California Coastkeeper Alliance v. State Lands Commission ( 2021 )

Filed 4/8/21 Certified for Publication 5/7/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
CALIFORNIA COASTKEEPER ALLIANCE et al., C088922
Plaintiffs and Appellants, (Super. Ct. No.
34201780002736)
v.
STATE LANDS COMMISSION,
Defendant and Respondent.
POSEIDON RESOURCES (SURFSIDE) LLC,
Real Party in Interest and Respondent.
For a number of years, real party in interest Poseidon Resources (Surfside) LLC
(Poseidon) has planned to establish a desalination plant at a site in Huntington Beach. In
2010, nonparty City of Huntington Beach (Huntington Beach), serving as lead agency
performing environmental review of the proposed project pursuant to the California
1
Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), certified a
subsequent environmental impact report (the 2010 subsequent EIR).1 However, the
project did not move forward. Following changes in circumstances including significant
regulatory changes, Poseidon proposed modifications to the project, which it addressed in
a proposed lease modification with defendant California’s State Lands Commission
(Lands Commission). The Lands Commission determined that it needed to prepare a
supplemental EIR to supplement Huntington Beach’s 2010 subsequent EIR. In 2017, the
Lands Commission certified its final supplemental EIR. Plaintiffs filed a petition for a
writ of mandate asserting, among other things, that the Lands Commission failed to
comply with the requirements of CEQA. The trial court denied the petition.
The parties sharply dispute the framing of the issues presented on appeal and
whether the applicable standard of review is de novo review or review for substantial
evidence. Plaintiffs assert the Lands Commission prejudicially abused its discretion by
(1) failing to assume the role of CEQA lead agency and perform the attendant
obligations, and (2) unlawfully piecemealing/segmenting its environmental review in
several respects, matters addressed to whether the Lands Commission failed to proceed in
a manner authorized by CEQA, subject to de novo review. The Lands Commission and
Poseidon assert that the true issues on appeal are whether the Lands Commission
properly proceeded with supplemental review and the results of that review, factual
matters subject to substantial evidence review. Both standards of review will be
implicated here.
We conclude that the Lands Commission properly elected to prepare a
supplemental EIR, did not err in refusing to assume lead agency status, and did not
unlawfully piecemeal or segment environmental review.
1 Further undesignated statutory references are to the Public Resources Code.
2
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Project Site and Lease Amendment
The subject site consists of approximately 11.78 acres including tide and
submerged lands in the Pacific Ocean offshore of Huntington Beach. In 1957, the Lands
Commission2 authorized a 49-year lease to Southern California Edison for the
construction of pipelines for a “once-through” cooling system.3 In 1998, the Lands
Commission approved the assignment of the lease from Southern California Edison to
AES Huntington Beach, LLC (AES). The Lands Commission subsequently authorized
the lease with AES to span a 20-year term, expiring on August 7, 2026.
Project Background
Poseidon has been seeking to establish a desalination plant on the subject site
since 1999. The purpose of the proposed project is to provide Orange County with a
“long-term, reliable, high-quality, and local source of potable water.” “Project
implementation would create a local drought-proof supply of domestic water and could
reduce Orange County’s dependence on imported water, consistent with the goal of
integrated water resource management.”
2 The Lands Commission “has exclusive jurisdiction over all ungranted tidelands and
submerged lands owned by the State, and of the beds of navigable rivers, streams, lakes,
bays, estuaries, inlets, and straits, including tidelands and submerged lands or any interest
therein, whether within or beyond the boundaries of the State as established by law . . . .
All jurisdiction and authority remaining in the State as to tidelands and submerged lands
as to which grants have been or may be made is vested in the commission. [¶] The
commission shall exclusively administer and control all such lands, and may lease or
otherwise dispose of such lands, as provided by law, upon such terms and for such
consideration, if any, as are determined by it.” (§ 6301.)
3 The once-through cooling system draws seawater from the Pacific Ocean through an
intake pipeline, circulates the seawater through the upland generating station for cooling
purposes, and then discharges the seawater back into the ocean.
3
Poseidon applied to Huntington Beach to obtain land use approvals to construct
and operate a desalination facility. The proposed desalination plant would have the
capacity to deliver approximately 50 million gallons per day of reverse osmosis
desalinated water. The desalinated water would be distributed to Huntington Beach and
various cities and local water districts for use and consumption by Orange County
residents and businesses.
Originally, the desalination plant was to obtain source seawater from the adjacent
AES Huntington Beach Generating Station (HBGS). According to the 2010 subsequent
EIR prepared by Huntington Beach as lead agency, the “source water for the proposed
seawater desalination facility will be taken from the existing HBGS condenser cooling-
seawater discharge pipeline system after the water has been used by HBGS for cooling.
However, if in the future HBGS were to cease the use of once-through cooling, or if the
HBGS were to permanently alter its cooling water system’s historical operations, the
proposed seawater desalination facility would intake water directly from the Pacific
Ocean via the existing HBGS intake pipe. In either case, and in order to protect the
marine environment, 50 [million gallons per day] of concentrated seawater would reenter
the Pacific Ocean via the existing HBGS discharge pipe after blending with additional
intake water to be used for dilution.” Thus, according to the 2010 subsequent EIR, “[a]
key advantage of the selected site is to utilize existing ocean intake/discharge lines of
sufficient seawater volume to avoid the impact of constructing new ocean
intake/discharge facilities.”
In addition to the desalination plant itself, the project as proposed in 2010 “also
consists of the construction and operations of off-site improvements, including water
delivery pipeline (new pipeline and/or replacement of portions of existing pipeline)
underground booster pump stations, and modifications to an existing booster pump
station, all of which will be utilized by [Poseidon] to deliver desalinated seawater to
Orange County retail water purveyors.”
4
2005 EIR and 2010 Subsequent EIR
In 2005, Huntington Beach as lead agency certified an EIR. In 2006, Huntington
Beach granted the project’s conditional use permit and coastal development permit.
However, the project was not built.
Subsequently, Poseidon submitted a modified application to Huntington Beach,
and Huntington Beach evaluated co-located, stand-alone operations and onshore facility
and distribution pipeline revisions. Huntington Beach, as lead agency, prepared a
subsequent EIR in 2010 as a result of changed circumstances and the development of new
information. Huntington Beach certified the subsequent EIR in September 2010.
Thereafter, no legal challenges were made to the 2010 subsequent EIR.
Once again, however, the project did not move forward. And, again,
circumstances changed, including regulatory changes.
2015 Desalination Amendment
In 2015, the State Water Resources Control Board amended its Water Quality
Control Plan for the Ocean Waters of California (Ocean Plan).4 The Ocean Plan
addressed implementation provisions for desalination facilities (Desalination
Amendment). (Cal. Code Regs., tit. 23, § 3009.) Goals of the Desalination Amendment
were to “Provide a consistent statewide approach for minimizing intake and mortality of
marine life, protecting water quality, and related beneficial uses of ocean waters.”
The Ocean Plan required that the regional water quality control board conduct a
Water Code section 13142.5, subdivision (b), analysis of all new and expanded
desalination facilities.5 In conducting this review, the regional water quality control
4 The trial Court granted Poseidon’s request that it take judicial notice of the Ocean Plan.
5 Water Code section 13142.5, subdivision (b), provides: “For each new or expanded
coastal powerplant or other industrial installation using seawater for cooling, heating, or
5
board “shall first analyze separately as independent considerations a range of feasible
alternatives for the best available site, the best available design, the best available
technology, and the best available mitigation measures to minimize intake and mortality
of all forms of marine life. Then, the regional water board shall consider all four factors
collectively and determine the best combination of feasible alternatives to minimize
intake and mortality of all forms of marine life.” Additionally, in performing that review,
the Desalination Amendment required the regional water quality control board to
“consult with other state agencies involved in the permitting of that facility, including,
but not limited to: California Coastal Commission, [the Lands Commission], and
California Department of Fish and Wildlife. The regional water board shall consider
project-specific decisions made by other state agencies; however, the regional water
board is not limited to project-specific requirements set forth by other agencies and may
include additional requirements in a Water Code section 13142.5(b) determination.”
The Desalination Amendment provided that the regional water quality control
board “shall require that the owner or operator evaluate a reasonable range of nearby
sites, including sites that would likely support subsurface intakes.”6
The regional water quality control board, in consultation with the State Water
Quality Control Board, “shall require subsurface intakes unless it determines that
subsurface intakes are not feasible” based on specified considerations. If the regional
water quality control board determines that subsurface intakes are not feasible and
surface water intakes are proposed instead, the regional water quality control board must
industrial processing, the best available site, design, technology, and mitigation measures
feasible shall be used to minimize the intake and mortality of all forms of marine life.”
6 The Ocean Plan defined “subsurface intake” as “an intake withdrawing seawater from
the area beneath the ocean floor or beneath the surface of the earth inland from the
ocean.” Surface water intakes, by contrast, draw ocean water from the open ocean above
the ocean floor.
6
analyze potential designs for such intakes to minimize intake and mortality. In the event
that subsurface intakes are not feasible, the regional water quality control board may
approve surface water intakes subject to the condition, among others, that the surface
intakes are screened with a one millimeter or smaller slot size screen or an alternative
method if it is even more effective in avoiding intake and mortality.
The Desalination Amendment also provided that the preferred method for
minimizing intake and mortality with regard to brine discharge was to commingle brine
with wastewater, matching the salinity of the receiving water.7 “Multiport diffusers are
the next best method for disposing of brine when the brine cannot be diluted by
wastewater and when there are no live organisms in the discharge.” (Asterisks omitted.)
Multiport diffusers “are linear structures consisting of spaced ports or nozzles that are
installed on submerged marine outfalls. . . . [M]ultiport diffusers discharge brine waste
into an ambient receiving water body and enable rapid mixing, dispersal, and dilution of
brine within a relatively small area.”
Poseidon’s Proposed Changes to the Project
In 2010, the Lands Commission approved the amendment of the lease to include
Poseidon as a co-lessee.
In 2016 and again in 2017, Poseidon, by proposed Lease Modification Project,
sought to amend its lease. Poseidon sought to amend to “[i]nstall four 1-millimeter
wedgewire screens with a through-screen velocity of 0.5 feet per second or less on the
offshore end of the seawater intake pipeline about 1,650 feet offshore to reduce
entrainment and impingement to de minimis levels,”8 to “[i]nstall a multiport duckbill
7 Brine “is the byproduct of desalinated water having a salinity concentration greater
than a desalination facility’s intake source water.”
8 Impingement occurs when marine organisms are trapped against screens or other
system components and die. Entrainment occurs when smaller marine organisms, such as
7
diffuser on the offshore end of the discharge pipeline about 1,500 feet offshore to
enhance brine mixing with seawater,” and to “[r]educe seawater intake volume . . . to
106.7 [million gallons per day] (approximately 30 percent less source water than the 152
[million gallons per day] volume approved by the [Lands] Commission in 2010).”
In 2017, Poseidon further amended its Lease Modification Project application to
the Lands Commission, this time to include a three-port brine diffuser rather than the
previously proposed brine diffuser. Poseidon also proposed to install stainless steel
wedgewire screens instead of copper nickel alloy screens.
The 2016 and 2017 amendments did not include proposed changes to the project’s
distribution system.
Actions to be Undertaken by Other Agencies
On October 3, 2016, the Lands Commission, the Santa Ana Regional Water
Quality Control Board (Regional Water Board), and the California Coastal Commission
entered into an interagency permit sequencing framework agreement. Under the
agreement, the Lands Commission agreed to consider the project “in connection with the
proposed amendment first at a properly noticed, public meeting.” “Consistent with the
requirements of [CEQA], the . . . Lands Commission shall rely on the 2010 . . .
