Affordable Clean Water Alliance v. Santa Clarita Valley etc. CA2/5 ( 2022 )

Filed 2/16/22 Affordable Clean Water Alliance v. Santa Clarita Valley etc. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
AFFORDABLE CLEAN B303831
WATER ALLIANCE,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BS170983)
v.
ORDER MODIFYING
SANTA CLARITA VALLEY OPINION AND DENYING
SANITATION DISTRICT OF PETITION FOR
LOS ANGELES COUNTY, REHEARING
Defendant and [NO CHANGE IN
Respondent. JUDGMENT]
The opinion filed on January 19, 2022, is modified as
follows:
1. On page 27, delete footnote 7 and replace with the
following:
To the extent the Alliance argues that the doctrine of
collateral estoppel did not bar it from challenging the
District’s failure to consider alternatives to the Chloride
Compliance Project, that is, alternatives to removing
chloride from the treated wastewater, it did not challenge
the District’s failure to consider any such alternatives in
the trial court. “We do not consider new matters raised for
the first time on appeal.” (Citizens Opposing a Dangerous
Environment v. County of Kern (2014) 228 Cal.App.4th 360,
380, fn. 16.)
The petition for rehearing is denied. There is no change in
judgment.
____________________________________________________________
BAKER, Acting P. J. MOOR, J. KIM, J.
2
Filed 1/19/22 Affordable Clean Water Alliance v. Santa Clarita Valley etc. CA2/5
(unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
AFFORDABLE CLEAN B303831
WATER ALLIANCE,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BS170983)
v.
SANTA CLARITA VALLEY
SANITATION DISTRICT OF
LOS ANGELES COUNTY,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed.
The Silverstein Law Firm, Robert P. Silverstein, James S.
Link, and Naira Soghbatyan, for Plaintiff and Appellant.
Cox, Castle, & Nicholson, Michael H. Zischke, David P.
Waite, and Alexander M. DeGood, for Defendant and
Respondent.
I. INTRODUCTION
Plaintiff Affordable Clean Water Alliance (the Alliance)
appeals from a judgment denying its petition for writ of mandate.
The Alliance asserted that the Santa Clarita Valley Sanitation
District of Los Angeles County (the District) violated the
California Environmental Quality Act (CEQA; Pub. Resources
Code, § 21000 et seq.)1 when it certified a project to reduce the
chloride levels in wastewater treated at its water reclamation
plants. The trial court denied the petition. We affirm.
II. BACKGROUND
A. The Initial Project and 2013 EIR
The District is responsible for treating wastewater for the
Santa Clarita Valley, which it accomplishes through its Valencia
and Saugus water reclamation plants. The treatment process
produces high-quality wastewater that is suitable for reuse. In
2013, a portion of the treated wastewater (referred to as recycled
water) was reused and a portion was discharged into the Santa
Clara River (the River).2
1 Further statutory references are to the Public Resources
Code unless otherwise indicated.
2 Recycled water is treated wastewater that, instead of being
discharged into the River, is reused by local communities.
2
Under the federal Clean Water Act and the California
Porter-Cologne Water Quality Control Act, the California
Regional Water Quality Control Board – Los Angeles Region
(Control Board) regulates discharges into the River. In 2002, the
Control Board adopted the Upper Santa Clara River Chloride
Total Maximum Daily Load (Chloride TMDL) order, which set a
chloride limit of 100 milligrams per liter for treated wastewater
that was discharged from the District’s reclamation plants into
the River. The Control Board set a 2015 deadline for the District
to comply with the Chloride TMDL order. The water reclamation
plants, however, were not designed to remove chloride from
treated wastewater.
In October 2013, the District prepared the Chloride
Compliance Facilities Plan (the Initial Project) and
Environmental Impact Report (2013 EIR). The objectives of the
Initial Project were: to comply with the state-mandated chloride
level limit; to create wastewater treatment facilities for chloride
removal and future expansion of the Valencia water reclamation
plant; and to “[p]rovide a wastewater treatment and effluent
management program that accommodates recycled water reuse
opportunities in the Santa Clarita Valley while protecting
beneficial uses of the [River].”
The Initial Project consisted of two components: the
Chloride Compliance Project, which addressed the first two
objectives, and the Recycled Water Project, which addressed the
third objective. The 2013 EIR discussed a range of alternatives
to comply with the Chloride TMDL order and identified four final
alternatives. Alternative 1 involved treating a portion of the
wastewater at the Valencia water reclamation plant with
microfiltration and reverse osmosis, a process that would produce
3
“a salty water byproduct called brine that require[d] proper
disposal.” Alternative 1 proposed disposing of the resulting brine
via a pipeline to the Los Angeles Basin.
