WE ADVOCATE THROUGH ENVIRONMENTAL REVIEW et al. v. COUNTY OF SISKIYOU et al.
C090840
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, THIRD APPELLATE DISTRICT
April 20, 2022
(Siskiyou) (Super. Ct. No. SCCVPT2018041)
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Siskiyou)
----
WE ADVOCATE THROUGH ENVIRONMENTAL
REVIEW et al.,
Plaintiffs and Appellants,
v.
COUNTY OF SISKIYOU et al.,
Defendants and Respondents.
CRYSTAL GEYSER WATER COMPANY,
Real Party in Interest and Respondent.
C090840
(Super. Ct. No.
SCCVPT2018041)
From 2001 to 2010, a water bottling company operated a plant in Siskiyou County
(the County) that extracted groundwater and then used it to produce bottled water. A few
years after the plant closed, Crystal Geyser Water Company (Crystal Geyser) bought the
facility and sought to revive it. To that end, Crystal Geyser requested, among other
a permit from the City of Mount Shasta (the City) to allow the plant to discharge
wastewater into the City’s sewer system. Both the County and the City ultimately
granted Crystal Geyser the permits it sought.
This appeal concerns one of two lawsuits challenging these approvals, both of
which are now on appeal and both of which concern the California Environmental
Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.). In one suit, Appellants We
Advocate Thorough Environmental Review and Winnehem Wintu Tribe alleged that the
County’s environmental review for the bottling facility was inadequate under CEQA. In
another, they alleged that the City’s decision to issue the wastewater permit for the
bottling plant, which relied on the County’s environmental review for the facility, was
also improper under CEQA.
We focus here on Appellants’ challenge to the County’s environmental review for
the bottling facility. CEQA generally requires public agencies, like the County and the
City, to consider the environmental consequences of discretionary projects they propose
to approve. When multiple agencies propose to approve aspects of the same project, as
here, one serves as the “lead agency” that conducts environmental review for the whole
of the project. In this case, the County served as the lead agency and considered the
potential environmental impacts of permitting the bottling facility before it or any other
public agency issued a permit for the facility. But in Appellants’ view, the County’s
analysis was inadequate. Appellants allege that the County (1) provided a misleading
description of the project, (2) defined the project’s objectives in an impermissibly narrow
manner, (3) improperly evaluated the project’s impacts to aesthetics, air quality, climate
change, noise, and hydrology, and (4) approved the project even though it would result in
violations of the County’s and the City’s general plans.
The trial court rejected all Appellants’ arguments. But we find two of Appellants’
contentions have merit. First, we agree that the County defined the project’s objectives in
the project’s impacts to climate change was flawed. Relevant to this point, the County
initially informed the public that the bottling project would result in greenhouse gas
emissions of one amount, but, after the period for public comments had ended, the
County disclosed that the project would actually result in emissions nearly double what it
initially estimated. Under the circumstances of this case, we find that the County should
have allowed the public further opportunity to comment on the project after this late
disclosure. For these reasons, we reverse.
BACKGROUND
In the 1990s, Dannon Waters of North America, which later became Coca-Cola
Dannon (Dannon), acquired a property in the County with the intent of constructing a
bottling facility. It afterward, following County approval, constructed a bottling facility,
a groundwater production well (known as DEX-6), and a domestic groundwater well
(known as the domestic well). Dannon operated the plant from January 2001 until some
point in 2010.
Crystal Geyser acquired the property in 2013. A few years later, after Crystal
Geyser proposed returning the plant to production, the County initiated environmental
review of the proposed project under CEQA. In 2017, the County released a draft
document, called a draft Environmental Impact Report or draft EIR, describing the
proposed project and analyzing the project’s potential impacts. In the draft EIR, the
County explained that, in general, “[t]he Proposed Project entails renovations to a former
bottling plant in unincorporated Siskiyou County . . . adjacent to the City of Mt. Shasta
(City) for the production of sparkling water, flavored water, juice beverages, and teas.” It
added that, to facilitate the project, Crystal Geyser would need to obtain permits from
several public agencies, including, among other permits, a permit from the County for
construction of a caretaker’s residence for the plant, a permit from the City for
wastewater discharge from the plant, and several permits from the local air quality district
environmental impacts associated with all these governmental approvals.
After the County circulated the draft EIR, various parties commented on the
project, including Appellants. The County afterward issued a final EIR for the project
with responses to these comments. A few months later, in December 2017, the County’s
board of supervisors certified the EIR. As part of the approval, the board acknowledged
that the project would have some unavoidable significant environmental impacts but
found these impacts would be outweighed by the project’s benefits. (See Cal. Code.
Regs., tit. 14, § 15092, subd. (b)(2)(B).1)
A month after the County approved the project, Appellants filed a petition for writ
of mandate and complaint, alleging that the County and its board violated CEQA and also
violated the County’s and the City’s general plans. Appellants reasoned, as relevant here,
that the County provided an inaccurate description of the project, defined the project’s
objectives in an impermissibly narrow manner, improperly evaluated several of the
project’s impacts, and approved the project even though it would be inconsistent with the
County’s and the City’s general plans.
Following a hearing, the trial court rejected all Appellants’ claims. The court
afterward entered a judgment denying Appellants’ petition for writ of mandate and
complaint.
Appellants timely appealed.2
I. CEQA Background
CEQA serves “to ensure that public agencies will consider the environmental
consequences of discretionary projects they propose to carry out or approve.” (Stockton
Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 488.) To that
end, absent an exemption, an agency proposing to carry out or approve a project
generally must conduct an initial study to determine “if the project may have a significant
effect on the environment.” (
multiple agencies propose to approve aspects of the same project, one serves as the “lead
agency” that conducts the initial study. (See
“lead agency”]; see also
that “the lead agency” conducts the initial study].)
Depending on the initial study’s findings, the lead agency must then prepare either
an EIR, a mitigated negative declaration, or a negative declaration. If “there is no
substantial evidence that the project or any of its aspects may cause a significant effect on
the environment,” the agency need only prepare a negative declaration that “briefly
describ[es] the reasons that [the] proposed project . . . will not have a significant effect on
the environment.” (
evidence shows the project may in fact have a significant environmental effect, but the
project applicant agrees to changes that would avoid or mitigate them, then the agency
may instead prepare a mitigated negative declaration. (
effect and a mitigated negative declaration is inappropriate, as is true in this case, then the
agency must prepare an EIR providing detailed information about the project’s potential
court’s decision, which we considered in the separate case of We Advocate Thorough
Environmental Review, et al. v. City of Mount Shasta, et al. (Case No. C091012).