Huntington Beach certified Subsequent [EIR] as well as prepare any additional
environmental analysis required by CEQA in connection with its consideration of the
Poseidon Project. The CEQA environmental analysis will be sufficient to address
Poseidon’s proposed seawater intake and discharge technology modifications to the
Project. The . . . Lands Commission will reasonably consider any comments by the
Coastal Commission and the [Regional Water Board] regarding the CEQA analysis
conducted by the . . . Lands Commission staff and will seek to obtain from each agency a
fish larvae, are taken in through the pipeline system and mechanical systems, temperature
increases, or toxic stress destroy all or most of the organisms.
8
sufficient description of the CEQA analysis of the proposed seawater intake and
discharge technology modifications to the Project that these agencies deem necessary for
them to rely on the . . . Lands Commission’s certified CEQA analysis.” The Regional
Water Board agreed to then consider Poseidon’s application for a National Pollutant
Discharge Elimination System (NPDES) permit and perform a Water Code section
13142, subdivision (b), compliance determination. The agreement further provided, “As
a CEQA Responsible Agency, the Regional Board shall consult, as necessary, with the
. . . Lands Commission regarding the areas of CEQA analysis it may require on
Poseidon’s proposed seawater intake and discharge technology modifications prior to the
release by the . . . Lands Commission of the CEQA analysis for public comment, and the
Regional Board agrees that, except as otherwise required by CEQA, in developing its
draft Tentative Order it can rely on the 2010 . . . Huntington Beach certified Subsequent
[EIR] in combination with CEQA analysis prepared and approved by the . . . Lands
Commission in its evaluation of Poseidon’s proposed seawater intake and discharge
technology modifications for the purposes of complying with CEQA.” Finally, the
Coastal Commission would consider Poseidon’s coastal development permit application.
2017 Supplemental EIR
The Lands Commission, as responsible agency, determined that the “proposed
Lease Modification Project may involve new significant environmental effects or a
substantial increase in the severity of previously identified significant impacts”; that the
“2010 [subsequent EIR], which was the subject of several levels of environmental review
through 2010, retains ‘relevance’ in light of the proposed modifications . . . and continues
to have ‘informational value’ consistent with the California Supreme Court’s ruling in
Error! Bookmark not defined.Friends of the College of San Mateo Gardens v. San
Mateo Community College District (2016) 1 Cal.5th 937 [(San Mateo Gardens)]”; and
that only “minor additions or changes would be necessary to make the previous EIR
adequately apply to the project in the changed circumstances.” (Italics added.) The
9
Lands Commission therefore determined that, pursuant to California Code of
Regulations, title 14, section 15163, it would prepare a supplemental EIR “to evaluate the
potential significant impacts associated with the Lease Modification Project.” 9
The Lands Commission completed a draft supplemental EIR dated May 2017. A
public hearing was conducted in June 2017. In October 2017, the Lands Commission
issued a final supplemental EIR consisting of 2,816 pages.
The 2017 supplemental EIR stated: “The current ‘project’ or proposed lease
amendment analyzed in this Supplemental EIR would modify the offshore components of
a seawater desalination facility that . . . Huntington Beach, as CEQA lead agency,
approved in September 2010. The [Lands] Commission subsequently approved an
amendment to [the] lease … that granted Poseidon a vested right[10] to use existing
subsea seawater intake and discharge pipelines during desalination operations at the City-
approved desalination plant through August 7, 2026 [citation]; from the [Land]
Commission’s perspective, its 2010 action continues to authorize desalination operations
on the lease premises under the terms of the lease even though [Poseidon] has not, to
date, received all permits needed to operate. The [Land] Commission’s only
consideration is the proposed modifications to the approved lease, not the larger
desalination plant project approved in 2010. Pursuant to . . . CEQA Guidelines section
15163, subdivision (e), before the [Lands] Commission can act on the new lease
amendment, the [Lands] Commission must consider the Final Subsequent EIR approved
9 Regulatory guidelines for CEQA, promulgated by the state Natural Resources Agency,
appear at California Code of Regulations, title 14, section 15000 et seq. (hereafter, in
text, CEQA Guidelines).
10 The parties refer to, and disagree about the status and significance of, any ongoing
vested right Poseidon has to construct the project. We reach the same conclusion as did
the trial court that this discussion has no relevance to the determinations we must make
here.
10
by . . . Huntington Beach in 2010 …, as revised by this Supplemental EIR, and must,
pursuant to . . . CEQA Guidelines section 15091, make a finding for each significant
effect shown in the previous EIR as revised for the portion of the project within the
[Lands] Commission’s jurisdiction.” (Italics added.)
With regard to its purpose and scope, the 2017 supplemental EIR stated: “The
purpose of this Supplemental EIR is to identify the potential significant impacts on the
environment from the Lease Modification Project, to identify alternatives that would
reduce the significant effects of this project, and to indicate the manner in which those
significant effects could be mitigated or avoided [citation]. This Supplemental EIR is
intended to provide the [Lands Commission] with information required to exercise its
jurisdictional responsibilities with respect to the Lease Modification Project . . . . The
scope of this Supplemental EIR is limited to evaluating the changes to the 2010 lease and
the incremental effects of those modifications, and should be read in conjunction with the
2010 [subsequent EIR]. The onshore facilities (which the City approved in 2010) are not
included in this analysis.” (Italics added.) That section continued: “A fundamental
consideration in identifying potential significant impacts is establishing the appropriate
baseline for the Supplemental EIR analysis. Impacts are identified by comparing changes
to the environment caused by Poseidon’s proposed Lease Modification Project activities
with the environmental conditions associated with the offshore portions of the intake and
discharge facilities analyzed in the 2010 [subsequent EIR]. Use of an appropriate
baseline is also important for establishing alternatives to the proposed activities that can
be analyzed in the Supplemental EIR. The alternatives need to be capable of reducing or
avoiding one or more significant impacts of the Lease Modification Project, but do not
need to address impacts associated with baseline conditions. The [Lands Commission]
must identify which components of a project are known or reasonably foreseeable; if it
finds that a particular impact is too speculative for evaluation, the [Lands Commission]
should note its conclusion and terminate discussion of the impact.”
11
In the Project Description, the supplemental EIR again stated: “This Supplemental
EIR addresses only the Lease Modification Project (i.e., the proposed modifications to
the approved 2010 Project that lie offshore within the [lease] footprint) which includes
one operational change and two physical modifications offshore intended to address
Santa Ana [Regional Water Quality Control Board] and [California Coastal Commission]
policies and regulations.” Again, the changes were the reduced intake of seawater, and
the installation of wedgewire screens and multiport diffusers “if the Santa Ana [Regional
Water Quality Control Board], pursuant to Water Code section 13142.5, subdivision (b),
determines subsurface intakes are not feasible, and brine cannot be diluted by wastewater
and there are no live organisms in the discharge—consistent with 2015 Ocean Plan
Desalination Amendment.”
The 2017 supplemental EIR incorporated by reference the 2010 final subsequent
EIR prepared by Huntington Beach.
The 2017 supplemental EIR further specified, “In 2013, after certification of the
2010 [subsequent EIR], two Independent Scientific and Technical Advisory Panels
(ISTAP[]) conducted a review of the feasibility of subsurface intake options for the
Huntington Beach Desalination Plant. The ISTAP completed a more detailed analysis of
an offshore Subsurface Infiltration Gallery, which was eliminated from further
consideration as an intake alternative in the 2010 [subsequent EIR]. The ISTAP findings
were considered in determining whether a Subsurface Infiltration Gallery should be
evaluated in this Supplemental EIR. Ultimately, it was eliminated from
consideration . . . .”
Alternatives actually evaluated in the 2017 supplemental EIR included a no-
project alternative, a rotating brush-cleaned stainless steel screen alternative, copper-
nickel alloy stationary wedgewire screens, and a six-port diffuser alternative. The Lands
Commission concluded that the “lease Modification Project with the Rotating Brush-
Cleaned, Stainless Steel Wedgewire Screens Alternative is the Environmentally
12
Superior Alternative.” The Lease Modification Project incorporated the modification
including rotating brush-cleaned stainless steel wedgewire screen manifolds with one
millimeter spacing at the end of the existing seawater intake pipeline.
Public Hearing & Statement of Findings and Overriding Considerations
On October 19, 2017, the Lands Commission held a public hearing. Among other
things, a representative of the Orange County Water District (OCWD) stated at the
hearing: “At this point in time, the district does not required [sic] changes to the
distribution system as studied in . . . Huntington Beach’s 2010 supplemental [sic] EIR.[11]
A final decision on integrating the desalinated water will come after the project has
received all of its permits, and based on those results, the district concludes the project is
technically and economically feasible.”
In a Statement of Findings and Overriding Considerations, the Lands Commission
stated: “The Commission has balanced the benefits of the Recommended Lease
Modification Project against the significant and unavoidable impacts that will remain
after selection of the approved project and with implementation of all feasible mitigation
in the Supplemental EIR that is adopted as enforceable conditions of the Commission’s
approval of the lease amendment. Based on all available information, the Commission
finds that the benefits of the approved Recommended Lease Modification Project
outweigh the significant and unavoidable adverse environmental effects, and considers
such effects acceptable. The Commission adopts and makes this Statement of Overriding
Considerations with respect to the impacts identified in the Supplemental EIR and these
Findings that cannot be reduced to a less-than-significant level. Each benefit set forth
above or described below constitutes an overriding consideration warranting approval of
the project, independent of the other benefits, despite each and every significant
11The 2010 final EIR prepared by Huntington Beach was a subsequent EIR (Cal. Code
Regs., tit. 14, § 15162), not a supplemental EIR (Cal. Code Regs., tit. 14, § 15163).
13
unavoidable impact.” The Lands Commission concluded: “The Commission has
considered the Final Supplemental EIR and all environmental impacts described therein
including those that cannot be mitigated to a less-than-significant level and those that
may affect Public Trust uses of State sovereign land. The Commission has considered
the[] economic, legal, social, environmental, and technological benefits of the
Recommended Lease Modification Project and has balanced them against the project’s
significant and unavoidable adverse environmental impacts and, based upon substantial
evidence in the record, has determined that the project’s benefits outweigh the adverse
environmental effects. Based on the foregoing and pursuant to . . . section 21081 and . . .
CEQA Guidelines section 15093, the Commission finds that the remaining significant
and unavoidable impacts of the Recommended Lease Modification Project are acceptable
considering the project’s economic, legal, social, environmental, and technical benefits.
Such benefits outweigh such significant and unavoidable impacts of the Recommended
Lease Modification Project and provide the substantive and legal basis for this Statement
of Overriding Considerations. [¶] The Commission finds that to the extent that any
impacts identified in the Final Supplemental EIR remain unmitigated, mitigation
measures have been required to the extent feasible, although the impacts could not be
reduced to a less-than-significant level. [¶] Based on the above discussion, the
Commission finds that the benefits of the Recommended Lease Modification Project
outweigh the significant and unavoidable impacts that could remain even after mitigation
is applied and considers such impacts acceptable.”
The Lands Commission approved the recommendation to certify the supplemental
EIR.
Petition for Writ of Mandate
Plaintiffs filed a petition for a writ of mandate asserting the Lands Commission
failed to comply with the requirements of CEQA in certifying the final 2017
14
supplemental EIR and in approving the lease amendment.12 Plaintiffs asserted that the
Lands Commission violated CEQA Guidelines, specifically CEQA Guidelines section
15052, subdivision (a), by failing to assume the role of lead agency in undertaking
additional CEQA review. They further asserted that the Lands Commission violated
CEQA Guidelines sections 15162 and 15163 by purportedly “ignoring its requirement to
conduct a Subsequent EIR rather than a Supplemental EIR.” Plaintiffs asserted that, in
light of substantial changes proposed for the project, substantial changes to the
surrounding circumstances, and new information of substantial importance, the Lands
Commission should have performed a full EIR as lead agency. According to plaintiffs,
the manner in which the Lands Commission proceeded led to unlawful segmentation of
the environmental review process in violation of CEQA. They asserted that this
piecemeal approach is precisely what CEQA seeks to avoid, and it undermines the
public’s ability to obtain a fully informed evaluation of the project. Plaintiffs maintained
that the Lands Commission’s failure to satisfy its CEQA obligations constituted a
prejudicial abuse of discretion.
