Sierra Club v. Imperial County CA4/1 (2013) · DecisionDepot
Sierra Club v. Imperial County CA4/1
California Court of Appeal Dec 16, 2013 No. D062545Unpublished
Filed 12/16/13 Sierra Club v. Imperial County CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SIERRA CLUB, D062545
Plaintiff and Appellant,
v. (Super. Ct. No. 97911)
IMPERIAL COUNTY et al.,
Defendants and Respondents,
UNITED STATES GYPSUM COMPANY,
Real Party in Interest and Respondent.
APPEAL from an order of the Superior Court of Imperial County, Donal B.
Donnelly, Judge. Reversed and remanded with directions.
California Environmental Law Project, Laurens H. Silver; Law Offices of Julie M.
Hamilton and Julie M. Hamilton for Plaintiff and Appellant Sierra Club.
Office of Imperial County Counsel, Michael L. Rood, County Counsel, Geoffrey
Holbrook for Defendants and Respondents Imperial County and Imperial County
Planning Commission.
Elkins Kalt Weintraub Reuben Gartside, John M. Bowman, C.J. Laffer, for Real
Party in Interest and Respondent United States Gypsum Company.
Appellant Sierra Club appeals from an order in favor of respondents Imperial
County, the Imperial County Planning Commission (collectively County), and real party
in interest United States Gypsum Company (USG) in which the trial court denied Sierra
Club's motion for a supplemental or amended writ of mandate and discharged a writ it
had issued on March 29, 2001. In that proceeding, Sierra Club sought to compel County
to decertify its final environmental impact report (FEIR) under the California
Environmental Quality Act (CEQA; Pub. Resources Code,1 § 21000, et seq.) for the
expansion and modernization of USG's wallboard manufacturing plant and quarry in
Plaster City, California (the project) and set aside its approval of mitigation measures for
the potential significant groundwater impacts resulting from the Project's increased
groundwater pumping.
On appeal, Sierra Club contends: (1) it exhausted its administrative remedies in
challenging the legal feasibility or sufficiency of County's mitigation measures; (2) the
record lacks substantial evidence that the adopted mitigation measures with respect to
1 Statutory references are to the Public Resources Code unless otherwise specified. The draft EIR in this case was in fact a joint draft EIR and Environmental Impact Statement (EIS) because the project required approvals from the Bureau of Land Management and other federal agencies that were subject to the National Environmental Policy Act. (42 U.S.C. § 4321 et seq.) We will refer to the draft EIR/EIS and final EIR/EIS as the DEIR and FEIR respectively.
2
groundwater levels and quality will reduce the project's impacts to a level of
insignificance; and (3) County's mitigation measures with respect to groundwater
pumping are not legally feasible to the extent they contravene California common law
concerning the priority rights of overlying domestic water users and a County
groundwater ordinance.
We hold Sierra Club did not exhaust administrative remedies with regard to its
claim that County's mitigation measures are legally infeasible. However, we conclude
the evidence is insufficient to support County's findings that its mitigation measures to
avoid or lessen potential groundwater level and water quality impacts to neighboring
individual wells are effective or feasible, and will reduce those impacts to a level of
insignificance. Because the FEIR in this respect does not comply with CEQA, the
County's action in certifying the FEIR and approving the project constituted an abuse of
discretion. We reverse the order denying Sierra Club's petition for a writ of mandate,
remand and direct the superior court to issue a new writ of mandate described below.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of our substantial evidence review, we state the facts from the entire
administrative record before County's planning commission when it approved the project
and certified the FEIR. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of
2 Though Sierra Club does not challenge the FEIR's organization in this appeal, we note it is difficult to follow. The FEIR does not contain all of the information within the DEIR, and it includes an "errata" as an appendix, showing the changes between the DEIR 3
USG manufactures wallboard and related gypsum products at manufacturing
facilities (the plant) in Plaster City, located approximately 18 miles west of the city of El
Centro, Imperial County, and it supplies raw material for those operations from its quarry
located approximately 26 miles north of Plaster City. USG obtains water for processing
and manufacturing, as well as potable and sanitary purposes, from three wells overlying
the Ocotillo-Coyote Wells Groundwater Basin (the Basin). The water is delivered via an
eight-inch diameter pipeline from the well field, which is located approximately eight
miles west of Plaster City.
The Basin is located in western Imperial County and bounded by the Jacumba
Mountains to the west, the Coyote Mountains to the northwest, and the United
States/Mexico border to the south. The United States Environmental Protection Agency
has designated the Basin a sole source aquifer, and it is the only source of potable water
for the communities of Ocotillo, Coyote Wells, Nomirage, and Yuha Estates, as well as
for USG and other commercial, industrial, and agricultural users. The population of
Ocotillo, Nomirage and Yuha Estates, based on the 1990 census and estimated from
population growth during the prior decade, is projected to be 670 in the year 2025.
and FEIR. Accordingly, some of County's references to the conclusions of the FEIR in its briefing are actually references to the DEIR or errata. Under the CEQA Guidelines, codified at California Code of Regulations, title 14, section 15000 et seq. (Guidelines), the FEIR must contain either the DEIR or "a revision of the draft" (Guidelines, § 15132, subd. (a)) and so this organization is apparently a permissible way to prepare the FEIR. But it is difficult to maneuver through the documents as they are presented. "The data in an EIR must not only be sufficient in quantity, it must be presented in a manner calculated to adequately inform the public and decision makers, who may not be previously familiar with the details of the project. '[I]nformation "scattered here and there in EIR appendices" or a report "buried in an appendix," is not a substitute for "a good faith reasoned analysis . . . ." ' " (Vineyard, supra, 40 Cal.4th at p. 442.) 4
Community water use was approximately 112 acre-feet in 1996, and was predicted as of
2006 to be approximately 120 to 125 acre-feet per year. The water use for Ocotillo,
Nomirage and Yuha Estates is projected to be 162.2 acre-feet per year in 2025. Surface
water is not present within the Basin and water is not imported into the Basin.
The groundwater quality within the Basin is evaluated by measurement of the total
amount of salts and other naturally occurring minerals, referred to as total dissolved
solids or TDS. The Basin's groundwater quality is variable at different locations. Some
areas of the Basin near Ocotillo produce waters of relatively good quality, with TDS
levels of about 300 to 600 milligrams per liter (with 500 milligrams per liter being high-
quality, potable water), and other areas, east of Ocotillo, produce highly saline waters,
with TDS levels ranging from 600 to over 54,000 milligrams per liter.
Hydrogeologic analysis and conceptual modeling of the Basin indicate that it is a
two-layer aquifer system, rather than the single layer used in previous models. The upper
layer (layer 1) consists of alluvial deposits with a high water yield and good water quality
characterized by TDS of about 400 milligrams per liter, and the lower layer (layer 2),
composed of Palm Springs and Imperial formations, is less permeable and has relatively
poor water quality, with TDS levels of about 1,000 to 4,500 milligrams per liter. Due to
the interaction of certain fault lines, the Palm Springs and Imperial formations have been
uplifted in the area east of Ocotillo, and are relatively near the ground surface. In future
decades, some potential exists for water quality deterioration in the Ocotillo area as a
result of migration of groundwater from layer 2 to layer 1 in the event of continued
groundwater level declines in layer 1 at a more rapid pace than in layer 2.
5
Studies conducted in 1977, 1979, 1987, 1996 and 2004 all conclude that water
levels in the Basin have been declining for the past 30 years. These studies, combined
with the occurrence of subsurface discharge and the fact existing wells within the Basin
do not effectively capture the amount of inflow from precipitation runoff and other
sources (referred to as "recharge"), indicate that the Basin is in a condition of overdraft.
The California Department of Water Resources defines groundwater overdraft as "the
condition of a groundwater basin or subbasin in which the amount of water withdrawn by
pumping exceeds the amount of water that recharges the basin over a period of years,
during which the water supply conditions approximate average conditions. Overdraft can
be characterized by groundwater levels that decline over a period of years and never fully
recover, even in wet years."3
In 1998, USG proposed to modernize and expand its manufacturing facilities and
gypsum quarrying operations, in part by replacing the 8-inch water pipeline from its
existing wells with a 10-inch pipe, and drilling a new production water well at the quarry.
County issued a negative declaration for the project. Following Sierra Club's successful
3 USG asserts that the Basin "is not in 'overdraft' as that term is commonly understood." It points out that due to the gradual decline in the amount of groundwater storage, the EIR concludes that the Basin "may" be in overdraft. But though the Todd report acknowledges that the amount of pumping withdrawal is less than the amount of recharge, it nevertheless concludes—in view of the negative change in storage reflected by all of the prior water balance studies—that the Basin is in a condition of overdraft, and that the proposed project would increase the overdraft over the next 80 years. County's expert, Iris Priestaf, Ph.D., likewise testified before County's planning commission that given the slowly diminishing groundwater levels, "you do have to say that there's overdraft" and that the steady decline existed "maybe not in every corner of this basin, but where it counts, where people's wells are in Ocotillo." 6
legal challenge, County in 2006 circulated for review a draft EIR, which analyzed the
hydrology and the impacts on water quality in areas of the Basin with the assistance of a
2004 groundwater hydrological and modeling study performed by Bookman-Edmonston.
Both parties acknowledge that despite the pendency of Sierra Club's appeal, construction
of the project was substantially completed by 2001.
As described in the DEIR, the project's objectives as to water supply are to (1)
obtain an adequate water supply for operations; (2) potentially replace an old and leaky
pipeline; and (3) increase water usage to up to 767 acre-feet annually. More specifically,
the project would increase the amount of water pumped from USG's wells at Ocotillo
from a baseline of 347 acre-feet per year (the average pumped from 1994 to 1998) to 767
acre-feet per year, an increase in extraction rates of as much as 420 acre-feet per year.
Under baseline conditions, i.e., no increased USG pumping, water levels in the Basin
would decline by up to 10 feet over the next 80 years (one foot every eight years), and
possibly cause a reduction in production rates of some shallower wells. The DEIR
predicts that the total water level decline in the aquifer after 80 years would be
approximately 30 feet, about 20 feet more than the baseline decline.4 According to the
2004 Bookman-Edmonston study, because the saturated thickness of the layer 1 alluvial
material is about 400 feet, the maximum groundwater level decline after 80 years at the
maximum 767 acre-foot per year scenario, is about 8 percent of that alluvial material.
4 Without citing to the record, USG makes the following statement about the 20-foot additional decline in water levels: "In relation to the overall thickness of the alluvial aquifer in the Ocotillo area (approximately 500 feet), this additional drawdown is minimal." 7
The DEIR states that this increased pumping from the alluvial aquifer "will lower the
water level over a broad area of the Basin . . . [and] this lowering of water levels will be
in addition to the existing condition in the basin where the water table is already
declining. Periods of increased rainfall and decreased pumping have not resulted in a
Basin-wide recovery of water levels. Thus, the additional decline in water levels caused
by the additional pumping of up to 420 [acre-feet per year] . . . can not [sic] be readily
offset by decreases in pumping elsewhere in the Basin, enhancing recharge, or importing
water."