An EIR, as courts have often said, is “ ‘ “the heart of CEQA.” ’ ” (Cleveland
National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497,
511 (Cleveland Nat. Forest Foundation).) It serves to “(1) inform the government and
public about a proposed activity’s potential environmental impacts; (2) identify ways to
reduce, or avoid, those impacts; (3) require project changes through alternatives or
mitigation measures when feasible; and (4) disclose the government’s rationale for
approving a project.” (Protecting Our Water & Environmental Resources v. County of
Stanislaus (2020) 10 Cal.5th 479, 488.) To fulfill these purposes, an “EIR ‘must include
detail sufficient to enable those who did not participate in its preparation to understand
and to consider meaningfully the issues raised by the proposed project.’ ” (Cleveland
Nat. Foundation, supra, 3 Cal.5th at p. 511.) But that does not mean an EIR must be
exhaustive on all topics. Courts look “ ‘not for perfection but for adequacy,
completeness, and a good faith effort at full disclosure.’ [Citation.]” (In re Bay-Delta
etc.(2008) 43 Cal.4th 1143, 1175 (In re Bay-Delta).)
In reviewing an agency’s compliance with CEQA, courts review for abuse of
discretion. (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512.) Courts will find
an agency abused its discretion if it either failed to proceed in a manner required by law
or reached a decision not supported by substantial evidence. (Ibid.) “ ‘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
[Citation.]’ [Citation.]” (Ibid.)
With those principles in mind, we turn to Appellants’ arguments on appeal.
II. Project Description
We start with Appellants’ contention that the EIR had a misleading project
description.
Courts have long stated that “[a]n accurate, stable and finite project description is
the sine qua non of an informative and legally sufficient EIR.” (County of Inyo v. City of
Los Angeles (1977) 71 Cal.App.3d 185, 193.) Per the CEQA Guidelines, an EIR’s
project description must contain (1) the precise location and boundaries of the proposed
project, (2) a statement of the objectives sought by the proposed project, (3) a general
description of the project’s technical, economic, and environmental characteristics, and
(4) a statement briefly describing the intended uses of the EIR. (
§ 15124; see also In re Bay-Delta, supra, 43 Cal.4th at p. 1163, fn. 7 [“ ‘In interpreting
CEQA, we accord the Guidelines great weight except where they are clearly
unauthorized or erroneous.’ ”].) In supplying this information, a project description must
account for “the entirety of the project” rather than “some smaller portion of it.” (South of Market Community Action Network v. City and County of San Francisco (2019)
33 Cal.App.5th 321, 332.) But it should not overwhelm the public with detail “ ‘beyond
that needed for evaluation and review of the environmental impact.’ ” (Ibid.)
In this case, the EIR’s project description explained that the proposed project
“consists of the operation of a bottling facility and ancillary uses within an approximately
118-acre site formerly developed and operated as a bottling plant.” It explained that the
proposed bottling plant would use “groundwater from the Big Springs Aquifer obtained
through an existing production well (DEX-6) in the northern area of the project site to
bottle three different types of beverage products: sparkling water (flavored and
unflavored), teas, and juice beverages.” It explained that the proposed plant would
monthly average basis (with an annualized average of 115,000 [gallons per day (gpd)])”
and, over time and dependent on market conditions, could eventually operate two bottling
lines and use about “150 gpm on a monthly average basis . . . (with an annualized average
of 217,000 gpd).” And lastly, as relevant here, it explained that Crystal Geyser “proposes
to construct a 1,188-sf caretaker/security residence within the project site” to “allow for
continuous, on-site security at the Plant.”
In attacking this project description, Appellants first argue that it improperly
focused on the planned bottling facility rather than the caretaker’s residence, even though
“the only discretionary approval being sought from the County” concerned “the
caretaker’s residence.” They then suggest that all the detail about the bottling facility is
irrelevant, because it “is largely unrelated to the discretionary Permit that was issued by
the County in conjunction with certification of the EIR.” Appellants, in other words,
appear to argue that the County’s EIR should have focused exclusively on the caretaker’s
residence, and some other EIR (or EIRs) should have covered the rest of the project.
We find differently. Several agencies, it is true, had approval authority over
distinct parts of the project. The County had approval authority over the building permit
for the caretaker’s residence, encroachments permits for “sewer system pipeline
upsizing,” and a building permit for a “pH [n]eutralization [s]ystem building”; the City
had approval authority over a wastewater discharge permit; the regional water board had
approval authority concerning the transfer and modification of waste discharge
requirements; and the local air quality district had approval authority over the proposed
operation of several propane generators and boilers. But nothing in CEQA required these
agencies to separately evaluate their piece of the project in a separate EIR. CEQA,
rather, required the opposite. It required the County, as the lead agency, to consider the
“whole of the action” together, even if the project were “subject to several discretionary
approvals by [distinct] governmental agencies.” (
activity which is being approved and which may be subject to several discretionary
approvals by governmental agencies”; it “does not mean each separate governmental
approval”].)
Second, Appellants claim that the project description was inadequate because it
“did not disclose to the public the fact that the County has no control over groundwater
extraction or beverage bottling activities.” In our reading, however, the project
description made clear the limited approval authority the County had over the project. It
explained that the County had permitting authority over three matters only: The
construction of a caretaker’s residence, the installation of additional sewer lines to
accommodate greater wastewater flows, and the construction of a pH neutralization
system building that could be used to treat the pH of project wastewater to acceptable
limits.
Third, Appellants assert that the project description improperly offered estimates
on the amount of groundwater that Crystal Geyser would extract. They acknowledge the
EIR’s offered estimates were based on the testimony of a Crystal Geyser employee,
Richard Weklych, who has decades of experience in the bottling industry and who
“provided estimates of the production levels that could be anticipated given certain
equipment.” But they assert that because the EIR did not impose a limit on the amount of
water that Crystal Geyser could extract, any estimate on Crystal Geyser’s potential water
use would be speculative.
We disagree. Weklych stated that he had about 30 years of experience in the
bottling industry, including as an operations manager for a bottling facility that “has
similar hours of operation” as the proposed plant here. He explained that his estimates
for the facility reflected the “maximum operational capacity of the plant” and that this
capacity “is dictated primarily by two factors: equipment limitations and hours of
operation.” In terms of equipment limitations, he noted that the existing facility only
And in terms of hours of operations, he noted, among other things, that his estimates
already assumed that Crystal Geyser would operate the facility 24 hours a day Monday to
Friday, with additional shifts on Saturday and Sunday. Based on these considerations
and his experience, Weklych ultimately estimated that Crystal Geyser’s average daily
water demand would be 113,621 gpm for one bottling line (which the EIR appears to
have rounded up to 115,000) and 216,975 gpm for two bottling lines (which the EIR
appears to have rounded up to 217,000).