Alternative 2 was “similar to Alternative 1 except that
brine would be disposed via [deep well injection] and [ultraviolet]
disinfection would replace the existing chloride-based disinfection
systems at both [water reclamation plants].”
Alternative 3 was “similar to Alternative 2 except that
brine would be disposed via trucking to an unloading terminal”
and would eventually flow into the ocean.
Alternative 4, known as Phased AWRM, consisted of two
phases. Phase I involved the use of ultraviolet disinfection
systems at both water reclamation plants, salt management
facilities in Ventura County, and supplemental water. In the
event Phase I could not provide consistent water quality in
compliance with the Chloride TMDL order, Phase II provided for
microfiltration and reverse osmosis, as well as disposal of brine
via deep well injection. Alternative 4 was contingent on support
by Ventura County stakeholders.
After evaluating these four alternatives, the District
selected Alternative 4, with Alternative 2 serving as a back-up.
The 2013 EIR also discussed the Recycled Water Project
component of the Initial Project. The District explained that each
of the alternatives described in the 2013 EIR would include
making recycled water available in quantities needed to support
the Recycled Master Plan prepared by the Santa Clarita Valley
Water Agency (Water Agency). That master plan made recycled
water available for use by local municipalities and projected that
the need for recycled water would increase over time as the
population of the community using the water grew. Because any
4
treated wastewater that was used for the Recycled Water Master
Plan would necessarily be diverted from discharge into the River,
the 2013 EIR found that the Recycled Water Project “could result
in a reduction in flow discharged by the [water reclamation
plants] to the [River] under each alternative.” The 2013 EIR
considered the potential impact of the Recycled Water Project on
the statutorily-protected unarmored threespine stickleback fish
(stickleback) and concluded that even though “discharge of
treated wastewater from the [water reclamation plants] to the
[River] could decrease [because of the Recycled Water Project] . . .
the combined [water reclamation plant] discharges would not be
lower than the minimum flow of 13 [million gallons per day]
identified to sustain the river’s biological resources.”
On October 24, 2013, Ventura County stakeholders notified
the District by letter that they would not support Alternative 4.
On October 28, 2013, the District’s board certified the 2013 EIR
and adopted Alternative 2.
B. Case No. BS145869
On November 27, 2013, in case No. BS145869, the Alliance
filed a petition for writ of mandate, alleging that the District had
violated CEQA. The Alliance sought to compel the District to set
aside its approval of the 2013 EIR.
On March 11, 2015, the District’s board voted to abandon
Alternative 2 as the deep well injection portion of this alternative
was no longer viable.
On March 27, 2015, the Alliance filed a first amended
petition, the operative pleading in case No. BS145869.
5
C. 2016 Trucking SEIR
On September 18, 2015, the District issued a notice of
preparation, and on November 17, 2015, it issued a notice of
availability for a Supplemental Environmental Impact Report for
Brine Concentration and Limited Trucking (2016 Trucking
SEIR).3 The first two objectives of the Revised Project were to
comply with the Chloride TMDL order “by the State’s deadline[]”;
and to use an existing industrial facility for brine disposal. The
third objective was identical to the third objective of the Initial
Project.
Because Alternative 1 would not be completed in a timely
manner and Alternative 2 was no longer viable, the District
concluded that Alternative 3, with “enhanced brine concentration
technology” and limited trucking to an existing industrial facility
for brine disposal, was the best alternative for the Revised
Project. The District noted that only Alternative 3 could be
implemented by July 1, 2019, the final deadline for compliance
with the Chloride TMDL order. The District also stated that in
order to avoid delays, the Recycled Water Project would “no
longer [be] part of the currently recommended project” and
“would be separately considered by the [District] Board after
further environmental and public review in a separate CEQA
document.”
3 For purposes of clarity, we will refer to the revised project
described in the 2016 Trucking SEIR as the “Revised Project.”
6
D. Trial Court’s Ruling in Case No. BS145869
On December 7, 2015, the Alliance filed its memorandum of
points and authorities in supports of its petition challenging the
2013 EIR in case No. BS145869. The Alliance argued that the
District: had approved a project that was impermissible; violated
the Department of Fish and Wildlife’s directions; failed to provide
substantial evidence that the stickleback would not be impacted
by the Initial Project; failed to mitigate harm to the arroyo toad;
and failed to provide a project description in compliance with
CEQA.4
On February 23, 2016, the trial court granted the Alliance’s
petition in part. Although it rejected the Alliance’s argument
that the District violated CEQA by approving Alternative 2,
finding that the issue was moot because the District had
abandoned that alternative, it agreed with the Alliance that the
District had yet to approve Alternative 3. Therefore, the court
concluded that any project approvals must be set aside.