With respect to water quality, the DEIR set forth available long-term water
chemistry data from three wells in each of the areas of Ocotillo/Nomirage, Yuha Estates
and east of Coyote wells, including one of the USG pumping wells, well No. 5, in the
Ocotillo/Nomirage area. The DEIR concludes that pumping of wells for a period of
several years at rates of 100 to 200 acre-feet per year in the Yuha area may have a
measurable impact on water quality in adjacent wells, and when it occurs, the impact
appears rapidly and "persists for many years after pumping ceases."
Sierra Club submitted comments to the DEIR. In part, it invoked the California
Constitution, Water Code section 106, and general principles of California water law for
the general propositions that "use by overlying users has been considered paramount" and
that "the right to pump groundwater for use on lands not overlying the basin are
subordinate to the correlative rights of overlying users." Sierra Club asserted the Basin
lacked surplus groundwater available for use on parcels other than the overlying property
from which it is pumped; and neither case law nor the Water Code supported the DEIR's
8
suggestion that USG's industrial uses should trump overlying domestic needs. It
criticized the DEIR for failing to analyze water supply issues or certify that water
supplies would be available for the 80-year life of the project, and for using the same
figures of USG's claimed level of past water use that could not be verified. Sierra Club
pointed out the mitigation measures did not identify the expected amount of replacement
water needed, any likely source of such water, or the impacts that tapping that water
source might have on the environment.
In view of the extensive public comments concerning the increased groundwater
pumping and impacts on water levels and quality in the Basin, County retained another
company, Todd Engineers, which conducted an independent review of groundwater
issues for the project (the Todd report) as well as a water supply assessment pursuant to
Water Code sections 10910 to 10912. The Todd report, issued in 2007, focused on the
hydrogeologic setting of the Basin, including the water balance and influence of geologic
structures on groundwater flow and quality. In part, the Todd report concluded that the
proposed project's increased pumping would increase the overdraft over the next 80
years, and that this impact was significant and unavoidable. It also analyzed how the
groundwater levels responded to pumping, discussing two individual wells, one in
located in Ocotillo (identified as well 16S/9E-25K2 or 25K2) and one located in Yuha
Estates (well 17S/10E-11G1 or 11G1), that were subject to increased pumping for export
to Mexico. Both wells responded to the increased pumping with a drawdown of more
than 50 feet over five years, but when pumping was suspended, the water levels in the
Ocotillo well quickly returned to essentially pre-pumping levels, recovering over 50 feet
9
in two years. The water levels in the Yuha Estates well had recovered much more slowly
however, and still, 30 years later, had not reached pre-pumping levels. The Todd report
concluded that "drawdown impacts due to pumping in the alluvial aquifer (e.g., near
Ocotillo) are more localized and recover much faster than comparable drawdown impacts
in the older formations near Yuha Estates."
In January 2008, County issued its FEIR, incorporating the Todd report as an
appendix. The FEIR described potential impacts to groundwater both in individual
private wells and the Basin as a whole. Specifically, it stated the increased pumping
could (1) reduce water levels, increasing the cost of pumping groundwater and causing
some individual wells to go dry and (2) degrade water quality in individual wells, as well
as in the Basin as a whole, due to lateral migration of higher-TDS water located to the
east of Coyote Wells, lateral migration of higher-TDS water from areas near outcrops of
tertiary sediments, or vertical migration of water from or near tertiary sediments
underlying the alluvial aquifer throughout most areas of the basin. County set forth
measures, numbered 3.3-1 and 3.3-2, to mitigate the project's groundwater-related
impacts on individual wells (both as to water level and water quality) to a level of less
than significant, including by having USG provide replacement water supplies under
specified circumstances.5 The FEIR also includes a groundwater monitoring program,
5 Mitigation measures 3.3-1 and 3.3-2 are detailed below (part II, infra) in connection with Sierra Club's arguments challenging the sufficiency of the evidence of their adequacy. In the FEIR, County revised its mitigation measures in response to comments, including by limiting mitigation to "existing" wells that demonstrate specified declines in water levels or quality. It also revised USG's obligation to supply 10
conducted at USG's expense, to provide long-term data regarding the Basin by measuring
water levels and collecting samples for water quality analysis from existing United States
Geological Service (USGS) wells, eight other existing wells, and two new wells. Private
owners with wells in current operation who wish to include their own wells in the
program may do so by notifying County within one year of FEIR certification. Because
the increased pumping is predicted to accelerate the decline of the groundwater level in
the Basin, and may potentially cause the migration of saline water, the groundwater
monitoring program objectives are to (1) identify any increases in the rate of water-level
decline greater than the baseline rate, and (2) provide an early warning of potential
degraded groundwater quality. The water-level and water-quality data, and a statistical
analysis of trends, will be submitted to County and the USGS within 60 days of each
calendar monitoring period.
With regard to the Basin as a whole, the FEIR concludes the increased pumping
from USG's wells would reduce the total amount of water in the Basin, and that if the
water quality were to decline in any part of the Basin, it was unlikely there would be a
sufficient quantity of non-saline water to restore the water quality. The FEIR concludes
these potential water quality impacts on the Basin as a whole are significant and
unavoidable, and cannot be feasibly mitigated.
In the FEIR, County included a section of "collective responses" devoted to
general concerns submitted by various persons and entities. It responded to comments
replacement water in the event certain substances exceeded drinking water standards, to refer to drinking water standards in force "at the time the Proposed Action is approved," rather than "at the time of the measurement" as the DEIR had originally proposed. 11
concerning groundwater resources in part by pointing to provisions in a groundwater
management ordinance (Imperial County Groundwater Management Ordinance
§ 92201.00, et seq., hereafter the groundwater ordinance or Ordinance). County asserted
the groundwater ordinance provided remedies to water users aggrieved by well
interference, and gave the board of supervisors authority to adopt, after notice and
hearing, reasonable operating regulations on extraction facilities to minimize well
interference. County also asserted the groundwater ordinance established priority among
groundwater users in the event of existing or threatened overdraft conditions, and that
specified overlying domestic uses would have priority over USG's groundwater usage in
such event. According to County, these protections supported a conclusion that the
potential impacts of the project on groundwater resources would be less than significant
after mitigation.
In response to Sierra Club's criticisms concerning replacement supplies of water,
County pointed out that the FEIR provided that USG "may, under specified
circumstances, elect to provide bottled water to an affected party as a replacement water
supply for drinking and cooking purposes" and that "[b]ottled water is generally available
for purchase from existing venders serving the region." It stated if USG were to provide
a hookup to an existing municipal district or other appropriate water supply system, the
water "would likely be produced by another well (or wells) within the Ocotillo-Coyote
Wells Groundwater Basin." County further responded that its mitigation, combined with
the groundwater ordinance, provided County with authority to take all reasonable and
necessary actions to ensure that any impacts of individual wells caused by increased
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pumping are mitigated to a level of insignificance. County received additional public
comments by Sierra Club on the FEIR, including on the project's impacts on
groundwater.
In February 2008, County's planning commission certified the FEIR and approved,
among other things, a conditional use permit requiring USG to "undertake all mitigation
measures identified in the U.S. Gypsum Mitigation Monitoring Reporting Program."
It adopted factual findings and a statement of overriding considerations, concluding the
project's benefits outweighed its adverse impacts on groundwater resources. (See
§ 21081, subd. (b); City of Marina v. Board of Trustees of the California State University
(2006) 39 Cal.4th 341, 368 ["When a public agency has found that a project's significant
environmental effects cannot feasibly be mitigated, the agency may nevertheless proceed
with the project if it also finds 'that specific overriding economic, legal, social,
technological, or other benefits of the project outweigh the significant effects on the
environment' "].)6
6 As USG points out, Sierra Club does not challenge the FEIR's conclusion that it is impossible to feasibly mitigate significant impacts on the Basin as a whole, or that the project's benefits outweigh the significant Basin-wide impacts. That conclusion, which would be reviewed for abuse of discretion, "lies at the core of the lead agency's discretionary responsibility under CEQA and is, for that reason, not lightly to be overturned." (City of Marina v. Board of Trustees of the California State University, supra, 39 Cal.4th at p. 368; see also San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1, 13 [a county's decision to approve a project despite its significant environmental impacts "is a discretionary policy decision" that "will be upheld as long as it is based on findings of overriding considerations that are supported by substantial evidence"].) Nor does Sierra Club challenge the FEIR's analysis or determination of the significance of groundwater-related impacts. Finally, Sierra Club abandoned any challenge to the planning commission's findings that the project 13
In February 2008, Sierra Club appealed and the matter proceeded to a hearing
before County's board of supervisors. Thereafter, the board of supervisors denied Sierra
Club's appeal from the planning commission's decision.
Our prior opinion relating to this matter set forth the procedural history of this case
from the filing of Sierra Club's first writ petition in January 1999 to the trial court's
January 2010 order dismissing Sierra Club's proceedings challenging the certification of
County's EIR. (Sierra Club v. Imperial County et al. (May 3, 2011, D056919) [nonpub.
opn.].) Our May 2011 decision vacated the trial court's dismissal order and remanded the
matter to the superior court for further proceedings. (Sierra Club v. Imperial County et
al., supra, D056919.)
In April 2012, Sierra Club filed additional papers in support of its objections to
County's supplemental return to the court's March 2001 peremptory writ of mandate, and
augmented its motion for a supplemental and amended writ of mandate. By these papers,
Sierra Club asked the trial court to direct County to set aside its certification of the EIR
and approval of the project's mitigation and monitoring measures. In them, Sierra Club
argued (1) the FEIR did not describe feasible mitigation measures, and there was no
substantial evidence those measures would reduce to a level of insignificance the
project's effects on neighboring wells; (2) County did not approve legally feasible
mitigation measures in that County had no authority to grant USG rights to extract
groundwater superior to those of overlying users, and the adopted mitigation measures
alternatives—full or partial use of Imperial County Irrigation District water—are either infeasible (the full use scenario), or have unknown feasibility (partial use scenario). We confine our discussion accordingly. 14
were inconsistent with that law and the groundwater ordinance; and (3) the FEIR's
monitoring program was vague and unenforceable.
