ALBERT THOMAS PAULEK, Plaintiff and Appellant, v. DEPARTMENT OF WATER RESOURCES, Defendant and Respondent.
No. E060038
Fourth Dist., Div. Two.
Oct. 31, 2014
231 Cal. App. 4th 35
COUNSEL
Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney General, and Eric M. Katz, Deputy Attorney General, for Defendant and Respondent.
OPINION
HOLLENHORST, Acting P. J.---Plaintiff and appellant Albert Thomas Paulek appeals the denial of his petition for a writ of mandate under the California Environmental Quality Act (CEQA;
Paulek contends on appeal that the lack of an emergency outlet extension constitutes a significant environmental impact that the project as finally approved fails to mitigate, and that the separation of the emergency outlet extension into a different project constitutes impermissible segmentation. He further contends that the Department did not adequately respond to written comments submitted by Friends of the Northern San Jacinto Valley, an organization of which Paulek is the “Conservation Chair.”1 In response, the Department argues that Paulek lacks standing, and the petition in any case fails on its merits.
For the reasons discussed below, we agree with the trial court that Paulek has standing, and find no abuse of discretion in its denial of the petition on its merits. We therefore affirm.
I. FACTS AND PROCEDURAL BACKGROUND
Perris Dam and Reservoir is a multipurpose facility known collectively as Lake Perris, located within the Lake Perris State Recreation Area in Riverside County. Perris Dam was built in 1972. A foundation study of the dam---completed by the Department in 2005 and utilizing recent significant advances in soil liquefaction engineering---showed structural deficiencies in its capacity to withstand seismic events not revealed in earlier studies. The 2005 report recommended immediately reducing the water level in the reservoir, remediation measures to improve the long-term seismic stability of the dam‘s foundation, and further study, including a seismic review of the dam‘s outlet tower.2
The Department responded to the first recommendation of the report by reducing the amount of water held by the dam by about 40 percent.
The third part of the planned improvements, the emergency outlet extension, was not recommended or even considered by the 2005 report. The Department proposed it, however, because the emergency water release facilities of the dam, as originally constructed, were designed to discharge water overland, inundating up to 2,700 acres of floodplain downstream from the dam, and allowing the water to find its own path to the Perris Valley Storm Drain. Since the dam‘s construction in 1972, however, substantial residential developments had been built in that previously empty floodplain. The emergency outlet extension would create a safe route---a two-mile-long path, either underground or in an open channel---for such water to flow, if necessary.
On June 1, 2007, the Department issued a notice of preparation of a draft EIR regarding the three-part proposal. The written comments received in response to the notice of preparation include, as relevant here, comments from Friends of the Northern San Jacinto Valley, an organization with which Paulek is associated, but which were drafted for the signature of the organization‘s president, Ann L. Turner-McKibben.
In January 2010, the Department issued a draft EIR for the “Perris Dam Remediation Program,” analyzing the environmental impacts of the three-part proposal. On February 3, 2010, the Department conducted a public workshop to discuss the draft EIR and the proposed activities. Paulek participated in this meeting, as will be discussed in more detail below. Additionally, on April 10, 2010, Friends of the Northern San Jacinto Valley submitted written comments with respect to the draft EIR, signed by Paulek in his capacity as Conservation Chair of that organization.
In the final EIR, dated September 2011, the Department removed the emergency outlet extension component of the proposal; this change was in response to comments received suggesting consideration of new
With respect to the dam remediation and outlet tower replacement portions, the Department certified the final EIR on November 18, 2011, and issued a notice of determination.
Paulek filed his initial petition for a writ of mandate on December 21, 2011; the operative first amended petition was filed August 7, 2012. On September 27, 2013, the trial court heard oral argument with respect to the first amended petition. On October 1, 2013, the trial court issued a minute order denying the first amended petition, attaching a 14-page “Subsequent Ruling on Submitted Mandamus Petition” explaining its decision. Judgment was entered on October 24, 2013.
II. DISCUSSION
A. Paulek Satisfied CEQA Prerequisites for Bringing His Petition.
The Department contends Paulek lacks standing to challenge the project approval because he failed to comply with the requirements of
” ‘Only a proper party may petition for a writ of mandate to challenge the sufficiency of an EIR or the validity of an act or omission under CEQA.’ ”5 (Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 889.)