Regarding the stickleback, the trial court rejected the
Alliance’s assertion that the Department of Fish and Wildlife
required the District to perform “a specific analysis of the
stickleback in the [2013 EIR].” The court, however, agreed with
the Alliance that the 2013 EIR lacked substantial evidence to
support a finding that the stickleback “will not be taken within
the meaning of Fish and Game Code section 5515.”
4 In the first amended petition in case No. BS145869, the
Alliance alleged that the District failed to analyze a reasonable
range of project alternatives. This argument was not raised in its
memorandum of points and authorities before the trial court.
7
The trial court found against the Alliance regarding the
lack of mitigation measures to protect the arroyo toad and the
project description in the 2013 EIR.
The trial court granted the Alliance’s petition in part as
follows: “(1) the [2013 EIR] lacks substantial evidence for its
conclusion of no significant impact (no take) on stickleback
populations, and (2) since the District has abandoned Alternative
2 and there is as yet no approved Project for Alternative 3, the
Project approvals must be set aside.”
On March 9, 2016, the trial court issued the judgment in
case No. BS145869. The court directed the District to: decertify
the 2013 EIR; set aside and invalidate all project approvals; and
“[r]efrain from taking any steps to carry out the [Initial] Project
until and unless [the District] has fully complied with CEQA, all
other applicable laws, and the writ, and the writ has been
discharged.” On March 17, 2016, the court issued the peremptory
writ of mandate. The District was directed to file a return on the
writ. No appeal was taken from the judgment.
E. The District Certifies 2016 Trucking SEIR and the Alliance
Challenges the District’s Return on the Writ
On March 23, 2016, the District decertified the 2013 EIR
and vacated the associated project approvals. The District then
re-certified the 2013 EIR as augmented by the 2016 Trucking
SEIR.5
5 On April 20, 2016, the Alliance filed a second petition for
writ of mandate in case No. BS161742, alleging that the 2016
Trucking SEIR violated CEQA. On September 26, 2017, the trial
court granted the District’s motion to dismiss case No. BS161742
8
On April 14, 2016, the District filed a return to the writ in
case No. BS145869, asserting that it had fully complied with the
writ by decertifying the 2013 EIR and approving the 2016
Trucking SEIR.
On May 10, 2016, the Alliance filed a motion challenging
the return to the writ and requesting that the writ of mandate be
maintained.
On June 2, 2016, the trial court granted the Alliance’s
motion, finding that the District failed to “present evidence why
the [Initial] Project is severable into two components and why
doing so will not affect the CEQA reporting process. . . . In the
District’s words, it must show that the water recycling
component’s effects will not change the scope or nature of the
chloride compliance component. ” (Fn. omitted.) The court
concluded that the District violated CEQA’s procedural
requirements by separating the Initial Project’s two components
(Chloride Compliance Project and Recycled Water Project)
without public input. The court ordered the District “to
reconsider its return to the writ and file an additional Return
when it has certified an EIR for the [Initial] Project in a manner
that complies with CEQA.”
F. Notice of Preparation for Supplemental EIR of Recycled
Water Project
On August 4, 2016, the District issued a notice of
preparation for a project entitled “Santa Clarita Valley
Sanitation District Supplemental Environmental Impact Report
as moot because, as discussed below, the District subsequently
decertified the 2016 Trucking SEIR.
9
for Study of Impacts to the Unarmored Threespine Stickleback
Fish Under Reduced Discharge Conditions from the Santa
Clarita Valley Sanitation District’s Water Reclamation Plants”
(Recycled Water Project SEIR). The Recycled Water Project
SEIR’s purpose was to evaluate the potential impact on the
stickleback from the reduced wastewater discharge into the River
caused by the Recycled Water Project. In the notice, the District
stated, among other things, that “[t]he production and disposal of
brine produced at Valencia [water reclamation plant] would
reduce discharge to the [River], which supports special-status
species. Increased use of recycled water could also reduce
discharge to the [R]iver.”
G. 2017 Recirculated EIR
On February 17, 2017, the District issued a notice of
preparation for the “Recirculated Santa Clarita Valley Sanitation
District Chloride Compliance Project Environmental Impact
Report – Separation of Recycled Water Project” (2017
Recirculated EIR). The 2017 Recirculated EIR incorporated and
used prior environmental analyses from the 2013 EIR and 2016
Trucking SEIR and considered whether new information or
changed circumstances required any update to the prior analyses.
The District sought comments for the new content of the 2017
Recirculated EIR only.
On August 30, 2017, the District: decertified the 2013 EIR
and the 2016 Trucking SEIR; certified the 2017 Recirculated EIR;
and approved the Chloride Compliance Project.