County and USG jointly opposed the motion. At the hearing on the matter, the
trial court heard argument, made findings on the record, and issued its ruling. The court
first ruled that Sierra Club was barred from raising one of its challenges to the County's
mitigation measures by failing to make clear and specific arguments during the
environmental review process. Specifically, it found Sierra Club was precluded from
arguing that County's mitigation measures were legally infeasible—that County could not
legally impose its mitigation measures because they were inconsistent with (1) California
common law relating to overlying and appropriative water rights or (2) section 92204.00
of the groundwater ordinance, which establishes first priority to overlying domestic
groundwater uses.7 Alternatively, the court ruled there was no substantial evidence in
7 The trial court explained in part: "Sierra Club asserts the agencies had no authority to impose mitigation measures that cannot be legally imposed . . . [that] the USG project mitigation measures are clearly not consistent with applicable California common law relating to overlying water rights or with the County's groundwater ordinance. [¶] The petitioner cites the potential possible future physical taking of water in violation of an overlying landowner's superior property rights and groundwater, and . . . the thrust of this challenge [is] a fascinating one, and that is: To what extent should an environmental review and adoption of mitigation measures address and evaluate potential impairment of legal rights beyond your actual impairment of a water user's right to use and enjoy water? I think the thrust of this challenge is: To what extent should an EIR address, evaluate, and balance out a potential impairment to legal rights of others? And I—I think that this is such a large, clearly subrogated issue from the environmental review. It calls into question the impact of the project upon the legal rights of others in the future. I'm afraid I have to find it's the type of an issue that the Sierra Club had a burden to raise clearly and specifically and comprehensibly during the environmental review process. [¶] . . . [¶] This is the type of subject matter that I could easily see under a separate sub-category within the EIR document. There would be an 15
the record to support Sierra Club's claim that the project or County's adoption of the
mitigation measures would impair the legal rights of others.
As for Sierra Club's remaining arguments, the court acknowledged the modeling
of the Basin was not perfect due to uncertain hydrological data, but that County, USG
and the experts "did the best they could based on the state of the evidence before them."
The court ruled the EIR complied with CEQA and that there was substantial evidence the
mitigation measures relating to groundwater level and quality were feasible and adequate.
Following the hearing, the court issued an order denying Sierra Club's motion for a
supplemental and amended writ of mandate and discharging the writ it had originally
issued in March 2001. Sierra Club filed this appeal.
DISCUSSION
I. Exhaustion of Administrative Remedies
A. Legal Principles
The Legislature codified the exhaustion of administrative remedies doctrine in
section 21177. (Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th
865, 875.) Subdivision (a) of section 21177 provides in part: "An action or proceeding
entire section relating to evaluation of impact upon legal rights of others, and I think the County was deprived of that, by a failure of petitioner to raise it sufficiently." Later in the hearing, after considering further arguments from Sierra Club's counsel concerning how another Sierra Club attorney, Lisa Hamilton, made arguments about the rights of overlying owners, the court further explained: ". . . I'll find a failure to exhaust remedies because in effect the Sierra Club didn't clearly and explicitly tell the environmental reviewers, 'Look, you are trying to adopt a mitigation measure that you're legally not allowed to do, because you will be destroying and impairing water rights of other people who will then claim money damages against you and/or claim that you've taken their land. [¶] In other words, it needed to be that explicit." 16
shall not be brought pursuant to Section 21167 unless the alleged grounds for
noncompliance with this division were presented to the public agency orally or in writing
by any person . . . ."
" 'Exhaustion of administrative remedies is a jurisdictional prerequisite to
maintenance of a CEQA action.' " (Citizens for Responsible Equitable Environmental
Development v. City of San Diego (2011) 196 Cal.App.4th 515, 527.) " 'The petitioner is
required to have "objected to the approval of the project orally or in writing during the
public comment period provided by this division or prior to the close of the public
hearing on the project before the issuance of the notice of determination." [Citation.]
The petitioner may allege as a ground of noncompliance any objection that was presented
by any person or entity during the administrative proceedings.' " (Center for Biological
Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 889-890.)
The purpose of the exhaustion doctrine is to insure the public agency is notified of
factual and legal problems and has an opportunity to respond to these potential problems
before judicial review. (Coalition for Student Action v. City of Fullerton (1984) 153
Cal.App.3d 1194, 1198.) This court has observed that " '[t]o advance the exhaustion
doctrine's purpose "[t]he 'exact issue' must have been presented to the administrative
agency . . . . " [Citation.] While " 'less specificity is required to preserve an issue for
appeal in an administrative proceeding than in a judicial proceeding' because, . . . parties
in such proceedings generally are not represented by counsel . . .' [citation]" [citation],
"generalized environmental comments at public hearings," "relatively . . . bland and
general references to environmental matters" [citation], or "isolated and unelaborated
17
comment[s]" [citation] will not suffice. The same is true for " '[g]eneral objections to
project approval . . . .' [Citations.]" [Citation.] " '[T]he objections must be sufficiently
specific so that the agency has the opportunity to evaluate and respond to them.' " ' "
(Citizens for Responsible Equitable Environmental Development v. City of San Diego,
supra, 196 Cal.App.4th at p. 527.)
Thus, in Citizens for Responsible Equitable Environmental Development v. City of
San Diego, we held a petitioner failed to exhaust administrative remedies on a claim that
a supplemental EIR (SEIR) was required for substantial new information relating to
drought or climate change and greenhouse emissions. (Citizens for Responsible
Equitable Environmental Development v. City of San Diego, supra, 196 Cal.App.4th at
pp. 528-529.) The petitioner's letter to the City council on the date of the CEQA hearings
contained only "general unelaborated objections" in that it did not contain the term
"drought"; its argument as to decreasing water supply was merely that the City did not
follow proper statutory procedure in adopting a water supply assessment; and, as to
climate change, it made general assertions that " '[g]lobal climate change has been raised
as a significant environmental issue that has been frequently analyzed in current
environmental documents,' " and the " 'project will cause direct and indirect greenhouse-
gas emissions that, when considered cumulatively, are significant.' " (Id. at pp. 527-528,
530.) We concluded the petitioner did not "fairly present" its drought issue to the agency
because it merely cited documents buried among thousands of documents on a DVD, and
its citation did not indicate the DVD contained information on drought. (Id. at p. 528.)
Rather, a petitioner must present evidence in a manner that gives the agency an
18
opportunity to respond with countervailing evidence, and the City could not be expected
to pore through those documents: " ' " 'It was never contemplated that a party to an
administrative hearing should . . . make only a perfunctory or "skeleton" showing in the
hearing and thereafter obtain an unlimited trial de novo, on expanded issues, in the
reviewing court.' " ' " (Ibid.) Though the petitioner was entitled to rely on a former
councilmember's objection at the CEQA hearing that an addendum to the FEIR did not
expressly address drought and the prospect of water rationing, we explained those
comments did not satisfy the exhaustion requirement because the councilmember never
argued an SEIR was necessary, and thus the issue she raised and the issue on appeal were
not "exactly the same." (Ibid.)
Sierra Club has the burden of demonstrating that the issues raised in the judicial
proceeding were first raised at the administrative level. (Citizens for Responsible
Equitable Environmental Development v. City of San Diego, supra, 196 Cal.App.4th at p.
527.) This court employs a de novo standard of review when determining whether the
exhaustion doctrine applies. (Ibid.)
B. Contentions
Sierra Club contends its legal infeasibility arguments were raised by its
representative, Edie Harmon, in her comments to the DEIR and FEIR as well as on
appeal to the County board of supervisors, in a manner sufficient to put County on notice
that its groundwater management ordinance was implicated in determining appropriate
mitigation for USG's augmented groundwater pumping associated with the project. As
support, Sierra Club cites only to a snippet of Harmon's comments to the DEIR regarding
19
groundwater appropriators, and portions of Harmon's March 18, 2008 letter to County's
board of supervisors, in which she made several arguments relating to the groundwater
ordinance.
USG responds by pointing out that Harmon's comments merely identified
deficiencies in the terms and implementation of the groundwater ordinance adopted in
1998. It maintains that Sierra Club, though represented by counsel during the
environmental review process, did not bring the legal infeasibility arguments to County's
attention so as to allow it an opportunity to address them.
C. Analysis
Though Sierra Club has pointed to only limited portions of the record in support of
its contentions, we have not so limited our review. That is, we have summarized above
Sierra Club's comments in response to the DEIR and FEIR, in addition to Harmon's
March 18, 2008 letter cited by Sierra Club in its appellant's brief. Having done so, on our
de novo review we are compelled to agree with the trial court that Sierra Club's
comments during administrative proceedings with respect to County's mitigation
measures do not satisfy section 21177's requirement that the "grounds for noncompliance
with [CEQA] [be] presented to the public agency. . . ."
In her March 18, 2008 letter, Harmon argued: (1) the groundwater ordinance did
not afford feasible long-term protections to overlying groundwater users either by itself
or considered with the mitigation measures; (2) the groundwater ordinance did not
include mandatory components of a groundwater management plan and was insufficient
to ensure the County would require additional future mitigation if needed; (3) County
20
could not rely on the groundwater ordinance to elevate the priority of industrial export of
water over overlying domestic use because it did not include a monitoring program or
use" priority under the groundwater ordinance was not legally defensible because the
groundwater ordinance failed to include certain matters identified in the Water Code; and
(5) the planning director lacked authority under California law to grant industrial use a
priority above domestic use for overlying property owners.8 These arguments challenge
County's reliance on the groundwater ordinance as additional mitigation or a protective
measure, not the legal feasibility of mitigation measures 3.3-1 and 3.3-2 set forth in the
FEIR (discussed below).
Otherwise, as we have summarized above, Harmon made general references to the
rights of overlying users, complained that the DEIR's assertions were not supported by
California water law and priority rights, and complained that County was without
8 In connection with the latter point, Sierra Club argued: "[Sierra Club believes] that Water Code [section] 106 and the language of the California Constitution preclude the County from denying the majority of overlying larger residential lots the use of water for domestic purposes so as not to interfere with USG's desired increased industrial off- basin use now. This is because the groundwater basin is already experiencing overdraft according to the DEIR and FEIR . . . . This finding triggers the applicable overdraft priority measures of the County Ordinance." Harmon's comments on the adequacy of the FEIR include similar arguments; she questioned the foundation for the Imperial County planning director's decision to grant USG historic use of 767 acre-feet per year. Harmon asserted there was no evidence USG was actually and continuously using that amount of water before applying for its expansion, and she urged that the planning director's decision as to USG's historic use should be revoked as based on an unsupported and "inflated" claim. Harmon argued the groundwater ordinance did not vest the authority to make the historical use designation in the Planning Director, but vested such authority in the Department of Public Works.
21
authority to rely on the groundwater ordinance to grant USG a superior right to pump up
to 767 acre-feet per year as against overlying domestic users. But none of the comments
asserted at the administrative level tied these claims to the mitigation measures actually
set out in the FEIR or reasonably suggest that those mitigation measures, in view of
California water law principles or the groundwater ordinance, were legally incapable of
being imposed or legally infeasible. This is not, as Sierra Club suggests, a matter of
Harmon merely omitting a citation to a specific statute or CEQA guideline; it is the
absence of arguments fairly apprising the Board that the FEIR's proposed mitigation
measures could not lawfully be imposed.9 This case presents the same kind of deficiency
as in Citizens for Responsible Equitable Environmental Development v. City of San
Diego, supra, 196 Cal.App.4th 515, in which the councilmember expressed concerns
9 In part, Sierra Club cites East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. (1989) 210 Cal.App.3d 155, in which the Court of Appeal, construing section 21080.18, held a school district, in determining its actions were exempt from CEQA, failed to meet its obligation to consider the issue of significant effects and cumulative impacts in determining CEQA exemption. (East Peninsula, at pp. 166-170.) The district asserted that the plaintiff had failed to exhaust administrative remedies on the issue of cumulative impacts, but the appellate court disagreed, concluding various comments were sufficient to alert the school district "to the fact that its method of analysis was faulty and should be expanded to include analysis of long-term impacts, traffic and safety." (Id. at pp. 175-176.) We agree with the observation of the Third District in California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, that East Peninsula is "of little assistance" to the analysis here. (California Native Plant, 172 Cal.App.4th at p. 619.) While the plaintiff's comments in East Peninsula fairly apprised the school district of the need to address cumulative impacts of the school closure and transfer, including impacts to traffic and safety, the comments of Sierra Club here did not fairly apprise the County that the mitigation measures described in the FEIR are incapable of being imposed because they violate California common water rights law and County's groundwater ordinance, or that they were infeasible as a matter of law. 22
regarding drought and water rationing but did not make the same specific challenge
raised by the plaintiffs in the trial court (that an SEIR was necessary due to those
conditions).