At the public workshop with respect to the draft EIR, Paulek expressed concern that the proposed remediation measures with respect to Perris Dam‘s structural integrity, as he understood them, were insufficient, commenting: “[O]ne thing that‘s not clear to me is will this solution fix the problem? ... [¶] It ... looks like you‘re building another dam in front of the existing dam. [¶] ... [¶] ... Is this going to work?” He asked a further question about why the capacity of the proposed emergency outlet extension, which was still a part of the project at the time, was less than the existing emergency release capability, implicitly expressing concern that the new structure‘s capacity would be sufficient.6 These are not generalized environmental comments, but rather expressions of concern specifically regarding the proposed project---essentially, objections that are sufficiently specific in both subject and level of detail to allow the Department to evaluate and respond to them. As such, Paulek satisfied the prerequisite codified in
The Department argues to the contrary that, because Paulek‘s comments were phrased as questions, they do not constitute objections in the meaning of
The Department further suggests that Paulek should not be understood to have “objected” within the meaning of
In short, Paulek satisfied the prerequisites for bringing his petition articulated in
B. Paulek‘s Challenges to the Department‘s Approval of the Final EIR Lack Merit.
1. Standard of review.
In reviewing compliance with CEQA, we review the agency‘s action, not the trial court‘s decision; “in that sense appellate judicial review under CEQA is de novo.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 428.) The agency‘s action is reviewed for prejudicial abuse of discretion. (
2. Removal of the emergency outlet extension from the final EIR does not leave a significant environmental impact of the project unmitigated.
Paulek contends that the decision to remove the new emergency outlet extension from the project leaves a significant environmental impact of the
CEQA requires that public agencies “mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so.” (
Here, the administrative record demonstrates, and Paulek has not contested, that in the absence of any project, the danger of flooding residential areas below Perris Dam in the event of an emergency release would remain; it is a product of the original design of the dam‘s emergency release facilities, which did not account for later-developed residential areas in the previously empty floodplain. The proposed dam remediation and outlet tower replacement would not increase that baseline danger. To the contrary, the Department concluded the dam remediation and outlet tower replacement “would not alter existing draining patterns or expose people to structures that could result in significant injury or death through flooding.” Indeed, the two proposed activities, even without the emergency outlet extension, will reduce the baseline flooding danger; remediation of structural deficiencies in the dam and rebuilding the outlet tower to current seismic standards decrease the likelihood of dam failure, thereby reducing the likelihood any emergency release of water will be necessary. The flooding danger from the lack of an emergency outlet extension, therefore, is part of the baseline conditions that do not fall within the CEQA mitigation requirements.
Paulek misreads the final EIR when he infers that the Division of Safety of Dams (DSOD), which is a part of the Department, has imposed requirements regarding dam release capacity that require a different conclusion. Paulek here conflates two separate issues: (1) the emergency release capacity of the dam and (2) preventing flooding of residential areas downstream from the dam in the event of an emergency release. Paulek cites to a Department response to a comment referencing a DSOD requirement that a dam facility be capable of drawing down 10 percent of its full capacity within 10 days, and noting that a controlled release of 1,500 cubic feet per second is required
In short, Paulek fails to show any unmitigated environmental impact of the two-part program considered in the final EIR and approved by the Department.
3. Considering alternatives for the emergency outlet extension in a separate CEQA process does not constitute improper segmentation.
Paulek contends the deferral of the emergency outlet extension constitutes improper segmentation of the project, and that the emergency outlet extension “is an integral part of the Perris Dam Remediation Program and must be part of the [final EIR].” The Department disagrees, as do we.