Trial Court’s Judgment Denying Writ Petition
The trial court denied the writ petition in its entirety. We need not go into detail
concerning the trial court’s determinations. “An appellate court’s review of the
administrative record for legal error and substantial evidence in a CEQA case, as in other
mandamus cases, is the same as the trial court’s: The appellate court reviews the
agency’s action, not the trial court’s decision; in that sense appellate judicial review
under CEQA is de novo.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City
of Rancho Cordova (2007) 40 Cal. 4th 412, 427 (Vineyard Area Citizens).)
12 Plaintiffs also raised claims addressed to the Public Trust Doctrine. Because those
claims are not at issue on this appeal, we do not discuss them here.
15
DISCUSSION
I. CEQA Framework and Standard of Review
Through CEQA, “ ‘the Legislature sought to protect the environment by the
establishment of administrative procedures drafted to “[e]nsure that the long-term
protection of the environment shall be the guiding criterion in public decisions.” ’
[Citation.] At the ‘heart of CEQA’ [citation] is the requirement that public agencies
prepare an EIR for any ‘project’ that ‘may have a significant effect on the environment.’
[Citations.] The purpose of the EIR 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.’ [Citation.] The EIR
thus works to ‘inform the public and its responsible officials of the environmental
consequences of their decisions before they are made,’ thereby protecting ‘ “not only the
environment but also informed self-government.” ’ ” (San Mateo Gardens, supra, 1
Cal.5th at p. 944.)
“To ensure that governmental agencies and the public are adequately informed
about the environmental impact of public decisions, [CEQA] [citation] requires a lead
agency [citation] to prepare an [EIR] before approving a new project that ‘may have a
significant effect on the environment.’ ” (San Mateo Gardens, supra, 1 Cal.5th at
p. 943.) “ ‘Lead agency’ means the public agency which has the principal responsibility
for carrying out or approving a project. The lead agency will decide whether an EIR or
negative declaration will be required for the project and will cause the document to be
prepared.” (Cal. Code Regs., tit. 14, § 15367; accord, § 21067.)
“ ‘Responsible agency’ means a public agency which proposes to carry out or
approve a project, for which a lead agency is preparing or has prepared an EIR or
negative declaration. For the purposes of CEQA, the term ‘responsible agency’ includes
all public agencies other than the lead agency which have discretionary approval power
16
over the project.” (Cal. Code Regs., tit. 14, § 15381; accord, § 21069.) “Alternatively
stated, ‘[r]esponsible agencies are agencies, other than the lead agency, that have some
discretionary authority for carrying out or approving a project. [Citation.] Responsible
agencies generally rely on the information in the CEQA document prepared by the lead
agency [e.g., an EIR] and ordinarily are not allowed to prepare a separate EIR or negative
declaration. [Citations.] Further, while the lead agency is responsible for considering all
environmental impacts of the project before approving it, a responsible agency has a
more specific charge: to consider only those aspects of a project that are subject to the
responsible agency’s jurisdiction.’ ” (RiverWatch v. Olivenhain Municipal Water Dist.
(2009) 170 Cal.App.4th 1186, 1201.)
We review an agency’s CEQA determination for prejudicial abuse of discretion.
(Vineyard Area Citizens, supra, 40 Cal.4th at p. 426; § 21168.5.) “ ‘[A]n agency may
abuse its discretion under CEQA either by failing to proceed in the manner CEQA
provides or by reaching factual conclusions unsupported by substantial evidence.
[Citation.] 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. In reviewing
for substantial evidence, 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.” ’ ” (Banning Ranch Conservancy v. City of
Newport Beach (2017) 2 Cal.5th 918, 935 (Banning Ranch).)
II. Substantial Evidence Supporting the Decision to Prepare a Supplemental EIR
A. Parties’ Contentions
The Lands Commission asserts that plaintiffs are attempting to reframe the
relevant issues in order to invoke a more favorable standard of review. The Lands
17
Commission asserts that the issue is not whether it should have stepped into the role of
lead agency or whether the environmental review was improperly piecemealed. Rather,
according to the Lands Commission, the issue is whether substantial evidence supported
its determination to proceed by supplemental EIR. The Lands Commission and Poseidon
assert that substantial evidence supports the Land Commission’s analysis of the lease
modification using its supplemental EIR coupled with Huntington Beach’s 2010
subsequent EIR. The Lands Commission asserts that it determined: (1) the 2010
subsequent EIR retained informational value, and (2) it was appropriate to rely on a
supplemental EIR to analyze the changes to the project and approve the proposed
modifications. The Lands Commission further asserts that its determinations were
supported by substantial evidence, and that plaintiffs failed to show any prejudice
resulting from its actions.
In order to address plaintiffs’ contentions as to whether the Lands Commission
was required to assume the role of lead agency, as well as to provide necessary context
for a discussion of piecemealing, it is necessary to consider the various types of
subsequent environmental review under CEQA and whether the Lands Commission
properly proceeded via supplemental EIR instead of a subsequent EIR.
B. CEQA Subsequent and Supplemental Review
1. Subsequent Review Generally and “Subsequent” EIRs
“When an [EIR] has been prepared for a project pursuant to [CEQA], no
subsequent or supplemental [EIR] shall be required by the lead agency or by any
responsible agency, unless one or more of the following events occurs: [¶] (a)
Substantial changes are proposed in the project which will require major revisions of the
[EIR]. [¶] (b) Substantial changes occur with respect to the circumstances under which
the project is being undertaken which will require major revisions in the [EIR]. [¶] (c)
New information, which was not known and could not have been known at the time the
18
[EIR] was certified as complete, becomes available.” (§ 21166, italics added; accord,
Error! Bookmark not defined.San Mateo Gardens, supra, 1 Cal.5th at p. 943.)
CEQA Guidelines section 15162, subdivision (a), applicable specifically to
subsequent EIRs, provides: “When an EIR has been certified or a negative declaration
adopted for a project, no subsequent EIR shall be prepared for that project unless the lead
agency determines, on the basis of substantial evidence in the light of the whole record,
one or more of the following: [¶] (1) Substantial changes are proposed in the project
which will require major revisions of the previous EIR or negative declaration due to the
involvement of new significant environmental effects or a substantial increase in the
severity of previously identified significant effects; [¶] (2) Substantial changes occur
with respect to the circumstances under which the project is undertaken which will
require major revisions of the previous EIR or negative declaration due to the
involvement of new significant, environmental effects or a substantial increase in the
severity of previously identified significant effects; or [¶] (3) New information of
substantial importance, which was not known and could not have been known with the
exercise of reasonable diligence at the time the previous EIR was certified as complete or
the negative declaration was adopted, shows any of the following: [¶] (A) The project
will have one or more significant effects not discussed in the previous EIR or negative
declaration; [¶] (B) Significant effects previously examined will be substantially more
severe than shown in the previous EIR; [¶] (C) Mitigation measures or alternatives
previously found not to be feasible would in fact be feasible and would substantially
reduce one or more significant effects of the project, but the project proponents decline to
adopt the mitigation measure or alternative; or [¶] (D) Mitigation measures or
alternatives which are considerably different from those analyzed in the previous EIR
would substantially reduce one or more significant effects on the environment, but the
project proponents decline to adopt the mitigation measure or alternative.”
19
Subdivision (c) of CEQA Guidelines section 15162 provides: “Once a project has
been approved, the lead agency’s role in project approval is completed, unless further
discretionary approval on that project is required. Information appearing after an
approval does not require reopening of that approval. If after the project is approved, any
of the conditions described in subdivision (a) occurs, a subsequent EIR or negative
declaration shall only be prepared by the public agency which grants the next
discretionary approval for the project, if any. In this situation no other responsible
agency shall grant an approval for the project until the subsequent EIR has been certified
or subsequent negative declaration adopted.”
Our high court examined the subsequent review process in depth in San Mateo
Gardens, supra, 1 Cal.5th 937. The court explained: “when an agency proposes changes
to a previously approved project, CEQA Guidelines section 15162 generally prohibits the
agency from requiring a subsequent or supplemental EIR unless the agency determines,
‘on the basis of substantial evidence in the light of the whole record,’ that ‘[s]ubstantial
changes . . . will require major revisions of the previous EIR or negative declaration due
to the involvement of new significant environmental effects or a substantial increase in
the severity of previously identified significant effects.’ ” (Id. at p. 957, quoting Cal.
Code Regs., tit. 14, § 15162, subd. (a).) “[T]he substantial evidence test referred to in the
Guidelines does not . . . refer to substantial evidence that the project, as modified, will
necessarily have significant environmental effects. It instead refers to substantial
evidence that the proposed modifications will involve ‘[s]ubstantial changes’ that ‘require
major revisions of the previous EIR or negative declaration due to the involvement’ of
new or significantly more severe environmental effects.” (San Mateo Gardens, at p. 957,
quoting Cal. Code Regs., tit. 14, § 15162, subd. (a).)
Our high court further noted the limitations in section 21166 and CEQA
Guidelines section 15162 concerning the limited circumstances under which subsequent
review must be prepared “are designed to balance CEQA’s central purpose of promoting
20
consideration of the environmental consequences of public decisions with interests in
finality and efficiency.” (San Mateo Gardens, supra, 1 Cal.5th at p. 949.) “ ‘The
purpose behind the requirement of a subsequent or supplemental EIR . . . is to explore
environmental impacts not considered in the original environmental document . . . . The
event of a change in a project is not an occasion to revisit environmental concerns laid to
rest in the original analysis. Only changed circumstances . . . are at issue.’ ” (Ibid.) “ ‘In
a case in which an initial EIR has been certified, section 21166 comes into play precisely
because in-depth review of the project has already occurred, the time for challenging the
sufficiency of the original CEQA document has long since expired, and the question
before the agency is whether circumstances have changed enough to justify repeating a
substantial portion of the process.’ ” (San Mateo Gardens, at p. 956.)
The San Mateo Gardens court further explained: “The subsequent review
provisions . . . are . . . designed to ensure that an agency that proposes changes to a
previously approved project ‘explore[s] environmental impacts not considered in the
original environmental document.’ ” (San Mateo Gardens, supra, 1 Cal.5th at p. 951.)
“This assumes that at least some of the environmental impacts of the modified project
were considered in the original environmental document, such that the original document
retains some relevance to the ongoing decisionmaking process. A decision to proceed
under CEQA’s subsequent review provisions must thus necessarily rest on a
determination—whether implicit or explicit—that the original environmental document
retains some informational value. If the proposed changes render the previous
environmental document wholly irrelevant to the decisionmaking process, then it is only
logical that the agency start from the beginning under section 21151 by conducting an
initial study to determine whether the project may have substantial effects on the
environment.” (San Mateo Gardens, at p. 951.)
Thus, “under CEQA, when there is a change in plans, circumstances, or available
information after a project has received initial approval, the agency’s environmental
21
review obligations ‘turn[ ] on the value of the new information to the still pending
decisionmaking process.’ [Citation.] If the original environmental document retains
some informational value despite the proposed changes, then the agency proceeds to
decide under CEQA’s subsequent review provisions whether project changes will require
major revisions to the original environmental document because of the involvement of
new, previously unconsidered significant environmental effects.” (San Mateo Gardens,
supra, 1 Cal.5th at pp. 951-952, fns. omitted.) “[W]hether an initial environmental
document remains relevant despite changed plans or circumstances—like the question
whether an initial environmental document requires major revisions due to changed plans
or circumstances—is a predominantly factual question. It is thus a question for the
agency to answer in the first instance, drawing on its particular expertise. [Citation.] A
court’s task on review is then to decide whether the agency’s determination is supported
by substantial evidence; the court’s job ‘ “ ‘is not to weigh conflicting evidence and
determine who has the better argument.’ ” ’ ” (Id. at pp. 952-953.)
