TomalesBay Assn. v. County of Marin

Filed 12/10/07 Tomales Bay Assn. v. County of Marin CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Tomales Bay Association (TBA) appeals from a judgment entered in favor of the County of Marin and Marin County Board of Supervisors (collectively, the County) and the California Coastal Commission (the Coastal Commission or the Commission) on TBAs petition for a writ of mandate. At issue is the authority of the County and the Coastal Commission to regulate the use of approximately 11 acres of property adjacent to the Bolinas Lagoon in west Marin County. The property contains significant wetland and upland habitat (Marin County Code,  22.56.130, subd. (G)(6)) and for many years was used primarily for occasional cattle grazing. In 1985, the owner, Warren Weber, began to use five acres of the property for organic row crop farming.

After the County and the Coastal Commission issued permits allowing Weber to complete restoration work on the wetland areas as required by an independent settlement agreement between Weber and the Army Corps of Engineers (Army Corps), TBA challenged the permits arguing, among other things, that the County has a mandatory duty to regulate Webers farming operations to protect unique aspects of the propertys habitat. TBA also contends the County and the Coastal Commission violated the California Environmental Quality Act, Public Resources Code[1] section 21000 et seq. (CEQA) and other state and local legislation by approving permits for restoration work without also considering the environmental impact caused by Webers continued farming.

We conclude that the County satisfied its obligation to perform a detailed environmental investigation and assure that the sensitive habitat values of the property are protected, and that the approval of permits for restoration work complied with CEQA and other laws. Accordingly, we affirm the judgment.

BACKGROUND

I. Applicable Laws

The California Coastal Act of 1976 (the Coastal Act or the Act) protects the California coast from unregulated development. ( 30000 et seq.) The Act encourages state and local cooperation in coastal land use management and requires enactment of local coastal programs to implement the policies of the Act, with oversight by the Coastal Commission. ( 30001.5, subd. (e), 30004, subd. (a), 30108.6, 30500, 30510.) The Coastal Commission was established to provide statewide supervision over coastal zone development, to avoid local pressures having an undue impact upon the planning for this unique and irreplaceable resource . . . . (City of Chula Vista v. Superior Court (1982) 133 Cal.App.3d 472, 481.)

Every local government in the coastal zone is charged with preparing a local coastal program that incorporates land use plans and zoning ordinances meeting the requirements of the Act. ( 30108.6, 30500.) A local coastal program serves essentially the same function as a general plan. (City of Chula Vista v. Superior Court, supra, 133 Cal.App.3d at p. 487.) These programs are developed in consultation with the Coastal Commission and are subject to its approval. (Ibid.;  30500, subd. (c), 30510.)

In 1979, the County adopted Local Coastal Program Unit 1 (LCP), which the Coastal Commission certified the following year. Addressing Webers property in particular, the LCP states that the property contains the majority of the significant marshy areas around the Bolinas Lagoon and warns that [t]he value of the land to shorebirds could be greatly reduced if current agricultural uses were to change. The LCP further notes that the property provides the only remaining hightide roost . . . that is protected from significant disturbance for certain shorebirds and water fowl in Bolinas Lagoon and offers the only habitat adjacent to the lagoon for snipe. The property also contains one of the lagoons few transition zones from salt marsh to freshwater marsh habitats. The LCP concludes: In order to protect the wetland and upland habitat values of the parcel, changes in existing grazing use of the site shall be preceded by detailed environmental investigation and shall assure protection of the habitat values of the site in accordance with other policies in the LCP. Public acquisition of the site is encouraged. After the LCP was adopted, the County established implementing requirements, standards and conditions. (Marin County Code,  22.56.10 et seq.)[2]

II. Webers Use of the Property

The property in question consists of two separate parcels: Parcel number 13 (approximately 9 acres) is within the permitting jurisdiction of the County, and parcel number 24 (approximately 2.36 acres) is within the permitting jurisdiction of the Coastal Commission. Weber purchased both parcels in 1981 to expand his organic farming operation, which is known as Star Route Farms. Before that time, the land was used primarily for occasional grazing by cattle that entered the property through a break in the fence.

Shortly after he took possession of the property, Weber began preparing approximately five acres of the soil on parcel number 13 for organic row crop farming. After he completed this process of seasonal mowing and flail-chopping, Weber planted his first crops in 1985. In 1986, he installed an irrigation system (wells pumps, pipes and electrical service) for sprinkler and/or drip application on parcel number 13. To maintain the organic agriculture on this parcel, each year Weber plants fall cover crops, to maintain necessary soil organisms, and each spring he composts approximately 20 cubic yards per acre to feed the soil organisms and fertilize the crops. The parties do not dispute that Weber has farmed the property openly and continuously since 1985.