The 2017 Recirculated EIR explained that the objectives of
the proposed project, which was now comprised of just the
10
Chloride Compliance Project, were to provide compliance with the
Chloride TMDL order and to use an existing industrial facility for
brine disposal. The District determined that separation of the
Recycled Water Project and the Chloride Compliance Project
“would generally lessen impacts on environmental resources as
there would be no significant changes to current operations.” The
2017 Recirculated EIR included updated analyses for: air
quality, biological resources, hydrology and water quality,
cumulative impacts, alternatives, growth inducement, and water
resources. For all other resource areas previously studied in the
2013 EIR and 2016 Trucking SEIR, the 2017 Recirculated EIR
found that “[n]o impacts would result” from separately
implementing the Chloride Compliance Project and Recycled
Water Project.
In discussing project alternatives, the District found that
“[n]one of the alternatives evaluated in the 2016 Trucking SEIR
. . . relied upon the Recycled Water Project.” Two of the
alternatives initially discussed in the 2013 EIR relied upon the
Recycled Water Project, but had been rejected as infeasible and
the analysis that rejected those alternatives still applied.
The 2017 Recirculated EIR concluded that the “the
environmental impacts of the construction and operation of the
proposed Chloride Compliance Project do not change as a result
of separating the Recycled Water Project from the proposed
project. Therefore, the previous alternative analysis contained in
the 2013 EIR and the 2016 Trucking SEIR . . . are still applicable
and cover the reasonable range of alternatives required by
CEQA. The ‘no project’ alternative would not meet the objective
of complying with the State-mandated Chloride TMDL. The
alternative of maintaining both the Chloride Compliance Project
11
and the Recycled Water Project under the cover of one CEQA
document does not meet the objective of compliance by [the
District], in as timely a manner as is feasible, with the Chloride
TMDL for its wastewater and discharge facilities.”
H. Case No. BS170983
On September 1, 2017, the Alliance filed its petition for
writ of mandate in case No. BS170983, the petition at issue in the
instant appeal. The Alliance alleged causes of action for violation
of CEQA and requested a writ of mandate to invalidate the
Chloride Compliance Project approvals and the 2017 Recirculated
EIR. The Alliance asserted, among other things, that: the
District engaged in piecemeal review (piecemealing) of the
Chloride Compliance Project and the Recycled Water Project; the
alternatives analysis for the Chloride Compliance Project was
inadequate; and the cumulative environmental impacts analysis
of the Chloride Compliance Project and the Recycled Water
Project pertaining to the stickleback was inadequate.
I. Partial Return to and Partial Discharge of Writ
On September 22, 2017, the District filed a partial return
to the writ in case No. BS145869 and moved for an order to
partially discharge the writ. The Alliance moved to challenge the
return and sought an order to enforce the writ. On
October 24, 2017, the trial court heard and granted the District’s
motion and denied the Alliance’s motion. The court discharged
the writ as it pertained to the Chloride Compliance Project,
finding that the 2017 Recirculated EIR complied with the writ.
12
The court “retain[ed] jurisdiction over the remaining issue in the
writ: an environmental review of the impacts to the stickleback
caused by the Recycled Water Project, if that project goes
forward.”
J. The District’s Rejection of Recycled Water Project and Full
Discharge of Writ
On February 25, 2019, the District issued a resolution that
it had: ceased its planning efforts on the Recycled Water Project;
withdrew the notice of preparation for the Recycled Water Project
SEIR; and rejected the Recycled Water Project. The District
concluded that the studies necessary to address the impact on the
stickleback because of flow diversion and reduced discharges,
coupled with the associated resource agency approvals for the
flow diversion and reduced discharge, would not be timely or cost
effective for ratepayers. The outcome of the project was also
uncertain because of the probability of future litigation.
On April 26, 2019, the District filed another return to the
writ. The District asserted that it had addressed the remaining
issue encompassed by the writ by rejecting the Recycled Water
Project. The District also moved for the writ to be discharged.
On May 21, 2019, the trial court granted the District’s motion,
concluding that the writ was fully discharged.
K. Trial Court Denies Petition in Case No. BS170983
On July 17, 2019, the Alliance filed its memorandum of
points and authorities in support of its petition in case No.
BS170983. It argued, among other things, that the District had:
13
failed to identify and analyze feasible alternatives in the 2017
Recirculated EIR; piecemealed the Recycled Water Project and
the Chloride Compliance Project; and failed to analyze
cumulative impacts properly.
The Alliance raised three different arguments in support of
its claim that the 2017 Recirculated EIR failed to identify and
analyze feasible alternatives. First, it argued that, because the
2013 EIR had rejected some alternatives as not being able to
meet an earlier May 2015 deadline for compliance with the
Chloride TMDL order, and that deadline had been extended, the
use of the 2013 EIR’s analysis was no longer “current” and
needed to be updated. Second, it argued that the 2017
Recirculated EIR did not adequately discuss alternatives to
separating the Recycled Water Project from the Chloride
Compliance Project. And, third, the Alliance contended that the
2017 Recirculated EIR failed to identify a preferred alternative.
Regarding cumulative impacts, the Alliance argued that
the 2017 Recirculated EIR failed to analyze the impact of the
Recycled Water Project on biological resources like the
stickleback. The Alliance contended that because the Recycled
Water Project was listed as a related project, a cumulative impact
analysis was necessary.
