Center for Biological Diversity v. County of San Bernardino

Filed 5/18/16 (received for posting 5/19/16) (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CENTER FOR BIOLOGICAL
DIVERSITY et al.,
G051058
Plaintiffs and Appellants,
(Super. Ct. No. 30-2012-00612947)
v.
ORDER MODIFYING OPINION;
COUNTY OF SAN BERNARDINO et al., NO CHANGE JUDGMENT
Defendants and Respondents;
CADIZ, INC., et al.,
Real Parties in Interest and
Respondents.
It is ordered that the opinion filed herein on May 10, 2016, be modified as
follows:
On page 2, in the third editorial paragraph, beginning “Best & Krieger,”
delete “Best & Krieger” and replace it with “Best Best & Krieger.”
This modification does not effect a change in the judgment.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.
2
Filed 5/10/16 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CENTER FOR BIOLOGICAL
DIVERSITY et al.,
G051058
Plaintiffs and Appellants,
(Super. Ct. No. 30-2012-00612947)
v.
OPINION
COUNTY OF SAN BERNARDINO et al.,
Defendants and Respondents;
CADIZ, INC., et al.,
Real Parties in Interest and
Respondents.
Appeals from a judgment of the Superior Court of Orange County,
Gail Andrea Andler, Judge. Affirmed. Respondents’ request for judicial notice. Granted
in part and denied in part.
Center for Biological Diversity, Aruna M. Prabhala, Adam F. Keats,
Chelsea Tu; Center for Food Safety and Adam F. Keats for Plaintiffs and Appellants
Center for Biological Diversity, San Bernardino Valley Audubon Society, and Sierra
Club, San Gorgonio Chapter.
University of California, Irvine School of Law Environmental Law Clinic
and Michael Robinson-Dorn for Plaintiff and Appellant National Parks Conservation
Association.
Downey Brand, Christian L. Marsh, Kevin M. O’Brien and
Rebecca R.A. Smith for Defendants and Respondents County of San Bernardino and
Board of Supervisors of County of San Bernardino.
Best & Krieger, Michelle Ouellette and Sarah E. Owsowitz for Defendants
and Respondents Santa Margarita Water District and Board of Directors of Santa
Margarita Water District.
Alston & Bird, Edward J. Casey and Andrew Brady for The Association of
California Water Agencies as Amicus Curiae on behalf of Defendants and Respondents.
Remy Moose Manley, James G. Moose, Sabrina V. Teller and
Gwynne B. Hunter for California State Association of Counties and California
Association of Sanitation Agencies as Amici Curiae on behalf of Defendants and
Respondents.
Brownstein Hyatt Farber Schreck, Diane C. De Felice, Amy M. Steinfeld;
Woodruff, Spradlin & Smart and M. Lois Bobak for Real Parties in Interest and
Respondents Cadiz, Inc., and Fenner Valley Mutual Water Company.
Cox, Castle & Nicholson, Michael H. Zischke and Andrew B. Sabey for
California Building Industry Association, Building Industry Legal Defense Foundation,
Building Industry Association of the Bay Area, California Business Properties
Association, California Chamber of Commerce and Southern California District Council
of Laborers as Amici Curiae on behalf of Defendants and Respondents and Real Parties
in Interest and Respondents.
* * *
2
INTRODUCTION
A proposed project to pump fresh groundwater from an underground
aquifer located below real property owned by Cadiz, Inc. (Cadiz), in the Mojave Desert
(the Project) spawned six related cases. The Project is a public/private partnership, the
purposes of which are to prevent waste of the water in the aquifer, and to ultimately
transport the water to customers in Los Angeles, Orange, Riverside, San Bernardino, and
Ventura Counties.
In this case, the Center for Biological Diversity, San Bernardino Valley
Audubon Society, and Sierra Club, San Gorgonio Chapter (collectively, CBD), and the
National Parks Conservation Association (National Parks) filed a petition for a writ of
mandate in the trial court, challenging the approval of the Project under the California
Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).1 The
named respondents were the Santa Margarita Water District (Santa Margarita) as the lead
agency for the Project; the Board of Directors of the Santa Margarita Water District; the
County of San Bernardino, a responsible agency for the Project (the County); and the
Board of Supervisors of the County of San Bernardino. The trial court denied the petition
for a writ of mandate, and Appellants raise several issues in this appeal.
First, Appellants contend that Santa Margarita was improperly designated
as the lead agency for the Project, and that this error so tainted the environmental review
process that such designation requires preparation of a new environmental impact report
(EIR). We disagree. Santa Margarita was properly designated as the lead agency
because it is jointly carrying out the Project with the property owner, Cadiz, and because
it is the agency with the principal authority for approving and supervising the Project as a
whole. Because we find no error in the designation of Santa Margarita as the lead
agency, we need not address the issue of prejudice.
1
CBD and National Parks will be collectively referred to as Appellants.
3
Second, Appellants argue that the EIR’s project description was inaccurate
and misleading because the Project was described as a means of conserving water, but
will not save from evaporation an amount of water equal to the amount being pumped
from the aquifer over the life of the Project. We conclude that the Project is consistent
with the EIR’s purpose and objectives because it will conserve water otherwise lost to
brine and evaporation, and will improve water supplies throughout many areas of the
State of California.
Third, Appellants argue that the EIR is misleading because it does not
provide an accurate duration for pumping by the Project. We disagree. The EIR sets a
definite length of time during which pumping under the Project may occur. The
additional time permitted for pumping if contingencies require that the pumping be
extended do not alter the total amount of water that may be withdrawn. Although the
EIR and other documents included as part of the environmental review contemplate that
the parties might wish to extend the pumping for an additional term of years after the
stated completion date of the Project, any further term is not reasonably foreseeable at
this time. Indeed, the EIR specifically provides that any extensions of the Project term
would require further, separate environmental review.