When he purchased the property, Weber understood it was zoned for agricultural use, including row crop farming. He did not obtain a permit before he began farming the five acres of parcel number 13 and did not believe he was required to do so. During the entire time he has operated the farm, no representative of the County questioned Webers right to farm under the LCP or told Weber he needed a permit or other approval to conduct his farming.

A. Army Corps Settlement

Shortly after Weber began farming the property, residents of the Bolinas area complained to the County that his farming without a prior environmental investigation violated the LCP and the County zoning ordinance. No official action was taken on these complaints until the late 1990s, when the Army Corps conducted an enforcement investigation to determine if the farming activities violated the Clean Water Act (33 U.S.C.  1251 et seq.) or the Rivers and Harbors Act (33 U.S.C.  401 et seq.). The Army Corps determined that discharges from several ditches, culverts and dikes that were added to the property in the mid 1980s resulted in violations of the Clean Water Act. The Army Corps explained that much of the subject property . . . exhibits wetland hydrology during the winter months and concluded it is highly likely that these wetland characteristics would be exhibited on the subject property as well absent alterations in the site. In late 1998, Weber entered into an agreement with the Army Corps requiring him to remove approximately 700 cubic yards of the dirt dikes he had constructed and remove side casing materials and rock debris from ditches that were also constructed after purchase. The agreement also observed: Mr. Weber will continue to farm the Property in accordance with applicable laws and regulations.

In 2000, Weber applied to the County for a coastal development permit and a tidelands permit (collectively permits) to perform the work necessary to implement the settlement agreement with the Army Corps. Webers application states that he is seeking permits to remove soil placed on top of those portions of the pre-existing south and east dikes on APN 195-290-13 since [Webers] purchase of that parcel in 1981. This soil material has been removed from corresponding ditches on the property and placed on the dikes during ditch maintenance work. The ground contours of these dikes will be returned to levels representative of conditions existing as of 1981. Weber later applied for a permit from the Coastal Commission for related restoration work on parcel number 24.

B. Countys Habitat Investigation

In May 2002, the Countys planning department staff presented an informational habitat investigation of the property. The staff explained that an investigation had been prepared to assess changes in habitat values that had resulted from the conversion in use from limited seasonal grazing to organic row crop production. Although the planning department concluded that an environmental investigation was not required, it determined that a qualitative investigation would nevertheless be worthwhile to respond to issues that had been raised and to explore the appropriateness of possibly amending the LCP and zoning text to provide greater clarity over if and how agricultural uses should be regulated. The County therefore initiated a full habitat investigation without requiring a coastal permit from Weber.

A staff report accompanying this in-depth habitat study described several conclusions. First, it appeared from the investigation that sustainable, organic farming methods, such as those used by the current agricultural producer, represent good stewardship of the land insofar as habitat values are concerned. Second, because the change in use from grazing to row crop farming had altered the plant species composition, soil micro-flora and -fauna on at least five acres of the 11-acre property and the sites hydrology had been altered by increased ditching and dyke construction, habitat values were presumably reduced for native animals; however, these changes could not be quantified without further long-term studies. Third, based on the theory that grazing practices on the property promoted greater biomass production of native and naturalized plants and natural soil flora and fauna than agricultural use, shorebirds and waterfowl likely found more forage and habitat value under the previous grazing regime than under the current crop production. Fourth, if Webers farming remained limited to a five-acre cultivation area and levees were lowered in accordance with the Army Corps agreement, most of the one-acre salt marsh habitat on the property was expected to remain in a similar condition as it was during the previous grazing use. Fifth, waterfowl and shorebirds would likely continue to use the property under seasonal conditions. On May 20, 2002, the planning commission held a public hearing and accepted the habitat investigation as an informational report.

C. Issuance of Restoration Permits

In September 2002, after a public hearing, a planning department administrator approved permits for the restoration work. The project was defined as the removal of soil from existing dikes, the removal of side casts and rock debris, and the restoration and maintenance of preexisting ditches. The County administrator concluded that this project would not result in any significant environmental impacts and thus found it categorically exempt from the requirements of CEQA pursuant to section 15304, class 4(a) of the CEQA Guidelines.[3] The administrator also found the project consistent with the mandatory findings for Coastal Permit approval pursuant to the requirements and objectives of the [LCP]. In addition to the restoration work, the permit authorized Weber to temporarily remove and reinstall a perimeter deer fence.

III. TBA Litigation

TBA appealed the permit ruling to the planning commission, which denied it after a public hearing. Thereafter, TBA appealed to the board of supervisors, which held another public hearing and in late January 2003 denied the appeal. In so doing, the board of supervisors found TBAs arguments pertaining to the conversion of wetlands to agricultural lands . . . not relevant to the proposed project, which is limited to the removal of fill material. The County handled such alleged land use violations through its code enforcement process, and the board noted no such allegations were pending. Finally, the board observed: The purpose of this project is to facilitate the implementation of the settlement agreement. It is not intended to address broader policy issues concerning the extent to which the County should regulate the agricultural use of the property.