As for a reviewing court’s substantial evidence review, the San Mateo Gardens
court cautioned, “[w]e expect occasions when a court finds no substantial evidence to
support an agency’s decision to proceed under CEQA’s subsequent review provisions
will be rare, and rightly so; ‘a court should tread with extraordinary care’ before
reversing an agency’s determination, whether implicit or explicit, that its initial
environmental document retains some relevance to the decisionmaking process.” (San
Mateo Gardens, supra, 1 Cal.5th at p. 953, fn. omitted.)
2. “Supplemental” Review Distinguished from “Subsequent” Review
CEQA Guidelines section 15163 provides, in pertinent part: “(a) The lead or
responsible agency may choose to prepare a supplement to an EIR rather than a
subsequent EIR if: [¶] (1) Any of the conditions described in Section 15162 would
require the preparation of a subsequent EIR, and [¶] (2) Only minor additions or
changes would be necessary to make the previous EIR adequately apply to the project in
22
the changed situation. [¶] (b) The supplement to the EIR need contain only the
information necessary to make the previous EIR adequate for the project as revised.”
(Cal. Code Regs., tit. 14, § 15163, subds. (a), (b); see City of Irvine v. County of Orange
(2015) 238 Cal.App.4th 526, 539 (City of Irvine); City of San Jose v. Great Oaks Water
Co. (1987) 192 Cal.App.3d 1005, 1016.)
Under CEQA Guidelines section 15163 “if there has been a substantial change,
which would otherwise require a subsequent EIR under CEQA Guidelines section 15162,
but ‘[o]nly minor additions or changes would be necessary to make the previous EIR
adequately apply to the project in the changed situation,’ then the lead agency has the
discretion (the key phrase is ‘may choose’) [citation] to prepare a supplemental EIR that
‘need contain only the information necessary to make the previous EIR adequate for the
project as revised.’ ” (City of Irvine, supra, 238 Cal.App.4th at p. 539.) Thus, CEQA
Guidelines section 15163 applies when “an EIR can be made adequate by additions or
changes that respond to a limited set of issues” whereas a subsequent EIR is necessary
“[w]hen the previous EIR must be rewritten from the ground up to make its
environmental analysis adequate.” (2 Kostka & Zischke, Practice Under the Cal.
Environmental Quality Act (Cont.Ed.Bar 2d ed. 2019) § 19.5, p. 19-9.)13 “Regardless,
the supplemental EIR must still be ‘given the same kind of notice and public review’ as
an initial draft EIR.” (City of Irvine, at p. 539.)
C. Informational Value of the 2010 Subsequent EIR
“If no action or proceeding alleging that an [EIR] does not comply with the
provisions of [CEQA] is commenced during the period prescribed in subdivision (c) of
13 A third type of subsequent review, an addendum pursuant to CEQA Guidelines
section 15164, is appropriate where some changes or additions to a previously certified
EIR “are necessary but none of the conditions described in Section 15162 calling for
preparation of a subsequent EIR have occurred.” (Cal. Code Regs., tit. 14, § 15164,
subd. (a).) Addenda are not at issue here.
23
Section 21167, the [EIR] shall be conclusively presumed to comply with the provisions
of [CEQA] for purposes of its use by responsible agencies, unless the provisions of
Section 21166 are applicable.” (§ 21167.2.) Huntington Beach’s 2010 subsequent EIR
was never challenged, and thus it was conclusively presumed to comply with CEQA for
purposes of its use by the Lands Commission. (§ 21167.2.)
The Lands Commission determined that Huntington Beach’s “2010 subsequent
EIR . . . retains ‘relevance’ in light of the proposed modifications to [the lease] and
continues to have ‘informational value’ consistent with” San Mateo Gardens, supra, 1
Cal.5th at pages 951 and 952. Based on the changes Poseidon sought to make through
the Lease Modification Project, the Lands Commission further determined that only
minor additions or changes would be needed to make the 2010 subsequent EIR
adequately applicable to the project in the changed circumstances. (Cal. Code Regs., tit.
14, § 15163, subds. (a)(2), (b).) Consequently, the Lands Commission determined that a
supplemental EIR pursuant to CEQA Guidelines section 15163 would suffice.
The parties agree, [“no party has ever disputed that most of the certified 2010 EIR
remains relevant”]; [“everyone agrees that the prior 2010 EIR prepared by . . .
Huntington Beach retains substantial informational value . . . .”] as do we, that the 2010
subsequent EIR retained “some informational value.” (San Mateo Gardens, supra, 1
Cal.5th at pp. 951, 952.) Accordingly, the Lands Commission properly “proceed[ed] to
decide under CEQA’s subsequent review provisions whether project changes will require
major revisions to the original environmental document because of the involvement of
new, previously unconsidered significant environmental effects.” (Id. at p. 952, fn.
omitted.)
Having determined substantial evidence supports the decision to proceed under
CEQA’s subsequent review provisions, “the next—and critical—step is to determine
whether the agency has properly determined how to comply with its obligations under
those provisions.” (San Mateo Gardens, supra, 1 Cal.5th at p. 953.)
24
D. The Decision to Prepare a Supplemental EIR
CEQA Guidelines section 15163’s “may choose” language provides discretion to
choose between proceeding by way of supplemental EIR instead of subsequent EIR, and
that choice is to be evaluated under a reasonableness standard. (City of Irvine, supra, 238
Cal.App.4th at pp. 539-540.) The question of whether the Lands Commission acted
reasonably in electing to proceed by way of a supplemental EIR is a fact-based inquiry
into whether its determination was supported by substantial evidence. It does not present
a question as to whether the Lands Commission failed to proceed in the manner CEQA
provides. (See generally Banning Ranch, supra, 2 Cal.5th at p. 935 [an “agency may
abuse its discretion under CEQA either by failing to proceed in the manner CEQA
provides or by reaching factual conclusions unsupported by substantial evidence”].)
“ ‘[S]ubstantial evidence’ is defined by the CEQA Guidelines to mean ‘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.’ ” (Nelson v. County of Kern (2010) 190 Cal.App.4th 252, 282 (Nelson),
quoting Cal. Code Regs., tit. 14, § 15384, subd. (a).) “Substantial evidence includes
‘facts, reasonable assumptions predicated upon facts, and expert opinion supported by
facts,’ but does not include ‘[a]rgument, speculation, unsubstantiated opinion or
narrative, [or] evidence which is clearly erroneous or inaccurate.’ ” (Nelson, at p. 282,
quoting Cal. Code Regs., tit. 14, § 15384, subds. (b), (a).)
The contemplated changes to the project, from the 2010 iteration to the 2017
version, represented by the Lease Modification Project, were: (1) the installation of one-
millimeter stainless steel wedgewire screens, (2) the installation of three-port diffusers to
diffuse the brine as it reentered the ocean and mixed with seawater, and (3) a reduction in
the seawater intake volume from 152 million gallons per day to 106.7 million gallons per
day. These changes were responsive to provisions of the Desalination Amendment.
25
We conclude that substantial evidence supports the Land Commission’s
determination that the foregoing changes, considered in the context of the project as a
whole, would necessitate “[o]nly minor additions or changes . . . to make the previous
EIR adequately apply to the project in the changed situation.” (Cal. Code Regs., tit. 14,
§ 15163, subd. (a)(2).) Accordingly, we conclude that the Lands Commission did not
prejudicially abuse its discretion in electing to proceed via supplemental EIR pursuant to
CEQA Guidelines section 15163 as opposed to the more comprehensive subsequent EIR
pursuant to CEQA Guidelines section 15162.
In fact, plaintiffs do not argue that it was a prejudicial abuse of discretion to
proceed by supplemental EIR pursuant to CEQA Guidelines section 15163 instead of
subsequent EIR pursuant to CEQA Guidelines section 15162, although they do seem to
largely disregard any distinction between the two, as we discuss post. Rather, plaintiffs’
argument is that this election did not relieve the Lands Commission of its responsibility
to assume the role of lead agency.14
III. Assumption of Lead Agency Status
Plaintiffs assert that the Lands Commission erred in refusing to assume the role of
lead agency and perform the attendant obligations. Huntington Beach completed its
14 Poseidon repeatedly asserts that plaintiffs’ failure to set out substantial evidence
supporting the Lands Commission’s determinations forfeits any substantial evidence
arguments and that such failure is fatal to plaintiffs’ appeal. The Lands Commission
echoes this contention. “ ‘ “As with all substantial evidence challenges, an appellant
challenging an EIR for insufficient evidence must lay out the evidence favorable to the
other side and show why it is lacking. Failure to do so is fatal. A reviewing court will
not independently review the record to make up for appellant’s failure to carry his
burden.” ’ ” (Citizens for Positive Growth & Preservation v. City of Sacramento (2019)
43 Cal.App.5th 609, 632 (Citizens for Positive Growth).) The Lands Commission also
asserts that plaintiffs’ failure to address the substantial evidence question is fatal to their
claims. In light of the manner in which plaintiffs have couched their claims, we address
the merits of their contentions.
26
CEQA obligations in 2010. According to plaintiffs, when the original lead agency has
completed its statutory obligations, but project changes or new information require
additional environmental review, the next public agency to take discretionary action on
the project, here the Lands Commission, “shall” step into the role of lead agency.
Plaintiffs argue that “[t]his mandatory shift in lead agency status is critical to ensuring
that only a single updated EIR for the project is prepared, certified, and available for use
by all other approving agencies and that the courts have a single updated EIR to review.”
They further assert that “the lead agency role requires the preparation of a single updated
EIR that adequately addresses all necessary facets of the project as a whole.” Plaintiffs
assert that all requirements of CEQA Guidelines section 15052, subdivision (a),
governing assumption of lead agency status, were satisfied, thus requiring the Lands
Commission to step in as lead agency. Plaintiffs assert that the Lands Commission’s
refusal to do so was a legal error that resulted in the unlawful segmentation of the
updated CEQA analysis.
CEQA Guidelines section 15052, subdivision (a)(2), provides: “Where a
responsible agency is called on to grant an approval for a project subject to CEQA for
which another public agency was the appropriate lead agency, the responsible agency
shall assume the role of the lead agency when any of the following conditions occur: [¶]
. . . [¶] (2) The lead agency prepared environmental documents for the project, but the
following conditions occur: [¶] (A) A subsequent EIR is required pursuant to Section
15162, [¶] (B) The lead agency has granted a final approval for the project, and [¶] (C)
The statute of limitations for challenging the lead agency’s action under CEQA has
expired.” (Italics added.)
Contrary to plaintiffs’ contentions, CEQA Guidelines section 15052 did not
mandate that the Lands Commission assume lead agency status under the circumstances
presented here. As we have concluded, substantial evidence supported the Lands
Commission’s election to prepare a supplemental EIR instead of a subsequent EIR
27
because the changes to the project would only necessitate “minor additions or changes
. . . to make the previous EIR adequately apply to the project in the changed situation.”
(Cal. Code Regs., tit. 14, § 15163, subd. (a).) Because, under these circumstances, the
Lands Commission could properly elect to proceed via supplemental EIR and forego
preparing a subsequent EIR, one of the requirements of CEQA Guidelines section 15052,
subdivision (a)(2), was not satisfied: that “[a] subsequent EIR is required pursuant to
Section 15162.” (Cal. Code Regs., tit. 14, § 15052, subd. (a)(2)(A), italics added.) And
because this requirement was not satisfied, the obligation imposed by CEQA Guidelines
section 15052, subdivision (a)(2), that a former responsible agency step in as lead agency,
was inapplicable.