In support of its argument that the District had engaged in
piecemealing, the Alliance asserted that the Chloride Compliance
Project and the Recycled Water Project were part of one project
that the District had “‘“chopp[ed]”’” into smaller ones, in an
attempt “to defer or avoid identifying, analyzing, and mitigating
impacts” of the project.
14
On August 23, 2019, the District filed its opposition,
asserting, among other things, that: the petition was moot
because the Recycled Water Project had been abandoned by the
District; and res judicata and collateral estoppel principles barred
the Alliance’s assertions as the trial court had mostly upheld the
Chloride Compliance Project in case No. BS145869.
On September 26, 2019, the trial court heard oral
argument on the petition in case No. BS170983.6 On October 11,
2019, the court issued its decision denying the petition.
While the trial court rejected the District’s res judicata
arguments, the court found that the Alliance was “collaterally
estopped from litigating any issue raised in [case No. BS145869]
concerning the Chloride Compliance Project, with the exception of
the Brine Trucking component and updates to the 2013 EIR.”
The court noted that there were only two deficiencies in the 2013
EIR: “(1) a lack of sufficient analysis on potential impacts to the
stickleback fish; and (2) a lack of an alternative for brine
management. . . . The court found no fault with the other
components of the Chloride Compliance Project and thus the writ
was granted only in part.” The court found that collateral
estoppel applied because “the parties are identical, the issues
concerning the Chloride Compliance Project were actually
litigated and necessarily decided in [case No.] BS145869, and the
court’s decision was not appealed and is final on the merits.”
6 Although a court reporter was present at the hearing on
September 26, 2019, due to a catastrophic “malfunction” of
equipment, she was unable to prepare a transcript of the
proceedings. The record therefore does not include a reporter’s
transcript of the proceedings. Nor does it include a suitable
substitute such as a settled or agreed statement.
15
Regarding the Alliance’s piecemealing argument, the trial
court rejected it as moot. The court found that because the
District had abandoned the Recycled Water Project, there were
no longer two components to the Project.
The trial court also rejected the Alliance’s cumulative
impacts argument. Citing California Code of Regulations, title
14, section 15130, subdivision (a)(1), the court ruled: “As the
[2017 Recirculated EIR] states, the Chloride Compliance Project
simply has no impacts—biological resource or otherwise—that
accumulate with those of the Recycled Water Project. The
Chloride Compliance Project will not result in any reduction of
effluent discharge, the biological impacts of which were the only
impact not sufficiently addressed in the 2013 EIR. Since the
Chloride Compliance Project will not reduce water flow in the
River, there are no cumulative impacts to resolve.” The court
added, “[s]ince the Chloride Compliance Project will not have any
biological resources impacts that accumulate with the Recycled
Water Project, no cumulative impacts analysis is needed on that
issue.”
The trial court rejected the Alliance’s argument that the
2017 Recirculated EIR’s reuse of the prior alternatives analysis
from the 2013 EIR and the 2016 Trucking EIR was outdated and
therefore invalid. The court found that “[the Alliance] fails to
meet its burden of presenting substantial evidence that the
passage of the [Chloride TMDL order] deadline is significant new
information that requires an update of the alternatives analysis.
[The Alliance] presents no evidence that the [Control Board]
waived . . . the [Chloride TMDL order] deadline, and the history
of [case No. BS145869] suggests the [Control Board] would not
waive it. Thus, the urgency which caused the 2013 EIR to reject
16
alternatives remains in place, or at least [the Alliance] has not
shown otherwise.”
The trial court also rejected the Alliance’s argument that
the District failed to consider other alternatives to separation of
the Recycled Water Project from the Chloride Compliance Project.
It disagreed with the District’s contention that the doctrine of
collateral estoppel barred the Alliance from pursuing this
argument, stating that the Alliance was “not barred from
challenging alternatives to the separation of the Chloride
Compliance Project from the Recycled Water Project.”
Nonetheless, the court concluded that the Alliance’s challenge
was moot because the District had abandoned the Recycled Water
Project.
Finally, the trial court rejected the Alliance’s argument
that the 2017 Recirculated EIR failed to designate a preferred
alternative as required by CEQA. The court noted that the
preferred alternative was the Chloride Compliance Project and
“the [2017 Recirculated EIR] found there [were] no other feasible
alternatives from which to choose.”
On December 4, 2019, the trial court entered judgment.
The Alliance timely appealed.