TBA appealed the boards decision to the Coastal Commission. Coastal Commission staff recommended that the permits be upheld. Based on the limited scope of the permits, the staff concluded TBAs contentions regarding development not approved by the County did not present a proper ground for appeal. The Commissions review authority under the appeal is limited to the approved development. The change from infrequent grazing to row cropping was not considered by the County in its action [on the permits]. After a public hearing on December 10, 2003, the Coastal Commission found that the appeal failed to present a substantial issue and upheld the permits. At the same time, the Coastal Commission considered and approved a permit for the removal of four culverts, a wood platform, and 547 cubic yards of fill from the portion of the property under the Coastal Commissions jurisdiction. This permit imposed a special condition requiring Weber to submit a revised wetland restoration plan providing for a wetlands buffer and limiting plants to native species indigenous to the region and from local seed stocks. The permit prohibited agricultural activities within the wetland buffer and required Weber to relocate the deer fence to parcel number 13 along the 10 meter wetland buffer line.

On January 14, 2004, TBA filed a petition for writ of mandate. As subsequently amended, the petition alleges: (1) the County violated CEQA in issuing permits for the removal of dirt fill from the property; (2) the County failed to require a permit for Webers conversion in use of the property from occasional grazing to row crop farming, in violation of the LCP and County zoning ordinance; (3) the Coastal Commission violated the Coastal Act in reviewing the Countys permits; (4) the Coastal Commission violated CEQA in reviewing the Countys permits; (5) the Coastal Commission abused its discretion in approving a coastal permit; and (6) the County violated its general plan, zoning ordinance, LCP and the Coastal Act when, in approving the permits, it failed to delineate the wetlands and designate a wetland buffer area.[4]

In July 2004, TBA filed a motion for summary adjudication of its second cause of action, asserting there is no factual dispute that respondent County of Marin has failed to exercise it permitting discretion regarding [Webers] change of use on the parcel to row-crop farming based on a legal interpretation of local law that is contrary to the express language of the Countys LCP, general plan and zoning code. The County filed a cross-motion for summary adjudication of the second cause of action arguing that, based on its reasonable interpretation of the applicable laws and regulations, no environmental investigation or permit was required, and that even if its interpretation were incorrect, the County could not impose such a requirement on a use that has been existing and vested for nearly twenty (20) years. The County also pointed out that it did perform a habitat investigation, and this study showed that organic farming, if performed properly, would not detract from the habitat values of the property any more than the previous grazing use. Weber joined in the Countys cross-motion.

The trial court ultimately denied TBAs motion and granted the Countys cross motion on the ground that TBA had failed to exhaust its administrative remedies. After further briefing, the trial court entered a decision in favor of the County and the Coastal Commission on the remaining causes of action. The court found substantial evidence supported the Countys determination that the requested permits are exempt from CEQA requirements, and it rejected TBAs claim that the County violated its general plan and zoning ordinance in issuing the permits. The court also concluded the Coastal Commission did not abuse its discretion in upholding the Countys permits or in issuing its own coastal permit. TBA filed a timely notice of appeal and now challenges virtually every aspect of the trial courts rulings.

DISCUSSION

I. The LCP required the County to conduct a detailed environmental investigation prior to a change in use of the property from occasional grazing to row crop farming.

TBAs second cause of action alleges that in May 2002, the County determined that it was under no obligation to require [Weber] to obtain a permit for his conversion from occasional grazing to row-crop agriculture . . . . TBA asserts that the Countys failure to exercise its permitting authority, including preparation of a detailed environmental investigation prior to allowing the conversion to agriculture on this parcel, violated the LCP. TBA requests a declaration that [the Countys] legal interpretation and decision not to exercise its permitting discretion regarding [Webers] change of use on the Parcel to row-crop farming . . . is contrary to the Countys LCP, general plan and zoning code and an injunction requiring the County to exercise its permitting discretion regarding [Webers] un-permitted activities on the parcel in a manner consistent with the Countys LCP and general plan . . . .[5]

Without reaching the merits of TBAs argument, the trial court dismissed this claim on the ground that TBA failed to exhaust its administrative remedies. Specifically, the court found that the planning commissions report on its habitat investigation, issued in advance of the May 20, 2002 hearing, put TBA on notice that the County was not going to require Weber to obtain a permit for his agricultural operations. Rather than pursuing an administrative appeal of this decision to the planning commission or the board of supervisors, TBA waited to raise the issue in its challenge to the Countys approval of the coastal development permits. Having concluded an administrative remedy was available to challenge the Countys decision not to require a permit for agricultural activities, the court ruled TBA was required to pursue this remedy to completion before raising the claim in a writ petition.[6]