In their briefing, plaintiffs avoid the import of the regulatory language by
paraphrasing critical segments rather than quoting it. Plaintiffs assert, for example, that
CEQA Guidelines section 15052, subdivision (a), “command[s] that the next public
agency to make a discretionary decision ‘shall assume the role of the Lead Agency’ when
(i) additional CEQA review is necessary, (ii) the original lead agency has issued its final
approval, and (iii) the statute of limitations for the original EIR has expired.” (Italics
added.) Plaintiffs elsewhere assert that CEQA Guidelines sections 15162, subdivision
(c), and 15052, subdivision (a)(2), establish that “when the original lead agency has
completed its statutory duties, but project changes or new information require additional
environmental review, the next public agency to take discretionary action on the project
shall step into the role of the ‘lead agency.’ ” (Italics added.) However, in these
characterizations, plaintiffs omit the specific regulatory language concerning the
requirement of a “subsequent EIR” (Cal. Code Regs., tit. 14, § 15052, subd. (a)(2)), a
requirement we consider controlling here. Thus, plaintiffs’ assertion that “[a]ll three of
the[] conditions” in CEQA Guidelines section 15052, subdivision (a)(2), are satisfied
here is wrong. If the provision requiring a responsible agency to step in as lead agency
was to apply to circumstances where only a supplemental EIR was required pursuant to
28
CEQA Guidelines section 15163, CEQA Guidelines section 15052, subdivision (a)(2),
would have so specified.
Curiously, plaintiffs’ main argument on this point was relegated to a footnote.
According to plaintiffs, “there is no dispute that the first condition listed in section
15052(a) – ‘[a] subsequent EIR is required pursuant to Section 15162’ – is satisfied here.
CEQA section 21166 identifies those circumstances that trigger the requirement for a
‘subsequent or supplemental’ EIR.” The footnote continued: “An agency’s election to
prepare a supplemental rather than a subsequent EIR, once the subsequent EIR
requirement is triggered, does not abrogate its obligation to assume lead agency status
for the whole project undersection 15052(a). The substitute lead agency obligation
applies whenever a subsequent EIR is required, and a subsequent EIR is always required
before an agency elects to prepare a more limited supplemental EIR, as the Lands
Commission did here. Thus, whether the next agency taking discretionary action labels
its CEQA document a subsequent or supplemental EIR, it must assume lead agency status
under section 15052(a) and complete a single, legally adequate analysis for the whole
project.” (Italics added.)
We understand plaintiffs’ footnoted argument, but conclude it is wrong. Where
the circumstances permit an agency to prepare a supplemental EIR rather than a
subsequent EIR because, among other things, “[o]nly minor additions or changes would
be necessary to make the previous EIR adequately apply to the project in the changed
situation,” then a subsequent EIR necessarily is not required. Therefore, the predicate to
CEQA Guidelines section 15052 that “[a] subsequent EIR is required pursuant to Section
15162,” is not satisfied. (Cal. Code Regs., tit. 14, § 15052, subd. (a)(2)(A), italics
added.) We do not read these regulations to mean, in effect, that a project with a changed
situation that qualifies for treatment by a supplemental EIR also retains the quality of
requiring a subsequent EIR because CEQA Guidelines section 15163, subdivision (a)(1),
conditions that subdivision’s applicability to circumstances where “[a]ny of the
29
conditions described in Section 15162 would require the preparation of a subsequent
EIR.” In other words, we do not agree with plaintiffs that, where a supplemental EIR is
appropriate pursuant to CEQA Guidelines section 15163, a subsequent EIR is also
required. Instead, we view the option to proceed by a supplement to the EIR where the
required circumstances are present as an exception to the requirement for a subsequent
EIR.
Our reading of CEQA Guidelines section 15052, subdivision (a), is buttressed by
statutory and regulatory language indicating a supplemental EIR may be prepared by a
responsible agency. As we have noted, section 21166 provides in pertinent part: “When
an [EIR] has been prepared for a project . . . , no subsequent or supplemental [EIR] shall
be required by the lead or by any responsible agency” unless one of several triggering
conditions occur. Thus, as the italicized language makes clear, a supplemental EIR can
be prepared by a responsible agency. Consistent with the statutory language, subdivision
(a) of CEQA Guidelines section 15163 expressly provides in pertinent part: “The lead or
responsible agency may choose to prepare a supplement to an EIR rather than a
subsequent EIR . . . .” (Italics added.) CEQA Guidelines section 15096(f), addressing
the duties of a responsible agency, provides that a responsible agency can prepare a
supplemental EIR as provided in section 15163. Thus, the statutory and regulatory
language clearly contemplates that responsible agencies can prepare supplemental EIRs
under the appropriate circumstances and need not assume the lead agency status to do so.
Consequently, we disagree with plaintiffs’ assertion that “[a]n agency’s election to
prepare a supplemental rather than a subsequent EIR, once the subsequent EIR
requirement is triggered, does not abrogate its obligation to assume lead agency status for
the whole project under section 15052(a).” Instead, we conclude that the regulations do
exactly that. Where the election to prepare a supplemental EIR is proper, we conclude
that the determination to do so does indeed remove the subsequent review from the scope
of the CEQA Guidelines section 15052 requirement to step in as lead agency. We read
30
CEQA Guidelines section 15052, subdivision (a)(2), to mean what it says, limiting its
application to cases where, among other things, “[a] subsequent EIR is required pursuant
to Section 15162.” (Cal. Code Regs., tit. 14, § 15052, subd. (a)(2)(A).) That is not the
case here. And we read subdivision (a) of CEQA Guidelines section 15163 allowing a
responsible agency to proceed by a supplemental EIR to also mean what it says, thus, the
Lands Commission did not violate CEQA by preparing the supplemental EIR without
assuming lead agency status.
Plaintiffs assert that, notwithstanding its refusal to assume lead agency status, the
Lands Commission nonetheless acted like a lead agency. Plaintiffs assert: “the
Commission behaved like a CEQA lead agency in all other respects: It circulated a
Notice of Preparation and held an initial CEQA scoping meeting [citation], issued a
2,163-page Draft EIR for public review [citation], filed a Notice of Completion for the
Draft EIR with the Office of Planning and Research [citation], accepted and responded to
public and other agency comments [citation], produced a 2,181-page Final EIR [citation],
issued a Notice of Availability and Intent to Consider Certification of the Final EIR
[citation], held a final approval hearing where it made extensive CEQA Findings,
certified the Final EIR, and adopted a Statement of Overriding Considerations for the
Project’s significant and unavoidable impacts [citation], and filed a final Notice of
Determination with the State Clearinghouse.” Contrary to plaintiffs’ argument, we
conclude the Lands Commission acted like a responsible agency preparing a supplement
to the EIR under CEQA Guidelines section 15163, subdivision (a). As a responsible
agency, the Lands Commission’s actions fulfilled the requirement that “the supplemental
EIR . . . be ‘given the same kind of notice and public review’ as an initial draft EIR.”
(City of Irvine, supra, 238 Cal.App.4th at p. 539, fn. omitted, quoting Cal. Code Regs.,
tit. 14, § 15163, subd. (c).)
We conclude that the Lands Commission did not fail to proceed in the manner
CEQA provides by declining to assume the role of lead agency.
31
IV. Unlawful Piecemealing/Segmentation Review
A. Asserted Improper Piecemealing
1. Plaintiffs’ Contentions
Plaintiffs assert that, in “cleaving off the ‘Lease Modification Project’ as a
separate, discrete CEQA activity subject to a narrowly-drawn EIR, the Lands
Commission acted contrary to decades of case law interpreting the statute and
regulations.” Plaintiffs invoke the rule that CEQA forbids piecemeal review of
significant environmental impacts of a project, and that the EIR must consider the
individual and collective effects of all activities associated with a project. Plaintiffs
further assert that an agency drafting an EIR cannot defer parts of the review to other
agencies. According to plaintiffs, the Lands Commission’s failure to undertake EIR
review beyond the limited scope actually performed, and the omission of analyses of,
among other things, feasible alternatives, violated CEQA. We disagree.
2. Piecemealing Defined
“ ‘CEQA mandates that environmental considerations [do] not become submerged
by chopping a large project into many little ones, each with a potential impact on the
environment, which cumulatively may have disastrous consequences. [Citation.] CEQA
attempts to avoid this result by defining the term “project” broadly. [Citation.] A project
under CEQA is the whole of an action which has a potential for resulting in a physical
change in the environment, directly or ultimately, and includes the activity which is being
approved and which may be subject to several discretionary approvals by governmental
agencies.’ ” (East Sacramento Partnerships for a Livable City v. City of Sacramento
(2016) 5 Cal.App.5th 281, 293 (East Sacramento).)
“The process of attempting to avoid a full environmental review by splitting a
project into several smaller projects, which appear more innocuous than the total planned
project, is referred to as ‘piecemealing.’ [Citation.] Our Supreme Court set forth the
relevant standard: ‘We hold that an EIR must include an analysis of the environmental
32
effects of future expansion or other action if: (1) it is a reasonably foreseeable
consequence of the initial project; and (2) the future expansion or action will be
significant in that it will likely change the scope or nature of the initial project or its
environmental effects. Absent these two circumstances, the future expansion need not be
considered in the EIR for the proposed project.’ ” (East Sacramento, supra, 5
Cal.App.5th at p. 293, quoting Laurel Heights Improvement Assn. v. Regents of
University of California (1988) 47 Cal.3d 376, 396, italics added.)
“Improper piecemealing occurs ‘when the purpose of the reviewed project is to be
the first step toward future development’ or ‘when the reviewed project legally compels
or practically presumes completion of another action.’ [Citation.] By contrast, an EIR
need not analyze ‘specific future action that is merely contemplated or a gleam in a
planner’s eye. To do so would be inconsistent with the rule that mere feasibility and
planning studies do not require an EIR.’ ” (East Sacramento, supra, 5 Cal.App.5th at
p. 293.)
3. Analysis
a. Piecemealing
Here, the Lands Commission determined that only a supplemental EIR pursuant to
CEQA Guidelines section 15163 was required, a determination supported by substantial
evidence as we concluded, ante. “A supplement to an EIR ‘need contain only the
information necessary to make the previous EIR adequate for the . . . project as revised’
and ‘may be circulated by itself without recirculating the previous draft or final EIR.’ ”
Melom v. City of Madera (2010) 183 Cal.App.4th 41, 57 (Melom), quoting Cal. Code
Regs., tit. 14, § 15163, subds. (b) & (d); accord, City of Irvine, supra, 238 Cal.App.4th at
p. 539.) The supplemental EIR here satisfied that requirement.
As we noted ante, the 2010 subsequent EIR prepared by Huntington Beach, which
was never legally challenged, is conclusively presumed to comply with CEQA for
purposes of its use by the Lands Commission. (§ 21167.2; accord, Laurel Heights
33
Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1130;
Save Berkeley’s Neighborhoods v. Regents of the University of California (2020) 51
Cal.App.5th 226, 236.) That EIR analyzed the project in its entirety as of 2010. The
2017 supplemental EIR incorporated by reference the 2010 subsequent EIR.
Subsequent changed circumstances since the 2010 subsequent EIR included the
unforeseeable enactment of the Desalination Amendment. The resulting proposed
changes to the project were: (1) the installation of one-millimeter stainless steel
wedgewire screens, (2) the installation of three-port diffusers, and (3) a reduction in the
seawater intake volume from 152 million gallons per day to 106.7 million gallons per
day. The Lands Commission in its 2017 supplemental EIR was only required to analyze
these changes to the project. The purpose behind a supplemental EIR is to explore
environmental impacts not considered in the original environmental document. (San
Mateo Gardens, supra, 1 Cal.5th at p. 949, quoting Save Our Neighborhood v. Lishman
(2006) 140 Cal.App.4th 1288, 1296) “The event of a change in a project is not an
occasion to revisit environmental concerns laid to rest in the original analysis. Only
changed circumstances . . . are at issue.’ ” (Ibid.) As stated in the EIR, the Lands
Commission, “in its continuing role as responsible agency and consistent with . . . CEQA
Guidelines section 15163, is evaluating the incremental differences between the approved
2010 Project and the proposed Lease Modification Project when evaluating whether such
modifications would result in any significant environmental impacts.”