III. DISCUSSION
A. CEQA
CEQA “and the regulations implementing it (Cal. Code
Regs., tit. 14, § 15000 et seq. [(CEQA Guidelines)]) embody
California’s strong public policy of protecting the environment.
‘The basic purposes of CEQA are to: [¶] (1) Inform governmental
17
decision makers and the public about the potential, significant
environmental effects of proposed activities. [¶] (2) Identify
ways that environmental damage can be avoided or significantly
reduced. [¶] (3) Prevent significant, avoidable damage to the
environment by requiring changes in projects through the use of
alternatives or mitigation measures when the governmental
agency finds the changes to be feasible. [¶] (4) Disclose to the
public the reasons why a governmental agency approved the
project in the manner the agency chose if significant
environmental effects are involved.’” (Tomlinson v. County of
Alameda (2012) 54 Cal.4th 281, 285–286, fn. omitted.)
“‘The foremost principle under CEQA is that the
Legislature intended the act “to be interpreted in such manner as
to afford the fullest possible protection to the environment within
the reasonable scope of the statutory language.”’ [Citations.]
‘With narrow exceptions, CEQA requires an EIR whenever a
public agency proposes to approve or to carry out a project that
may have a significant effect on the environment. [Citations.]’
[Citations.] The basic purpose of an EIR is to ‘provide public
agencies and the public in general with detailed information
about the effect [that] 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.’ [Citations.] ‘Because the EIR must be certified or
rejected by public officials, it is a document of accountability. If
CEQA is scrupulously followed, the public will know the basis on
which its responsible officials either approve or reject
environmentally significant action, and the public, being duly
informed, can respond accordingly to action with which it
disagrees.’ [Citation.] The EIR ‘protects not only the
18
environment but also informed self-government.’” (Sierra Club v.
County of Fresno (2018) 6 Cal.5th 502, 511–512, fn. omitted
(Sierra Club).)
“The standard of review in a CEQA case, as provided in
sections 21168.5 and 21005, is abuse of discretion. . . . ‘[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.”
[Citation.]’ [Citation.]” (Sierra Club, supra, 6 Cal.5th at p. 512.)
“‘Where an EIR is challenged as being legally inadequate, a
court presumes a public agency’s decision to certify the EIR is
correct, thereby imposing on a party challenging it the burden of
establishing otherwise.’” (San Franciscans for Livable
Neighborhoods v. City and County of San Francisco (2018) 26
Cal.App.5th 596, 613.)
B. Cumulative Impact Analysis
The Alliance contends the trial court erred by finding that
no cumulative impacts study on the stickleback was necessary for
19
the 2017 Recirculated EIR. “[S]ection 21083, subdivision (b),
provides that the CEQA guidelines . . . should address a situation
in which ‘[t]he possible effects of a project are individually limited
but cumulatively considerable. As used in this paragraph,
“cumulatively considerable” means that the incremental effects of
an individual project are considerable when viewed in connection
with the effects of past projects, the effects of other current
projects, and the effects of probable future projects.’ ([] § 21083,
subd. (b)(2),italics [removed].)” (Environmental Protection
Information Center v. California Dept. of Forestry & Fire
Protection (2008) 44 Cal.4th 459, 523.)
Although the Alliance contends that the trial court
“misconstrued” CEQA Guidelines section 15130, subdivision
(a)(1), and asserts the error requires de novo review on appeal, at
bottom, it challenges the court’s factual finding that “[s]ince the
Chloride Compliance Project will not reduce water flow in the
River, there are no cumulative impacts to resolve.” According to
the Alliance, “[t]he record before the Court is otherwise”; and, it
cites in support the notice of preparation from the 2016 Recycled
Water SEIR, in which the District stated that “‘[t]he production
and disposal of brine produced at Valencia [water reclamation
plant] would reduce discharge to the [River].’” A notice of
preparation, however, is not a factual finding. Rather, it is the
means by which the lead agency provides notice to “all
responsible agencies and the state Office of Planning and
Research. These agencies then have 30 days to specify the scope
and content of information to be included. ([] § 21080.4; [CEQA
Guidelines], § 15082.) With this input, the lead agency prepares
a draft EIR ([] § 21100) and circulates it for public review and
comment ([] § 21091; [CEQA Guidelines], § 15087).” (Tuolumne
20
Jobs & Small Business Alliance v. Superior Court (2014) 59
Cal.4th 1029, 1038.) The factual finding by the District, as set
forth in the 2017 Recirculated EIR, is that the Chloride
Compliance Project would not reduce the quantity of wastewater
discharge into the River and thus would not impact any special
status species. Specifically, the District found that: “The
separation of the Recycled Water Project from the Chloride
Compliance Project would eliminate the potential diversion of
approximately 5 [million gallons per day] from the [Valencia
water reclamation plant] discharge to the [River]. The combined
discharge from the [Valencia and Saugus water reclamation
plants] would remain essentially at the current rate of 18 [million
gallons per day]. As a result, the Chloride Compliance Project
would not impact any special-status species or their habitat
within the [River] because the discharge conditions would be
essentially the same as current conditions.” When, as here,
substantial evidence supports the District’s conclusions, we defer
to the agency’s factual findings. (Sierra Club, supra, 6 Cal.5th at
p. 512.)
