Court of Appeal Reverses Trial Court’s Disapproval Of Environmental Impact Report For Seawater Desalination Plant

A municipal water district proposed a project to build a seawater desalination plant to avoid predicted future water supply shortages.  After the water district certified an environmental impact report (“EIR”) for the project, North Coast Rivers Alliance (“Alliance”) sued claiming the EIR failed to adequately analyze the adverse environmental consequences of the project.  The trial court agreed with Alliance and held the EIR was invalid under the California Environmental Quality Act (“CEQA”), but the appellate court reversed this decision and upheld the EIR.  (North Coast Rivers Alliance v. Marin Municipal Water District Bd. of Directors (--- Cal.Rptr.3d ---, Cal.App. 1 Dist., May 21, 2013).

Note

See our Legal Alerts on the referenced Sonoma County Water Coalition and California Native Plant Society cases.

Facts

In 2003, the Marin Municipal Water District (“District”) proposed a 5 million gallons per day (“MGD”) desalination plant that would produce potable water from raw seawater extracted from San Rafael Bay (“Project”).  The District circulated a draft environmental impact report (“DEIR”) for the Project, received public comments, and then released a final environmental impact report (“FEIR”).  The District’s Board of Supervisors adopted resolutions certifying the FEIR and approving the Project.  Alliance filed suit.  The trial court granted the petition for writ of mandate ruling that the EIR violated CEQA.  The trial court found that substantial evidence did not support the EIR’s conclusion regarding aesthetic impacts and that the EIR failed to adequately analyze seismic impacts, hydrology, water quality, biological resources, energy impacts, and greenhouse gas emissions.  The trial court also found that the EIR should have been recirculated for public comment due to the new discussion in the FEIR of an additional alternative design that had not appeared in the DEIR.

Decision

The California First District Court of Appeal reversed the trial court’s decision and found that the certification of EIR and approval of the Project did not violate CEQA.

Aesthetics

The appellate court first examined the EIR’s analysis of the Project’s impacts on aesthetics in the area.  The Project proposed to construct three water storage tanks on ridgelines:  one on Tiburon Ridge (“Ridgecrest A tank”) and two on San Quentin Ridge.  The EIR concluded that the Ridgecrest A tank would not have a significant visual impact.  The appellate court rejected the trial court’s finding that the EIR’s conclusion was not supported by substantial evidence.  The appellate court noted that the EIR properly described standards of significance by which to measure effects, used satellite images and simulations, and described in detail how the tank’s effects on scenic vistas fell within the standards, especially how the location of the tank (in the saddle of a ridge, surrounded by trees on two sides) would conceal it topographically from most public viewpoints.  The appellate court also pointed out that the cases cited by Alliance as examples of inadequate visual impact analysis involved a different standard of review than the substantial evidence standard of this case.  The other cases concerned challenges to mitigated negative declarations and were subject to the fair argument standard, in which the court applies a more independent level of review.  The appellate court stated that even though the cases cited by Alliance involved analysis of visual impacts, “those decisions are irrelevant” in judicial review of an EIR, in which a court is required merely to determine whether substantial evidence supports the agency’s conclusion, even if a different conclusion could have been reached.  The court stated that “this distinction is crucial.”

The appellate court rejected the trial court’s determination that the EIR’s analysis of the Ridgecrest A tank violated CEQA by failing to address whether the planned tank was consistent with policies in the general plan.  First, the appellate court found that Alliance could not challenge the EIR on this issue because none of the comments on the EIR specifically alleged the Project was inconsistent with the general plan and, therefore, administrative remedies had not been exhausted on the issue.  The appellate court further concluded that even if Alliance had met the exhaustion requirement, substantial evidence supported the District’s consistency analysis for the Ridgecrest A tank.  The appellate court noted that an EIR is required to discuss inconsistencies with a general plan, but that because the Project is not required to actually be consistent with a general plan, the EIR is not required to provide a consistency analysis when the proposed project is consistent with a general plan.  The appellate court stated that it was unnecessary for the EIR to list “specific elements or policies” of the general plan related to the Ridgecrest A tank. 