Fourth and finally, Appellants contend that the Project will pump more
water from the aquifer than is contemplated by and discussed in the EIR. Having
reviewed the EIR and related documents, we conclude that they do not permit withdrawal
of water in excess of the amounts specified in the EIR, so there is nothing inaccurate or
misleading about the Project description.
In sum, when the appropriate standard of review is applied, we conclude
there was no prejudicial abuse of discretion in approving the Project and certifying the
EIR. Therefore, we affirm the trial court’s judgment denying Appellants’ petition for a
writ of mandate.
4
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Cadiz owns land in San Bernardino County, which overlies the Cadiz
Valley and Fenner Valley aquifer system in the Mojave Desert. The aquifer is estimated
to hold 17 to 34 million acre-feet of fresh groundwater. Currently, this groundwater
flows downward to dry lakes, where it mixes with highly salinated groundwater before
evaporating. Once the groundwater reaches the dry lakes, it becomes unusable as fresh
water. The stated “fundamental” purpose of the Project is to save “substantial quantities
of groundwater” that are being lost to evaporation and excess salinity.
The Project would have two distinct but related components:
(1) groundwater conservation and recovery, and (2) imported water storage. In the first
part of the Project (phase 1), approximately 34 new wells will be constructed on Cadiz’s
land to extract an average of 50,000 acre-feet of groundwater from the aquifer every year
for 50 years; as many as 75,000 acre-feet of groundwater may be extracted in any given
year.2 Cadiz must pump the groundwater “in accordance with agreements with Cadiz
Inc. and the Cadiz Groundwater Management, Monitoring and Mitigation Plan
(GMMMP).”
The water will be transported via a 43-mile underground water conveyance
pipeline to the Colorado River Aqueduct; the aqueduct will then transport the water to the
Project participants, including Santa Margarita. Twenty percent of the Project’s
groundwater yield will be reserved for users in the County of San Bernardino; the
remaining 80 percent will be delivered to other water providers with whom Cadiz has
contracted.
The Project participants will use the water from the Project for their
customers located in Los Angeles, Orange, Riverside, San Bernardino, and Ventura
2
An acre-foot is the volume of water that would cover one acre to a depth
of one foot. (Webster’s 3d New Internat. Dict. (2002) p. 19, col. 1.) Fifty thousand
acre-feet is equivalent to 16.3 billion gallons.
5
Counties. The Project will be managed and operated by a private, nonprofit entity,
Fenner Valley Mutual Water Company (Fenner Valley), formed by Cadiz.
In the second part of the Project (phase 2), the Project participants will be
able to send any surplus surface water supplies back to the Project site, to be held in
storage in spreading basins until they are needed. Phase 2 is not currently under
consideration; additional environmental review will be required before phase 2 proceeds.
Santa Margarita posted a notice of preparation of a draft EIR for the Project
in March 2011. In June 2011, the County and Santa Margarita executed a memorandum
of understanding that provided that Santa Margarita would act as the lead agency, and the
County would act as a responsible agency (the 2011 Memorandum). In December 2011,
Santa Margarita released the draft EIR for public review and comment.
Santa Margarita, the County, Cadiz, and Fenner Valley executed a
memorandum of understanding in 2012 (the 2012 Memorandum), under the terms of
which the signing parties agreed that a groundwater management, monitoring, and
mitigation plan would be developed in connection with the finalization of the draft EIR,
which would “govern the operation and management of the Project by [Fenner Valley]
during the operational phase of the Project, the currently anticipated term of which is
50 years.” In the 2012 Memorandum, the parties agreed that “compliance by [Santa
Margarita], [Fenner Valley], and Cadiz with the provisions of th[e 2012 Memorandum]
and the [plan] will satisfy the requirements for an exclusion from the permitting
requirements” of the San Bernardino County’s Desert Groundwater Management
Ordinance (San Bernardino County Ord. No. 3872, adding art. 5, § 33.06551 et seq.,
Desert Groundwater Management, to San Bernardino County Code tit. 3, div. 3, ch. 6)
(the Ordinance). The 2012 Memorandum provided that the Project could not proceed
unless the parties finalized the groundwater management, monitoring, and mitigation plan
(the Plan) based on information provided during the process of finalizing the draft EIR.
6
On July 31, 2012, Santa Margarita certified the final EIR and approved an
updated version of the Plan. A month later, Appellants filed a verified petition for a writ
of mandate challenging the approval of the Project and the certification of the EIR. The
petition was originally filed in the San Bernardino County Superior Court, but was
transferred to the Orange County Superior Court by stipulated order, as two related cases
were pending in Orange County. A bench trial was held, after which the trial court issued
a detailed statement of decision outlining its findings of fact and conclusions of law. The
court denied the petition with prejudice and entered judgment against Appellants.
Appellants timely filed notices of appeal.
DISCUSSION
I.
CALIFORNIA WATER LAW
The California Constitution and the Water Code make clear that the policy
of this state is to put water resources to reasonable and beneficial use. The Constitution
provides: “It is hereby declared that because of the conditions prevailing in this State the
general welfare requires that the water resources of the State be put to beneficial use to
the fullest extent of which they are capable, and that the waste or unreasonable use or
unreasonable method of use of water be prevented, and that the conservation of such
waters is to be exercised with a view to the reasonable and beneficial use thereof in the
interest of the people and for the public welfare.” (Cal. Const., art. X, § 2.)
The Water Code states, in relevant part:
—“It is hereby declared that the people of the State have a paramount
interest in the use of all the water of the State and that the State shall determine what
water of the State, surface and underground, can be converted to public use or controlled
for public protection.” (Wat. Code, § 104.)
7
—“It is hereby declared that the protection of the public interest in the
development of the water resources of the State is of vital concern to the people of the
State and that the State shall determine in what way the water of the State, both surface
and underground, should be developed for the greatest public benefit.” (Wat. Code,
§ 105.)