We have acknowledged that in administrative proceedings, citizens are held to less
specificity to preserve an issue for appeal because in such proceedings they are often not
represented by counsel. (Citizens for Responsible Equitable Environmental Development
v. City of San Diego, supra, 196 Cal.App.4th at p. 527; Evans v. City of San Jose (2005)
128 Cal.App.4th 1123, 1138.) But "[i]t is no hardship . . . to require a layman to make
known what facts are contested." (Citizens Assn. for Sensible Development of Bishop
Area v. County of Inyo (1985) 172 Cal.App.3d 151, 163; Evans, at p. 1138 [despite
latitude in specificity during administrative process, affected property owners must make
their objections known in some fashion, however unsophisticated].) And, though
Harmon submitted comment letters under her own name responding to County's DEIR
and FEIR, Sierra Club was in fact represented by counsel during the appeal of the
planning commission's decision and at the hearings before the planning commission and
board of supervisors. Thus, Sierra Club was held to a higher standard, and was required
to make its specific challenges known during the administrative proceedings.
In its reply brief, Sierra Club maintains USG has misstated its arguments for
purposes of applying the exhaustion doctrine. According to Sierra Club, its point,
assertedly preserved below, is that County is obligated under CEQA to apply "clear
public policies favoring overlying groundwater pumpers" and comply with the
groundwater ordinance in connection with its approval of the mitigation and monitoring
23
program. It cites case law for the proposition that County has an "obligation, in the
context of CEQA, to approve mitigation measures, consistent with the County
Groundwater Ordinance's prescription of priorities that are intended to avoid
environmental effects to the holders of overlying groundwater rights and that maximize
the protection and preservation of the groundwater basin." But the precise argument
made by Sierra Club in its supplemental writ petition was that County did not approve,
and the FEIR did not describe, legally feasible mitigation measures that would minimize
significant impacts. As we have explained above, those arguments were not sufficiently
preserved for review.
In sum, with regard to Sierra Club's claims of legal infeasibility of County's
mitigation measures, the Board had no opportunity to respond to those " 'articulated
factual issues and legal theories before its actions [were] subjected to judicial review.' "
(Citizens for Responsible Equitable Environmental Development v. City of San Diego,
supra, 196 Cal.App.4th at p. 528.) We therefore address only Sierra Club's other
challenges to the adequacy of County's proposed mitigation measures.
II. Adequacy of Mitigation Measures 3.3-1 and 3.3-2
Sierra Club challenges the adequacy of County's mitigation measures directed at
reducing to a level of insignificance the significant potential impacts to neighboring
individual wells. It argues the measures will not minimize and reduce significant adverse
impacts of the project on the wells; that the record lacks substantial evidence to support
the FEIR's conclusion that the mitigation will reduce potentially significant impacts on
those wells to a level of insignificance. It compares the County's mitigation measures to
24
those found deficient in Gray v. County of Madera (2008) 167 Cal.App.4th 1099.10
Sierra Club sets out three specific criticisms, with some subissues. We first set forth the
applicable standard of review, then summarize each of County's mitigation measures,
discuss Gray, and proceed to separately address each of Sierra Club's challenges.
A. Standard of Review
"The Legislature has made clear that an EIR is 'an informational document' and
that '[t]he purpose of an environmental impact report is to provide public agencies and
the public in general with detailed information about the effect which a proposed project
is likely to have on the environment; to list ways in which the significant effects of such a
project might be minimized; and to indicate alternatives to such a project.' " (Laurel
Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376,
390-391.) "Before approving the project, the agency must also find either that the
project's significant environmental effects identified in the EIR have been avoided or
mitigated, or that unmitigated effects are outweighed by the project's benefits." (Id. at p.
391.) Under CEQA, a public agency is required to mitigate or avoid the significant
environmental effects of a project that it carries out or approves if it is feasible to do so.
(§ 21002.1, subd. (b); City of Marina v. Board of Trustees of California State University,
supra, 39 Cal.4th at p. 359.)
10 This court disagreed with Gray v. County of Madera, supra, 167 Cal.App.4th 1099 on other grounds in Center for Biological Diversity v. County of Santa Barbara, supra, 185 Cal.App.4th at page 889. 25
This court has explained: "An EIR is required to describe feasible mitigation
measures that will minimize significant environmental effects identified in an EIR.
[Citations.] Mitigation may consist of a number of measures, including (1) avoiding an
impact by not taking certain action; (2) minimizing impacts by limiting the degree or
magnitude of the action; (3) rectifying the impact by repairing, rehabilitating, or restoring
the impacted environment; (4) reducing or eliminating the impact over time by
preservation and maintenance operations during the life of the action; or (5)
compensating for the impact by replacing or providing substitute resources or
environments." (Mira Mar Mobile Community v. City of Oceanside (2004) 119
Cal.App.4th 477, 495.)
" ' " '[A]n EIR is presumed adequate [citation], and the plaintiff in a CEQA action
has the burden of proving otherwise.' " ' [Citation.] In CEQA cases, as in other
mandamus cases, 'we independently review the administrative record under the same
standard of review that governs the trial court.' [Citations.] We review an agency's
determinations and decisions for abuse of discretion. An agency abuses its discretion
when it fails to proceed in a manner required by law or there is not substantial evidence
to support its determination or decision. [Citations.] 'Judicial review of these two types
of error differs significantly: While we determine de novo whether the agency has
employed the correct procedures, "scrupulously enforc[ing] all legislatively mandated
CEQA requirements" [citation], we accord greater deference to the agency's substantive
factual conclusions.' " (Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th
260, 275 (Preserve Wild Santee); San Diego Citizenry Group v. County of San Diego
26
(2013) 219 Cal.App.4th 1, 11-13.) "W]here a petitioner challenges an agency's
conclusion that a project's adverse environmental effects are adequately mitigated, we
review the agency's conclusion for substantial evidence." (Preserve Wild Santee, at
p. 275.)
"Substantial evidence for CEQA purposes 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.' [Citation.]
Substantial evidence includes 'facts, reasonable assumptions predicated upon facts, and
expert opinion supported by facts.' [Citation.] It does not include argument, speculation,
unsubstantiated opinion or narrative, clearly erroneous or inaccurate evidence, or
evidence of social or economic impacts which do not contribute to or are not caused by
physical impacts on the environment." (Preserve Wild Santee, supra, 210 Cal.App.4th at
pp. 275-276.)
In determining whether substantial evidence supports a finding, " 'the reviewing
court "may not set aside an agency's approval of an EIR on the ground that an opposite
conclusion would have been equally or more reasonable," for, on factual questions, our
task "is not to weigh conflicting evidence and determine who has the better argument." '
[Citations.] Rather, we must resolve any reasonable doubts and any conflicts in the
evidence in favor of the agency's findings and decision." (Preserve Wild Santee, supra,
210 Cal.App.4th at p. 276; see also Citizens for Responsible Equitable Environmental
Development v. City of San Diego, supra, 196 Cal.App.4th at pp. 522-523 [reviewing
27
court may not consider or reevaluate the evidence presented to the administrative
agency]; Guidelines, § 1538411).)
B. County's Mitigation Measures
The FEIR concludes the project's potential significant impacts on individual wells
would be mitigated to a level of insignificance via two mitigation measures intended to
address declining water levels and water quality, respectively numbered 3.3-1 and 3.3-2.
Mitigation measure 3.3-1 provides that if, as a result of USG's increased pumping
as determined by County's planning commission, water levels in an existing well
decrease faster than the baseline rate (one foot every eight years) and the average water
levels in the surrounding wells decrease for more than two consecutive years with a
"documented reduction" in available water to an affected user, USG at its election will
either (1) rehabilitate the well and/or install a new pump to restore the prior pumping
rate; (2) provide an incremental replacement of water of like quantity and quality
equivalent to the amount of the reduced rate of pumping; (3) provide a full replacement
water supply of like quantity and quality at a cost not exceeding the cost to the affected
party at the time of impact; or (4) deepen the existing well or provide a new replacement
well drilled to a depth that will not be affected by existing or future project-related water
table declines, and capable of providing an equivalent quantity and quality of water that
11 "The CEQA Guidelines, promulgated by the state's Natural Resources Agency, are authorized by section 21083 and found in title 14 of the California Code of Regulations, section 15000 et seq. . . . In interpreting CEQA, we accord the Guidelines great weight except where they are clearly unauthorized or erroneous." (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 448, fn. 4.)