Regarding the tanks on San Quentin Ridge, the EIR concluded they would have a significant visual impact, and in response, the District included a mitigation measure to reduce the impact:  a requirement to confer with a landscape architect and with the cities of San Rafael and Larkspur to devise a landscaping plan to visually shield the tanks.  The appellate court reversed the trial court’s ruling that the mitigation measure was indefinite, explaining that it was permissible for a lead agency to defer formulating precise methods of mitigation so long as the agency articulated specific performance standards for mitigation at the time of Project approval.  The appellate court stated that the District’s mitigation measure for the San Quentin tanks specified that the plan committed the District to working with the cities of San Rafael and Larkspur to reduce visual impacts and would include monitoring, maintenance, and the identification of particular success metrics such as landscape planting growth to camouflage the tanks.

Seismic Impacts

Addressing the EIR’s analysis of seismic impacts, the appellate court rejected Alliance’s argument that the EIR did not address soil liquefaction or health and safety impacts in the event of structural damage.  The appellate court found that Alliance failed to exhaust administrative remedies, because the lone public comment on the topic raised only a general concern about water supply in the event of an earthquake.  The court further found that even if administrative remedies had been exhausted, the EIR’s seismic analysis was supported by substantial evidence because it did in fact analyze the potential effects of liquefaction and ground shaking and proposed a program of site testing and engineering to reduce risks by removing suspect soil and building deep-pile foundations for structures.  The EIR proposed additional structural safety measures and operational plans to respond to emergency damage and water supply issues.  The court noted that the EIR’s plan to adhere to Building Code seismic design requirements provided additional evidentiary support for the seismic analysis.

Water Quality

Examining the EIR’s analysis of water quality impacts, the appellate court disagreed with the trial court’s ruling that the EIR did not contain adequate details regarding shock-chlorination treatments to clean the Project’s planned salt water intake pipeline and lacked substantial evidence to support the conclusion that untreated, chlorinated cleaning water would not be discharged to the Bay.

The appellate court stated that under CEQA, detailed analysis is not required for impacts that are less than significant, citing to Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, and Association of Irrigated Residents v. County of Madera (2003) 107 Cal.App.4th 1383.  The appellate court found that the EIR adequately discussed the impact of shock chlorination and its impacts on water quality by describing the shock chlorination process, its frequency, and wastewater disposal, and evaluating whether the wastewater produced by the Project could impact water quality.  The court concluded that not only was the EIR itself adequate, but substantial evidence elsewhere in the record, including a technical memorandum, could be considered and provided further support.

Biological Resources

Turning to the EIR’s analysis of the Project’s impacts on biological resources, the appellate court rejected Alliance’s argument that the lead agency violated CEQA by failing to perform a year-long water sampling to determine potential impacts on fish populations that could become caught in the Project’s seawater intake.  The District analyzed whether fish or aquatic life would be trapped by the suction at the desalination plant uptake.  The District analyzed the impact by undertaking year-long source water sampling.  The District also conducted a pilot scale desalination project to allow the District to make direct quantitative measurement of larval fish and eggs drawn into the intake together, with concurrent monthly source water sampling during February and March of 2006.  The District described the studies, summarized the results, and described the state and federal permitting process, and concluded the impact was less than significant. 

The California Department of Fish and Game (“CDFG”) and the National Oceanic and Atmospheric Administration (“NOAA”) Fisheries commented that the monthly source water sampling performed during only February and March should have been performed over the course of a year.  The District responded that the February and March periods were chosen because they represent “peak abundance periods for important species.”  The District further explained that it had not conducted the year-long source water sampling because of “the lack of agreement from [CDFG and NOAA fisheries] that … data from the study would be accepted for permitting the full-scale desalination plant.”  Alliance argued that the EIR was inadequate because the District failed to follow the recommendations of CDFG and NOAA Fisheries.