—“It is the policy of the state that groundwater resources be managed
sustainably for long-term reliability and multiple economic, social, and environmental
benefits for current and future beneficial uses. Sustainable groundwater management is
best achieved locally through the development, implementation, and updating of plans
and programs based on the best available science.” (Wat. Code, § 113.)3
—The Legislature’s stated intent in enacting the Sustainable Groundwater
Management Act was “to do all of the following: [¶] (a) To provide for the sustainable
management of groundwater basins. [¶] (b) To enhance local management of
groundwater consistent with rights to use or store groundwater and Section 2 of Article X
of the California Constitution. It is the intent of the Legislature to preserve the security
of water rights in the state to the greatest extent possible consistent with the sustainable
management of groundwater. [¶] (c) To establish minimum standards for sustainable
groundwater management. [¶] (d) To provide local groundwater agencies with the
authority and the technical and financial assistance necessary to sustainably manage
groundwater. [¶] (e) To avoid or minimize subsidence. [¶] (f) To improve data
collection and understanding about groundwater. [¶] (g) To increase groundwater storage
and remove impediments to recharge. [¶] (h) To manage groundwater basins through the
3
Water Code section 113, as well as other provisions of the Sustainable
Groundwater Management Act (Wat. Code, § 10720 et seq.), became effective January 1,
2015, after the trial court entered judgment in this case. (Stats. 2014, ch. 346, § 2.) In
supplemental briefing, the parties agreed that the legislation does not currently have any
direct impact on the issues raised by this appeal, but that it is consistent with state and
local groundwater management policy.
8
actions of local governmental agencies to the greatest extent feasible, while minimizing
state intervention to only when necessary to ensure that local agencies manage
groundwater in a sustainable manner.” (Wat. Code, § 10720.1.)
Groundwater belongs to the state, not any person or entity, but may be
extracted by those with the right to do so, including those whose land overlies the
groundwater source. “At least since 1928 when the predecessor to article X section 2 of
the California Constitution was adopted, there is no private ownership of groundwater.
[Citation.] The State of California owns all of the groundwater in California, not as a
proprietary owner, but in a manner that empowers it to supervise and regulate water use.
[Citation.] Water rights holders have the right to ‘take and use water,’ but they do not
own the water and cannot waste it. [Citation.] [¶] A person obtains a right to extract
groundwater by owning specific land, by appropriating water [citation], or by inheriting a
pueblo right. [Citation.] Ownership of land appurtenant to groundwater engenders an
‘overlying right.’ [Citation.] Under the ‘correlative rights doctrine,’ ‘as between the
owners of land overlying strata of percolating waters, the rights of each to the water are
limited, in correlation with those of others, to his “reasonable use” thereof when the water
is insufficient to meet the needs of all. [Citations.]’ [Citation.] An appropriative right is
based on the taking of groundwater. [Citation.]” (Central and West Basin Water
Replenishment Dist. v. Southern Cal. Water Co. (2003) 109 Cal. App. 4th 891, 905-906.)
State agencies have consistently concluded that flexibility is necessary in
managing groundwater supplies. “Groundwater management must be adapted to an
area’s political, institutional, legal, and technical constraints and opportunities.
Groundwater management must be tailored to each basin or subbasin’s conditions and
needs. Even within a single basin, the management objectives may change as more is
learned about managing the resource within that basin. Flexibility is the key, but that
flexibility must operate within a framework that ensures public participation, monitoring,
evaluation, feedback on management alternatives, rules and regulations, and
9
enforcement.” (Dept. of Water Resources, Cal.’s Groundwater: Bulletin 118-Update
2003 (Oct. 2003) p. 38 [as of
May 10, 2016].)
II.
CEQA STANDARDS AND STANDARD OF REVIEW
“CEQA is a comprehensive scheme designed to provide long-term
protection to the environment.” (Mountain Lion Foundation v. Fish & Game Com.
(1997) 16 Cal. 4th 105, 112.) “Its purposes are manifold, but chief among them is that of
providing public agencies and the general public with detailed information about the
effects of a proposed project on the environment.” (San Franciscans for Reasonable
Growth v. City and County of San Francisco (1984) 151 Cal. App. 3d 61, 72.)
Environmental protection is the guiding concept in interpreting CEQA. “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.’” (Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal. 3d 376, 390 (Laurel Heights).)
“The EIR is the primary means of achieving the Legislature’s considered
declaration that it is the policy of the state to ‘take all action necessary to protect,
rehabilitate, and enhance the environmental quality of the state.’” (Laurel Heights,
supra, 47 Cal.3d at p. 392.) The EIR is therefore the “‘heart of CEQA’” and an
“‘environmental “alarm bell” whose purpose it is to alert the public and its responsible
officials to environmental changes before they have reached the ecological points of no
return.’” (Ibid.) “The EIR is also intended ‘to demonstrate to an apprehensive citizenry
that the agency has, in fact, analyzed and considered the ecological implications of its
10
action.’” (Ibid.) Thus, the EIR is an accountability document and the EIR process
“protects not only the environment but also informed self-government.” (Ibid.)
An EIR must identify the significant effects on the environment of a
project, identify alternatives to the project, and indicate the manner in which those
significant effects can be mitigated or avoided. (Pub. Resources Code, § 21002.1,
subd. (a).) A project might also have a significant effect on the environment where the
project’s environmental effects are “individually limited but cumulatively considerable.”
