CEQA School In Session: First District Reverses Judgment Invalidating EIR for Desalination Plant Project In North Coast Rivers Alliance

by Miller Starr Regalia
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In a lengthy published opinion filed May 21, 2013, the First District Court of Appeal reversed a judgment granting a writ of mandate and upheld as legally adequate under CEQA the Marin Municipal Water District’s EIR for development and construction of a desalination plant in Marin County.  (North Coast Rivers Alliance, et al. v. Marin Municipal Water District Board of Directors (1st Dist., Div. 4, 2013) ___ Cal.App.4th ___, 2013 WL 2245170.) The Court rejected Petitioner North Coast Rivers Alliance’s (Alliance) challenges to the adequacy of the EIR’s analysis of the project’s aesthetic, land use, seismic, hydrology, water quality, biological resources, and cumulative GHG impacts, as well as its challenges to the EIR’s environmental setting description of baseline physical conditions and alleging that various of its mitigation measures were improperly deferred. In light of its reversal of the judgment, the Court dismissed the District’s related appeal of a post-judgment order awarding attorneys’ fees to Alliance as moot.

In an era of chronic California droughts and water shortages, the case’s facts are compelling. In 2003, to deal with an impending long-term water supply shortage, the District proposed to construct a 5-million gallon-per-day (MGD) desalination plant with certain infrastructure oversized to accommodate its potential expansion to 10 to 15 MGD. The plant would extract sea water fromSan Rafael Bay and produce potable water (along with saline brine) through a reverse osmosis process. The saline brine would be blended with treated wastewater effluent to reduce its concentration of dissolved salts prior to being discharged back into the bay. In addition to an intake structure to be built at the end of the Marin Rod and Gun Club pier, the plant would require building two reaches of pipeline, two pumping stations, and three storage tanks of 2-million gallon capacity each. Two storage tanks would be built on San Quentin ridge and the third on another ridge dividing Mill Valley and Corte Madera east of highway 101 (Ridgecrest A tank). The new pipelines would connect the plant to the tanks, and the tanks to each other and District’s existing pipeline system.

The District circulated the DEIR in November 2007, released the FEIR in December 2008, and certified the FEIR in February 2009, approving the desalination plant project after 2 public hearings in August 2009. AfterAlliancesued and the trial court granted a writ setting aside the District’s decisions certifying the EIR and approving the project, the Court of Appeal reversed.

In its lengthy opinion, the Court painstakingly applied numerous familiar CEQA and writ practice principles in evaluating the adequacy of the EIR and of petitionerAlliance’s exhaustion of administrative remedies. Some of the case’s key takeaways included the following:

  • In discussing the EIR’s analysis of the aesthetic impacts of the project’s storage tanks, the Court observed that a lead agency has discretion, as a policy decision, to determine the significance of impacts described in an EIR based on the nature of the area affected, i.e., the project’s environmental setting. It concluded the EIR’s detailed analysis of the tanks’ visual impacts was adequate, and its conclusions were supported by substantial evidence; “the issue is whether substantial evidence supports the agency’s conclusions, not whether others might disagree with those conclusions.”
  • The Court endorsed the principle that “[w]here an EIR contains factual evidence supporting the conclusion that aesthetic impacts will be insignificant, that conclusion must be upheld.” The EIR before it met this test with its inclusion of “a detailed discussion of potential aesthetic impacts of development of the Ridgecrest A tank, including the size and shape of the tank, satellite image analysis of impacts from four directions, visual simulation, and impacts on vistas from homes and hiking trails and the highway.”
  • With respect to efforts to mitigate the project’s significant unavoidable visual impacts on the San Quentin ridge tank site, the Court upheld a mitigation measure which had been rejected by the trial court as illegally deferred mitigation. The measure satisfied CEQA because it committed the District to mitigation and set out a standard for a future landscaping plan to follow, i.e., reduce and soften the tanks’ visual intrusion. Deferral until the construction phase of the precise details of how the landscaping screen would achieve its goals was permissible under CEQA.
  • Project opponents failed to exhaust administrative remedies regarding alleged project inconsistencies with applicable Countywide Plan policies, and in any event the EIR’s analysis regarding the project’s impacts on land use and planning was supported by substantial evidence and adequate. CEQA requires discussion of a project’s inconsistencies with a relevant general plan, but no analysis if a project is consistent. The trial court’s ruling essentially requiring a detailed analysis of the project’s consistency with the Plan was error.
  • While the project opponents’ generalized comments about earthquake and water supply concerns failed to adequately exhaust remedies with respect to soil liquefaction issues, the EIR’s seismology analysis was detailed and adequate in any event, as were its responses to comments.
  • The EIR’s analysis of hydrology and water quality impacts was adequate under the substantial evidence standard, i.e., sufficiently detailed “for the public to discern… the ‘analytic’ route the… agency traveled from evidence to action.’” With respect to potential shock-chlorination and associated wastewater impacts, the Court noted “CEQA does not require detailed analysis of an impact that is less than significant” and the EIR was adequate here. Moreover, the Court held “[s]ubstantial evidence elsewhere in the record” supported the EIR’s conclusions, and “[t]o the extent Alliance suggests that the District cannot rely on evidence outside the EIR itself, it is mistaken.”
  • The trial court erroneously held the EIR’s analysis of entrainment impacts — i.e., direct uptake of aquatic organisms by water intake suction — was inadequate because its methodology did not follow CDFG and NOAA protocols and recommendations. The Court of Appeal held: “This ruling ignores the substantial evidence standard of review.… The issue is not whether other methods might have been used, but whether the agency relied on evidence that a ‘reasonable mind might accept as sufficient to support the conclusion reached’ in the EIR.” Disagreement with other agencies does not demonstrate a lack of substantial evidence to support the lead agency’s findings, as shown by numerous cases cited by Court in its opinion. Additionally, the EIR’s description of the baseline environmental setting in terms of potentially affected fish species was adequate.
  • Mitigation for impacts of pile driving noise consisting of a commitment to undertake future consultation with NOAA was not impermissibly deferred; according to the Court: “Consultations with NOAA fisheries must occur, both as part of the federal permitting process under the CWA and ESA, and under the express terms of the mitigation measure ….” As the Courts have observed, “‘[a] condition requiring compliance with environmental regulations is a common and reasonable mitigating measure ….’ In sum, consultation under Section 7 of the ESA, coupled with the commitment to avoid the take of protected species, constitutes adequate mitigation under CEQA.”
  • Because the final EIR concluded the project’s energy impacts would be insignificant, and the trial court found that conclusion supported by substantial evidence, “the EIR did not need to discuss further green energy credits as an alternative mitigation measure for the energy impacts of the Project.”
  • The EIR’s analysis of the Project’s cumulative greenhouse gas (GHG) emission as insignificant — because the Project would not interfere with County’s ambitious goal of reducing GHG emissions to 15% below 1990 levels by 2020 — was sufficient and supported by substantial evidence, notwithstanding Alliance’s disagreement.
  • Finally, recirculation of the EIR was not required based on the addition of an infeasible alternative — i.e., construction of pipeline to deliver Russian River water to the District plus new conservation measures — to the final EIR. Recirculation is the exception, not the general rule, and is not required where new information is not significant. Here, substantial evidence supported the decision not to recirculate because the added alternative was “neither a considerably different nor a feasible alternative” and would not meet basic project objectives.

While many commentors on this decision have stressed the Court of Appeal’s “highly deferential” application of the substantial evidence standard of review, what I find most noteworthy about this case is how far the trial court’s analysis strayed from the proper and well-established substantial evidence standard of review. It seems to me that the primary value of appellate courts publishing more CEQA decisions like this one is not so much in breaking new legal ground, but in sending an important message to trial judges tempted to substitute their own perceived technical and scientific expertise and independent judgment for that of the CEQA lead agency and its chosen expert consultants: “Don’t do it! Even if you would decide differently under an independent review standard, that isn’t the standard and it is for the lead agency and not the court to design the EIR; you must defer to the lead agency’s findings and conclusions whether you agree with them or not so long as they are supported by substantial evidence — or you will be reversed!”

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Miller Starr Regalia
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