We next consider the Alliance’s related argument that the
District was nonetheless required to conduct a cumulative impact
study because the Recycled Water Project was “a reasonably
foreseeable” future project. (Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal.3d 376, 396.)
“[M]ere awareness of proposed expansion plans or other proposed
development does not necessarily require the inclusion of those
proposed projects in the EIR. Rather, these proposed projects
must become ‘probable future projects.’ (CEQA Guidelines,
§ 15130(b)(1)(A).)” (Gray v. County of Madera (2008) 167
Cal.App.4th 1099, 1127 (Gray).) “‘[P]robable future projects’ can
21
be interpreted as reasonably probable future projects. . . .
[P]rojects that are undergoing environmental review are
reasonably probable future projects. [Citation.] We conclude
that any future project where the applicant has devoted
significant time and financial resources to prepare for any
regulatory review should be considered as probable future
projects for the purposes of cumulative impact.” (Gray, supra,
167 Cal.App.4th at pp. 1127–1128.)
In support of its contention that the Recycled Water Project
was reasonably foreseeable, the Alliance cites to the District’s
statement that it “anticipates that [the Water Agency] will take
primary responsibility for watershed management planning,
including consideration, planning and implementation of any
recycled water reuse opportunities, and that to the extent [the
Water Agency] decides to proceed with any projects, [the Water
Agency] will act as lead agency in any such efforts.” We disagree
with the Alliance’s characterization of this statement. At best, it
reflects that the Water Agency would be the lead agency on any
future project involving recycled water reuse if the Water Agency
decided to proceed with such a project. The statement does not,
on its own, render the Recycled Water Project reasonably
foreseeable. Nor does the record demonstrate that the Recycled
Water Project has undergone any environmental review by the
Water Agency; or that the Water Agency will proceed with the
Recycled Water Project as currently defined, that is, by diverting
treated wastewater produced from the Chloride Compliance
Project toward the local communities. On this record, whether
the Recycled Water Project will proceed is speculative, and CEQA
does not require a cumulative impacts analysis. (Gray, supra,
167 Cal.App.4th at pp. 1127–1128.)
22
C. Piecemealing
The Alliance also argues that the District conducted an
improper piecemealing of the Project. “‘CEQA broadly defines a
“project” as “an activity which may cause either a direct physical
change in the environment, or a reasonably foreseeable indirect
physical change in the environment, and . . . [¶] . . . [¶] . . . that
involves the issuance to a person of a lease, permit, license,
certificate, or other entitlement for use by one or more public
agencies.” [Citation.] [¶] The statutory definition is augmented
by the [CEQA] Guidelines . . . , which define a “project” as “the
whole of an action, which has a potential for resulting in either a
direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment . . . .”’
[Citation.]” (Banning Ranch Conservancy v. City of Newport
Beach (2012) 211 Cal.App.4th 1209, 1220 (Banning Ranch).)
“Accordingly, ‘CEQA forbids “piecemeal” review of the significant
environmental impacts of a project.’ [Citation.] Agencies cannot
allow ‘environmental considerations [to] become submerged by
chopping a large project into many little ones—each with a
minimal potential impact on the environment—which
cumulatively may have disastrous consequences.’ [Citation.]”
(Id. at p. 1222.)
We agree with the trial court that any argument of
piecemealing related to the Recycled Water Project has been
rendered moot by the District’s decision not to proceed with the
Recycled Water Project. “‘California courts will decide only
justiciable controversies. [Citations.] The concept of
justiciability is a tenet of common law jurisprudence and
23
embodies “[t]he principle that courts will not entertain an action
which is not founded on an actual controversy . . . .” [Citations.]
Justiciability thus “involves the intertwined criteria of ripeness
and standing. A controversy is ‘ripe’ when it has reached, but has
not passed, the point that the facts have sufficiently congealed to
permit an intelligent and useful decision to be made.” [Citation.]
But “ripeness is not a static state” [citation], and a case that
presents a true controversy at its inception becomes moot “‘if
before decision it has, through act of the parties or other cause,
occurring after the commencement of the action, lost that
essential character’” [citation].’ [Citation.] Stated differently,
moot cases ‘are “[t]hose in which an actual controversy did exist
but, by the passage of time or a change in circumstances, ceased
to exist.” [Citation.]’ [Citation.]” (Parkford Owners for a Better
Community v. County of Placer (2020) 54 Cal.App.5th 714, 722.)