The appellate court disagreed, finding the District’s analyses provided substantial evidence in support of its conclusion, relying on the principle that it is not the role of the court to ask “whether other methods might have been used,” but rather to ask “whether the agency relied on evidence that a ‘reasonable mind might accept as sufficient to support the conclusion reached’ in the EIR.”  (Sonoma County Water Coalition v. Sonoma County Water Agency (2010) 189 Cal.App.4th 33, 56.)  The appellate court further cited California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, in support of the conclusion that a petitioner cannot prove that an EIR is unsupported by substantial evidence simply because other agencies disagree with the EIR’s conclusions.

The appellate court similarly rejected the trial court’s ruling that the EIR’s baseline description of species in the Project area was insufficient, pointing out that in addition to the field sampling survey and the pilot project, the EIR also relied upon “decades of CDFG data” on fish communities and habitats.

The appellate court next scrutinized the Project’s underwater construction impacts on fish species due to plans for the driving of up to 175 concrete piles into the Bay.  The EIR stated that the resulting acoustic effects, if left unmitigated, could result in “sublethal or lethal effects” as well as avoidance behaviors for sensitive species.  The EIR included a mitigation measure that committed the District to consult with NOAA Fisheries on methods to reduce effects, such as limiting work windows to particular seasons, using barriers such as air bubble curtains, and monitoring the area during work to detect signs of fish injury.  The appellate court dismissed Alliance’s assertion that the mitigation measure was vague and impermissibly deferred mitigation.  The appellate court observed that because of federal permitting process requirements under the Clean Water Act and Endangered Species Act, as well as the “express terms of the mitigation measure,” the consultation with NOAA fisheries was required to occur in order for the Project to go forward.  The appellate court found the consultation requirement, in combination with the District’s commitment to avoid the impact, constituted adequate mitigation under CEQA.

Energy

Regarding the EIR’s analysis of the Project’s energy impacts, the appellate court set aside the trial court’s ruling that the EIR inadequately analyzed the use of green energy credits to mitigate the Project’s energy impacts.  The EIR discussed the topic among six alternative energy plans for the Project, but rejected the use of credits because it would not yield “a direct benefit in the airshed” of the District’s customers.  The appellate court noted that an EIR need not analyze alternatives that will not lessen significant impacts of a project.

Greenhouse Gas

Looking at the EIR’s analysis of the Project’s cumulative greenhouse gas (“GHG”) impacts, the appellate court rebuffed Alliance’s argument and the trial court’s finding that the EIR’s analysis was unsupported by substantial evidence.  The appellate court noted that the EIR properly disclosed disagreements on the best approach to determining whether GHG impacts are cumulatively considerable.  The EIR also observed that no CEQA thresholds of significance had been established for GHGs, but that Assembly Bill 32 requires regulatory mandated GHG emissions reductions.  The EIR stated that the District had committed itself to joining in county efforts to reduce GHG emissions to 15 percent below 1990 levels by 2020, analyzed the Project’s energy use, and concluded that the Project would not prevent the District from reaching this goal.  The appellate court held that this “analysis more than satisfied the requirements of CEQA.”

Recirculation

Finally, the appellate court rejected Alliance’s argument that the EIR should have been recirculated for public comment after the FEIR added Alternative 8, an alternative that proposed imposing additional conservation measures along with construction of a pipeline to bring water to the District from the Russian River.  The appellate court held that Alternative 8 did not constitute “significant new information” that would require recirculation because the alternative was similar to another conservation-based alternative, Alternative 2, that had been analyzed in the DEIR.  Further, Alternative 8 did not trigger recirculation because it would fail to provide enough water to address the District’s supply shortfall, and so it was not a feasible alternative that would meet Project goals.

Topics:  CEQA, Clean Water Act, Critical Habitat, Endangered Species Act, Environmental Impact Report, Fishing Industry, Greenhouse Gas Emissions, Seismic Data, Water

Published In: Civil Procedure Updates, Energy & Utilities Updates, Environmental Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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