(Cal. Code Regs., tit. 14, § 15065, subd. (a)(3).) (The administrative guidelines adopted
by the California Natural Resources Agency, the agency with primary responsibility for
statewide implementation of CEQA (California Building Industry Assn. v. Bay Area Air
Quality Management Dist. (2015) 62 Cal. 4th 369, 378), will be referred to herein as the
Guidelines.) A public agency may not approve a project as proposed if there are feasible
alternatives or feasible mitigation measures available, which would substantially lessen
or avoid the project’s significant environmental effects. (Pub. Resources Code, § 21001;
Guidelines, § 15065, subd. (c)(3).)
“In reviewing a petition challenging the legality of a lead agency’s actions
under CEQA, our role is the same as the trial court’s. We review the agency’s actions,
not the trial court’s decision, and our inquiry extends ‘only to whether there was a
prejudicial abuse of discretion’ on the part of the agency. [Citations.]” (Rialto Citizens
for Responsible Growth v. City of Rialto (2012) 208 Cal. App. 4th 899, 923; see Center for
Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal. 4th 204, 214-215.)
“Abuse of discretion is established if the agency has not proceeded in a manner required
by law or if the determination or decision is not supported by substantial evidence.”
(Pub. Resources Code, § 21168.5; see Center for Biological Diversity v. Department of
Fish & Wildlife, supra, at p. 215; Vineyard Area Citizens for Responsible Growth, Inc. v.
City of Rancho Cordova (2007) 40 Cal. 4th 412, 426-427.) “For purposes of CEQA,
substantial evidence ‘means enough relevant information and reasonable inferences from
11
this information that a fair argument can be made to support a conclusion, even though
other conclusions might also be reached.’ [Citation.]” (Rialto Citizens for Responsible
Growth v. City of Rialto, supra, at p. 923.)
“Questions concerning the proper interpretation or application of the
requirements of CEQA are matters of law. [Citation.] CEQA requires that an EIR
include detailed information concerning, among other things, the significant
environmental effects of the project under consideration. [Citations.] When the
informational requirements of CEQA are not met but the agency nevertheless certifies the
EIR as meeting them, the agency fails to proceed in a manner required by law and abuses
its discretion. [Citation.] ‘“The EIR is the heart of CEQA,” and the integrity of the
process is dependent on the adequacy of the EIR. [Citations.]’ [Citation.] [¶] In
reviewing the lead agency’s actions under CEQA, we do not ‘“‘“pass upon the
correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an
informative document.”’ [Citation.] We 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. ‘Our limited function is consistent with the principle that “[t]he purpose of
CEQA is not to generate paper, but to compel government at all levels to make decisions
with environmental consequences in mind. CEQA does not, indeed cannot, guarantee
that these decisions will always be those which favor environmental considerations.”’
[Citations.]”’” (Rialto Citizens for Responsible Growth v. City of Rialto, supra, 208
Cal.App.4th at pp. 923-924.)
III.
THE DESIGNATION OF SANTA MARGARITA AS THE LEAD AGENCY FOR THE PROJECT
IS IN COMPLIANCE WITH CEQA.
In the 2011 Memorandum, Santa Margarita and the County agreed that
Santa Margarita would serve as the lead agency for the Project, and the County would be
12
a responsible agency. In its statement of decision, the trial court found: “[Santa
Margarita] should not have been designated the lead agency for the Project. CEQA’s
underpinnings of accountability and stewardship support the conclusion that the County
should have instead served as lead agency. The County was in the best position to
objectively balance the benefits and risks of the project rather than the purchaser of the
water, [Santa Margarita].” The court further found, however, that the error in designating
Santa Margarita as the lead agency was not prejudicial: “[T]he Court is unable to
conclude that the failure to designate the County as Lead Agency, without more,
constitutes a CEQA violation where [Santa Margarita] may be considered to have a
substantial claim to be the lead agency.” For the reasons we explain, and as summarized
in part III.B. of the Discussion section, we conclude that the designation of Santa
Margarita as the lead agency for the Project complied with CEQA.
A.
Relevant Legal Standards
Public Resources Code section 21067 defines a “‘[l]ead agency’” as “the
public agency which has the principal responsibility for carrying out or approving a
project which may have a significant effect upon the environment.” Appellants contend
that Santa Margarita was improperly designated as the lead agency for the Project, and
that the County, which was designated as a responsible agency, should have been the lead
agency.
Both Santa Margarita and the County are public agencies within the
meaning of CEQA. “‘Public agency’ includes any state agency, board, or commission,
any county, city and county, city, regional agency, public district, redevelopment agency,
or other political subdivision.” (Pub. Resources Code, § 21063.) “‘Responsible agency’
13
means a public agency, other than the lead agency, which has responsibility for carrying
out or approving a project.” (Id., § 21069.)
All the parties to this action agree that in determining whether Santa
Margarita was the appropriate lead agency for the Project, we must consider
section 15051 of the Guidelines, which sets forth the following criteria to use in
determining which of two or more agencies should be designated as the lead agency for a
project: “Where two or more public agencies will be involved with a project, the
determination of which agency will be the lead agency shall be governed by the
following criteria: [¶] (a) If the project will be carried out by a public agency, that
agency shall be the lead agency even if the project would be located within the
jurisdiction of another public agency. [¶] (b) If the project is to be carried out by a
nongovernmental person or entity, the lead agency shall be the public agency with the
greatest responsibility for supervising or approving the project as a whole. [¶] (1) The
lead agency will normally be the agency with general governmental powers, such as a
city or county, rather than an agency with a single or limited purpose such as an air
pollution control district or a district which will provide a public service or public utility
to the project. [¶] . . . [¶] (c) Where more than one public agency equally meet the
criteria in subdivision (b), the agency which will act first on the project in question shall
be the lead agency. [¶] (d) Where the provisions of subdivisions (a), (b), and (c) leave
two or more public agencies with a substantial claim to be the lead agency, the public
agencies may by agreement designate an agency as the lead agency. An agreement may
also provide for cooperative efforts by two or more agencies by contract, joint exercise of
powers, or similar devices.”
B.