It is well established that “CEQA forbids ‘piecemeal’ review of the significant environmental impacts of a project.” (Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1222 (Banning Ranch).) Rather, CEQA mandates “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.” (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283-284 (Bozung).) Thus, the term “project” as used for CEQA purposes is defined broadly 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 ....” (
“Courts have considered separate activities as one CEQA project and required them to be reviewed together where, for example, the second activity is a reasonably foreseeable consequence of the first activity [citation]; the second activity is a future expansion of the first activity that will change the scope of the first activity‘s impacts [citation]; or both activities are integral
There is no basis in the administrative record to conclude that the emergency outlet extension is a “reasonably foreseeable consequence” of the dam remediation and tower rebuilding projects. (See Sierra Club, supra, 128 Cal.App.4th at p. 698.) To be sure, as Paulek notes, all three activities are necessary to “remediate all the flood hazards present at Lake Perris.” As discussed above, however, the need for an emergency outlet extension is not a consequence of the dam remediation or outlet tower reconstruction. Rather, it is necessitated by the original design of the dam‘s emergency release facilities, combined with the land use decisions resulting in construction of residential developments in a previously empty floodplain below the dam. This case is therefore distinguishable from cases where one stage of a project is the first domino to fall in a causally related series of events to follow. (See Bozung, supra, 13 Cal.3d at p. 279 [agency‘s annexation of land was first step towards development of that land].) Neither do approval of the dam remediation and outlet tower replacement legally or practically compel completion of an emergency outlet extension. (See Banning Ranch, supra, 211 Cal.App.4th at p. 1223 [collecting cases where “reviewed project legally compels or practically presumes completion of another action“].)
Authority requiring separate activities to be reviewed together because a second activity is a “future expansion” of the first that will “change the scope of the first activity‘s impacts” is also inapplicable. (Sierra Club, supra, 128 Cal.App.4th at p. 698.) For example, in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 (Laurel Heights), the California Supreme Court required a project involving university research facilities moving into part of a newly purchased building to be reviewed together with plans to later occupy the remainder of the building once the leases of other tenants expire. (Id. at pp. 396-397.) Thus, if the Department contemplated, say, remediation of structural deficiencies in the foundation of the right abutment of Perris Dam, but also anticipated performing similar work on the left abutment at a later time, Laurel Heights and similar authority might well require review of the two separate activities in a single EIR. But those are not the facts of this case. The emergency outlet extension of course has environmental impacts that are different from those of the dam remediation and outlet tower reconstruction emergency outlet extension. But there is no basis to conclude that it is a “future expansion” of either of the other two projects.
Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70 is instructive. In that case, the Court of Appeal considered an EIR for a refinery upgrade that would include a new hydrogen plant that, in addition to improving the refinery‘s own operations, would allow production of additional hydrogen, beyond that needed at the facility. (Communities for a Better Environment, supra, at pp. 97-98.) The EIR did not consider as part of the same project a pipeline that would be needed to transport any such excess hydrogen offsite; that was being considered in a separate CEQA process. (Id. at p. 97.) The Court of Appeal found that treating the pipeline as a separate project for purposes of CEQA review did not constitute “illegal ‘piecemealing,’ ” reasoning that the principal purpose of the refinery upgrade to ” ‘improve the [r]efinery‘s ability to process crude oil and other feed stocks’ ” was different from the principal purpose of the pipeline---“to transport excess hydrogen ... to other hydrogen consumers.” (Id. at p. 101.) Similarly, here, the principal purpose of the dam remediation and outlet tower reconstruction---to improve the ability of the Perris Lake facility itself to withstand seismic events---is different from, and does not depend on, the functioning of the emergency outlet extension, the purpose of which is to transport water out of the lake and safely downstream from the dam, should it be necessary to do so.
The circumstance that the draft EIR for the Perris Dam Remediation Program described a three-part program, while the final EIR includes only two of those parts, is, contrary to Paulek‘s suggestion, immaterial to our analysis. Under CEQA, an agency may prepare one EIR for several similar projects that do not comprise a single larger project, or prepare one for each
Paulek‘s contention that the project was improperly segmented is rejected.
4. The Department‘s responses to comments were adequate.
Paulek contends that the Department‘s responses in the final EIR to comments submitted by the Friends of the Northern San Jacinto Valley---a July 2, 2007, letter regarding the notice of preparation, and an April 10, 2010, letter regarding the draft EIR, which makes reference to the first letter---are inadequate. We disagree; the Department‘s responses were sufficient.