We disagree that TBA was required to pursue the Countys appeal process based on conclusions it might have drawn from the Countys habitat investigation report, rather thanas it didin connection with its challenge to permits for restoration work on the same property. Marin County Code section 22.89.040 states, in relevant part: Any person aggrieved by any determination, interpretation, decision, conclusion, decree, judgment or similar action taken by any administrative personnel under the provisions of this title may appeal the action to the planning commission. In our view, comments in the planning department staffs report suggesting a permit would not be necessary were not the equivalent of a final determination providing a basis for appeal. Moreover, contrary to its usual practice when such a final decision is made, the County did not advise TBA that it had a right to appeal from any action taken at the May 20, 2002 hearing. The purpose of the rule of exhaustion of administrative remedies is to provide an administrative agency with the opportunity to decide matters in its area of expertise prior to judicial review. (Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 384.) The planning commission and board of supervisors had ample opportunity to consider TBAs arguments when they were presented in connection with the coastal development permits. Accordingly, the exhaustion requirement was satisfied, and we shall address the merits of the claim.

TBA sought a writ of mandate under Code of Civil Procedure section 1085 compelling the County to perform an environmental investigation and require Weber to obtain a permit for his row crop farming on parcel number 13. Traditional or ordinary mandamus lies to compel the performance of an act which the law specifically enjoins. (Code Civ. Proc., 1085.) To obtain a writ of mandate under Code of Civil Procedure section 1085, the petitioner must show (1) a clear, present, ministerial duty on the part of the respondent, and (2) a correlative clear, present, and beneficial right in the petitioner to the performance of that duty. [Citations.] A ministerial duty is an act that a public officer is obligated to perform in a prescribed manner required by law when a given state of facts exists. (Jackson v. Gourley (2003) 105 Cal.App.4th 966, 969-970.) While mandamus will not lie to compel the [planning commission] to exercise its discretion in a particular way, it is proper to compel compliance with the [LCP and local zoning ordinance] by requiring the board to exercise its discretion in some way. (Pasadena City Fire Fighters Assn. v. Board of Directors of the City of Pasadena (1974) 36 Cal.App.3d 901, 907; 5 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs,  93, p. 883.)

Here, the LCP provides, In order to protect the wetland and upland habitat values of the parcel, changes in existing grazing use of the site shall be preceded by detailed environmental investigation and shall assure protection of the habitat values of the site in accordance with other policies in the LCP. The Bolinas Lagoon Resource Management Plan (the Plan), which was prepared in 1981 in conjunction with the Countys LCP, elaborates on the unique characteristics of this particular property. Like the LCP, the Plan indicates that Webers property is a special resource area that should be protected against any significant disruption of habitat values. [] Efforts should be made to secure the . . . property in the Nature Preserve for permanent open space and eliminate inappropriate uses, such as hunting. [] Grazing use of the eleven-acre . . . property should be monitored to assure that grazing does not conflict with habitat management and water quality objectives in the lagoon. Changes to grazing practices should be preceded by detailed environmental investigations to assure protection of the habitat values of the site in accordance with other policies in [the] Plan and in the LCP. The Plan also warns that the continued quality of the habitat depends on adherence to conditions of the grazing contract, which presents potential conflicts with habitat management and water quality.

Based on the clear and unambiguous language of the LCP (changes in existing grazing use of the site shall be preceded by detailed environmental investigation and shall assure protection of the habitat values of the site in accordance with other policies in the LCP), confirmed in the BLRMP ([c]hanges to grazing practices should be preceded by detailed environmental investigations to assure protection of the habitat values of the site in accordance with other policies in [the] Plan and in the LCP), the County was required to conduct an environmental investigation to determine the acceptability of a change in the use of the property from occasional grazing to row crop farming. Contrary to TBAs contention, however, we conclude that the habitat investigation performed by the planning commission staff and accepted as an informational document by the planning commission satisfied the environmental investigation required by the LCP. We need not concern ourselves with the timing of the study or of the countys reasons for undertaking it. The fact is that the study was performed and the planning commission was satisfied that the limited row crop farming on five acres of the land would not adversely affect the habitat values of the site.

As set forth more fully above, the County conducted a full environmental investigation, which concluded that if Webers farming remained limited to a five-acre cultivation area most of the one-acre salt marsh habitat on the property was expected to remain in a similar condition as it was during the previous grazing use. There is no showing that this evaluation was unreasonable or lacking in evidentiary support. TBA suggests generally that [t]he record shows that row-crop farming has the potential for different and greater impacts to the natural values of the site than does grazing. More specifically, TBA relies on a statement in an earlier draft of the habitat investigation that agricultural practice could potentially yield significantly more sediment to Bolinas Lagoon than would the pre-existing grazing regime were it not for the system of levees and dikes. The same report, however, also indicates that while there may be an increase in potential soil erosion which could enter Bolinas Lagoon . . . much of this could be trapped on the property. The second draft of the habitat investigation was prepared in response to the Countys request to expand the original scope of the work to include recommendations for land management practices that would assist in preserving habitat resource values while maintaining agricultural use of the property and was ultimately accepted by the planning commission for informational purposes. The expanded report observes that [t]he subject property is broad and flat, which slows runoff and sediment transport. This report fairly evaluates the potential environmental impacts of farming on five acres and offers specific recommendations to protect the habitat values of the property on the premise that the farming will continue at its present scale. As TBA acknowledges, this investigation constitute[s] substantial evidence in the record in the form of expert observations and findings. The County reasonably relied on the report as confirmation that habitat values are being protected.