Considering this testimony, which appears to have gone unchallenged, we find
that the EIR’s offered extraction estimates were supported by substantial evidence, and
not merely speculative, even if they theoretically could be exceeded. (
§ 15384, subd. (a)
[“ ‘Substantial evidence’ as used in these guidelines means enough
relevant information and reasonable inferences from this information that a fair argument
can be made to support a conclusion, even though other conclusions might also be
reached. . . .”].)
Fourth, Appellants challenge Weklych’s estimates on groundwater use for two
additional reasons. They first suggest that the County could not accept Weklych’s
estimates because he was biased in favor of his employer, Crystal Geyser. In Appellants’
apparent view, an interested party’s testimony cannot serve as substantial evidence on
any issue. But as other courts have long explained, these types of objections are
meritless. (San Franciscans Upholding the Downtown Plan v. City & County of San
Francisco (2002) 102 Cal.App.4th 656, 684
[rejecting claim that an expert’s “report
cannot constitute substantial evidence because, rather than providing objective analysis,
[the expert] instead was a paid consultant hired by Real Parties to produce a biased, self-serving study aimed at a predetermined result”]; Foundation for San Francisco’s
Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893,
his experts in the underlying environmental and other studies”].)
Appellants also allege that the County could not rely on Weklych’s estimates
because his estimates were based on faulty assumptions about Dannon’s operation of the
plant. They reason that there are no “reliable records of groundwater extraction rates for
the previous plant” and that the previous plant “was trucking water in from another
source at the rate of 148,800 gallons per week (and not pumping all of the water for its
production from DEX-6).” But Appellants, in making these assertions, ignore the
material evidence that favors a contrary conclusion. Although Appellants’ cited authority
indicates that there are no direct records of groundwater extraction rates from Dannon,
the EIR found that these rates could nonetheless be estimated using Dannon’s “electrical
use data, the engineering specifications of the pump in DEX-6, the depth to water, and an
approximation of the working pressure in the pipelines.” And although Appellants’ cited
authority said that Dannon trucked in water from another source, that same authority
went on to note that Dannon did so only temporarily and later “did stop trucking in water
. . . and began drawing all water from DEX-6.”
In neglecting to disclose this important evidence that significantly undermines
their position, we find that Appellants forfeited their claim that insufficient evidence
supports the EIR’s estimates of groundwater use. As courts have long explained, “ ‘ “an
appellant challenging an EIR for insufficient evidence must lay out the evidence
favorable to the other side and show why it is lacking. Failure to do so is fatal.” ’ ”
(Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1572 (Pfeiffer);
see also Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408 [an appellant “who cites and
discusses only evidence in his favor fails to demonstrate any error and waives the
contention that the evidence is insufficient to support the judgment.”].)
Fifth, Appellants argue that “[t]he fact that [Crystal Geyser] representatives with
years of experience could provide a plausible estimate of how much water could be
capacities, waste stream disposal, etc. were never exceeded, the Project operator could
easily, and without environmental review, transport extracted ground water by truck in
unlimited quantities to an off-site facility for processing and bottling elsewhere.”
Appellants then fault the EIR for failing to evaluate “the maximum pumping that would
be allowed” under this scenario.
But nothing in the record, as far as Appellants have shown, suggests that Crystal
Geyser might act as Appellants speculate. We cannot, for example, say that Crystal
Geyser intends to transport groundwater to an offsite bottling facility. Nor can we say
that Crystal Geyser could, even if wanted, feasibly do so—a topic that neither Appellants
nor anyone else appears to have raised at the administrative level. Although, on this
point, Appellants claim that “[t]rucking water to bottling locations is a practice that
occurs in the water bottling industry in the area,” they cite, in support, only evidence
showing that Dannon temporarily trucked water from a nearby spring to its facility. But
that tells us little about whether Crystal Geyser could feasibly transfer groundwater from
this facility to another bottling facility. Nor does it tell us whether another bottling
facility even exists anywhere near the facility here. We thus decline to find, as
Appellants allege, that Crystal Geyser “could easily, and without environmental review,
transport extracted ground water by truck in unlimited quantities to an off-site facility for
processing and bottling elsewhere.” (See Center for Biological Diversity v. County of
San Bernardino (2016) 247 Cal.App.4th 326, 349
[“find[ing] the possibility of an
extension of the term of the Project to be far too speculative to require environmental
analysis at this point”]; Save Round Valley Alliance v. County of Inyo (2007)
157 Cal.App.4th 1437, 1448-1450
[rejecting the claim that a project description for a
housing development should have characterized the project as involving 54 units, rather
than 27, because a local ordinance allowed a second unit on each lot; “the possibility that
impact of such second units is highly speculative”].)
Although Appellants counter that one case, San Joaquin Raptor Rescue Center v.
County of Merced (2007) 149 Cal.App.4th 645
, supports a ruling in their favor on this
point, we are unpersuaded. The court there considered an EIR for the proposed
expansion of a mining operation. Relevant here, the EIR’s project description provided
conflicting signals on whether the project would or would not increase mine production.
On the one hand, it indicated “that no increases in mine production [was] being sought.”
But on the other hand, “it provide[d] for substantial increases in mine production.” (Id. at
p. 655.) The EIR, for example, indicated that the “mine would have a peak capacity of
550,000 tons per year (as mined),” but it then assumed in its evaluation of impacts that,
as in previous years, “there w[ould] be production levels of only 260,000 tons per year.”
(Id. at pp. 655-656.) The court found the EIR flawed as a result of these inconsistent
statements. (Id. at p. 656.)
Our facts, however, are readily distinguishable. Unlike in San Joaquin Raptor,
nothing in the record here suggests that Crystal Geyser feasibly could extract
substantially more groundwater than the EIR estimated. Again, the EIR’s offered
estimates were premised on Weklych’s unchallenged testimony. And Weklych’s
estimates, in turn, were based on his decades of experience and his understanding of
“[t]he maximum operating capacity of the plant,” which, he stated, were “dictated
primarily by two factors: equipment limitations and hours of operation.” Considering
this record, and finding nothing to support Appellants’ claim that Crystal Geyser “could
easily, and without environmental review, transport” water elsewhere, we cannot say that
our facts are comparable to those in San Joaquin Raptor.