Summary of Holdings
Santa Margarita was correctly designated as the lead agency for the Project
under Guidelines section 15051, subdivision (a), (b), or (d). We publish this opinion to
14
address the issue of how a public/private partnership should be analyzed under
Guidelines section 15051.
We hold that, under Guidelines section 15051, if a project will be carried
out jointly in a partnership between a public agency and a nongovernmental person or
entity, the agency that will serve as the lead agency for purposes of the environmental
review for the project may be (1) the public agency that is a part of the public/private
partnership, or (2) the public agency with the greatest responsibility for supervising or
approving the project as a whole. We further hold that Santa Margarita was correctly
designated as the lead agency for the Project under either prong of this test.
The Project will be carried out, in part, by a public agency—Santa
Margarita—and, therefore, Santa Margarita was properly designated as the lead agency
under Guidelines section 15051, subdivision (a). The Project is also being carried out, in
part, by a nongovernmental entity—Cadiz—and Santa Margarita has the greatest
responsibility for supervising the Project as a whole. Therefore, Santa Margarita was
also properly designated as the lead agency under Guidelines section 15051,
subdivision (b). It bears emphasis here that the Project consists of more than just the
installation of wells that will draw water from the aquifer. The Project also involves
activities such as the construction of pipelines and monitoring facilities, and the
overseeing of the transfer of water to many of the Project participants for distribution to
customers in at least five Southern California counties. Further, phase 2 of the Project
would involve the overseeing of the transfer of water back to the aquifer for storage.
We also hold that, under Guidelines section 15051, subdivision (d), Santa
Margarita and the County properly entered into the agreement for Santa Margarita to act
as the lead agency. Santa Margarita has at least a substantial claim to be the lead agency
under Guidelines section 15051, subdivision (d).
15
C.
Under Guidelines Section 15051, Subdivisions (a) and (b), Santa Margarita Will Carry
Out the Project and Has the Greatest Responsibility—vis-à-vis the County—
for Supervising or Approving the Project as a Whole.
1. Santa Margarita’s Responsibilities
The final EIR provides sufficient evidentiary support for the designation of
Santa Margarita as the lead agency based on its cooperative partnership with Cadiz in
implementing, carrying out, supervising, and approving the Project as a whole. Among
Santa Margarita’s responsibilities with regard to the Project are the following:
—Obtaining financing for the costs involved in pumping and transporting
water from the pumping site to the Colorado River Aqueduct for transfer to the Project
participants;
—Approving the design and construction of the wells, pipelines, and
conveyance facilities for the Project;
—Managing and overseeing the operation of the Project;
—Acquiring real property interests necessary for the Project;
—Negotiating, reviewing, and approving the terms for the conveyance of
water;
—Carrying out and supervising the Project as the managing member of
Fenner Valley;
—Overseeing all actions of Fenner Valley, including, but not limited to,
collecting payments received for the sale of water, complying with all regulatory
requirements, and implementing the mitigation measures contained in the EIR and the
corrective measures contained in the Plan;
—Controlling and operating the “Fenner Joint Powers Authority,” which
will review and approve the Project designs and specifications, manage and oversee the
16
operation of the Project facilities in coordination with Fenner Valley, and oversee
compliance with the Plan;
—Holding an undivided interest in the Project facilities and an easement
over the Project facilities which gives Santa Margarita the priority right to use the Project
facilities to take its contracted share of water;
—Ensuring that Fenner Valley fully implements all regulatory permits and
mitigation measures under the Plan;
—Providing staffing for the day-to-day operation and maintenance of the
Project, as well as bookkeeping and administration through the joint powers authority;
—Using its discretion to determine if the Project has triggered a potential
adverse impact or undesirable result, and determining whether corrective measures are
necessary; and
—Serving as the contracting entity, through Fenner Valley, for storage
participation in phase 2 of the Project.
2. Guidelines Section 15051, Subdivisions (a) and (b)
Accordingly, pursuant to Guidelines section 15051, subdivision (a), the
evidence supports a finding that the Project is being carried out by Santa Margarita.
Pursuant to Guidelines section 15051, subdivision (b), the evidence supports a finding
that Santa Margarita is “the public agency with the greatest responsibility for supervising
or approving the project as a whole.” Under either subdivision of Guidelines
section 15051, Santa Margarita was properly designated as the lead agency for the
Project.
D.
Pursuant to Guidelines Section 15051, Subdivision (d), Santa Margarita and the County
Properly Entered into the Agreement for Santa Margarita to Act as the Lead Agency.
We also hold Santa Margarita was properly designated as the lead agency
for the Project under Guidelines section 15051, subdivision (d). That subdivision
17
provides, in relevant part: “Where the provisions of subdivisions (a), (b), and (c) leave
two or more public agencies with a substantial claim to be the lead agency, the public
agencies may by agreement designate an agency as the lead agency.” (Guidelines,
§ 15051, subd. (d), italics added.)
The County does have general governmental powers, which would make
the County an appropriate candidate for lead agency if the Project were solely being
carried out by a nongovernmental entity or person. (Guidelines, § 15051, subd. (b)(1).)
Cases interpreting Guidelines section 15051 uniformly hold that we must closely analyze
the various agencies’ responsibilities to determine whether the correct lead agency was
chosen. “[C]ourts have concluded that the public agency that shoulders primary
responsibility for creating and implementing a project is the lead agency, even though
other public agencies have a role in approving or realizing it. (Eller Media Co. v
Community Redevelopment Agency (2003) 108 Cal. App. 4th 25, 45-46 . . . [community
agency charged with responsibility for redevelopment measures within designated area
was lead agency regarding billboard placement, even though city issued building permits
for billboards]; Friends of Cuyamaca Valley v. Lake Cuy[a]maca Recreation & Park
Dist. (1994) 28 Cal. App. 4th 419, 426-429 . . . [state agency that determined duck hunting
policy, rather than wildlife district that enforced it, was lead agency regarding duck
hunting policy]; City of Sacramento v. State Water Resources Control Bd. (1992)
2 Cal. App. 4th 960, 971-973 . . . [state agency that created pesticide pollution control
plan, rather than water district that enforced it, was lead agency regarding plan].)”
(Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal. App. 4th
210, 239.)
Appellants contend primarily that because the County must either approve
or exempt the Project from the Ordinance before any pumping may occur, it has the
greatest responsibility for approving and supervising the Project. This argument,
however, myopically and improperly considers only the pumping portion of the Project.
18
As explained in detail ante, the Project as a whole encompasses much more than simply
pumping water, and Santa Margarita has far more authority over the Project as a whole
than does the County.
Other than its approval or exemption of the Project’s water pumping wells,
the County’s primary supervisory responsibilities over the Project would be:
—Approval of the Plan following certification of the final EIR, and
discretionary authority to determine whether the Plan conforms to the 2012
Memorandum and the Ordinance.
—Consideration of the final EIR as a responsible agency and the authority
to require mitigation measures or alternatives as set forth in the final EIR.
—Reporting and monitoring responsibilities for the mitigation measures in
the Plan, pursuant to Santa Margarita’s delegation of that authority. (Guidelines,
§ 15097, subd. (a).)
—Decisionmaking authority if review and corrective actions are necessary
to avoid undesirable results during the term of the Project, in concert with Santa
Margarita.4
The Project involves a well field, piping system, 43-mile pipeline,
monitoring features, and a fire suppression system, among other things. Although the
County has a supervisory role over groundwater pumping under the Plan, Santa
Margarita has broader approval and supervisory power over the Project as a whole, both
4
Counterintuitively, one area in which the County would not have
authority to approve or supervise the Project is in building and zoning regulation. As
noted in the final EIR, “State agencies, such as [Santa Margarita], have sovereign
immunity from local regulation, such as the County’s local building and zoning
ordinances, unless such immunity has been waived. Specifically, Government Code
sections 53091(d) and (e) and section 53096 provide an exemption from local regulation
for water projects. Accordingly, [Santa Margarita] is not required to comply with the
County’s local zoning and building regulations. Thus, the County does not have
permitting authority over [Santa Margarita]’s water projects.”
19
directly and through its role as the “lead participant” in controlling Fenner Valley. That
the County has some discretionary authority for carrying out or approving the Project
does not mean it should have been designated as the lead agency rather than as a
responsible agency. (Pub. Resources Code, § 21153, subd. (c); RiverWatch v. Olivenhain
Municipal Water Dist. (2009) 170 Cal. App. 4th 1186, 1201.)
CBD suggests that the lead agency should be the agency that is in the best
position to objectively balance the benefits and risks of the Project, in order to fulfill
CEQA’s underpinnings of accountability and stewardship. Several amici curiae
submitted briefs to this court, challenging that assertion. We conclude that the relevant
portions of the Public Resources Code and the Guidelines set forth the applicable criteria
for determining which agency involved in a project should be the lead agency. That
agency need not be free from receiving any benefit from the project, as long as that
agency is able to fully and fairly provide the necessary environmental information
required by CEQA’s processes. Santa Margarita’s interest in the Project did not
automatically make it an improper lead agency. Indeed, the language of Guidelines
section 15051, subdivision (a) requires a public agency to take on the role of lead agency
when it is carrying out the project in question. Case law amply supports this proposition.
(See, e.g., North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors
(2013) 216 Cal. App. 4th 614, 620-621.)
CBD argues that the County and Santa Margarita could only enter an
agreement for the latter to act as the lead agency, pursuant to Guidelines section 15051,
subdivision (d), if they had “equal responsibility for supervising or approving the project
as a whole.” We reject this argument. The predecessor of section 15051, subdivision (d)
read: “Where the provisions of subsections (a), (b), and (c) leave two or more public
agencies with an equal claim to be the lead agency, the public agencies may by
agreement designate which agency will be the lead agency.” (Guidelines, former
20
§ 15065, subd. (d), italics added.)5 The change in the language of the Guidelines to
“substantial claim to be the lead agency” (Guidelines, § 15051, subd. (d)) means equality
of the claims is not necessary.
IV.
THE EIR’S PROJECT DESCRIPTION WAS NEITHER INACCURATE NOR MISLEADING,
AND DID NOT VIOLATE CEQA.
Appellants argue that the EIR contained “a misleading, legally deficient
project description that is inaccurate, unstable, and not finite. In particular, the Project
description fails to disclose and analyze likely extensions of the Project beyond the
50 year-term claimed by the EIR and the likely additional groundwater extractions
beyond the claimed 50,000 [acre-feet per year] average. Reasonably foreseeable Project
expansions regarding the duration and rate in which groundwater will be pumped will
result in further drawdown of the aquifer, significantly changing both the scope and
environmental effects of the Project. The EIR’s failure to describe these likely
expansions prevents the public and decisionmakers from properly evaluating the true
scope and environmental impacts of the Project.”
A.
The EIR’s “Conservation” Objective Is Neither Inaccurate nor Misleading.
The Guidelines specify that the purpose and objective of a project must be
included in an EIR. “The description of the project shall contain the following
5
Respondents’ unopposed request for judicial notice is granted in part and
denied in part. We will take judicial notice of exhibit Nos. 1, 4, 5, and 7, which are
copies of the California Administrative Registers. These are matters of which judicial
notice may be taken. (Evid. Code, § 452, subd. (b).) Exhibit Nos. 2, 3, and 6 constitute
correspondence regarding certain California regulations from various state agencies.
Those matters are neither relevant to this appeal nor is it clear they constitute official acts
of the executive departments. We deny the request for judicial notice as to exhibit
Nos. 2, 3, and 6.