Contrary to TBAs argument, the County was not required under the LCP, or any other municipal ordinance, to make formal findings relating to the habitat investigation or to require that a permit be obtained before effecting a change in use of the property. The portion of the LCP in which the operative language appears relates solely to Webers property. No mention is made of requiring a permit, nor is it likely that a specialized permit process for this unique parcel was contemplated when the LCP was adopted. All that is required is that the county conduct an environmental investigation and assure protection of the habitat values of the site in accordance with other policies in the LCP. The planning commission was satisfied that habitat values are being preserved with the present limited farming operations. So long as there is no other change of use or expansion of the farming conducted on the site, no further action is required.[7]

Accordingly, we conclude, albeit for a different reason, that the trial court properly resolved TBAs second cause of action in favor of the County.

II. Trial Court Properly Upheld the County Permits

A. The County Complied with CEQA

 The foremost principle under CEQA is that the Legislature intended the act to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. [Citation.] . . . The Legislature has emphasized its intent that . . . all agencies of the state government which regulate activities . . . which are found to affect the quality of the environment, shall regulate such activities so that major consideration is given to preventing environmental damage. . . .   (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 943-944.)

Consistent with this strong environmental policy, the CEQA statutes and the Guidelines issued by the California Resources Agency to implement CEQA have established a three-tiered process to ensure that public agencies inform their decisions with environmental considerations.  (Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 687.) The first step in the three-step process is a preliminary review, during which the public agency must determine whether an activity is subject to CEQA. (Association for a Cleaner Environment v. Yosemite Community College Dist. (2004) 116 Cal.App.4th 629, 636; Guidelines,  15060, subd. (c).) An activity is not subject to CEQA if: [] (1) The activity does not involve the exercise of discretionary powers by a public agency; [] (2) The activity will not result in a direct or reasonably foreseeable indirect physical change in the environment; or [] (3) The activity is not a project as defined in [Guidelines,] [s]ection 15378. (Guidelines,  15060, subd. (c)(1)-(3).) When the preliminary review results in a determination that the proposed activity is not a project or is exempt, the public agencys CEQA inquiry ends and it may file a notice of exemption. (Id.,  15062.)

The County determined that the restoration work called for in Webers settlement agreement with the Army Corps was exempt from CEQA review, and thus it filed a notice of exemption. TBA contends the County erred in narrowly construing the project to include only the restoration work and not also Webers change in use of the property from occasional grazing to row crop farming. TBA also argues that the project, even as defined by the County, is not exempt from CEQA review.

Under CEQA, a project is defined as the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment . . . . (Guidelines,  15378, subd. (a);  21065.) To maximize environmental protection, the concept of a project is broadly defined under CEQA. (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1377.) A public agency may not divide a single project into smaller individual projects in order to avoid its responsibility to consider the environmental impacts of the project as a whole. (Sierra Club v. West Side Irrigation Dist. (2005) 128 Cal.App.4th 690, 698.) CEQA mandates that environmental considerations not become submerged by chopping a large project into many little ones, each with a potential impact on the environment, which cumulatively may have disastrous consequences. . . . [] . . . A narrow view of a project could result in the fallacy of division, that is, overlooking its cumulative impact by separately focusing on isolated parts of the whole. (Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, 592.) When the facts are not in dispute, whether an act constitutes a project for purposes of CEQA presents a question of law. (Kaufman & Broad-South Bay, Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464, 470.)

The County properly rejected TBAs contention that the change in use of the property from grazing to row crop farming was required to be considered part of the project covered by the permits for restoration work. The restoration work required by the settlement agreement and approved by the County is independent of any approval of Webers farming operations. The Army Corps determined that wetland fill was improperly placed on the property and must be removed. Although the settlement agreement acknowledges that the farming would continue, the restoration work was required to be performed whether the property was to be used for grazing or for farming. Contrary to TBAs assertion, the County evaluated the environmental impact the restoration project with the understanding that Weber would continue to farm five acres of the property. The Countys report on the habitat investigation states that most of the 1-acre salt marsh habitat on the property should remain in a similar condition as during the previous grazing regime if the crop production continues to be limited to the current 5-acre cultivation area and the existing levees are lowered as required by the Army Corp of Engineers agreement. No evidence suggested that the restoration work will alter the row crop farming operations, or vice versa. TBA has not established a likelihood that the restoration work, combined with Webers continued farming of five acres, will create any significant cumulative impacts.