Lastly, in their discussion of the project description, Appellants raise two
objections that appear to have little connection to the project description. First, they
allege that the EIR “actively misled the public by including mitigation measures that the
failed to “comply[] with CEQA’s requirement that all feasible mitigation measures be
adopted, and that they be enforceable.” But to the extent Appellants sought to challenge
the EIR’s mitigation measures, they needed to raise that argument “under a separate
heading or subheading summarizing the point,” as required under California Rules of
Court, rule 8.204(a)(1)(A). Because they failed to do so, we find they forfeited these
arguments. (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826,
1831, fn. 4.)
III. Project Objectives
We turn next to Appellants’ contention that the EIR’s project objectives were
impermissibly narrow.
An EIR’s project description, as noted above, must contain a statement of the
project objectives. A lead agency must then use this statement to help it, among other
things, develop a reasonable range of alternatives to the proposed project to evaluate in
the EIR. (
process of selecting the alternatives to be included in the EIR begins with the
establishment of project objectives by the lead agency. ‘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. . . .’ [Citation.]” (In re
Bay-Delta, supra, 43 Cal.4th at p. 1163; see also
shall describe a range of reasonable alternatives to the project, or to the location of the
project, which would feasibly attain most of the basic objectives of the project but would
avoid or substantially lessen any of the significant effects of the project, and evaluate the
comparative merits of the alternatives.”].)
Here, the EIR stated that Crystal Geyser had eight objectives for the proposed
project: (1) to “operate a beverage bottling facility and ancillary uses to meet increasing
market demand,” (2) to “site the proposed facility at the Plant previously operated by
and high quality of existing spring water on the property,” (3) to “utilize the full
production capacity of the existing Plant building based on its current size,” (4) to
“initiate operation of the Plant as soon as possible to meet increasing market demand,”
(5) to “minimize environmental impacts . . . by utilizing existing facilities and
infrastructure to the extent possible,” (6) to “modify the existing facilities at the Plant in a
manner that incorporates sustainable building and design practices, recycling efforts, and
other conservation methods, in order to reduce water use,” (7) to “withdraw groundwater
in a sustainable manner that does not result in negative effects on nearby springs or wells,
the underlying shallow or deep aquifers, or the surrounding environment,” and (8) to
“create new employment opportunities for the local and nearby communities, promote
sustainable economic development, provide for adequate services and infrastructure to
support the project, and contribute to the County’s tax base.” The EIR elsewhere defined
the term “Plant” to mean the “former bottling plant in unincorporated Siskiyou County.”
Appellants assert, and we agree, that these objectives were “so narrow[] as to
preclude any alternative other than the Project.” The County largely defined the project
objectives as operating the project as proposed. The project as proposed, again, “consists
of the operation of a bottling facility and ancillary uses within an approximately 118-acre
site formerly developed and operated as a bottling plant” in the County. And the stated
project objectives, mirroring the proposed project itself, consists largely of the use of “the
full production capacity of the existing Plant” and the “operation of the Plant as soon as
possible.” But if the principal project objective is simply pursuing the proposed project,
then no alternative other than the proposed project would do. All competing reasonable
alternatives would simply be defined out of consideration.
In taking this artificially narrow approach for describing the project objectives, the
County ensured that the results of its alternatives analysis would be a foregone
conclusion. It also, as a result, transformed the EIR’s alternatives section—often
p. 1162)—into an empty formality. No alternative apart from the rehabilitation of the
existing plant, after all, could “site the proposed facility at the Plant,” involve the use of
“the full production capacity of the existing Plant,” allow the “operation of the Plant as
soon as possible,” or involve the “modif[ication] [of] the existing facilities at the Plant.”
We find that the County produced a flawed EIR as a result. (See id. at p. 1166 [“a lead
agency may not give a project’s purpose an artificially narrow definition”]; see also Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 565 [“ ‘One of
[an EIR’s] major functions . . . is to ensure that all reasonable alternatives to proposed
projects are thoroughly assessed by the responsible official.’ ”].)
We also find that the County’s error was prejudicial. Because the County
effectively described the principal project objective as operating the project as proposed,
and “as soon as possible,” it dismissively rejected anything other than the proposed
project. In doing so, it prejudicially prevented informed decision making and public
participation. (North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647,
668, 671
[EIR that had a stated objective of eradicating a certain type of moth, when the
underlying objective was really to protect California’s native plants and agricultural crops
from damage, was unreasonably narrow; it was also prejudicial because it resulted in “the
EIR dismissively rejected anything that would not achieve eradication”]; see also
policy of the state that noncompliance with the information disclosure provisions of this
division which precludes relevant information from being presented to the public agency,
or noncompliance with substantive requirements of this division, may constitute a
prejudicial abuse of discretion.”].)
Apart from arguing that the County defined the project’s objectives in an
impermissible narrow fashion, Appellants also assert that the EIR failed to demonstrate
that one of the project alternatives, the no-project alternative, was infeasible. The County
accomplish any of the basic project objectives.” The County then offered three specific
reasons for this conclusion, though two were largely redundant. Its three reasons were:
(1) “The existing facilities within the project site would remain vacant and non-operational,” (2) the “existing facilities and infrastructure” would not be used “to the
extent possible,” and (3) no new employment opportunities would be created in the
County.
Challenging these findings, Appellants first assert that at least the first two of the
County’s stated reasons “lack support in the record.” Appellants, in this respect, appear
to challenge the County’s conclusion that the existing bottling facility would remain
vacant absent the proposed project. We reject their challenge. Following Dannon’s
closure of the plant, the facility remained vacant for several years until Crystal Geyser
purchased the plant for purposes of reviving it. These facts certainly tend to show that,
were Crystal Geyser to abandon the plant, it could reasonably be expected to remain
vacant again for a period of time. (See
[“Substantial evidence shall include,” among other things, “reasonable assumptions
predicated upon facts.”].)
Appellants also suggest that the County’s stated reasons for rejecting the no-project alternative were not clearly tied to the stated project objectives. We find
differently. That the no-project alternative would not create new employment
opportunities in the County plainly related to the project objective of “creat[ing] new
employment opportunities for the local and nearby communities.” And that the no-project alternative would leave the existing bottling facility vacant plainly related to the
project objective of “utiliz[ing] the full production capacity of the existing Plant building
based on its current size.”
Lastly, Appellants contend that all the County’s stated reasons fail to
“demonstrate[] that the no project alternative is infeasible,” reasoning, it appears, that the
narrow project objectives. We agree, as mentioned, that the offered project objectives
were unreasonably narrow. We also agree that this affected the County’s analysis of the
no-project alternative and that the County, for this reason, will need to redo its analysis.