28
existed before impact. If USG elects to provide replacement water or a replacement
water supply, it must mitigate "until groundwater levels return to a level equal to the
projected baseline condition or ten years after USG reduces its pumping from the Basin
to the baseline rate, whichever first occurs."12
Mitigation measure 3.3-2 provides that if the County planning commission, after
review of water quality data, determines that increased pumping caused the TDS level in
any existing well to exceed 500 milligrams per liter (the secondary drinking water
standard), or caused the concentration of sulfate, chloride or boron to exceed drinking-
water standards in force at the time the increased pumping is approved, then USG will
provide the affected party or parties with an alternative supply of water for drinking and
12 In full, mitigation measure 3.3-1 reads: "If the water level in an existing well in the Ocotillo area decreases at a rate faster than one foot every eight years and the average water levels in the surrounding wells also decrease for more than two years in a row due to the Proposed Action, as measured from the interpolated linear of one foot every eight years with a starting reference point being the date that pumping by USG increases above the baseline rate, and there is a documented reduction in the available water to the affected user, then USG, at its election will: (1) Rehabilitate the well and/or install a new pump to restore the prior pumping rate; or (2) Provide an incremental replacement of water equivalent to the amount of the reduced rate of pumping by the affected party, of a like quantity and quality; or (3) Provide a full replacement water supply to the affected party of a like kind and quality, at a cost that does not exceed the cost to the affected party at the time the impact occurred; or (4) Deepen the existing well or provide a new replacement well to the affected party, drilled to a depth that will not be affected by existing or future Project-related declines in the water table, and capable of providing an equivalent quantity and quality of water that existed prior to the impact. The extent to which the Proposed Action will be considered to be the cause of the decrease in water levels in the Ocotillo area will be determined only after a review of the water level data and a decision by the Imperial County Planning Commission. If USG elects to provide replacement water or a replacement water supply, arrangements must be made to provide this mitigation until groundwater levels return to a level equal to the projected baseline condition or ten years after USG reduces its pumping from the Basin to the baseline rate, whichever first occurs." 29
cooking, which "could be bottled water or a hookup to a replacement water source," at no
cost to the affected party or parties. If the increased pumping causes the TDS level to
exceed 1,000 milligrams per liter, USG will provide the affected party or parties with a
"hookup to a replacement supply of water" which "may be a hookup to an existing
municipal district or other appropriate drinking water system." The measure requires
USG to provide an alternative water supply "until (1) concentrations of the above-listed
constituents in excess of applicable water-quality standards return to levels below such
standards or until the water quality parameters, for which there is data that currently
exists, return to pre-Proposed Action levels, or (2) ten years after USG reduces its
pumping from the Ocotillo/Coyote Wells Groundwater Basin to the baseline rate,
whichever first occurs."13
13 In full, Mitigation measure 3.3-2 reads: "USG will provide an alternative or replacement source of water if the water quality significantly deteriorates in any existing well in the Ocotillo area and such deterioration is caused by the Proposed Action. As discussed above, the secondary drinking water standard for TDS is 500 mg/L and water with a TDS level in excess of 1,000 mg/L is considered non-potable. Therefore, if the Proposed Action causes the TDS level in any existing well to exceed 500 mg/L, or causes the concentration of sulfate, chloride or boron, as described in the Groundwater Monitoring Program, to exceed its drinking-water standard that is in force at the time the Proposed Action is approved, then USG will provide the affected party or parties with an alternative supply of water for drinking and cooking, at no cost to the affected party or parties. This alternative supply could be bottled water or a hookup to a replacement water source. If the TDS level in any well exceeds 1,000 mg/L and is caused by the Proposed Action, then, the water quality will be such that use of the water for any domestic purpose will be significantly affected due to scale buildup, damage to plumbing, corrosion, and other similar impacts. If the TDS level exceeds 1,000 mg/L and is caused by the Proposed Action, USG will provide the affected party or parties with a hookup to a replacement supply of water. This replacement supply may be a hookup to an existing municipal district or other appropriate drinking water supply system. USG will bear the full cost of the hookup. The affected party or parties, however, would only be 30
C. Deferral of Mitigation and Gray v. County of Madera
"Formulation of mitigation measures should not be deferred until some future
time. However, measures may specify performance standards which would mitigate the
significant effect of the project and which may be accomplished in more than one
supra, 210 Cal.App.4th at p. 280.) Any such deferral "requires the agency to commit
itself to specific performance criteria for evaluating the efficacy of the measures
implemented." (POET, LLC V. California Air Resources Board (2013) 218 Cal.App.4th
681, 738.) Thus, in Preserve Wild Santee, this court concluded that, while an EIR's plan
for habitat management of an open space preserve contained measures to mitigate the
loss of a specific butterfly habitat, the EIR was nevertheless deficient because it did not
describe guidelines or specific performance criteria, i.e., the actions anticipated for active
management. (Preserve Wild Santee, at p. 280.) This was problematic because the
timing and specific details for implementing the management activities were subject to
responsible for the annual cost of the replacement water equivalent to their costs to pump water prior to the occurrence of the impact. If the annual cost of water for the replacement supply exceeds the affected party or parties costs [sic] to pump water prior to the occurrence of the impact, USG will pay the incremental difference. The extent to which the Proposed Action will be considered to be the cause of the decrease in water quality in the Ocotillo area, will be determined only after a review of the water quality data and a decision by the Imperial County Planning Commission. If USG is required to provide alternative and/or replacement water supply pursuant to the terms of this mitigation measure, it must continue to do so until (1) concentrations of the above-listed constituents in excess of applicable water-quality standards return to levels below such standards or until the water quality parameters, for which there is data that currently exists, return to pre-Proposed Action levels, or (2) ten years after USG reduces its pumping from the Ocotillo/Coyote Wells Groundwater Basin to the baseline rate, whichever first occurs." 31
the preserve manager's discretion based on prevailing environmental conditions, and they
were not guaranteed to occur at any particular time or any particular manner. (Id. at p.
281.) We acknowledged that " '[a]n EIR is inadequate if "[t]he success or failure of
mitigation efforts . . . may largely depend upon management plans that have not yet been
formulated, and have not been subject to analysis and review within the EIR." ' " (Ibid.;
see also San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th
645, 670 [appellate court held mitigation allowing future formulation of land
management aspects of mitigation was an improper deferral; the fact future management
plans would be prepared only after consultation with wildlife agencies did not cure "these
basic errors under CEQA"]; Communities for a Better Environment v. City of Richmond
(2010) 184 Cal.App.4th 70, 93 [final EIR deficient because it "merely proposes a
generalized goal of no net increase in greenhouse gas emissions and then sets out a
handful of cursorily described mitigation measures for future consideration that might
serve to mitigate the [project's significant environmental effects]"]; compare Rialto
Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 941-943
[mitigation measures to reduce impacts on special plant species were adequate because
they required formal consultation with a federal agency under a particular section of the
Endangered Species Act, and 80 percent of any transplants to be established within three
years]; Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1028-
1029 [upholding EIR that set forth a range of mitigation measures to offset significant
traffic impacts where performance criteria would have to be met, even though further
study was needed and EIR did not specify which measures had to be adopted by city].)
32
The court in Gray v. County of Madera, supra, 167 Cal.App.4th 1099 addressed
the improper deferral of mitigation in a context of potentially significant groundwater
quantity and quality impacts. Gray concerned an EIR certified by a county board of
supervisors for a project allowing the real party in interest, Baker, to develop a quarry in
Madera County, which involved grants of conditional use permits for hard rock mining
and an asphalt plant, as well as rezoning from agricultural to quarry, mining and drilling
use. (Gray, at pp. 1105-1106.) The area around the project would continue to be used
primarily for cattle grazing and contained dozens of residences as well as 55 domestic
wells within one mile from the project. (Id. at p. 1106.) In a staff report, the county
planning commission expressed concern that over the mine's life time and as a result of
the mining operations, surrounding property owners might suffer declined well pumping
rates. (Ibid.) The DEIR for the project stated the project could cause declines in water
levels and pumping rates in adjacent private wells, and also could cause degradation of
groundwater and/or surface water quality from the operations. (Id. at p. 1112.)
The EIR set forth three mitigation options in the event of an adverse impact on
water levels of neighboring private wells: Baker would (1) rehabilitate or deepen the
private wells; (2) provide incremental replacement water by providing a connection to the
project's water system; or (3) provide full replacement water by providing a connection to
the project's water system. (Gray v. County of Madera, supra, 167 Cal.App.4th at p.
1115.) Another mitigation measure, as it was amended, required a hydrology study and
allowed the option of building a " 'water system constructed under federal, state, and
county guidelines' " to supply potable water to affected neighbors. (Id. at p. 1116.) The
33
latter option, however, was not discussed or analyzed in the DEIR or FEIR, and there was
no indication it had ever been extensively discussed with county staff or Baker. (Ibid.)
The appellants challenged the EIR's approval, contending in part that the proposed
mitigation measures were inadequate to address the potential and significant impact of
the project on water resources, and the county violated CEQA by failing to recirculate the
EIR after amending its mitigation measures relating to water concerns. (Gray v. County
of Madera, supra, 167 Cal.App.4th at pp. 1111, 1115, 1120.)
The Court of Appeal held there was no substantial evidence to support the EIR's
conclusion that the proposed mitigation measures were feasible or effective in remedying
the potentially significant problem of water level decline of neighboring wells. (Gray v.
County of Madera, supra, 167 Cal.App.4th at p. 1116.) In particular, the mitigation
measures were not viable because (1) the measure permitted Baker to rehabilitate or
deepen the neighboring wells to provide additional water, but there was no evidence
those wells would provide additional potable water, and the DEIR conceded the water
from the project wells was not acceptable for consumptive uses; (2) the mitigation
measure did not require Baker to treat the project well water; (3) providing replacement
water through bottled water was not effective in that the FEIR did not explain how it
would address fluctuating water usage of neighboring landowners or how or in what
34
amount the bottled water would be delivered to neighboring landowners;14 and (4) the
measures improperly deferred mitigation. (Gray, at pp. 1117-1119.)
As for the question of deferral, the Gray court rejected the county's arguments that
it had committed to a mitigation goal of remedying the decline in water levels of private
wells and listed the mitigation alternatives, thus complying with CEQA. (Gray v. County
of Madera, supra, 167 Cal.App.4th at p. 1119.) It explained: "While we generally agree
that CEQA permits a lead agency to defer specifically detailing mitigation measures as
long as the lead agency commits itself to mitigation and to specific performance
standards, we conclude that here the County has not committed itself to a specific
performance standard. Instead, the County has committed itself to a specific mitigation
goal—the replacement of water lost by neighboring landowners because of mine
operations. However, this goal is not a specific performance standard such as the
creation of a water supply mechanism that would place neighboring landowners in a
situation substantially similar to their situation prior to the decline in the water levels of
their private wells because of the mining operations, including allowing the landowners
14 The court explained: "The measure requires replacement at least equal to the lost amount of water production from the landowners' wells. However, some if not all of the landowners will have fluctuating water usage. In some weeks, they may use a lot of water because of drought conditions, extra guests, or farming needs. In other weeks, landowners may use very little water. Often, landowners will be unable to predict their amount of water needs in advance. It is also unlikely that neighboring landowners have water meters that will help them to calculate their water usage. . . . A water system, as proposed by the Board, could solve this problem. However, the proposal for a water system was never studied by the county staff. Thus, there is no substantial evidence that it is feasible to build a water system. Therefore [the mitigation measure] does not present viable mitigation options." (Gray v. County of Madera, supra, 167 Cal.App.4th at p. 1118.) 35
to use water in a substantially similar fashion to how they were previously using water.
Moreover, the listed mitigation alternatives must be able to remedy the environmental
problem. We have concluded that the listed mitigation alternatives, except for the
building of a new water system, cannot remedy the water problems because they would
not place neighboring landowners into a situation substantially similar to what the
landowners experienced prior to the operation of the mine. And the option to build a
water system, which is the only effective mitigation measure that was proposed if it was
feasible, was never studied or examined. Thus, the County is improperly deferring the
study of whether building such a system is feasible until the significant environmental
impact occurs." (Ibid.) The appellate court concluded: "In order to mitigate [the decline
in water levels of neighboring wells] into a less than significant problem, Baker must
present a viable solution that can effectively replace the decline in the water available to
the neighboring residents. Although Respondents contend that we should defer to the
Board's finding that the mitigation measures are effective, we decline to do so where the
Board's findings are not supported by substantial evidence or defy common sense." (Id.
at p. 1116.)