We review a finding of mootness de novo. (Wilson & Wilson v.
City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1582.)
As discussed, piecemealing violates CEQA because it has
the potential to disguise the cumulative impact of a project by
chopping it into smaller projects. (Banning Ranch, supra, 211
Cal.App.4th at p. 1222.) However, if one of those smaller projects
has been rejected from the project as a whole, the question of
piecemealing becomes moot. (See § 21080, subd. (b)(5) [“This
division [referring to CEQA] does not apply to any of the
following activities: [¶] . . . [¶] Projects which a public agency
rejects or disapproves”].) Here, there is no longer an actual
controversy that the Recycled Water Project will have a
cumulative impact with the Chloride Compliance Project because
the two components will proceed independently of each other
24
(and, in the case of the Recycled Water Project, may not proceed
at all). Thus, the question of piecemealing is moot.
Even if we were to consider the merits of the Alliance’s
argument, we find no piecemealing. We independently determine
whether improper piecemealing is occurring. (Banning Ranch,
supra, 211 Cal.App.4th at p. 1224.)
As described in Banning Ranch, supra, 211 Cal.App.4th
1209, there are two lines of cases where courts have found
improper piecemealing: “First, there may be improper
piecemealing when the purpose of the reviewed project is to be
the first step toward future development. . . . [¶] And there may
be improper piecemealing when the reviewed project legally
compels or practically presumes completion of another action.”
(Id. at p. 1223.) “On the other hand, two projects may properly
undergo separate environmental review (i.e., no piecemealing)
when the projects have different proponents, serve different
purposes, or can be implemented independently.” (Ibid.)
On this record, we find that the District did not engage in
piecemealing. The two objectives of the Chloride Compliance
Project as stated in the 2017 Recirculated EIR are compliance
with the Chloride TMDL order and use of an existing industrial
facility to dispose of the resulting brine. Under the Chloride
Compliance Project, the District will discharge the treated
wastewater produced from the Chloride Compliance Project into
the River. The Recycled Water Project, by contrast, would
increase the distribution of recycled water for use by local
municipalities by diverting the treated wastewater that would
have otherwise been discharged into the River. In other words,
the Recycled Water Project involves the end-product of the
Chloride Compliance Project. Accordingly, the Recycled Water
25
Project is not necessary for the Chloride Compliance Project to
proceed as stated in the 2017 Recirculated EIR. Thus, the
Chloride Compliance Project can be implemented without the
Recycled Water Project.
D. Project Alternatives
Finally, we consider the Alliance’s argument that the trial
court erred by purportedly finding that its challenges to the
alternatives analysis in the 2017 Recirculated EIR were subject
to collateral estoppel. Our review of the record demonstrates
that the court did not reject the Alliance’s alternatives argument
on collateral estoppel grounds. The Alliance raised three
arguments regarding project alternatives below. Specifically, it
argued that: (1) the 2013 EIR’s project alternative analysis was
“outdated” because the deadline for complying with the Chloride
TMDL order was extended and the 2013 EIR’s analysis therefore
required updating; (2) the 2017 Recirculated EIR failed to
analyze reasonable alternatives to separation of the Recycled
Water Project from the Chloride Compliance Project; and (3) the
2017 Recirculated EIR failed to identify the preferred project
alternative. On appeal, the Alliance does not challenge the trial
court’s rulings on its first and third arguments. And, contrary to
the Alliance’s contention, the court expressly found that the
doctrine of collateral estoppel did not bar the Alliance from
“challenging alternatives to the separation of the Chloride
Compliance Project from the Recycled Water Project.” The court
instead rejected the Alliance’s argument on mootness grounds.
The Alliance has failed to raise any challenge to the court’s
mootness ruling and has therefore forfeited any argument on
26
appeal. (See Golden Door Properties, LLC v. County of San Diego
(2020) 50 Cal.App.5th 467, 555 [“And even in a CEQA case, ‘“[t]he
most fundamental rule of appellate review is that an appealed
judgment or order is presumed to be correct.” [Citation.] It is the
appellant who bears the burden of overcoming that
presumption’”].)7
7 To the extent the Alliance argues that the doctrine of
collateral estoppel did not bar it from challenging the District’s
failure to consider alternatives to the Chloride Compliance
Project, that is, alternatives to removing chloride from the
treated wastewater, it did not make any such challenge in the
trial court. “We do not consider new matters raised for the first
time on appeal.” (Citizens Opposing a Dangerous Environment v.
County of Kern (2014) 228 Cal.App.4th 360, 380, fn. 16.)
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IV. DISPOSITION
The judgment denying the Affordable Clean Water
Alliance’s petition for writ of mandate is affirmed. The Santa
Clarita Valley Sanitation District of Los Angeles County is
entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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