The County also correctly concluded that the restoration work is exempt from CEQA review. With certain limited exceptions, a public agency must prepare an EIR whenever substantial evidence supports a fair argument that a proposed project may have a significant effect on the environment. [Citations.]  Significant effect on the environment means a substantial, or potentially substantial, adverse change in the environment.  (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123.) However, projects that do not have a significant environmental effect may be considered categorically exempt from CEQA review. (Id. at p. 962.) If an agency determines that a project meets the requirements for categorical exemptions, a notice of exemption is prepared and no further environmental review is required. (Ibid.; see also Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 726 [a categorically exempt project is not subject to CEQA requirements and may be implemented without any CEQA compliance whatsoever ].) Such exemptions are construed narrowly, however, and may not be unreasonably expanded beyond their terms. (County of Amador v. El Dorado County Water Agency, supra, 76 Cal.App.4th at p. 966.)

The Guidelines include 33 categorical exemptions describing classes of projects that have been determined not to have a significant effect on the environment. (Guidelines,  15300 et seq.; see  21084, subd. (a) [mandating that Guidelines include a list of exempt projects].) In its notice of exemption, the County stated the restoration work fits the requirements of a class 4 exemption, which exempts certain minor alterations in the condition of non-wetland land that has a slope of less than 10 percent. (Guidelines,  15304.) In arguments to the trial court, the County also maintained the project is categorically exempt pursuant to a class 33 exemption. The trial court found the restoration work satisfies the requirements for both exemptions. Because we conclude the project is exempt from CEQA under class 33, we do not reach the parties arguments regarding class 4.[8]

The class 33 exemption applies to projects not to exceed five acres in size to assure the maintenance, restoration, enhancement, or protection of habitat for fish, plants, or wildlife provided that: [] (a) [t]here would be no significant adverse impact on endangered, rare or threatened species or their habitat pursuant to section 15065, [] (b) [t]here are no hazardous materials at or around the project site that may be disturbed or removed, and [] (c) [t]he project will not result in impacts that are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects. (Guidelines,  15333.) [A] significant effect on the environment under CEQA is a substantial or potentially substantial adverse change in the physical conditions existing within the area affected by the project. (California Farm Bureau, supra, 143 Cal.App.4th at p. 185.)

Judicial review of an agencys compliance with CEQA where no administrative hearing at the agency level was required is governed by section 21168.5, which limits judicial inquiry to whether there was a prejudicial abuse of discretion. [Citations.] Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence. [Citation.] We apply this same standard on appeal, reviewing the agencys action, not the trial courts decision. (California Farm Bureau, supra, 143 Cal.App.4th at p. 185, fn. omitted.) Substantial evidence, as defined by the Guidelines, is enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made is to be determined by examining the entire record. Mere uncorroborated opinion or rumor does not constitute substantial evidence.   (Castaic Lake Water Agency v. City of Santa Clarita (1995) 41 Cal.App.4th 1257, 1264-1265, fn. omitted.)

The record amply supports the Countys reliance on the class 33 exemption for small habitat restoration. First, contrary to TBAs argument, the permitted activity satisfies the requirement that the project be less than five acres. Although the entire parcel is 11.4 acres, the restoration work will take place on less than five acres of the parcel. Second, there is no dispute that the authorized work will restore a significant wildlife habitat once it is completed. Moreover, the permit establishes conditionssuch as specifications about when and how the dirt will be removed, where the dirt will be relocated and how the area will be replantedto ensure that the restoration work itself will not adversely impact the environment. For these reasons, the permitted work fits squarely within the scope of the class 33 exemption and, indeed, appears to be precisely the type of small, restorative project this exemption was intended to address. As we have discussed, the County appropriately defined the project as consisting of the restoration work only; therefore, TBAs arguments pertaining to Webers separate farming operations are irrelevant. Accordingly, the County was not required to prepare an EIR before it issued permits for the restoration work.

B. The County Complied with Applicable Local Ordinances

TBAs sixth cause of action alleges the County failed to comply with local ordinances that require the delineation of wetlands and imposition of a wetlands buffer. TBA relies on Marin County Code section 22.56.130, subdivision (G)(5), which states, in relevant part: The diking, filling, dredging and other alterations of wetlands shall occur only for minor, public works projects and shall be in conformance with the Coastal Act Section 30233. . . . Land uses in and adjacent to wetlands shall be evaluated as follows: [] . . . [] (d) A buffer strip one hundred feet in width, minimum, as measured landward from the edge of the wetland, shall be established along the periphery of all wetlands. Development activities and uses in the wetland buffer shall be limited to those allowed pursuant to Section 30233 of the Coastal Act of 1976.[9] TBA contends a wetland delineation was necessary for the County to establish a wetland buffer zone and determine whether Webers future agricultural operations will be occurring in wetlands. However, TBA misconstrues the nature of the project. The County issued permits for an ecological restoration project, not a development project. Delineation of the wetlands and imposition of a buffer are not required for performance of the restoration work called for by the settlement agreement, and the permits issued for this work do not authorize any land use in or adjacent to the wetlands for which a buffer would be required. Although the County could have designated a wetland buffer as a condition of its restoration permit, as the Coastal Commission did (see post, pp. 20-22), under these circumstances the County was not required to do so.