21
information but should not supply extensive detail beyond that needed for evaluation and
review of the environmental impact. [¶] . . . [¶] . . . A statement of the objectives sought
by the proposed project. A clearly written statement of objectives will help the lead
agency develop a reasonable range of alternatives to evaluate in the EIR and will aid the
decision makers in preparing findings or a statement of overriding considerations, if
necessary. The statement of objectives should include the underlying purpose of the
project.” (Guidelines, § 15124, subd. (b).)
The draft EIR identifies its purpose as follows: “The fundamental purpose
of the Project is to save substantial quantities of groundwater that are presently wasted
and lost to evaporation by natural processes.” The EIR also includes the following list of
objectives: “The objectives for this Project are as follows: [¶] . . . Maximize beneficial
use of groundwater in the Bristol, Cadiz, and Fenner Valleys by conserving and using
water that would otherwise be lost to brine and evaporation; [¶] . . . Improve water supply
reliability for Southern California water providers by developing a long term source of
water that is not significantly affected by drought; [¶] . . . Reduce dependence on
imported water by utilizing a source of water that is not dependent upon surface water
resources from the Colorado River or the Sacramento-San Joaquin Delta; [¶] . . . Enhance
dry-year water supply reliability within the service areas of [Santa Margarita] and other
Southern California water provider Project Participants; [¶] . . . Enhance water supply
opportunities and delivery flexibility for [Santa Margarita] and other participating water
providers through the provision of carry-over storage and, for Phase II, imported water
storage; [¶] . . . Support operational water needs of the ARZC in the Project area; [¶] . . .
Create additional water storage capacity in Southern California to enhance water supply
reliability; [¶] . . . Locate, design, and operate the Project in a manner that minimizes
significant environmental effects and provides for long-term sustainable operations.”
CBD’s argument is that the Project will not fulfill the fundamental purpose
of conservation because “[i]n order for the Project to be a legitimate ‘conservation’
22
project, groundwater extraction should have a fairly direct impact on evaporation; for
every acre-foot of groundwater extracted, an acre-foot less should evaporate. Otherwise,
the project would be merely extracting water that would not have evaporated, failing its
supposed ‘conservation’ purpose.” By reviewing the objectives for the Project in totality,
rather than merely the Project’s fundamental purpose, it is clear that the Project was not
intended solely to conserve water that would be lost to evaporation, but to “save
substantial quantities of groundwater,” including fresh groundwater in the basin, which is
not reachable and not yet drained to the dry lakes and becomes nonpotable.
CBD argues that the EIR’s assertions regarding the savings of water that
would evaporate are not substantiated because they are “based on unjustified and
conflicting evaporation rates of the basin.” Studies included in the final EIR, however,
provide substantial evidentiary support for the evaporation rates that form the basis of the
Project objectives and the EIR.
CBD also argues that Santa Margarita misrepresented the amount of water
that would be saved from evaporation by showing the savings over a 100-year period,
rather than the 50-year period in which water will be extracted. The EIR explains how
more water must be extracted in the earlier years of the Project in order to establish a
“cone of depression” that will ultimately result in no water from the groundwater basin
being lost by draining into the dry lakes. Therefore, to express the total amount of water
that will be recaptured from excess salinity or evaporation, it is appropriate to consider
the savings in the period after the initial 50-year period, after which the evaporation rates
will continue to be lower, unless and until the natural recharge causes the groundwater
basin to reach an amount above the cone of depression, allowing the water to again flow
into the dry lakes.
In the absence of the Project, the water recharge will simply flow
downgradient from the groundwater basin, become hypersalinic, and eventually be lost to
evaporation. Pumping the water out of the basin to a sufficient level means that the water
23
will no longer flow downgradient. This explains why the reduction in evaporation losses
in the earliest years would be lower than those in later years.
CBD is correct in noting that the amount of water saved from evaporation
is a percentage of the total water removed from the aquifer by the Project. This does not,
however, make the objectives misleading or inaccurate. Under the worst case scenario
set forth in the EIR, with the lowest rate of natural recharge of the aquifer, the Project
would extract significantly more water than would be lost to evaporation because there
would be less water to evaporate, and the Project would be creating the cone of
depression more quickly.
We therefore reject CBD’s contention that the EIR’s objective was
inaccurate or misleading.
B.
The EIR’s Description Regarding the Total Duration of the Project Is
Stable and Finite, and Is Not Misleading.
CBD argues that the EIR’s description regarding the total duration of the
Project is unstable, not finite, and misleading. Although the EIR analyzes the
environmental impacts of pumping water from the aquifer for 50 years, CBD contends
that there are several circumstances under which the Project will continue beyond 50
years.
First, the EIR states that the imported water storage component of the
Project will be limited to the same 50-year period as the conservation and recovery
component. CBD contends that the EIR also states that phase 2 will be implemented
after the completion of phase 1. In fact, the EIR states only that phase 2 will begin after
phase 1 has become operational, not that phase 2 will begin after phase 1 has been
working for 50 years. The EIR states: “[T]he Imported Water component is proposed to
be implemented after the Conservation and Recovery Project. Therefore, the Imported
Water Storage Component would not adversely affect groundwater supplies or impede
24
naturally occurring groundwater recharge. Therefore, there would be no impact.” The
purpose of implementing phase 1 before phase 2 is to ensure that when water is added to
recharge the aquifer, the cone of depression will already exist, ensuring that the water
added for recharge will not flow downward and be lost to hypersalinity and evaporation.