IV. Impacts Analysis
We consider next Appellants’ challenge to the EIR’s discussion of environmental
impacts. Appellants allege that the EIR fell short in its analysis of the project’s impacts
on aesthetics, air quality, climate change, noise, and hydrology. We address each issue in
turn.
A. Aesthetics
Appellants first challenge the EIR’s analysis of aesthetic impacts. They argue that
the EIR improperly assumed that the plant is not a “dominant visual feature” in the area,
even though several commenters alleged otherwise. They also contend the County
wrongly declined to mitigate this aesthetic impact on the ground that it is an existing
condition, “despite the fact that the ‘existing’ situation is in violation of the 1998
Mitigation Agreement”—which is the agreement that Dannon and the County entered
into before Dannon constructed the bottling facility.
We reject both arguments. To start, the County did not need to label the existing
plant as a “dominant visual feature” simply because some individuals called it that. The
County acknowledged that the plant was part of one of the “most prominent non-natural
features” in the area, but it declined to find it was a “dominant” visual feature. It
explained that “[d]ominant visual features are considered based on position, extent, or
contrast of basic pattern elements.” It then concluded that the dominant visual features
here “primarily include the mountainous terrain and snowcapped mountains surrounding
the City of Mt. Shasta.” Although Appellants may disagree with this conclusion, finding
the word “dominant” more apt than the word “prominent” when describing the plant, we
find nothing unlawful in the County’s choice of words. (See Protect Niles v. City of
inherently subjective”]; see also North Coast Rivers Alliance v. Marin Municipal Water
Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 626
[“Where, as here, the agency
prepares an EIR, the issue is whether substantial evidence supports the agency’s
conclusions, not whether others might disagree with those conclusions.”].)
Appellants’ second argument fares no better. Although Appellants never fully
flesh out their argument, they appear to believe that the County should have treated the
plant building’s color, a reflective white that can occasionally produce glare, as a project
impact because it violates the terms of the 1998 Mitigation Agreement. As relevant here,
that agreement states: “Building and free-standing signage will be constructed of non-reflective materials and will not be internally illuminated.” But the County, in the EIR,
declined to treat the plant’s reflective paint color as a project impact for a couple reasons.
First, it found that this type of argument was premised on a mistaken reading of the 1998
Mitigation Agreement. In the County’s view, the mitigation measure concerning “ ‘non-reflective materials’ ” imposed “a limitation on material type (metal, glass, etc[.]), and
not on paint color.” Second, the County found that “[t]he plant building color is an
existing condition” and so “does not constitute a project impact.”
We find nothing defective in the County’s reasoning. First, because Appellants
offer no argument concerning the County’s interpretation of the 1998 Mitigation
Agreement, we find they forfeited any argument they may have had on this point. And
second, because the County had the discretion to evaluate the project’s potential impacts
against the conditions existing at the time of the CEQA analysis, rather than the
conditions existing before the construction of the bottling facility in 1998, we find no
issue in its doing just that. (See Communities for a Better Environment v. South Coast
Air Quality Management Dist. (2010) 48 Cal.4th 310, 321 & fn. 7
[discussing a long line
of cases where “the appellate court concluded the baseline for CEQA analysis must be
the ‘existing physical conditions in the affected area’ [citation], that is, the ‘ “real
that could or should have been present according to a plan or regulation”]; see also Fat v.
County of Sacramento (2002) 97 Cal.App.4th 1270, 1278-1280
[baseline for airport
expansion was existing airport operations, even though the airport had a “history of
illegal expansion”].)
B. Air Quality
Appellants next, in several little explained arguments, challenge the EIR’s
discussion of air quality impacts.
First, they assert that, “rather than use the methodology and inputs that are the
standard of the industry for air quality analysis, and rather than including all of the truck
traffic that the Project will generate, the County manipulated the inputs, misstating the
types of truck traffic as well as modifying the standard assumptions for General Heavy
Industrial analyses in such a way that the conclusions fall below thresholds of
significance.” But Appellants never follow through to explain these allegations. They
never provide the necessary background to understand their argument, neglecting, for
example, to describe “the methodology and inputs that are the standard of the industry for
air quality analysis.” Nor do they cite the relevant parts of the EIR showing the County’s
alleged wrongdoing. They simply cite to a comment letter that appears to have made the
same type of allegations that they raise here. Appellants, however, could not show that
the County wrongly “manipulated the inputs” in the EIR simply by noting that a
commenter alleged that the County wrongly “manipulated the inputs.” They needed to
supply reasoned argument and citations to the record and authority, not bare conclusions
without explanation. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785
(Badie)
[“When an appellant . . . asserts [a point] but fails to support it with reasoned
argument and citations to authority, we treat the point as waived”]; see also City of
Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1099
[courts “ ‘are not bound to
develop appellants’ arguments for them’ ”].)
Third, Appellants claim that the final EIR failed to address the flaws in the draft EIR. They state: “[T]he FEIR emissions remained underestimated for CAP [an acronym Appellants never define] and GHG pollutants, and the screening-level HRA [another unexplained acronym] conducted for the DEIR was carried through unrevised to the FEIR, reflecting substantially underestimated health risks.” They then add: “EMFAC’s [another unexplained acronym] fleet mix for the Siskiyou area has been carefully calculated” and the final EIR wrongly “deviat[ed] from the standard fleet mix” without explanation when it calculated “the 103 daily truck trips . . . separately from the trips calculated in CalEEMod [another unexplained acronym] for the land use type (General Light Industrial).” But once again, Appellants fail to adequately explain or support their claims. As with their previous two arguments, they cite a comment letter that appears to allege similar types of wrongs, but they then decline to cite the relevant portions of the EIR that could support their contentions. As a result, we once again reject their undeveloped arguments. Appellants may be intimately familiar with the history of this case, the standards for evaluating air emissions, and all 55,000 plus pages of the
Fourth, Appellants challenge the County’s analysis of mobile-source emissions from project operations. Appellants assert that the County relied on a numerical threshold of significance in the draft EIR for mobile-source emissions, but then, when the final EIR revealed greater emissions than initially estimated, it abandoned its initial threshold of significance and instead said that no threshold existed. They then contend that the County’s approach was unlawful in two respects: First, the County wrongly abandoned the threshold of significance in its draft EIR; and second, the County inappropriately attempted to analyze impacts from mobile-source emissions without using any threshold of significance. We reject both arguments.