D. Provision of Replacement Water
Advancing arguments similar to those made by the petitioners in Gray v. County
of Madera, supra, 167 Cal.App.4th 1099, Sierra Club contends there is no substantial
evidence to support County's finding that mitigation measure 3.3-1, permitting USG to
supply replacement water of "like kind and quality," will reduce the potential impacts on
existing individual wells to a level of insignificance. Sierra Club argues the FEIR
36
contains no discussion of the feasibility of finding such replacement water; that there is
no explanation how up to 112 acre-feet per year will be supplied by other wells in the
already overdrafted Basin; there is no determination of those wells' unused pumping
capabilities; and providing replacement water from unspecified USG wells or other wells
in the same Basin is a "non-solution" and infeasible because it could exacerbate the
problems in overdraft and water quality rather than mitigate them. Sierra Club states the
DEIR makes it clear that there are no community water supply systems that domestic
water users can hook into, and there is no evidence in the record that USG can provide
replacement water from wells either inside or outside of the Basin that is of " 'similar or
better quality and available when needed.' " Further, Sierra Club argues, the FEIR does
not discuss the environmental impacts of using existing or new wells drawing from the
Basin for replacement water supply purposes.
As for mitigation measure 3.3-2, permitting USG to provide individual well
owners with a hookup to a replacement supply of water via " 'an existing municipal
district or other appropriate water supply system,' " Sierra Club contends there is no
examination of where the alternative supply will come from; what, if any, existing
municipal districts exist; or the feasibility of providing individual hookups to each
affected well owner for the replacement water source.
USG seeks to distinguish Gray. It asserts there is no evidence to suggest it would
be infeasible to deepen, rehabilitate, or replace any well that could potentially be affected
by the Project. It asserts that "if for some reason an affected well could not be deepened
or rehabilitated, replacement water is available." For this assertion, USG points to
37
County's responses in the FEIR to Sierra Club's comments on the DEIR, providing in
part: "The amount of replacement water that may need to be provided under [mitigation
measure 3.3-2] will depend on the characteristics of the affected well and other factors
that are unknown at this time. However, [the measure] evinces a commitment to achieve
a performance standard that will ensure that the potential impact of the Proposed Action
on individual wells will be reduced to a level of insignificance. . . . [¶] Pursuant to the
provisions of Mitigation Measure 3.3-2, USG may, under specified circumstances, elect
to provide bottled water to an affected party as a replacement water supply for drinking
and cooking purposes. Bottled water is generally available for purchase from existing
vendors serving the region. In the event that USG elects (or is required) to provide a
hookup to an existing municipal district or other appropriate water supply system, the
water would likely be produced by another well (or wells) within the Ocotillo-Coyote
Wells Groundwater Basin."
There is little difference between the deficient mitigation measures in Gray and
County's measures in this case. The primary deficiency is that, to the extent the
mitigation measures require USG to provide replacement water, they do not ensure USG
will provide that water in such a way that permits residents the ability to use it in
substantially the same manner as the water it replaces. As in Gray, supra, 167
Cal.App.4th at p. 1117, County proposes that USG rehabilitate or deepen individual
affected wells if those wells demonstrate a specified decrease in water levels, but the
FEIR does not explain whether or how, in view of already declining water levels at
baseline rates and the potential for water quality impacts, a rehabilitated or deepened well
38
will provide water of the same quantity and quality. Nor does the record contain such
evidence. The FEIR does not identify which, if any, municipal water districts have water
available or if, and under what circumstances, such districts have agreed to provide water
to USG. Like in Gray, County proposes to supply bottled water from existing vendors to
affected parties for drinking and cooking, or by providing a hookup to another well
within the same basin, but this measure, as written, is ineffective mitigation for the
reasons expressed in Gray: the measure does not explain how or in what amount the
bottled water will be delivered to the neighboring landowners or how USG will address
fluctuating water usage. (Gray, 167 Cal.App.4th at pp. 1117-1118.)
As to impacts for which mitigation is known to be feasible, an EIR may give the
lead agency a choice of which measure to adopt, but the measures must be "coupled with
specific and mandatory performance standards to ensure that the measures, as
implemented, will be effective." (Communities for a Better Environment v. City of
Richmond, supra, 184 Cal.App.4th at p. 94.) We have explained that mitigation
measures for potential significant environmental impacts violate CEQA where they
merely state "generalized goals" to mitigate a significant effect without committing to
such specific criteria or standards of performance. As in Gray v. County of Madera and
Preserve Wild Santee, supra, 210 Cal.App.4th 260 dealing with improper deferral of
mitigation, County's proposed mitigation measures state only a general goal of replacing
water with like quality and quantity from water supply systems or hookups that are
unidentified and not further detailed. Incremental or full replacement of water "of like
quantity and quality" is not a specific performance criterion. (Accord, Gray, supra, 167
39
Cal.App.4th at pp. 1118-1119; POET, LLC v. California Air Resources Board, supra,
218 Cal.App.4th at p. 739 [testing program and rulemaking to establish specifications to
ensure there is "no increase in NOx" emissions is not a specific performance criterion].)
The measures are deficient because they are "nonexclusive, undefined, untested and of
unknown efficacy." (Communities for a Better Environment v. City of Richmond, supra,
184 Cal.App.4th at p. 91 [final EIR put forth mitigation plan to ensure the project's
operation " 'shall result in no net increase in GHG [greenhouse gas] emissions over the
Proposed Project's baseline' " and included a requirement that the applicant hire and fully
fund a " 'qualified independent expert' " to complete an inventory of greenhouse gas
emissions, as well as other proposals such as " 'Add/improve heat exchangers,' " and "
'Initiate carbon sequestration, capture and export' "; such mitigation was deficient because
it "merely proposes a generalized goal of no net increase in greenhouse gas emissions"
and a "handful of cursorily described mitigation measures for future consideration" that
were "nonexclusive, undefined, untested and of unknown efficacy"].)
Further, as Sierra Club points out, the FEIR does not address the additional
potential environmental impacts of drawing Basin water from deepened or rehabilitated
wells, hooking residents up to existing or new wells within the overdrawn Basin for
replacement water supply purposes, or the potential environmental effects associated with
using and delivering water bottles to residents. These flaws are similar to those in Save
Our Peninsula Committee Monterey County Board of Supervisors (2001) 87 Cal.App.4th
99. In Save Our Peninsula, the county certified an EIR for a residential development
project located within a watershed served by well water, in an area characterized by
40
severe water shortages. (Id. at pp. 108, 115.) The county's EIR for the project had
indicated that increased water pumping over baseline would be mitigated either by
reducing the project density or reducing pumping elsewhere in the basin. (Id. at p. 128.)
The EIR, however, did not identify an offsetting pumping location until well after the
comment period had closed, and when the applicant finally did identify the offsetting
parcel of land, there was no discussion of information about the parcel or the impacts of
transferring water credits. (Id. at p. 130.) The trial court found the project's approval was
not supported by the evidence, and the Court of Appeal agreed, pointing out former
discussion of the impact of mitigation measures, as well as growth-inducing impacts.
(Save Our Peninsula, 87 Cal.App.4th at p. 130.) It directed the trial court to order a
revised EIR to include a discussion of the offsetting parcel, the history of water pumping
on the property and its feasibility for providing an actual offset for increased pumping on
the project property, and the growth-inducing effect of a policy of offset pumping
reduction in the area. (Id. at p. 131.)
USG urges us to hold that its mitigation measures reflect a "firm commitment" to
comply with viable measures to ensure groundwater impacts are reduced to an
insignificant level. It argues that Gray reflects only the appellate court's concern about
adequate access to potable water, in view of the fact that the EIR in Gray had conceded
15 "If a mitigation measure would cause one or more significant effects in addition to those that would be caused by the project as proposed, the effects of the mitigation measure shall be discussed but in less detail than the significant effects of the project as proposed." (Guidelines, § 15126.4, subd. (a)(1)(D).) 41
that water from project wells (one of the mitigation options) was not acceptable for
consumptive use. But the Gray court's sufficiency of the evidence analysis was not
limited to water quality impacts. The Gray court expressly rejected the proposed solution
for the potentially significant problem of the decline in water levels of the neighboring
wells; common sense informed the court that the mitigation measures would not
effectively replace the water in that it would not enable neighboring landowners to use
water in substantially the same manner that they were accustomed to doing if the project
had not caused a decline in the water levels of their wells. (Gray v. County of Madera,
supra, 167 Cal.App.4th at p. 1117.)
USG further argues that because its own wells are deep and located in the thickest
part of the layer 1 aquifer, providing potable water from its own wells to adversely
affected well-owners (which would be subject to the 767 acre-foot maximum and require
a corresponding reduction in USG's water usage) is "clearly viable." There are several
flaws with this argument. First, mitigation measure 3.3-1 does not obligate USG to
provide replacement water from its own pumping wells. Second, USG's argument is
essentially that given the aquifer's size, USG's pumping (which at the maximum 767
acre-feet per year is double the baseline rate) will not affect the aquifer.16 But in
response to USG's comments to the DEIR, County's own groundwater hydrology expert,
Andrew Kopania, pointed out USG made a "misleading mathematical assertion" that
pumping of up to 767 acre-feet per year represents only one-tenth of one percent of the
16 See also footnote 4, ante. 42
groundwater stored in the Basin, assuming the Basin holds 1.2 million acre-feet of water.
Noting that the 1.2 million acre-feet includes both fresh and saline water, Kopania states:
"The Proposed Project, however, is planned to last for 80 years. Pumping at up to 767
[acre-feet per year] for 80 years (61,360 [acre-feet]) actually represents over five percent
of the assumed basin volume of 1,200,000 AF. Thus, over 80 years, USG will use one
twentieth of the total water available in the basin, according to [Bookman-Edmonston's]
estimate, and a significantly greater volume of the fresh water in the basin."
Though County found mitigation measures 3.3-1 and 3.3-2 would render the water
quantity and quality impacts less than significant, we reject this finding because there is
not substantial evidence that these mitigation measures are viable or effective, and they
do not satisfy CEQA's requirements.
E. 10-Year Mitigation Period
Sierra Club complains that the adopted mitigation measures, including USG's
obligation to provide replacement water or a replacement water supply, fail to require
USG to provide for the overlying user's domestic needs for longer than a 10-year period
after increased groundwater pumping ends, even if water levels or quality continue to be
adversely impacted. It argues the record is "replete" with concerns of County hydrology
experts that impacts could exist 10 years after the project ceases operations. As support,
Sierra Club points to an August 2005 memo by Kopania, in which the author, after
meeting with the County and USG and acknowledging the 10-year termination of
monitoring, stated: "Without continuing some sort of groundwater monitoring program
until the impacts return to a level below significance, . . . it would not be possible to
43
determine when the mitigation measures can cease." Kopania recommended that the
duration of monitoring be tied to the duration of the mitigation necessary to return to a
less-than-significant condition. Sierra Club argues USG cannot rely on Dr. Priestaf's
conclusion that 10 years was an appropriate time frame for full recovery and mitigation.
It maintains Dr. Priestaf's testimony is without foundation and contradicted by the
conclusions in the Todd report. Citing an additional September 2005 memorandum by
Kopania, Sierra Club maintains there is substantial expert evidence that it might take
much longer than 10 years to restore water quality if pumping causes a significant
impact.