The Lands Commission’s 2017 supplemental EIR analyzed the potential
significant environmental impacts of the three proposed changes effected through the
Lease Modification Project. It identified environmental issues analyzed in the 2010
subsequent EIR, issues analyzed in the 2017 supplemental EIR, and issues “found not to
be substantially affected by the Lease Modification Project.” Issues identified as
addressed in the 2017 supplemental EIR included, “Ocean Water Quality and Marine
Biological Resources,” “Aesthetics/Light & Glare,” “Air Quality,” “Cultural Resources,”
34
“Cultural Resources – Tribal,” “Greenhouse Gas Emissions,” “Hazards and Hazardous
Materials,” “Noise and Vibration,” “Recreation,” and “Transportation (Marine).” For
each of these issues, the 2017 supplemental EIR discusses the environmental setting, the
regulatory setting, and significance criteria, and then proceeds to analyze the
environmental impact and mitigation related to the construction phase, operation, and the
cumulative impacts. ([ocean water quality and marine biological resources],
[aesthetics/light and glare], [air quality], [cultural resources], [cultural resources – tribal],
[greenhouse gas emissions], [hazards and hazardous materials], [noise and vibration],
[recreation], [transportation (marine)].) These discussions addressed the three changes
encompassed in the Lease Modification Project at length.
We need not go into further detail of the foregoing environmental analysis here.
As plaintiffs acknowledge, they have “not challenge[d] the adequacy of the actual
analysis that the Lands Commission chose to include in the [supplemental] EIR.” Based
on our review of the administrative record, substantial evidence supports the Lands
Commission’s approval and certification of the 2017 supplemental EIR. (See generally
Banning Ranch, supra, 2 Cal.5th at p. 935 [“ ‘In reviewing for substantial evidence, 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.” ’ ”]; Vineyard Area Citizens, supra, 40 Cal. 4th at p. 427 [“We . . . resolve the
substantive CEQA issues . . . by independently determining whether the administrative
record demonstrates any legal error . . . and whether it contains substantial evidence to
support the [agency’s] factual determinations”].) The Lands Commission prepared its
supplemental EIR, including information “ ‘necessary to make the previous EIR’ ”
prepared by Huntington Beach in 2010 “ ‘adequate for the . . . project as revised.’ ” (Cal.
Code Regs., tit. 14, § 15163, subd. (b); City of Irvine, supra, 238 Cal.App.4th at p. 539;
Melom, supra, 183 Cal.App.4th at p. 57.) The Lands Commission did not “attempt[] to
35
avoid a full environmental review by splitting a project into several smaller projects . . .
appear[ing] more innocuous than the total planned project . . . .” (East Sacramento,
supra, 5 Cal.App.5th at p. 293.) Rather, the Lands Commission undertook the
procedures expressly authorized by statute (§ 21166) and the CEQA Guidelines (Cal.
Code Regs., tit. 14, § 15163) that were appropriate under the circumstances. The impetus
for the changes was the 2015 Desalination Amendment, and the provisions thereof were
not foreseeable in 2010. The Lands Commission did not commit improper piecemealing
or segmenting of the project.
Plaintiffs, in their reply brief, assert that “there is no such thing as a supplemental
EIR for only part of a project.” This may be a correct statement, but it is an incomplete
one. The supplemental EIR “ ‘need contain only the information necessary to make the
previous EIR adequate for the . . . project as revised’ . . . .” (Melom, supra, 183
Cal.App.4th at p. 57, quoting Cal. Code Regs., tit. 14, § 15163, subd. (b); accord, City of
Irvine, supra, 238 Cal.App.4th at p. 539.) The supplemental EIR supplements the
previous EIR, and the two are considered as a comprehensive whole.
All of the cases on which plaintiffs rely for the premise that CEQA forbids
piecemeal review are inapposite. We need not delve into the circumstances of those
cases, other than to note that none of the cases on which plaintiffs primarily rely involve
supplemental EIRs prepared pursuant to section 21166 and CEQA Guidelines section
15163. Nor need we apply their enshrined rule: “There is no dispute that CEQA forbids
‘piecemeal’ review of the significant environmental impacts of a project.” (Berkeley
Keep Jets Over the Bay Com. v. Board of Port Comrs. of the City of Oakland (2001) 91
Cal.App.4th 1344, 1358.) As we have concluded ante, piecemeal CEQA review did not
occur here.
b. Deferral of Environmental Analysis
Relying heavily on Banning Ranch, supra, 2 Cal.5th 918, plaintiffs assert that our
high court “reiterated that the agency drafting an EIR cannot defer parts of the requisite
36
environmental impacts and alternatives analysis to other agencies with discretion over
those parts of the project.” However, Banning Ranch involved a full EIR (§§ 21100,
21151) performed by a lead agency, not a supplement to an EIR performed by a
responsible agency pursuant to section 21166 and CEQA Guidelines section 15163. 15
What was required of the Lands Commission here was that it conduct sufficient
environmental review so as to supplement Huntington Beach’s 2010 subsequent EIR,
adding information “necessary to make the previous EIR adequate for the project as
revised.” (Cal. Code Regs., tit. 14, § 15163, subd. (b); accord, City of Irvine, supra, 238
Cal.App.4th at p. 539; Melom, supra, 183 Cal.App.4th at p. 57.) Thus, as Poseidon
asserts, the Lands Commission was “required to analyze the impacts associated with the
proposed Project Enhancements designed to ensure compliance with the newly-enacted
Desalination Amendment, in combination with the previously-analyzed Project impacts.”
(Fn. omitted, italics added.) We have determined ante the Lands Commission adequately
did so. Thus, as Poseidon further asserts, the 2010 subsequent EIR prepared by
Huntington Beach combined with the Lands Commission’s 2017 supplemental EIR
“analyze[d] the Project in its entirety, including all proposed Project enhancements.”
Banning Ranch, like the other piecemealing cases on which plaintiffs rely, is inapposite.
c. Reevaluation of Project Alternatives
Under their piecemealing/segmentation heading, plaintiffs assert that the Lands
Commission in its environmental review “declined to review the feasibility of several
potential alternatives to the proposed open-ocean intake system . . . .” Indeed, they argue
whether the Lands Commission’s failure “to step forward as the next CEQA lead agency
would have been of little practical consequence had its ‘Supplemental EIR’ updated the
15 We discuss Banning Ranch in further detail in our discussion of whether the Lands
Commission improperly deferred determinations to the Regional Water Board in part
IV.B of the Discussion, post.
37
impacts and alternatives for the entire seawater desalination Project,” but instead the
Land Commission “hid behind the ‘responsible agency’ label to avoid preparation of a
comprehensive EIR.”
“Whether an EIR has omitted essential information is a procedural question
subject to de novo review.” (Banning Ranch, supra, 2 Cal.5th at p. 935.) Plaintiffs’
argument that the Land Commission failed to evaluate alternatives is not supported by the
record.
The 2017 supplemental EIR, discussing alternatives, stated that, “The 2010
[subsequent EIR] evaluated alternatives to the 2010 Project. The [Lands Commission] is
preparing this Supplemental [EIR] to assess the changes in environmental impact
resulting from Poseidon’s proposed modifications to [Lands Commission lease].”
Among the alternatives considered in the 2017 supplemental EIR were an intake pipeline
extension and a two-port diffuser. The 2017 supplemental EIR further stated: “[t]he
alternatives considered but eliminated from further consideration in the 2010 [subsequent
EIR] were reconsidered as alternatives to the proposed Lease Modification Project, but
were eliminated from consideration in this Supplemental EIR because they were 1)
outside of the scope of this Supplemental EIR, or 2) for the same reasons as in the 2010
[subsequent EIR].” Alternatives in the former category included an alternative site,
alternative ownership and operation, and alternative facility configuration. Alternatives
in the latter category included a beach well intake design and subsurface infiltration
gallery intake, both of which are subsurface intake designs, as well as alternative
discharge location, alternative discharge design, and reduced facility size. The 2010
subsequent EIR did indeed consider and reject a “no project” alternative, alternative sites,
alternative ownership and operation, alternative intake and discharge designs, alternative
facility configuration, and reduced facility size. The 2017 supplemental EIR, considered
in conjunction with the 2010 subsequent EIR (see generally Cal. Code Regs., tit. 14,
§ 15163, subd. (b); City of Irvine, supra, 238 Cal.App.4th at p. 539; Melom, supra, 183
38
Cal.App.4th at p. 57), analyzed alternatives to the proposed project as contemplated by
CEQA Regulations section 15126.6.
Plaintiffs also assert that, in light of regulatory changes effected by the
Desalination Amendment and potential changes in demand, the Lands Commission was
required to reevaluate those alternatives considered and rejected by Huntington Beach in
its 2010 subsequent EIR. They do not cite authority for this contention beyond asserting
that the Lands Commission violated CEQA. Moreover, the contention is contrary to the
premise that the “supplement to an EIR ‘need contain only the information necessary to
make the previous EIR adequate for the . . . project as revised . . . .’ ” (Melom, supra,
183 Cal.App.4th at p. 57, quoting Cal. Code Regs., tit. 14, § 15163, subd. (b); accord,
City of Irvine, supra, 238 Cal.App.4th at p. 539.) The 2010 subsequent EIR,
supplemented by the 2017 supplemental EIR, considered a number of project
alternatives.
B. Asserted Improper Deferral to the Regional Water Board
Plaintiffs assert that the Lands Commission unlawfully deferred environmental
impacts review and alternatives analysis to the Regional Water Board. Plaintiffs contend
this asserted fragmented presentation of project impacts and alternatives is a form of
piecemealing and does not comply with CEQA. According to plaintiffs, the Lands
Commission “deflected responsibility for evaluating critical environmental impacts,
issues, and alternatives for the proposed intake system - the very concerns that drove
adoption of the Desalination Regulations and the need for Project modifications - with
the dismissive statement that ‘[the Regional Water Board], not the Commission, is
responsible for determining feasibility of subsurface intakes and compliance with Water
Code section 13142.5, subdivision (b).’ ” Plaintiffs assert that, like in Banning Ranch,
the “limited marine effects analysis included in the 2017 [supplemental] EIR did not and
could not replace the CEQA requirement to evaluate impacts and feasible alternatives to
comply with the new Desalination Regulations, which are targeted directly at eliminating
39
or reducing the consequences of open-ocean intake.” Plaintiffs rely on Banning Ranch
for the proposition that the Lands Commission’s “fragmented presentation” did not
comply with CEQA, which requires “a good faith attempt to analyze project alternatives
and mitigation measures in light of applicable [Desalination Amendment] requirements.”
(Banning Ranch, supra, 2 Cal.5th at p. 941.) Thus, plaintiffs assert that, to perform the
required evaluation, the Lands Commission had to evaluate alternative sites, alternative
sizes, and alternative technologies. Plaintiffs assert that the “2017 [supplemental] EIR
did none of this analysis,” and instead only evaluated alternatives relevant to the
proposed minor modifications.
We have, in effect, already rejected this contention, at least in a broader sense. As
stated ante, the Lands Commission, as a responsible agency completing a supplemental
EIR pursuant to CEQA Guidelines section 15163, was not required to create a plenary,
stand-alone, all-inclusive EIR. Rather, the Lands Commission was only required to
supplement the 2010 subsequent EIR such that, the two considered together, provided
environmental review that was “adequate for the proposed project as revised.” (Cal.