Second, CBD contends that the term of the Project is unclear. Although
the EIR specifies that the term of the Project is 50 years, it also provides: “In the event
that circumstances beyond the control of the Project operator required additional time
to complete contracted water deliveries, the Project term may be extended for a limited
time under the terms of the agreements.” The final EIR and the option agreement
provide that the 50-year term of phase 1 of the Project may be extended in order to
complete contacted-for water deliveries. A short extension of time to fulfill the water
delivery contracts does not violate CEQA, and does not make the term of the Project
infinite. The EIR specifies that pumping water as part of the Project is limited to the
average of 50,000 acre-feet per year for 50 years. In the event that weather conditions
or other circumstances prevent the average amount of water from being withdrawn,
there is a possibility that water will continue to be pumped after the expiration of
50 years. However, the total amount that may be pumped—2.5 million acre feet—will
not change.
The relevant documents also provide that the Project participants may agree
to an additional term beyond the 50-year term currently specified. If an additional term is
agreed to, new agreements and a new environmental analysis would be required,
including the development of a new groundwater management, monitoring, and
mitigation plan.
CBD argues that the EIR is flawed because the Project could be indefinitely
expanded. “[A]n EIR must include an analysis of the environmental effects of future
expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial
25
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. Of course, if the future action is not considered at that time, it will
have to be discussed in a subsequent EIR before the future action can be approved under
CEQA. [¶] This standard is consistent with the principle that ‘environmental
considerations do not 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.] The standard also gives due deference to
the fact that premature environmental analysis may be meaningless and financially
wasteful. Under this standard, the facts of each case will determine whether and to what
extent an EIR must analyze future expansion or other action.” (Laurel Heights, supra, 47
Cal.3d at p. 396.)
For the Project to be extended beyond its 50-year term, the parties would,
50 years from the date the Project begins pumping, have to agree to extend the
pumping for a further 30 years, and then pursue a new environmental analysis. Under
the circumstances of the Project, we find the possibility of an extension of the term of
the Project to be far too speculative to require environmental analysis at this point.
The EIR does not need to address a future action “that is merely
contemplated or a gleam in a planner’s eye.” (Laurel Heights, supra, 47 Cal.3d at
p. 398.) City of Santee v. County of San Diego (1989) 214 Cal. App. 3d 1438, cited by
CBD, does not require a different result. In that case, the EIR for a temporary expansion
of a detention facility was determined to be inadequate “because: (1) it fails to accurately
describe the project and discuss the anticipated future uses of the ‘temporary’ project and
the environmental effects of those uses, and (2) the discussion of the alternatives is
inadequate under CEQA.” (Id. at pp. 1440-1441.) The project at issue was an interim
26
detention facility to serve the county’s emergency needs until new detention facilities
could be completed; the interim period had no time limit. (Id. at pp. 1450-1451.) In
response to comments to the draft EIR, the county set a defined time limit of seven years,
but that time limit applied only to one part of the interim facility, and the draft EIR did
not discuss what would happen to the interim facility at the end of that time period.
(Id. at p. 1451.) In the present case, by contrast, the Project has a defined time period,
and the EIR explains what will happen after pumping stops, in terms of well field closure,
decommissioning, and postpumping monitoring.
C.
The EIR’s Descriptions of the Rate and Total Quantity of Groundwater Withdrawal Are
Stable and Finite, and Are Not Misleading.
CBD also challenges the EIR based on claimed inaccuracies in the
descriptions of the total quantity of groundwater that may be withdrawn from the aquifer,
and of the rate at which the water will be withdrawn. The Project’s EIR permits a total of
2.5 million acre-feet of groundwater to be withdrawn, at an average rate of 50,000
acre-feet per year over 50 years. The actual amount withdrawn during a given year may
be as much as 75,000 acre-feet.
The 2012 Memorandum provides that 20 percent of the total annual yield
from the Project shall be reserved for the benefit of the County’s water users, and that
25,000 acre-feet of groundwater shall be reserved for the County. These amounts are not
included in exhibit A to the water purchase and sale agreement, entered into among
Cadiz, Fenner Valley, and Santa Margarita.6 However, Santa Margarita cites to the water
6
Exhibit A to the water purchase and sale agreement, the schedule of
project allotments, provides as follows:
“Project Allotment
“Project Participant (acre-feet per year)
“Santa Margarita Water District 15,000
“Three Valleys Municipal Water District 5,000
27
purchase and sale agreement, which provides that if full allotments cannot be provided
within the limits of the annual groundwater withdrawal, the Project participants (the
various water districts taking water from the Project) must reduce their shares pro rata.
(Santa Margarita’s base allotment of 5,000 acre-feet per year is excluded from the
pro rata reductions.)
CBD also argues that average annual groundwater withdrawal in excess of
50,000 acre-feet is reasonably foreseeable and indeed anticipated for two reasons. First,
the conveyance pipeline to be used as part of the Project has a maximum capacity of
105,000 acre-feet. CBD does not acknowledge that the 105,000 acre-feet capacity is only
reached when two pipelines are in use. The capacity of the phase 1 pipeline is 75,000
acre-feet annually, which is consistent with the maximum amount of groundwater that
may be extracted in a given year. If phase 2 of the Project were to be undertaken, a
natural gas pipeline could be converted, which would provide an additional 30,000
acre-feet per year capacity, so that water could be sent back to the Project site to be
stored.
Second, CBD notes that the option agreement, the 2012 Memorandum, and
the water purchase and sale agreement do not place any limits on the amount of
groundwater extracted. CBD fails to note, however, that the Plan, which was referenced
in the 2012 Memorandum and the water purchase and sale agreement, specifically states
the average and maximum annual withdrawal rates of 50,000 acre-feet and 75,000
acre-feet, respectively.
“Golden State Water Company 5,000
“Suburban Water Systems 5,000
“Jurupa Community Services District 5,000
“Arizona California Railroad 100
“California Water Service Company 5,000
“Total Project Allotment Subscribed 40,100
“Project Allotment Available 9,900
“Total Annual Project Allotment 50,000”
28
DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.
29