Filed 4/3/14 Salmon Protection and Watershed Network v. County of Marin CA1/3

(unmodified opinion and first modification attached)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, 

v.

COUNTY OF MARIN et al.,

Defendants and Respondents.

A137062

(Marin County

Super. Ct. No. CIV 1004866)

ORDER FURTHER MODIFYING 

OPINION; NO CHANGE IN 

JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on March 5, 2014, as modified by the order filed 

herein on March 26, 2014, be further modified in the following respect:

On page 24, in the Disposition, after the words “certification of the related EIR,” 

add the words “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 with respect to the San Geronimo watershed 

only, 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.

There is no change in the judgment.

Dated: ________________ _______________________ Acting P. J.
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 

WATERSHED NETWORK,

Plaintiff and Appellant, 

v.

COUNTY OF MARIN et al.,

Defendants and Respondents.

A137062

(Marin County

Super. Ct. No. CIV 1004866)

ORDER MODIFYING OPINION AND 

DENYING PUBLICATION AND 

REHEARING, AND 

RECOMMENDATION TO SUPREME 

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. 
1

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, 

v.

COUNTY OF MARIN et al.,

Defendants and Respondents.

A137062

(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 
2

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.1The 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. 
3

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 
4

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 area2and 

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 policies3and 

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, 
5

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 [multicounty]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).
6

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-thansignificant impacts, the EIR states that continued participation in the FishNet 4C multicounty 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 
7

[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.5Funding 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.”
8

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-statusspecies . . . 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 
9

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 
10

salmon and steelhead trout in San Geronimo Valley.”6The 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.7In 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.
11

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-byparcel 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, environmentallyconscious 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.
12

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 projectspecific 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. 
13

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 
14

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 
15

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? 
16

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 BayDelta, 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 BayDelta, 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 
17

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 rationallybased 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 
18

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 
19

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 
20

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 
21

management practices. Among the programs designed to implement this policy is BIO4.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.” 
22

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 Geronimo 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.
23

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 of 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 remains 

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.
24

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 BIO4, (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 contains 

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.” 
25

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.