Code Regs., tit. 14, § 15163, subd. (b); City of Irvine, supra, 238 Cal.App.4th at p. 539;
Melom, supra, 183 Cal.App.4th at p. 57.) The Lands Commission was not required to do
more.
The regulatory scheme changed since Huntington Beach prepared the 2010
subsequent EIR with the implementation of the 2015 Desalination Amendment. As
plaintiffs note, under the Desalination Amendment, the Regional Water Board shall
require subsurface intakes unless they are not feasible.
The 2010 subsequent EIR included a comprehensive consideration of subsurface
intake alternatives. The EIR considered three types of beach wells: (1) vertical intake
wells, (2) slant intake wells, and (3) horizontal intake wells. However, the 2010
subsequent EIR concluded, with elaboration, that “[u]se of beach well intake systems is
not viable for the site-specific conditions of this project due to the limited transmissivity
40
of the coastal aquifer near the desalination facility site and the low unit yield capacity of
the vertical wells.”
In addition to beach well alternatives, the 2010 subsequent EIR considered
subsurface infiltration gallery intake system alternatives. This alternative consists “of
man-made submerged slow sand media filtration beds located at the bottom of the ocean
in the near-shore surf zone, which are connected to a series of intake wells . . . located on
the shore . . . .” After a lengthy and detailed discussion of these alternatives, the 2010
subsequent EIR concluded: “based on overall impacts on the environment, the public
coastal resources access/use issues associated with the construction and operation of a
seabed infiltration gallery, this intake alternative would not be considered feasible for
application to the proposed project.”
In a summary of alternative intake systems, the 2010 subsequent EIR stated: “Any
one of the site-specific conditions would render subsurface intakes more impactful to the
environment than the project because it would result in either irreversible damage to the
Talbert Marsh, Brookhurst Marsh, and the Magnolia Marsh and negate years of
restoration measures, result in a number of negative environmental impacts and human
health risks, including the following: (1) detrimental environmental impact of intake well
operations on the adjacent Talbert Marsh, Brookhurst Marsh, and the Magnolia Marsh
due to dewatering; (2) poor water quality of the Talbert Aquifer in terms of ammonia,
bacterial contamination and lack of oxygen; (3) interception of contaminated
groundwater from nearby Ascon Landfill, which may introduce carcinogenic
Hydrocarbons in the Source water supply of the desalination facility; (4) interception of
injection water from Talbert Barrier by the intake and impairment of the function of this
barrier to protect against seawater intrusion; (5) subsidence of public roads and structures
due to drawdown of the groundwater table; and (6) impairment if [sic] the aesthetic value
of the coastal shore by the obtrusive aboveground intake structures. [¶] None of these
potential environmental impacts are associated with the use of the cooling water system
41
from the existing HBGS as source water for the project. The proposed intake system
would not physically alter the HBGS intake or discharge system, and it would provide a
more than adequate supply of source water and dilution water. None of the proposed
alternative intake systems would be an acceptable substitute to the proposed use of the
existing HBGS cooling water system as the supplier of source water for the Seawater
Desalination Project at Huntington Beach.”
The 2017 supplemental EIR noted the beach well intake and subsurface infiltration
gallery intake alternatives were considered and eliminated in the 2010 subsequent EIR. It
stated the rationale for elimination, and further stated that the rationale from 2010 was
“also applicable to this Supplemental EIR.” (Bold omitted.) With regard to the beach
well intake, the reasons for elimination included “[g]reater impacts to benthic and marsh
habitat, public access, aesthetics, geology and soils, hazards, and product water quality.”
With regard to subsurface infiltration gallery intake alternative, the reasons for
elimination included, “[g]reater impacts to benthic habitat, public access, traffic and
transportation, greenhouse gas (GHG) emissions and waste disposal than the proposed
Project.” (Fn. omitted.)
The 2017 supplemental EIR further noted the ISTAP consideration of subsurface
intake options, discussed ante, and the fact that these options were eliminated from
consideration in the 2017 supplemental EIR. After a lengthy discussion of the ISTAP
subsurface alternatives, the 2017 supplemental EIR stated: “The second ISTAP
concluded that both construction methods are feasible for constructing the [subsurface
infiltration gallery]. The [subsurface infiltration gallery] options were found not to be
economically viable at the Huntington Beach location within a reasonable timeframe, due
to high capital costs.”
At another point, the 2017 supplemental EIR stated that the Lands Commission
“considered information from the 2010 [subsequent EIR], 2014-15 ISTAP Reports, and
42
2015 SED in evaluating alternatives to the Lease Modification Project.”16 According to
the 2017 supplemental EIR, the “2010 [subsequent EIR] found that subsurface intakes
were infeasible or more impactful to the environment than the HB Desalination Plant as
proposed.” The 2017 supplemental EIR stated that, as “part of the CEQA process, the
Commission independently reviewed and analyzed these differencing opinions and
concluded that the ISTAP Reports are an appropriate body of expert opinions and
information that may be used in the supplemental EIR.”
Contrary to plaintiffs’ contention, the Lands Commission did not improperly defer
consideration of alternatives, including subsurface intake alternatives, to the Regional
Water Board. As documented here, the 2010 subsequent EIR, supplemented by the 2017
supplemental EIR, considered subsurface intake alternatives and found them infeasible.
Further, Water Code section 13142.5, subdivision (b), provides: “For each new or
expanded coastal powerplant or other industrial installation using seawater for cooling,
heating, or industrial processing, the best available site, design, technology, and
mitigation measures feasible shall be used to minimize the intake and mortality of all
forms of marine life.” In addition to specifically addressing subsurface intake
alternatives, the 2010 subsequent EIR, supplemented by the 2017 supplemental EIR,
addressed alternative sites, designs, technology, mitigation measures, and a no-project
alternative.
In Banning Ranch, on which plaintiffs rely, the CEQA issue “center[ed] on
whether an EIR must identify areas that might qualify as environmentally sensitive
habitat areas (ESHA) under the California Coastal Act of 1976 [citation], and account for
those areas in its analysis of project alternatives and mitigation measures.” (Banning
Ranch, supra, 2 Cal.5th at p. 924.) The City of Newport Beach, as lead agency, in its
16 “2015 SED” is a reference to a Substitute Environmental Document prepared by the
State Water Resources Control Board.
43
final EIR noted the Coastal Commission’s responsibility for ESHA determinations and
stated that it had taken into consideration the California Coastal Act of 1976. (Banning
Ranch, at pp. 932-933.) However, it “disavowed any obligation to further consider
ESHA.” (Id. at p. 932.) Our high court determined that a lead agency must in its EIR
identify areas that might qualify as ESHAs under the California Coastal Act of 1976 and
account for those areas in its analysis of project alternatives and mitigation measures.
(Banning Ranch, at p. 924.) The court determined that the City of Newport Beach’s EIR
was “inadequate because it omitted any consideration of potential ESHA on the project
site, as well as ESHA that were already identified.” (Ibid.) This is not the case here.
Here, the 2010 subsequent EIR, supplemented by the 2017 supplemental EIR, considered
alternatives, including subsurface intake alternatives, and eliminated them as infeasible.
Banning Ranch is inapposite.
Plaintiffs assert that the Lands Commission was required to reevaluate all of the
alternatives considered in the 2010 subsequent EIR in light of the change in the
regulatory scheme. However, they cite no authority that supports this proposition. More
importantly, the regulations and case law discussed extensively herein do not support this
contention.
The 2017 supplemental EIR’s observation that the Regional Water Board had the
duty to perform a Water Code section 13142.5, subdivision (b), analysis under the
Desalination Amendment, and Lands Commission members’ statements consistent with
that premise at the public hearing, did not signal an improper deferral to the Regional
Water Board.
Plaintiffs assert that changes in demand and the need for the water that would be
supplied by the project had changed since 2010. Plaintiffs cite to evidence in the
administrative record that they claim supports their contention that “the demand for
potable water in Orange County has fallen even as water supply grows,” and that the need
for a large desalination plant has been “supplant[ed].” Without delving into the extent to
44
which the evidence on which plaintiffs rely supports their contentions, we note they fail
to discuss evidence to the contrary, some of which has been highlighted by Poseidon in
its briefing. As stated ante (see fn. 14), failure lay to out the evidence favorable to the
opposing party and show why it is lacking is normally fatal. (Citizens for Positive
Growth, supra, 43 Cal.App.5th at p. 632.)
In any event, we note evidence in the administrative record cited by Poseidon
supports the premise that there remains need for the project in order to meet Orange
County’s water demands. In a July 7, 2016, letter to the Executive Officer of the
Regional Water Board from Robert J. Hunter, General Manager of the Municipal Water
District of Orange County, Hunter stated that, under normal conditions, and without the
development of new supplies, water demand was expected to increase to 515,425 acre
feet by 2040 while Orange County would still be relying on imported water for more than
200,000 acre feet per year. This assumed both the continued investment in water use
efficiency and the expansion to 130,000 acre feet per year of OCWD’s Groundwater
Replenishment System. Hunter identified the project at issue here as “one of a number of
projects that could help meet future projected demands as well as reduce the County’s
demand on imported water.” Hunter also emphasized that an Orange County Water
Reliability Study found that, without any new supply projects, “Orange County would
have shortages in 8 of 10 years. . . . [A]dditional water supply projects . . . are needed for
Orange County to be fully reliable out to the year 2040. [¶] In this regard, the proposed
50 MGD Huntington Beach Desalination Project appears to comply with Chapter
III.M.2b.(2) of the Desalination Amendment.”17
17 That provision of the Ocean Plan/Desalination Amendment requires consideration of
“whether the identified need for desalinated water is consistent with an applicable
adopted urban water management plan prepared in accordance with Water Code section
10631, or if no urban water management plan is available, other water planning
45
At the October 19, 2017, public meeting of the Lands Commission, Dennis
Bilodeau of the OCWD addressed current and future projected water supplies to meet
demand in the OCWD service territory. Bilodeau stated that “the facility’s 56,000 acre
foot per year capacity is the single largest source of new local drinking water supply
available to the county.” Bilodeau noted the scope and importance of the OCWD’s
groundwater replenishment system, and that an expansion of that system had been
approved. He then stated, “[d]esalinization provides the district with a high quality,
locally controlled, and drought-proof source that reduces the demand on imported water
sources that are climate driven.” He also noted that, historically, OCWD had “taken
more than our adjudicated rights to the Santa Ana River, and cannot be certain that water
will always . . . be there for us.” He stated that the project “provides the district and
Orange County with a unique opportunity to add a large quality of locally controlled, job-
proof [sic] water to our supply portfolio.” Bilodeau on behalf of OCWD requested
support of the staff recommendation.
State Controller Betty T. Yee asked, “the analysis with respect to these various
water sources, did that include the expansion of the recycling effort. And I guess what
I’m looking for is have you fully considered all these alternatives before really looking at
the water that would be produced by Poseidon, which obviously is going to be the most
expensive water.” Bilodeau responded: “Yes, we certainly have. Really, the only
opportunity we have beside Poseidon is the expansion of the groundwater replenishment
system. And we are all in on that. Our board has already voted to go forward with that
expansion. It’s in design right now. And now, we’re going through the process of the
financing component. [¶] Poseidon would be yet another source beyond that. And it
would offset imported water sources and also contend with -- the Santa Ana River, the
documents such as a county general plan or integrated regional water management plan.”
(Asterisk omitted.)
46
base flow of it, continues to decline because of drought, and also our friends in the Inland
Empire they are now recycling. And so the Santa Ana river during the summer it’s not
snowmelt, that’s discharge from sewage treatment plants that’s highly cleaned up. And
then we take that water put it through wetlands actually, and then we put it into our
groundwater basin. [¶] But that base flow continues to decline. And that’s something
that’s somewhat alarming to us. So we need to continue to look for and develop new
water sources to offset that.” Bilodeau expressed the opinion that water produced by
Poseidon would not be more water than is needed.
