¶ 194. The Final 10 “in attainment” with the most stringent applicable state or 11 federal standard. 12 AR5238. Plaintiffs object to TRPA’s finding with regard to one of 13 these Threshold Indicators: the highest 8-hour average 14 concentration of ozone. 15 the Draft EIS designated the LTAB region as “nonattainment- 16 transitional” with regard to the “8-hour average,” and concluded 17 that progress toward meeting the California standard is “somewhat 18 worse than target.” 19 subsequent 2011 Threshold Evaluation Report (“TER”) concluded 20 that the region was “currently in attainment” with the “8-hour 21 average” threshold. 22 came “with no explanation.” 23 Pls.’ Mot. at 21. AR11759 (Draft EIS). Plaintiffs note that AR97. However, the Plaintiffs contend that this reversal Pls.’ Mot. at 23. In fact, the shift from “nonattainment-transitional” to 24 “currently in attainment” is explained by the incorporation of 25 additional data into the 2011 TER – data that was unavailable at 26 the time that TRPA published the Draft EIS. 27 showed that, in 2010 and 2011, maximum 8-hour average ozone 28 concentration had been measured at a level below the California 17 AR97. This new data 1 limit. 2 confidence, that the LTAB region was in attainment with the “8- 3 hour average” ozone Threshold Indicator. 4 Id. Accordingly, the Board concluded, with “moderate” AR5238 (Final EIS). Plaintiffs argue that the new data should not have been 5 incorporated into the 2011 TER because it was obtained from a 6 monitoring station located in Nevada, rather than California. 7 Pls.’ Mot. at 23. 8 shown that ozone concentrations can vary significantly around the 9 region” and, in support of this proposition, cite a table of raw Plaintiffs state that “past monitoring has 10 data, showing ozone measurements at different locations. 11 Mot. at 24 (citing AR147415). 12 “little variation” is seen between the California and Nevada 13 monitoring sites, and that “[b]oth stations showed similar 14 concentrations and number of exceedance days during 2008-2010.” 15 AR3566 (Final EIS). 16 advanced statistical analysis, and, therefore, the Court defers 17 to TRPA’s judgment that variability between sites is low enough 18 to use Nevada data in the 2011 TER and the Final EIS. 19 deference is particularly appropriate where the determination 20 “requires a high level of technical expertise.” 21 Natural Res. Council, 490 U.S. 360, 377 (1989). 22 Pls.’ However, TRPA concluded that The Court’s expertise does not lie in Such Marsh v. Oregon Plaintiffs argue that this data shortage is emblematic of a 23 wider deficiency in TRPA’s monitoring program. Pls.’ Mot. at 23. 24 Plaintiffs note that the 2011 TER acknowledges that “the spacing 25 and density of monitoring sites is insufficient.” 26 AR82). 27 acknowledges that the limitations on monitoring reduce the 28 “confidence” with which the agency can make its findings. Id. (citing Plaintiffs also cite a number of instances in which TRPA 18 Pls.’ 1 Mot. at 23. 2 not required. 3 Bd. of Directors, 216 Cal.App.4th 614, 640 (2013) (noting, in a 4 CEQA case, that an agency need not analyze “all information 5 available on a subject;” the mere fact that more information 6 “might be helpful does not make it necessary” that the agency 7 consider it). 8 “spacing and density of monitoring sites is insufficient to know 9 the extent of how maximum and minimum pollutant concentrations However, complete certainty on the agency’s part is N. Coast Rivers Alliance v. Marin Mun. Water Dist. Moreover, the 2011 TER merely acknowledges that 10 are distributed throughout the basin.” 11 These limitations were taken into account by the “moderate” 12 confidence level with regard to the attainment of California’s 8- 13 hour ozone standard, as expressed in the 2011 TER. 14 peer-reviewed findings constitute substantial evidence on which 15 TRPA could base its wider approval of the RPU. 16 Plaintiffs note that, unlike the Draft EIS, the 2011 TER was not 17 peer-reviewed, the statistical methodology used in both reports 18 was peer-reviewed along with the Draft EIS.) 19 AR82 (emphasis added). AR97. These (Although Moreover, TRPA was not required to make a finding that the 20 LTAB region is currently in attainment of all threshold 21 standards. 22 Supp. 2d 1098, 1145 (E.D. Cal. 2013). 23 find that the RPU implements a plan that will achieve and 24 maintain those thresholds. 25 on the region’s current attainment of the thresholds in making 26 that finding. 27 factors. 28 quality in the LTAB region is consistently improving, due to Sierra Club v. Tahoe Reg'l Planning Agency, 916 F. Rather, it was required to Id. at 1145. TRPA partially relied However, TRPA also relied on a number of other Def.’s Cross-Mot. at 24. 19 First, it noted that air 1 increasingly stringent vehicle emission standards. 2 Second, the RPU implements a number of programs and policies 3 designed to “reduce dependency on the automobile by making more 4 effective use of existing transportation modes and of public 5 transit.” 6 provides incentives for the creation of non-motorized trails, the 7 removal of non-compliant emission sources, and enhanced 8 pedestrian, bicycling, and public transit opportunities. 9 AR26684-85. Compact, Art. V(c)(2)(A). AR26683. Among other things, the RPU As high ozone levels are largely tied to vehicle 10 emissions, these changes provide additional support for TRPA’s 11 finding that the RPU will achieve and maintain air quality 12 thresholds. 13 that the Regional Plan, as amended by the RPU, will achieve and 14 maintain the ozone threshold. Substantial evidence supported TRPA’s conclusion 15 16 17 IV. ORDER For all the foregoing reasons, the Court DENIES Plaintiffs’ 18 Motion for Summary Judgment and GRANTS Defendant’s Cross-Motion 19 for Summary Judgment: 20 21 IT IS SO ORDERED. Dated: April 4, 2014 22 23 24 25 26 27 28 20

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