C. The Coastal Commission Properly Reviewed Countys Permits

The Coastal Act provides for administrative appeals to the Coastal Commission in certain cases. [Citation.] If . . . the local government approves an application for a CDP [coastal development permit], its action may be appealed to the commission by the applicant, any aggrieved person, or any two members of the commission. [Citations.] The commission has limited jurisdiction to hear the appeal. [Citation.] . . . The grounds for such an appeal are limited to an allegation that the development does not conform to the standards set forth in the certified local coastal program or the public access policies set forth in [Division 20, the Coastal Act]. [Citations.] [] If an action is appealable, the commission must hear the appeal unless it determines no substantial issue exists with regard to the grounds for the appeal. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 273-274.)

TBA contends the Commission proceeded unlawfully in failing to find a substantial issue warranting a hearing. Once again, however, all of TBAs arguments are rooted in its claim that the County should have been required to regulate Webers continued farming operations at the same time it issued permits for the restoration work. As we have discussed, the County properly defined the project; therefore, each of these arguments fails, and the trial court properly denied relief on TBAs first, third, fourth and sixth causes of action.

III. Trial Court Properly Upheld the Coastal Commission Permit

Webers settlement agreement with the Army Corps required him to remove approximately 547 cubic yards of wetland fill from parcel number 24. Based on limitations the Coastal Act places on activities within a wetland, Weber was required to obtain a permit from the Coastal Commission authorizing this restoration work.

Section 30233, subdivision (a)(6) permits the diking, filling, or dredging of wetlands for restoration purposes where there is no feasible less environmentally damaging alternative, and where feasible mitigation measures have been provided to minimize adverse environmental effects. In issuing its permit, the Coastal Commission found the project consistent with this statute because the proposed development removes unpermitted wetland fill, and as conditioned would incorporate measures to adequately restore the impacted wetlands. To ensure Weber carried out the activities outlined in his restoration program, special conditions of the Coastal Commission permit required Weber to create a wetland buffer along the property boundary dividing the project site from parcel number 13, prohibited agricultural activities or development within this wetland buffer, and directed Weber to relocate a perimeter deer fence from elsewhere on parcel number 24 to the inland boundary of the wetland buffer to delineate the buffer area and protect the buffer from inconsistent use.

Substantial evidencein particular, the habitat investigation performed by the County and the opinions of Coastal Plant Ecologist Peter Baye and the Environmental Action Committee of West Marinsupports the Coastal Commissions finding. As discussed above, the habitat investigation recommends returning the hydrology to pre-farming conditions by following the Army Corps agreement and maintaining a permanent cover of native perennial grasses and wetland species around the perimeter of the cultivated area. Baye and the environmental action committee of West Marin both agreed that a minimum 10-meter wide buffer zone above the extreme high tide, within which no agricultural operations were allowed would adequately protect the habitat necessary for tidal marsh-dependent species.

Nevertheless, TBA contends the Coastal Act required the Coastal Commission to make its own wetlands delineation, rather than simply adopt[ing] the Assessor Parcel line as the demarcation line for tidal wetlands. TBA also complains the Coastal Commission lacked sufficient information to find that the project as proposed would have no significant impact [on the environment], in violation of CEQA. We disagree.

The Coastal Commissions use of the property line between parcel numbers 13 and 24 as a means of delineating the wetland boundaries was both reasonable and sufficiently calculated to ensure protection of the wetland. Coastal Commission staff explained at the permit hearing that, during his negotiations with the Army Corps, Weber had essentially agreed to treat all of parcel number 24 as wetland, and subject to the Commissions original jurisdiction. Because Coastal Commission staff had previously determined parcel number 24s boundary based on its investigation of the boundary between tidelands and uplands for jurisdictional purposes, the staff believed this line reasonably represented the wetlands boundary. With regard to fixing the boundary of the buffer zone, staff offered four suggestions, perhaps the most pragmatic of which was to draw the border based on the property line dividing parcel number 24 (subject to the Commissions jurisdiction) from parcel number 13 (subject to the Countys control). A staff member explained the reason that option makes some sense is because . . . that boundary was established through staffs investigation of the boundary between tidelands and uplands. [] And, discussing this with both staffs biologist, Dr. Dixon, and the applicants biologist, Dr. Huffman, I think they both agree that the line reasonably approximate[s] the boundary between the tidal marsh wetland, and upland, and that is a line that we can all look at right now. A representative of the Environmental Action Committee of West Marin concurred that a 10 meter buffer drawn from the property line, such as Weber and Coastal Commission staff settled upon, was an acceptable compromise.[10]

The record also supports the Coastal Commissions decision to permit and relocate the deer fence to the outside edge of the buffer zone. The record reflects that the deer fence would actually decrease the amount of wetland fill as compared to the prior cattle fence and would not otherwise have a significant impact on the wetland area.