Starting with Appellants’ first contention, we reject their claim that the draft EIR established a numerical threshold of significance for mobile-source emissions. Appellants argue otherwise based on a table in the draft EIR that discussed emissions from stationary, mobile, and area sources. The table was divided into two parts, with stationary sources on the top and mobile and area sources on the bottom. It estimated, for each of these three sources, the amount of emissions for certain types of pollutants and, for stationary sources, also stated the applicable thresholds of significance for the listed pollutants. For example, the table stated that the project would emit about 274 pounds per day of carbon dioxide from stationary sources and that the threshold of significance for carbon dioxide from stationary sources is 2,500 pounds per day. In Appellants’ view, however, this table established the applicable thresholds of significance for more than just stationary sources; it also established the applicable thresholds for mobile and area sources.
We also reject Appellants’ separate contention that the County inappropriately analyzed impacts from mobile-source emissions without using any threshold of significance. The County, in its discussion of its thresholds for determining the significance of impacts to air quality, stated that impacts to air quality would be considered significant if the project would, among other things, “[c]onflict with or obstruct implementation of the applicable air quality plan” or “[v]iolate any air quality standard or contribute substantially to an existing or projected air quality violation.” The County then, applying these thresholds to the project, found that impacts from mobile-source emissions would be insignificant because they “would not conflict with any policies of the [local air district], violate any air quality standard, or contribute substantially to an existing or projected air quality violation.” Appellants may not like the County’s chosen thresholds for evaluating air quality impacts in this regard, but they cannot claim that the County applied no standard at all.
Lastly, Appellants assert that the County should have redone its health risk assessment—which assessed potential impacts from toxic air contaminants—after the
We reject Appellants’ argument. First, in attempting to show that the increase in estimated emissions in the final EIR warranted a revised health risk assessment, Appellants largely ignore or understate the facts supporting the County’s decision not to redo the assessment. Appellants, for example, briefly note that the County’s consultant concluded “that if the [health risk assessment] were to be re-run, it would still come out below the significance levels.” But the consultant actually said that “if the [health risk assessment] were to be re-run [to account for new information], the resulting diesel emissions would be at least 30% lower. . . .” It reasoned that the health risk assessment did not account for a new state rule that “effectively requires that, beginning January 1, 2018, all heavy-duty diesel trucks operating within the State of California be equipped with either factory or retrofit diesel particulate filters.” The consultant added that, if the [health risk assessment] were to be re-run to account for the modernization of the trucking fleet over time, rather than “assume that the current fleet makeup remains constant for the next 30 years,” then the resulting diesel emissions would be even lower over time. For example, emissions of diesel particulate matter from heavy-heavy duty diesel trucks would be “over 85 percent lower than the 2017 rates assumed in the [health
In response to all this, Appellants are generally silent. They decline to acknowledge, for example, that the health risk assessment did not account for a new state rule requiring “all heavy-duty diesel trucks operating within the State of California be equipped with either factory or retrofit diesel particulate filters.” Nor do they acknowledge that the health risk assessment did not account for the modernization of the trucking fleet over time. Nor do they acknowledge the consultant’s actual conclusions based on these considerations. Because of Appellants’ incomplete and misleading representation of the facts, we find they forfeited their argument that insufficient evidence supported the County’s decision not to redo the health risk assessment. (See Pfeiffer, supra, 200 Cal.App.4th at p. 1572 [“ ‘ “[A]n appellant challenging an EIR for insufficient evidence must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal.” ’ ”])
Appellants’ second argument concerning the location of emissions falls short too, and for a familiar reason: Appellants fail to support their claim with sufficient citations to the record. Appellants, again, claim that the health risk assessment improperly assumed that one-third of truck traffic would come from the south of the plant, even though all truck traffic would actually come from the north. But to support this claim, they cite to nothing in the health risk assessment. They instead cite to 14 pages in the record, most of which (11 pages) consists of a commenter’s resume, part of which (3 pages) consists of the commenter’s comments, and none of which supports Appellants’ position. We reject their unsupported claim as a result.
Appellants next, for a variety of reasons, challenge the EIR’s discussion and mitigation of climate change impacts.
Their first claim concerns CEQA’s recirculation requirements. CEQA requires a lead agency to recirculate an EIR for public review when “significant new information” is added to the EIR after the draft EIR has been released to the public for review and before certification.
In this case, the County initially estimated in its draft EIR that the project would result in greenhouse gas emissions of 35,486 metric tons of carbon dioxide equivalent (MTCO2e) per year. Because this amount would exceed the County’s established threshold of significance of 10,000 MTCO2e per year, the County concluded that the proposed project’s emissions would result in a significant impact. In its final EIR, the County continued to conclude that the proposed project’s emissions would result in a significant impact. But it estimated a far higher level of emissions: 61,281 MTCO2e per year. The County, however, found that this was not significant new information that required recirculation. It reasoned that because the draft EIR already found that project emissions would be significant and unavoidable even with mitigation, the final EIR’s upward revision in greenhouse gas emissions did not change the EIR’s ultimate conclusions.
The County, its board of supervisors, and Crystal Geyser (collectively, Respondents) counter that the County’s approach was appropriate because the EIR’s ultimate conclusions were left unchanged—greenhouse gas emissions would remain significant and unavoidable. But that is hardly any justification at all on the facts before us. On that logic, a lead agency could conclude in a draft EIR that a project would result in the loss of one endangered animal, and that this loss would be significant and unavoidable; but it could then, in the final EIR, conclude that it is insignificant that the project would actually result in the extinction of the entire species. No matter, Respondents suggest, that the loss is magnitudes greater than disclosed in the draft EIR; it is enough that the loss remains significant and unavoidable in both the draft EIR and the final EIR. That type of approach, however, wrongly deprives the public of a meaningful opportunity to comment on a project’s substantial environmental impacts. (Laurel
Second, Appellants contend that the County potentially understated the amount of greenhouse gas emissions resulting from the project. Their argument concerns the County’s decision not to account for the greenhouse gas emissions associated with the production of unblown bottles (called performs), which Crystal Geyser will purchase and then use for making finished bottles.
According to the County, it had no need to account for these emissions because the production of preforms would be an indirect and uncertain consequence of the project. (See Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 175 [a lead agency need not consider “an indirect and uncertain consequence” of a project]; but see
Challenging the County’s decision, Appellants argue that the County could reasonably calculate the emissions associated with these preforms because it had estimates of “the number of bottles [Crystal Geyser] will use each year” and estimates about “the amount of CO2 that is generated by the production of preforms.” They then assert that “the County may not avoid the analysis of the known cumulative, global impacts associated with the identifiable number of preforms the Project will consume each year.”