After issuance of a draft EIR, “[t]he lead agency shall evaluate comments on environmental issues received from persons who reviewed the draft EIR and shall prepare a written response.” (
First, the April 10, 2010, letter comments that the draft EIR ignores or gives “short shrift” to comments submitted in the July 2, 2007, letter.8 It further asserts that the draft EIR “fails as a CEQA information document” in that it “does not provide the necessary information and analysis for the public, lead, responsible, and trustee agencies to make informed well reasoned decisions on this project.” The Department‘s response in the final EIR is as follows: “The draft EIR adequately discusses the types and level of impacts this project will have on the environment.” Paulek contends this response was legally inadequate.
The Department‘s response was sufficient. First, the Department had no obligation to respond to the July 2, 2007, letter. A response is required only
Second, the April 10, 2010, letter states that it attaches a “1979 Mitigation Agreement,” to which the Department was a party, so that it may be included in the administrative record. With respect to that agreement, the letter alleges that the draft EIR failed to analyze environmental impacts on lands beneath the dam, or to address the need for “wildlife mitigation replacement lands.”9 The Department‘s response acknowledges that the 1979 Mitigation Agreement will become a part of the administrative record, because all comments submitted become a part of the administrative record.10 Additionally, the Department‘s response points to specific portions of the draft EIR analyzing permanent and temporary environmental impacts on lands beneath the dam. The response affirms that permanent environmental impacts will be mitigated as required, and notes that various other governmental agencies will have to be involved in identifying any necessary replacement lands.
Paulek complains that the Department‘s response is “completely devoid of any direct discussion of the [1979 Mitigation Agreement]” but points to no authority supporting the notion that such “direct discussion” was required. To the contrary, it is perfectly appropriate for the Department to provide a response by reference to the portions of the draft EIR in which the environmental impacts raised by the comment are analyzed. (Gilroy Citizens, supra, 140 Cal.App.4th at p. 937.) Paulek further complains that the response does not “describe the disposition of the significant environmental issues raised,” apparently demanding a complete accounting of what specific parcels will be used as replacement for any land permanently impacted by the projects. But the response adequately explains that approval of various other public agencies will be necessary before such identification could be accomplished, and affirms the Department‘s intention to fully comply with applicable mitigation requirements. We conclude the Department‘s response fully complies with CEQA‘s requirement to demonstrate good faith, reasoned analysis.
The April 10, 2010, letter further attaches a Department of Fish and Game authorization implementing the “Stephens’ Kangaroo Rat Habitat Conservation Plan” (SKR HCP), and requests its inclusion in the administrative record. It also cites various provisions of law related to the SKR HCP, including the role of the Riverside County Habitat Conservation Agency (RCHCA) regarding the Stephens’ kangaroo rat under the California Endangered Species Act (
Again, the rule that a general comment requires only a general response applies. Paulek fails to identify specifically any manner in which this response is deficient, and we can discern none.
The April 10, 2010, letter further asserts that the “Draft EIR fails to properly qualify and quantify the incidental take this project will precipitate on the endangered [Stephens’ kangaroo rat],” and fails to fully minimize or mitigate such incidental take, or to conduct an analysis of the cumulative impact of the proposed activity together with other past and reasonably
Paulek asserts that this response is overly general and fails to respond in detail to the “significant environmental issues” raised by the comments. Again, however, response by reference to the draft EIR itself is permissible. (Gilroy Citizens, supra, 140 Cal.App.4th at p. 937.) Paulek provides no cogent analysis as to why the referenced sections of the draft EIR are not responsive to the comments. For example, Paulek insists that the Department‘s “failure to address the cumulative impact of taking SKR habitat within the SKR reserve is particularly egregious.” He fails to articulate, however, any reason why the cumulative impact analysis that is in the draft EIR---the comment‘s false assertion of a complete lack of such analysis notwithstanding---does not suffice. And he ignores entirely the circumstance that CEQA does not require exhaustive analysis of cumulative impacts. (
In sum, Paulek has failed to meet his burden of showing the Department‘s responses to written comments regarding the draft EIR to be inadequate.
The judgment appealed from is affirmed. Defendant and respondent Department of Water Resources shall recover its costs on appeal.
King, J., and Codrington, J., concurred.