Finally, TBAs CEQA challenge to the Coastal Commission permit lacks merit. The regulatory program of the Commission in dealing with the consideration and granting of coastal development permits has been certified by the Secretary of the California Resources Agency to be exempt from the CEQA requirement of preparing an environmental impact report (EIR) or a negative declaration. The Commission remains subject to other provisions of CEQA, such as the policy of avoiding significant adverse effects on the environment where feasible. [Citations.] In this regard, the Commission is required, among other things, to disapprove of a project if alternatives or feasible environmental mitigation measures are available [citation], to include guidelines for the orderly evaluation of proposed activities [citation], to consult with all public agencies that have jurisdiction over the proposed project [citation], and to respond in writing to significant environmental points raised in the evaluation process [citation]. (La Costa Beach Homeowners Assn. v. California Coastal Com. (2002) 101 Cal.App.4th 804, 819-820; see also  21080.5; Guidelines,  15252, subd. (b)(2).)

TBA does not dispute that Commission staff completed an environmental report on Webers permit application consistent with the requirements of its regulatory program. TBA contends, however, that the Commission improperly limited the scope of the project and thus did not consider the environmental impacts due to continued farming under an altered hydrolic regime. For the reasons discussed above, the Coastal Commission properly limited the scope of the project to include only the restoration work being performed on parcel number 24. Moreover, contrary to TBAs suggestion, the Coastal Commission evaluated Webers permit application with the understanding that Webers farming operations would continue. Hence, the trial court properly entered judgment in favor of the Coastal Commission on TBAs fifth cause of action.

DISPOSITION

The judgment is affirmed. The parties shall bear their respective costs on appeal.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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[1] All statutory references are to the Public Resources Code unless otherwise noted.

[2] Chapter 22 of the Marin County Code contains the Countys development code, including its zoning ordinance and implementing regulations for the LCP. The Marin County Code was amended in 2006, but these amendments were not in effect during the time period relevant to this appeal. All further references to the zoning ordinance are to the former version of chapter 22, of which judicial notice is taken pursuant to the mutual requests of the parties. Pursuant to TBAs unopposed request, we also take judicial notice of the Environmental Quality Element of the Marin Countywide Plan.

[3] All Guidelines references are to title 14 of the California Code of Regulations.

[4] The original complaint also alleged Webers use of the property for agricultural activities violates the public trust. This cause of action was omitted from the amended complaints.

[5] TBA has not requested an injunction prohibiting Weber from continuing his farming operations during the pendency of the permit process.

[6] As an alternative basis for denying TBAs motion for summary adjudication, the trial court also found the record raised a triable issue of fact as to whether the claim was time-barred pursuant to Code of Civil Procedure section 338, subdivision (a). In light of our ruling on the merits, we need not reach this argument.

[7] Should the present or future owners of the property attempt to make any such changes, the County will of course remain obligated to ensure compliance with the LCP and assure protection of the habitat values of the site. The oversight obligations imposed by the LCP are continuing.

[8] TBA argues the County should not be permitted to rely on the class 33 exemption because it did not assert this basis in its notice of exemption. The same argument was rejected in California Farm Bureau Federation v. California Wildlife Conservation Board (2006) 143 Cal.App.4th 173 (California Farm Bureau). Because a notice of exemption is not mandatory and its only effect when filed is to start the statute of limitations running, the court reasoned the listing of one exemption in such a notice does not preclude reliance on other categorical exemptions, at least where there is no claim or showing of prejudice. (Id. at pp. 190-191.) TBA has had ample opportunity to refute the Countys claim both in the trial court and on appeal and has not been prejudiced by the Countys failure to include a reference to class 33 in the notice of exemption.

[9] The LCP similarly states: To the maximum extent feasible, a buffer strip, a minimum of 100 feet in width, shall be maintained in natural condition along the periphery of all wetlands as delineated by the Department of Fish and Game and in accordance with Section 30121 of the Coastal Act . . . .

[10] Moreover, contrary to TBAs suggestion, no provision of the Coastal Act required the Coastal Commission to delineate the wetland boundaries more precisely prior to issuing a permit. Nothing in sections 30001, 30001.5, 30007.5 or 30240, cited by TBA, imposes such a requirement.