But in the course of making their argument, Appellants never discuss or even acknowledge the County’s actual reasoning for declining to consider these emissions—which was not that it lacked information about the number of preforms that the project would use or the emissions associated with preform production, but that it was uncertain whether the production of preforms with the project would be greater than without the project. Again, the County reasoned that Crystal Geyser’s competitors would have an incentive to produce more bottled drinks, and thus would likely purchase more preforms, if Crystal Geyser did not proceed with the project. Apart from ignoring the County’s actual reasoning, Appellants also fail to point to any evidence supporting a necessary premise of their position. As part of their argument, they implicitly assume that each preform that Crystal Geyser purchases for the project would necessarily be a preform that would not otherwise have been produced. But because they cite nothing in the record to support this assumption, Appellants appear to rely on nothing more than speculation. For these reasons, we reject Appellants’ largely unsupported and little explained claim.
Fourth, for several reasons, Appellants challenge the EIR’s mitigation measures for the project’s greenhouse gas emissions. First, they argue that the County should have reevaluated its mitigation measures when the final EIR revealed a significant increase in estimated emissions. The record, however, shows that the County both reevaluated and revised its mitigation measures in the final EIR. In any event, we find that Appellants’ claim is premature at this point. Because we find the County will need to allow further public review of the EIR’s discussion of greenhouse gas emissions, the County may very well be required to further reevaluate its mitigation measures in response to public comments.
Appellants also argue that the EIR’s mitigation measures are not enforceable, focusing on two requirements in particular. First, they claim that part of mitigation measure 4.6-1 requires only the “possibility” of installing solar arrays, which is not meaningful mitigation. But nothing in that measure discusses solar arrays. Nor does it even use the word “possibility”—at least not on the pages Appellants cite. Second, Appellants claim that another part of this same measure requires only “a plan to establish
Appellants further, on the topic of enforcement, assert that “the County has no authority to enforce these mitigation measures outside of the context of [Crystal Geyser’s] use of the caretaker’s residence.” But rather than explain this argument, Appellants direct us to look to an unspecified part of their argument “above.” Reviewing Appellants’ arguments “above,” we understand their point to be this: Although the EIR’s mitigation measures “are enforceable ‘as a condition of exercise of the permit’ ” for the caretaker’s residence, because Crystal Geyser “has no real need for the caretaker’s residence, and the structure[] is not habitable as a residence, . . . ‘exercising’ that permit is irrelevant.” Appellants, in other words, appear to believe that the County will only be able enforce the EIR’s mitigation measures if Crystal Geyser decides to exercise its permit for the caretaker’s residence—and that will never happen because Crystal Geyser “has no real need for the caretaker’s residence, and the structure[] is not habitable as a residence.”
But apart from neglecting to provide any legal authority for this conclusion, Appellants also decline to offer any evidentiary support for their claim, stating instead that the support for their claim is “noted” elsewhere in their brief. But in the end, all we
Lastly, Appellants suggest that the County should have considered and adopted “other feasible measures” after it declined to require solar arrays. But the County did consider and adopt other feasible mitigation measures, including a measure requiring a carpool program, as discussed, and another measure requiring the purchase of carbon offset credits. We thus reject this claim too.
D. Noise Impacts
Appellants next challenge the EIR’s discussion of noise impacts.
They first assert that the County wrongly relied on standards developed by the Federal Interagency Committee on Noise (FICON). In support, they point to a letter from their noise consultant, who stated that “FICON thresholds . . . are out-of-date and inappropriate for industrial noise sources” and “have been superseded . . . by incremental thresholds developed by the Federal Transit Administration (FTA) for transportation noise sources.” The consultant appeared to reason that FICON standards “are out-of-date and inappropriate” because the FTA standards “are more stringent.”
But as the County explained in response, although the FTA standards may be more stringent, nothing in CEQA requires lead agencies to use the most stringent standards in existence when evaluating impacts. And as the County further indicated, although different experts may disagree about the best methodology for evaluating noise impacts—with the County’s consultant, in this case, preferring the FICON standards and Appellants’ consultant preferring the FTA standards—pointing out a “ ‘[d]isagreement among experts does not make an EIR inadequate.’ [Citation.]” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 409; see
Second, Appellants contend that although the County should have applied the FTA standards when evaluating noise impacts, it actually would have acted inappropriately had it done so. They reason: “[A] noise expert pointed out to the County in comments on the FEIR that neither the FTA nor the FICAN thresholds are applicable to industrial noise sources. Noise from industrial sources is not ‘broadband in nature.’ It has a completely different frequency spectrum than background levels that in most cases are dominated by transportation sources.” In support of this claim, they point to a part of the EIR noting that one commenter said, “Noise from industrial sources is not ‘broadband in nature.’ ” But even it is true that “[n]oise from industrial sources is not ‘broadband in nature,’ ” Appellants cite nothing in the record showing the relevance of that detail to their claim. We reject their undeveloped argument as a result. (Badie, supra, 67 Cal.App.4th at pp. 784-785.)
Third, Appellants claim that to be less than significant for CEQA purposes, project noise levels must be “inaudible to its residential neighbors throughout the day, especially during nighttime hours.” In support, they cite a part of the EIR noting that one commenter said, “Any audible increase, or noise increase perceived as annoying, should be considered a significant noise impact.” But nothing in CEQA requires a lead agency to adopt a noise threshold of “[a]ny audible increase” simply because one commenter suggested it. (King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 884 [“ ‘The lead agency has substantial discretion in determining the appropriate threshold of significance to evaluate the severity of a particular impact.’ ”].)
Fourth, Appellants suggest that the County could not rely on “City and County noise thresholds as a standard of significance for the Project.” They reason that this follows from Berkeley Keep Jets Over the Bay Committee v. Board of Port
Fifth, Appellants claim that “the County apparently charged its noise experts to figure out a way” to undermine CEQA. In support, citing one of their consultants, they assert: “[T]he County arbitrarily omitted analysis of vibrational noise and decided not to analyze the combined impact of traffic and industrial noise from plant operations.” They also claim: “The Revised Noise Analysis picks and chooses between the noise levels predicted by the FHWA [an unexplained acronym] Model and the ambient noise measurements in order to eliminate the significant and unavoidable traffic noise impacts that were contained in the Draft EIR.” But Appellants never follow through to cite any part of the EIR to support their allegations of impropriety. We reject their unsubstantiated claim as a result.
Finally, Appellants assert that the County’s “responses to comments dismissed concerns about exceedance of noise standards, claiming that a 1-4 dB exceedance is minor.” They then argue that this was improper, reasoning that “[e]ven a 1 dB increase in 24-hour levels represents a potentially significant impact to local sensitive receptors that may require mitigation.” But in making their argument about the County’s “responses,” Appellants never cite to the County’s actual responses. They cite instead a draft document attached to an internal County email. One County employee emailed
E. Hydrology
Lastly, in terms of impacts, Appellants challenge the County’s discussion of hydrology impacts for a variety of reasons.