USG responds that Sierra Club ignores substantial evidence that a 10-year time
period is sufficient for recovery of affected wells, and that the board was entitled to rely
on Dr. Priestaf's expert opinion and other evidence, including from USG's responses to
comments, that the mitigation would reduce the project's potential impacts on individual
private wells to a level of insignificance. It rebuffs Sierra Club's foundational challenge
to Dr. Priestaf's testimony, stating, "Nothing in Dr. Priestaf's testimony remotely suggests
that she may have been addressing a 'pumping scenario' other than the one proposed by
[USG] and studied in the EIR."
The question is not whether there is substantial evidence in the record to support
Sierra Club's position concerning the adequacy of imposing a 10-year duration on
mitigation in the event of significant impacts, it is whether the record lacks substantial
evidence to support the contrary conclusion. And, it is Sierra Club's burden to
"affirmatively show there was no substantial evidence in the record to support the
44
[Board's] findings"; that burden will not be met if Sierra Club simply points to portions of
the administrative record that support its position. (California Native Plant Society v.
City of Rancho Cordova, supra, 172 Cal.App.4th at p. 626; Save Panoche Valley v. San
Benito County (2013) 217 Cal.App.4th 503, 526.) Sierra Club can meet its burden by
setting forth all of the evidence material to the Board's finding, and then showing that that
evidence could not reasonably support the finding. (California Native Plant Society, at p.
626.) The substantiality of evidence is not undermined by differing expert opinions.
(Guidelines, § 15151 ["[d]isagreement among experts does not make an EIR
inadequate"]; California Native Plant Society, at p. 616.) "Moreover, 'a public agency
may choose between differing expert opinions. [Citations.] An agency may also rely
upon the opinion of its staff in reaching decisions, and the opinion of staff has been
recognized as constituting substantial evidence.' " (Oakland Heritage Alliance v. City of
Oakland (2011) 195 Cal.App.4th 884, 900.) Thus, the fact Kopania, or other experts, felt
a 10-year mitigation period was inadequate is not enough to set aside the FEIR. We
assess below whether substantial evidence supports the adequacy of a 10-year duration of
mitigation for the project's significant impacts on groundwater.
1. 10-Year Duration of Mitigation for Individual Well Water Level Impacts
At the hearing before the County board of supervisors, Dr. Priestaf testified that a
10-year duration of mitigation would be an appropriate time frame for full recovery of
individual well water levels: "We looked at what they called water balance studies. . . .
[A] water balance study for a ground water basin looks all the in flows, rainfall, stream
flow . . . looks at all of the outflows. For example, pumping, and then it looks at the
45
change in storage in the ground water basin, and, so, when we looked at those water
balances, they were done by U.S.G.S., Bookman[-]Edmonston and other researchers.
They all document recharge. So there is recharge to this ground water basin. [¶] Now,
when it comes to the pumping for the export to Mexico, there was a comment made about
wells that had not yet recovered. Well, in the Yuha [Estates] area where there was some
of this pumping the wells are still recovering, and what that reflect is the particular
hydrogeologic conditions around you. That is in what we call layer 2, which is a less
permeable [aquifer] zone. Layer 1 is the [aquifer] zone that U.S. Gypsum will be
pumping out of the Ocotillo area. Now, in that area when the pumping for Mexican
export stopped, water levels recovered, and in fact in one of the wells that had been
pumped it recovered over 50 feet in less than two years. [¶] So, based on this
understanding we have of the water balance and the recharge, based on this evidence of
recovery in the Ocotillo area after the Mexican export, then it is my opinion that ten years
is an appropriate time frame for full recovery and the mitigation measure."
Contrary to Sierra Club's cursory, footnoted, argument, Dr. Priestaf's conclusion as
to the adequacy of a 10-year period of mitigation has some foundation, and is supported
by substantial evidence in the supplemental record, namely, the relatively quick, two-year
recovery of water levels in Ocotillo well 25K2 after cessation of pumping to Mexico as
reported by Bookman-Edmonston in its 2004 study. That study (and the DEIR) includes
the data of well 25K2 from hydrographs showing water level as it changes over time, and
the FEIR incorporates those conclusions. CEQA and its implementing regulations
provide that "expert opinion supported by facts" may constitute substantial evidence;
46
argument, speculation, unsubstantiated opinion or narrative, clearly inaccurate or
(f)(5), 15384 [defining substantial evidence as used in the Guidelines].) As we have
stated, we may not set aside an agency's approval of an EIR on grounds an opposite
conclusion would have been equally or more reasonable. (San Diego Citizenry Group v.
County of San Diego, supra, 219 Cal.App.4th at p. 11.) And, in order to challenge the
FEIR for insufficient evidence, Sierra Club must " ' "lay out the evidence favorable to the
other side and show why it is lacking. Failure to do so is fatal." ' " (Id. at p. 12.) We will
not independently review the record to make up for Sierra Club's failure to carry its
burden. (Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912, 934-935.) Sierra Club
has not met its burden to affirmatively show Dr. Priestaf's expert opinion is speculative,
unsubstantiated or clearly inaccurate or erroneous, and we decline to find the FEIR
inadequate on Sierra Club's stated ground.
Our conclusion does not change in view of Sierra Club's reference in reply to a
hydrograph showing that one well, 36H1, located close to USG pumping, showed a four-
foot steeper decline in levels from 1995 to 2005 than described in the FEIR. It points out
that while there was some recovery in that well from 2005 to 2006, the recovery then
leveled off. According to Sierra Club, this recovery "may have been atypical" and is not
substantial evidence that the recovery rate of affected wells will be sufficient to bring
them to pre-project levels in 10 years. Our role is not to reweigh the evidence supporting
or contradicting Dr. Priestaf's conclusion, this would be the sort of second guessing that
47
we are not permitted to do on appeal. (Vineyard, supra, 40 Cal.4th at p. 435 [court
cannot " 'determine who has the better argument' "].)
2. 10-Year Duration of Mitigation for Individual Well Water Quality Impacts
Our conclusion is different as to the FEIR's imposition of a 10-year duration of
mitigation for water quality impacts.
As to water quality, the FEIR acknowledges USG's increased pumping, and states:
"Based on a comparison with past impacts in the Basin, the proposed increased
groundwater extraction rates for the Project could have an impact on water quality." The
FEIR continues: "As discussed, water levels are decreasing throughout most of the Basin
and are expected to decrease further from the Proposed Project. As the depth to
groundwater decreases, the saline water that is present at the water table may eventually
reach the screened interval of some wells. Several wells have relatively short screened
intervals, so that the saline water present at the water table could appreciably affect the
quality of the water in certain wells." According to the FEIR, though a significant
potential for lateral migration of saline water from east of Coyote Wells into Ocotillo is
unlikely, there is a small potential for upward migration of saline from tertiary sediments
underlying the aquifer in the Ocotillo area. The FEIR states that the geologic model "was
not able to accurately reproduce the change in water quality caused in both Ocotillo and
Yuha Estates by the pumping for export to Mexico." The FEIR's "collective" response to
comments sets forth recent water quality data but it does not explain how, or in what time
frame, cessation of USG's increased pumping will result in a reversal of the potentially
significant impact to water quality within neighboring private wells.
48
During her February 2008 presentation to the County planning commission, Dr.
Priestaf addressed water quality impacts and the potential for inferior water within layer 2
to migrate into the more permeable layer 1 alluvium. When asked about mitigation of
that impact, she replied: "Well, the mitigation at this point includes, you know,
continued monitoring. But to reverse a situation like that would very likely include a
decrease in pumping or a redistribution of pumping.
With respect to the 10-year duration for mitigating water quality proposed by USG
and incorporated into the FEIR, Kopania in March 2008 responded to USG's comments
as follows: "[USG's] statement that 'By the [tenth] year after cessation of projection
operations, based on current knowledge and data, it is reasonable to assume that the
impacts of the project would be reduced to a level of insignificance[,]' is contrary to the
analysis in the EIR/EIS and the existing data from the basin. For example, the increase in
TDS in the Ocotillo/Nomirage area that occurred as a result of McDougal pumping for a
10-year period from 1974 to 1984 [was] at a rate that averaged only one-third of the
proposed increase in pumping by USG. The TDS levels increased by 60 percent and, 20
years later, are still approximately 30 percent higher than pre-pumping TDS
concentrations. The data from the basin indicate that appreciable declines in pumping
rates do not reverse prior declines in water levels and that it may take much longer than
10 years to restore water quality if pumping causes a significant impact to water quality."
A similar criticism to the reasonableness of the 10-year limitation was made by Matthew
Weidlin, a certified hydrogeologist, on Sierra Club's behalf. He recommended that the
49
same process used to determine if mitigation was necessary be used to determine when it
could end.
Mitigation measure 3.3-2 does not include a decrease in pumping or redistribution
of pumping. Though Dr. Priestaf stated such reduction or redistribution would be needed
to remedy impacts in water quality, she did not give any indication as to the time frame
necessary to restore water quality to pre-project measurements. In short, the record lacks
substantial evidence that County's 10-year duration of mitigation for water quality is
effective or adequate.
F. Reduction in USG's Augmented Pumping as Additional Mitigation
Sierra Club contends the County erred by failing to consider as additional
mitigation a requirement of "marked reduction in USG's augmented pumping" once
threshold impacts occur. It maintains County should have implemented such mitigation
in light of the groundwater ordinance, which according to Sierra Club, subordinates use
of exported water for commercial operations to overlying domestic uses in Ocotillo.
USG responds initially that Sierra Club's contention is made without authority,
and we agree that in the absence of some supporting regulation, guideline or case law, we
must reject this challenge to the FEIR. In any event, CEQA does not require discussion
of every possible mitigation measure or measures the agency rejects as infeasible. (San
Diego Citizenry Group v. County of San Diego, supra, 219 Cal.App.4th at pp. 15-16.) " '
" '[F]easibility' under CEQA encompasses 'desirability' to the extent that desirability is
based on a reasonable balancing of the relevant economic, environmental, social, and
50
technological factors." ' " (Id. at p. 17.) We cannot speculate whether, or why, County
may have concluded a marked reduction in USG pumping was infeasible under this test.
We observe the FEIR includes a separate section discussing the groundwater
ordinance and its protections for overlying domestic users. It points out the ordinance
contains dispute procedures for water users suffering well interference or infringement of
groundwater use by other users (Ordinance, § 92201.13), and gives specified overlying
domestic users priority over USG's groundwater use in the case of existing or threatened
overdraft in the Basin. (Ordinance, § 92204.00.) It explains that in March 2006, County,
pursuant to the ordinance, granted USG registrations for its three existing wells, and that
767 acre-feet would be the maximum amount of groundwater combined for the wells.