Additionally, plaintiffs rely on a Municipal Water District of Orange County
presentation slide from February 6, 2017, which stated that Poseidon’s yield of 56,000
acre feet per year would supply “more water than needed in most every year.” However,
as Poseidon notes, in a letter dated June 13, 2017, Hunter, the General Manager of the
Municipal Water District of Orange County, stated that there was a need for additional
water supply documented in the adopted Urban Water Management Plan. The Poseidon
project was one option to meet that need. Hunter stated that the most comprehensive,
accurate, and current analysis of Orange County water demand and supply projections
was the Orange County Reliability Study. He stated that the study detailed the “probable
shortfall or gap between water demand and supply through the year 2040 under various
assumptions.”
The Lands Commission’s 2017 final supplemental EIR reflected the foregoing. It
stated: “[T]he 2015 update of the OCWD’s Groundwater Management Plan identifies
new potable water produced at the HB Desalination Plant as a planned future water
supply [citation] given a local and regional need based on limited imported water
supplies, declining Santa Ana River flows, and increased demand for water. Similar
information is provided in the City of Huntington Beach 2015 Urban Water Management
Plan (June 2016), which states ‘OCWD’s current Long-Term Facilities Plan . . . identifies
the [HB Desalination Plant] as a priority project and . . . the single largest source of new,
47
local drinking water available to the region’ [citation]. The HB Desalination Plant water
supply is also identified in the Municipal Water District of Orange County (MWDOC)
Urban Water Management Plan 2015 Update and Orange County Water Reliability
Study, and the MWDOC has recently stated that the HB Desalination Plant Project is
‘part of our [water management plan] to reduce our demand for imported water, thereby
strengthening our reliability and helping meet our goal of diversifying our water supply
portfolio.’ ”
Substantial evidence in the record supported the Lands Commission’s conclusion
that there remained a need for the project to add to Orange County’s water supply. (See
generally Nelson, supra, 190 Cal.App.4th at p. 282 [defining substantial evidence in the
CEQA context]; § 15384, subd. (a).) While there may also be evidence supporting
plaintiffs’ position, our “job ‘ “ ‘is not to weigh conflicting evidence and determine who
has the better argument.’ ” ’ ” (San Mateo Gardens, supra, 1 Cal.5th at pp. 952-953.)
“ ‘In reviewing for substantial evidence, 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”. . . .’ ” (Banning Ranch, supra, 2 Cal.5th at p. 935.)
C. Refusal to Consider Assertedly Reasonably Foreseeable Future Project Changes
Plaintiffs assert that the Lands Commission improperly refused to consider
reasonably foreseeable project changes, specifically related to the new water distribution
option OCWD was actively considering which included the construction of injection
wells and pipelines. Plaintiffs contend this reasonably foreseeable change was an integral
part of the project that must be considered in the supplemental EIR and it was unlawful
project segmentation for the Lands Commission not to consider it.
Among other things, plaintiffs rely on a July 6, 2016, OCWD “Agenda Item
Submittal” submitted to the OCWD Board of Directors. The subject of the memorandum
and accompanying presentation was distribution options for the Poseidon desalination
plant. The memo stated that staff presented eight options to the Board, five of which
48
were removed from further consideration. The Board instructed staff to further explore
one of the options, Option 6, which was actually the combination of other options.
Plaintiffs characterize this option as “quite probable,” although they do not offer grounds
specifically supporting this characterization.
Moreover, as we have noted, at the Lands Commission public hearing on October
19, 2017, a representative of OCWD stated that at that time, OCWD did not require
changes to the distribution system studied in the 2010 supplemental EIR. This was some
15 months after the July 6, 2016, OCWD Agenda Item Submittal.
Poseidon points out that OCWD has not in fact proposed a new distribution option
other than the system analyzed in the 2010 subsequent EIR. Poseidon further asserts that
it had not proposed a new distribution plan. Poseidon relies on the Lands Commission’s
and OCWD’s “repeated confirmation that ‘potential modifications contemplated to
distribute desalinated water by local or regional water agencies is speculative at this
time.’ ”
The 2010 subsequent EIR extensively addressed the Orange County water
distribution system. Plaintiffs do not contend otherwise.
In a section addressing comments about alleged changed circumstances, the Lands
Commission’s final 2017 supplemental EIR, where it addressed potential changes in the
distribution system, stated: “Other than Poseidon’s application to implement the Lease
Modification Project, neither . . . Huntington Beach nor OCWD nor other entity [sic] to
date has submitted detailed proposed physical changes to the 2010 Project, including to
the Project’s potable water distribution system. . . . As noted . . . the OCWD recently
stated that it ‘has not reached any conclusions or made any decisions regarding how
desalinated [water] could be used by the District and distributed to the local water
community, so no specific conveyance and utilization option has been formally
selected.’ ”
49
The 2017 supplemental EIR relied on a letter from the General Manager of
OCWD to the Regional Water Board stating: “ [‘]Given the expected timeline for the
[HB Desalination Plant’s] permitting process, OCWD has also concluded that it would
not be prudent to begin an extensive environmental analysis related to use of the
desalinated water in OCWD’s operations and facilities, along with distributing the water
to other agencies, prior to the approval of the permits for the [Huntington Beach
Desalination Plant.] Decisions by the Regional Board and the other permitting agencies
may result in new or different information that could increase the cost of the desalinated
water and/or modify OCWD’s plans for using and distributing the water.[’] ”
Based on this information, the 2017 supplemental EIR further stated: “potential
changes in the distribution of desalinated water onshore by local or regional water
agencies are speculative at this time and not germane to the offshore Lease Modification
Project before the Commission. CEQA does not require analysis of speculative impacts,
and the Commission need not prepare a subsequent EIR to address environmental
impacts of future actions that are uncertain, such as an onshore desalinated water
distribution system that may or may not differ from the distribution system already
evaluated in the 2010 FSEIR.”
In another section, addressed to comments concerning recharge distribution
components and distribution pipeline, the supplemental EIR stated: “If OCWD proposes
to construct and operate a distribution system different from the one analyzed in the 2010
[subsequent EIR], or Recharge Distribution Components, OCWD would compete [sic]
environmental review of these systems. This is consistent with the Supplemental EIR’s
statement . . . : ‘Future CEQA analysis may be needed to construct an onshore
desalinated drinking water distribution system, for example if a proposed system differs
from the distribution system previously evaluated.’ ”
In its summary of other agency roles addressed to Huntington Beach and OCWD,
the 2017 supplemental EIR noted: “In its 2010 [subsequent EIR], the City analyzed the
50
distribution of desalinated water, including various options and volumes, into the local
and regional potable water system. In 2015, the OCWD Board approved a non-binding
agreement (term sheet) with terms and conditions by which OCWD and Poseidon could
negotiate contracts for the purchase of desalinated water . . . . After initially proposing
to prepare an EIR for a potable water distribution or storage system, the OCWD stated
that it would not finalize its water purchase agreement with Poseidon until after the HB
Desalination Plant receives all required state approvals.” Here, the 2017 supplemental
EIR again relied on the passage in the letter from the General Manager of OCWD to the
Regional Water Board, quoted in italics ante. It then stated: “Based on this information,
potential modifications contemplated to distribute desalinated water by local or regional
water agencies is speculative at this time and not germane to the Lease Modification
Project. Future CEQA analysis may be needed to construct an onshore desalinated
drinking water distribution system, for example if a proposed system differs from the
distribution system previously evaluated in the 2010 [subsequent EIR].”
Additionally, as stated ante, at the October 19, 2017, public hearing, a
representative of OCWD stated: “At this point in time, the district does not required [sic]
changes to the distribution system as studied in . . . Huntington Beach’s 2010
supplemental [sic] EIR. A final decision on integrating the desalinated water will come
after the project has received all of its permits, and based on those results, the district
concludes the project is technically and economically feasible.”
“CEQA analysis is not required, and instead may be postponed to ‘a later planning
stage [for] the evaluation of those project details that are not reasonably foreseeable when
the agency first approves the project.’ ” (Citizens for a Sustainable Treasure Island v.
City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1058 (Treasure Island),
quoting Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 139; see Cal. Code
Regs., tit. 14, § 15145 [“If, after thorough investigation, a lead agency finds that a
51
particular impact is too speculative for evaluation, the agency should note its conclusion
and terminate discussion of the impact”].)
Based on the record, whether OCWD or another body may elect to employ a
different water distribution system than what was reviewed in the 2010 subsequent EIR is
speculative and not reasonably foreseeable. (See generally Treasure Island, supra, 227
Cal.App.4th at p. 1058.) While the OCWD Board of Directors was presented with a
number of distribution options to consider in July 2016 and directed staff to further
explore one of those options, all of the subsequent discussions of distribution in 2017 set
forth ante establish that OCWD did not require changes to the distribution system
analyzed by Huntington Beach in 2010. Neither Poseidon nor OCWD submitted
proposed changes. As of 2017, OCWD affirmatively represented that it had no intention
of conducting further analysis of distribution options at that time. There is no way to
know the particulars of any new distribution system to evaluate attendant environmental
impacts, let alone that one particular option is reasonably foreseeable. “[W]here ‘an EIR
cannot provide meaningful information about a speculative future project, deferral of an
environmental assessment does not violate CEQA.’ ” (Id. at pp. 1058-1059, quoting Rio
Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 373.) That is
the situation here.
*****
52
DISPOSITION18
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)
/s/
MURRAY, J.
We concur:
/s/
RAYE, P. J.
/s/
HULL, J.
18 Plaintiffs filed a motion requesting that we take judicial notice of an information
request from Hope Smyth, Executive Officer of the Regional Water Board, seeking
additional information in connection with that body’s NPDES order and Water Code
section 13142.5, subdivision (b), determination. Ruling on the request was deferred
pending calendaring and assignment of the panel. We deny plaintiffs’ request for judicial
notice on the ground that the post-judgment matter addressed in the information request
is unnecessary to our decision. (City of Grass Valley v. Cohen (2017) 17 Cal.App.5th
567, 594, fn. 13 [denying requests for judicial notice “ ‘because the proffered material is
unnecessary to our decision’ ”]; accord, Mangini v. R.J. Reynolds Tobacco Co. (1994) 7
Cal.4th 1057, 1063 [matter to be judicially noticed must be relevant to a material issue].)
53
Filed 5/7/21
CERTIFIED FOR PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
CALIFORNIA COASTKEEPER ALLIANCE et al., C088922
Plaintiffs and Appellants, (Super. Ct. No.
34201780002736)
v.
ORDER CERTIFYING
STATE LANDS COMMISSION, OPINION FOR
PUBLICATION
Defendant and Respondent.
[NO CHANGE IN
POSEIDON RESOURCES (SURFSIDE) LLC, JUDGMENT]
Real Party in Interest and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, Richard
K. Sueyoshi, Judge. Affirmed.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of Part IV of the Discussion.
1
Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Crown
Quandrangle, Deborah A. Sivas, Alicia E. Thesing, Matthew J. Sanders, Amanda Zerbe
and Ryan Gallagher for Plaintiffs and Appellants.
Latham & Watkins, Christopher W. Garrett, Jennifer K. Roy, Winston P.
Stromberg and Natalie C. Rogers for Real Party in Interest, Poseidon Resources
(Surfside) LLC.
Kamala D. Harris and Xavier Becerra, Attorneys General, Daniel A. Olivas,
Senior Assistant Attorney General, Jessica Tucker-Mohl, Supervising Deputy Attorney
General, and Nicole U. Rinke, Deputy Attorney General for Defendant and Respondent,
State Lands Commission.
THE COURT:
The opinion in the above-entitled matter filed on April 8, 2021, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.
FOR THE COURT:
/s/
RAYE, P. J.
/s/
HULL, J.
/s/
MURRAY, J.
2