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City of Stockton and County of San Joaquin Page 56 NPDES Permit CAS0083470 Response to Comments earliest possible time, and before project approval. (emphasis added) Public Resources Code § 21003.1; Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296, 306;Pub. Res. Code § 21080.5(d)(3) (written documentation should include a description of the proposed activity,with alternatives and mitigation measures to minimize significant impacts, and should be available for a reasonable time for review and comment by other public agencies.) In Sundstrom, the CEQA lead agency approved a negative declaration on the condition that the project applicant would comply in the future with the environmental standards for sludge disposal. 202 Cal. App. 3d at 309. Based on this "fixture" mitigation,the agency found that the project would have no significant impact. Id. The court held this deferral to be unlawful under CEQA,however, due to uncertainties as to whether such mitigation would be effective to render the project's impact insignificant. Id. at 311-314. In so holding, the court noted: "[a] study conducted after approval of a project will inevitably have a diminished influence on decision making. Even if the study is subject to administrative approval, it is analogous to the sort of post-hoc rationalization of agency actions that has been repeatedly condemned in decisions construing CEQA [citations omitted] (Id.). In this Permit, the principles of CEQA, as described in Sundstrom, that a project be fully reviewed and subjected to public comment prior to approval, and that mitigation measures necessary to the findings of the agency not be deferred until after project approval, are highly relevant. Finding 26 states that it is the intent of the Board that the Permit will ensure that water quality standards are met,presumably for the pollutants listed in Finding 66. The Permit cannot be issued without this finding. Yet the measures in the permit that will accomplish this objective— and thus support such a finding-- have not even been conceived, much less implemented. There is no schedule of compliance to achieve this objective. The BMPs necessary to comply with water quality standards have not been proposed or even conceived of by the Permittees. BMPs sufficient to ensure attainment of water quality standards should have been submitted by the Permittees as part of their renewal package. Indeed, if the iterative permitting process was not dysfunctional, such BMPs would have been progressively submitted in each annual report during the previous permit cycle. The proposed Permit is being issued without a clear understanding of how water quality standards will actually be met. A related CEQA principle, applicable to certified programs, is that a lead agency may not approve a project based on a document that was never circulated for public review. See e.g. Friends of Old Trees v. CDF (1997) 52 Cal. App. 4th 1383, 1404,which stated: "[i]n pursuing an approach that "releas[es] a report for public consumption that hedges on important environmental considerations while deferring a more detailed analysis to [a report] that is insulated from public review" the Department pursued a path condemned as inconsistent with the purpose of CEQA in this division's opinion in Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal. App. 3d 1043, 1052. Certainly, the Department cannot expect the public's access to information after the fact to substitute for the opportunity to influence the Department's decisions before they are made." In this permitting situation, the public has been denied its right to review a number of documents that will be generated after permit approval, including proposed monitoring work plans, and second tier BMPs,pollution control studies, sediment control plans, etc. Since the Permit itself does not contain any hard standards or schedules, the content of these documents is highly relevant to the