The FEIR concedes that, "Pursuant to these regulations, overlying domestic uses either
(a) legally existing on the effective date of the Groundwater Ordinance, or (b) developed
thereafter on property zoned "R-1" or "R-2" on the effective date of the Groundwater
Ordinance, would have priority over USG's groundwater usage in the case of an existing
or threatened overdraft of the Ocotillo-Coyote Wells Groundwater Basin." (Italics
added.)17
17 In addition, the FEIR provides: "The Groundwater Ordinance provides the County with various regulatory tools that are designed to avoid or minimize the impact of existing and proposed groundwater extraction activities on groundwater resources and other users. For example, Section 92201.13 provides a remedy for water users who are aggrieved by 'well interference' (defined as a substantial water level decline in a short time period in a localized area caused by extraction) or other impairment or infringement of the groundwater use caused by the extraction activities of another party. In such cases, the [planning commission] may issue any order that it determines necessary to provide the petitioning water user with an adequate remedy. Additionally, pursuant to Section 51
An EIR is an informational document that we review for good faith and substantial
compliance. (Laurel Heights Improvement Assn. v. Regents of University of California,
supra, 47 Cal.3d at p. 390; San Diego Citizenry Group v. County of San Diego, supra,
219 Cal.App.4th at p. 13.) We conclude the FEIR sufficiently informs the public of the
existence of the groundwater ordinance, explains that USG is subject to its provisions,
and that USG will subordinate its water use to that of overlying users in case of an
existing or threatened overdraft in accord with the groundwater ordinance's provisions.
G. Mitigation to Water Quality Standards in Effect at Time of Project Approval
Sierra Club criticizes mitigation measure 3.3-2, which requires USG to provide an
alternate supply of water for drinking or cooking if the concentration of sulfate, chloride
or boron exceeds drinking water standards "in force at the time the Proposed Action is
approved." It argues the impacts are not sufficiently mitigated because USG was not
required to mitigate to standards in effect at any time during or even after the project's
80-year duration. Sierra Club also maintains the measure is ambiguous regarding the
applicable benchmark because the project was approved in 1998, not when the FEIR was
certified in 2008. Sierra Club argues: "[C]onsistent with the obligation to provide the
Ocotillo pumpers with water of like kind and quality, and consistent with the Ground
Water Ordinance, the County erred when it did not explicitly require USG to provide
92202.07, the Board of Supervisors, after notice to the public and hearing, may adopt reasonable operating regulations on extraction facilities to minimize well interference. This portion of the Groundwater Ordinance further supports a conclusion that the potential impacts of the Project on neighboring wells will be less than significant after mitigation. [¶] Chapter 4 of the Groundwater Ordinance establishes priority among groundwater users in the event of existing or threatened overdraft conditions." 52
drinking water meeting water quality standards in effect at the time water quality
degradation begins to occur, rather than at the time in 2008 . . . ."
USG responds that the standards set forth in measure 3.3-2 reflect the criteria
described in the groundwater monitoring program, and were used in the FEIR as
thresholds of significance for determining whether the project will degrade water quality
in an individual well. It argues the measure unambiguously refers to standards in effect
in 2008. USG asserts we should summarily reject Sierra Club's argument because it has
not cited and cannot cite authority for the proposition that County is required to mitigate
impacts to "unspecified and presently unknown standards."
There is authority for the proposition that a project's required compliance with
specific laws or regulations may serve as adequate mitigation of environmental impacts
2012) § 14.15, p. 702; Oakland Heritage Alliance v. City of Oakland (2011) 195
Cal.App.4th 884, 906 ["a condition requiring compliance with regulations is a common
and reasonable mitigation measure, and may be proper where it is reasonable to expect
compliance"]; Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 308
[same].) Sierra Club's argument is more specific, directed at the need to mitigate to
current drinking water standards, not just those in place at the time of project approval.
But in view of our obligation to apply the principle that an EIR is presumed adequate
(San Diego Citizenry Group v. County of San Diego, supra, 219 Cal.App.4th at p. 13;
Santee, supra, 210 Cal.App.4th at p. 275), it is not enough for Sierra Club to merely
argue, without providing some supporting regulation, guideline, or case authority, that
53
adequate mitigation pertaining to water quality must require compliance with water
quality standards in effect at any time during the project's duration. Without some
support for its argument, Sierra Club has not met its burden to show the County
prejudicially abused its discretion in approving mitigation measure 3.3-2. (Accord,
Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th
184, 208-210 [plaintiffs' argument, " 'there is a lack of evidence as to whether [a
mitigation measure] will be effective and reduce any impacts to less than significant,' "
and other arguments made without supporting detail, did not demonstrate substantial
evidence was lacking and plaintiff forfeited the arguments]; Tracy First v. City of Tracy,
supra, 177 Cal.App.4th at pp. 935-936 [argument that an EIR did not follow energy
consumption standards of CEQA, without authority or analysis, does not establish a city
prejudicially abused its discretion based on lack of substantial evidence].)
H. Claim that Mitigation is Limited to Existing Wells
Sierra Club complains that the proposed mitigation measures apply only to
existing wells in the Ocotillo area, and make no provision for development, including
new or replacement wells, on lands of overlying owners. USG responds with several
arguments. It maintains the County is not required to mitigate "speculative impacts on
future wells" in that section 21060.5 of CEQA requires only that an EIR evaluate a
project's potential impacts on " 'the physical conditions which exist within the area which
will be affected by a proposed project . . . .' " (Italics added.) It argues future
development was considered in the 2004 Bookman-Edmonston report, which factored in
residential growth in the communities overlying the Basin and assumed a tripling of the
54
population over the project's 80-year life. Finally, USG argues impacts on future wells is
subsumed in the FEIR's evaluation of the project's unavoidable impacts on the Basin as a
whole, and because Sierra Club has not challenged the conclusions within the statement
of overriding considerations, it has waived any argument about the correctness of those
conclusions.
We do not read County's mitigation measures in the limiting manner suggested by
Sierra Club. Mitigation measures 3.3-1 and 3.3-2 require USG to perform certain
mitigation to the extent the planning commission determines that water levels decrease or
quality deteriorates in an "existing well in the Ocotillo area" by specified criteria and due
to USG pumping. This language does not limit USG's mitigation efforts to only those
wells in existence at the time of project approval. To the extent USG seeks to interpret
the FEIR, CEQA or its guidelines to exclude from its mitigation obligations wells put
into existence during the 80-year project duration, it is incorrect. And, as USG evidently
acknowledges, such an interpretation is inconsistent with the FEIR's projections as to
foreseeable future population growth in Ocotillo and the surrounding communities,18
which would necessarily be accompanied by the creation of additional wells. Such wells
18 The water supply assessment prepared for County states: "To obtain future demand through the life of the USG project, population was assumed to increase by 1.4 percent each year from 1990 to 2082. The 1.4 percent rate of population increase was based on the observed annual population growth from 1980 to 1990. While this growth rate is reasonable on the time scale of 10 or 20 years, it likely overestimates the future population of the area as projected to 2082 when it would result in more than tripling of the population." 55
will be subject to USG's mitigation obligations, if and when the mitigation triggering
conditions are met.
Sections 21151 and 21060.5, cited by USG, concern determining whether CEQA
applies to a project, and the type of impacts triggering the need for an EIR. Thus, section
21151, subdivision (b) requires preparation of an EIR on projects that may have a
"significant effect on the environment," meaning "substantial, or potentially substantial,
adverse changes in physical conditions which exist within the area as defined in Section
21060.5." Section 21060.5, in turn, provides that " '[e]nvironment' means the physical
conditions which exist within the area which will be affected by a proposed project,
including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic
significance." These sections say nothing about an agency's mitigation measures or
obligations, and they do not restrict the scope of such measures to physical conditions
existing at the time of project approval.
III. Remedy for CEQA Violations
"When a court finds that a public agency failed to comply with CEQA, it must do
one or more of the following: (1) mandate that the agency vacate the determination,
finding, or decision in whole or in part; (2) if the court finds that a specific project
activity will prejudice the consideration or implementation of mitigation measures or
project alternatives and could result in an adverse physical environmental change,
mandate that the agency and any real party in interest suspend specific activity until the
agency complies with CEQA; (3) mandate that the agency take specific action necessary
to comply with CEQA. (§ 21168.9, subd. (a).) The court must specify what action by the
56
agency is necessary to comply with CEQA (§ 21168.9, subd. (b)) but cannot direct the
agency to exercise its discretion in a particular way (§ 21168.9, subd. (c))." (Federation
of Hillside & Canyon Associations v. City of Los Angeles, et al. (2000) 83 Cal.App.4th
1252, 1266; see also Preserve Wild Santee, supra, 210 Cal.App.4th at pp. 286-287.)
Section 21168.9 gives trial courts flexibility in tailoring a remedy to fit a specific
CEQA violation, including by allowing a court to mandate the suspension of project
activities that might adversely affect the environment and prejudice the consideration or
implementation of mitigation measures or project alternatives until the public agency
complies with CEQA. (Preserve Wild Santee, supra, 210 Cal.App.4th at pp. 288-289.)
A trial court need not mandate that the public agency decertify the EIR and void all
related project approvals in every instance where an EIR is found to violate CEQA. (Id.
at p. 288.) Though we reverse the judgment in part and direct the trial court to grant
Sierra Club's petition as to the adequacy of mitigation measures 3.3-1 and 3.3-2, we leave
it to the trial court to issue an appropriate writ, but at minimum it must direct the County
to remedy the FEIR's deficiencies by identifying and describing mitigation measures that
could reasonably be expected to reduce the significant environmental impacts on water
levels and quality in individual wells, in a manner that complies with CEQA. (§ 21100,
subd. (b)(3); Guidelines, § 15126.4.).
DISPOSITION
The order is reversed to the extent it denies Sierra Club's petition for writ of
mandate on the issue of the adequacy of mitigation measures 3.3-1 and 3.3-2. The matter
57
is remanded to superior court with directions to enter a new order granting the petition as
to that issue, and ordering Imperial County to remedy the FEIR's deficiencies so that it
identifies and describes mitigation measures that could reasonably be expected to reduce
the significant environmental impacts on water levels and quality in individual wells, in a
manner that complies with CEQA. The order is affirmed in all other respects. Sierra
Club is awarded costs on appeal.
O'ROURKE, J. WE CONCUR:
NARES, Acting P. J.
HALLER, J.
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AI Brief
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Holding. The court held that the County's environmental impact report (FEIR) failed to provide substantial evidence that its mitigation measures for groundwater impacts on neighboring wells were effective or feasible. Consequently, the County abused its discretion in certifying the FEIR and approving the project.
Issues
Did the petitioner exhaust administrative remedies regarding the legal feasibility of mitigation measures?
Is there substantial evidence that the adopted mitigation measures will reduce groundwater impacts to a level of insignificance?
Did the County abuse its discretion in certifying the FEIR and approving the project?
Disposition. Reversed and remanded
Quotations verified verbatim against the opinion
“we conclude the evidence is insufficient to support County's findings that its mitigation measures to avoid or lessen potential groundwater level and water quality impacts to neighboring individual wells are effective or feasible”
“Because the FEIR in this respect does not comply with CEQA, the County's action in certifying the FEIR and approving the project constituted an abuse of discretion.”