Appellants first argue that the County used an improper threshold of significance for evaluating hydrology impacts. The County set forth nine different thresholds of significance for hydrology and water quality impacts. One of these thresholds, as relevant here, stated that impacts to hydrology would be considered significant if the project would “substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table.” In Appellants’ telling, “[b]y using this standard, the County was able to accept the analysis based upon outdated models, ignore the standards of significance the Tribe attributed to the Resource, and avoid having to do any actual studies on the impacts of the proposed pumping at DEX-6 and the nearby domestic wells.” Appellants add that, in using this standard, the County applied a standard “that did not analyze the water extraction increase ‘in light of existing conditions’ ” and “did not take into account the complexity of the groundwater system and the fact that the aquifer is a Tribal Cultural Resource and that there are many local residents relying upon it for domestic water.”
But Appellants never explain why all this follows from the County’s chosen standard for evaluating impacts. They never explain, for example, why the County’s
Second, Appellants contend that the County failed to consider whether project pumping of groundwater would cause short- or long-term damages to groundwater levels at nearby wells. But although they may disagree with the County’s conclusions and methods, they cannot accurately claim that the County altogether failed to consider these issues. The County’s hydrogeology expert, to start, provided historical data showing “static water levels” (i.e., non-pumping water levels) at DEX-6 from 2004 through 2013—which covered the last seven years that Dannon operated the well and the bottling facility. The first data point during this period, from 2004, showed a water level just under 3,577 feet. Over the next seven years during Dannon’s operations, the vast majority of data points showed water levels between 3,576 and 3,577 feet. Only a few data points showed water levels below 3,576 feet—and even then, they showed levels only slightly below 3,576 feet.
The expert noted that, while this data shows limited drawdown at DEX-6 during Dannon’s operation of the facility, nearby wells would have experienced even less of a drawdown during this period. It explained that “the pumping well [DEX-6] is the center of the cone of depression and as a result all other water level drawdowns at wells located at any distance radially outward from that pumping well will be less than that in the pumping well.” Considering this type of information “collected over many years,” the County found that “it is possible to make confident and accurate estimates of the effects of the proposed pumping on groundwater levels,” as the proposed pumping would be at “rates comparable” to past rates.
Considering the County’s review of historic groundwater data and its expert’s modeling of the impacts from future use, we cannot find, as Appellants allege, that the County failed to consider whether “pumping at DEX-6 on the Project site causes short and/or long-term damage to groundwater levels at the many nearby off-site residential wells, City wells, and proposed City wells.” Again, Appellants may not like the County’s conclusions and methods, but they cannot claim that the County simply declined to consider short-and long-term impacts to groundwater levels.
Third, Appellants challenge the model that the County’s expert used to evaluate potential groundwater drawdown. In their view, the expert’s model was “obsolete and oversimplified.” Although they never explain why they believe the model obsolete, they argue that the model was oversimplified because of “the lack of knowledge about the upper and lower aquifers.” But in the course of making this argument, Appellants never describe the information that is allegedly lacking. Nor do they explain why the lack of this unspecified information undermined the accuracy of the expert’s estimates. We reject their unexplained argument as a result. (Badie, supra, 67 Cal.App.4th at pp. 784-785.)
Fifth, Appellants claim that the County wrongly ignored several local residents who alleged that their wells were impacted during Dannon’s operation of the plant between 2001 and 2010. In Appellants’ telling, the County characterized these comments as anecdotal and then moved on. But that is not an accurate characterization. The County acknowledged that some commenters claimed their pumps “burned out” or wells went dry during prior plant operations. But, for several reasons, the County explained that these assertions did not require further environmental review. First, it explained that “no well failures were reported to the County” during this period and that none of the commenters could provide, among other things, “documentation to show when such events might have occurred.” For these reasons, the County found it impossible to
Sixth, Appellants suggest that the County’s expert offered a misleading assurance “that the groundwater extractions at the plant would not draw down nearby wells.” According to Appellants, the County’s expert made this assurance when explaining why well monitoring was unnecessary; but because the expert later clarified that this conclusion relied on several assumptions, “there is no guarantee at all that the prediction is correct.” Appellants focus, in particular, on the expert’s statement that it assumed that “the fractures in the volcanic rocks at the Domestic Well remain open, extensive and continuous in the subsurface area beneath the region; the elevations of the perforated intervals in the wells being considered are the same; and the same stratigraphic horizons in the Domestic Well have been perforated in the other wells in the region.”
Appellants, however, misrepresent the record and ignore critical details. The County’s expert never said that the plant “would not draw down nearby wells,” as Appellants claim. It instead, at the one-page Appellants cite, said that use of the domestic well would draw down nearby wells by “less than 0.6 ft.” And although the expert qualified this statement, saying it was premised on certain assumptions, Appellants have
The expert’s third assumption—that “the fractures in the volcanic rocks at the Domestic Well remain open, extensive and continuous in the subsurface area beneath the region”—appears reasonable too. On this point, the County indicated elsewhere in its EIR that the project would not alter the underlying geologic conditions. It explained that because the project “would not substantially affect the water supply available in the aquifer,” “[t]his would ensure that affects to the underlying sediment and rock would not be substantially affected by the extraction of groundwater for the Proposed Project.” And although the County acknowledged that the bottling facility is located adjacent to an active volcano and that a future eruption could certainly impact geologic conditions, it stated that Mount Shasta “is not expected to erupt for another 300 to 1,000 years.” Considering the evidence in support of the expert’s assumptions, which Appellants fully ignore, we see no reason to conclude that these assumptions were unreasonable. (See
Seventh, Appellants assert that the County’s expert stated that the County need not monitor neighboring wells because “monitoring wells is ‘fraught with both logistical and even legal issues.’ ” They then claim that “[t]his is not a valid reason to abandon the effort of gathering the necessary data to determine impacts.” But Appellants neither
Finally, Appellants challenge the relevancy of the expert’s pump test for two reasons. They first argue that the test was flawed because “neither the pumped well nor the observation wells are the same (or even close to) the wells of interest, which are DEX-6 . . . and residential wells to the east.”
But the County reasonably addressed this type of concern in the EIR. In declining to perform a similar pump test on DEX-6, the County explained that “[l]ong-term groundwater level monitoring data collected from DEX-6 and nearby wells, including monitoring during the 10-year period of previous pumping operations by [Dannon], provides more substantial evidence regarding the effects to groundwater levels from pumping DEX-6 than a short-term pump test would achieve.” The County added that its expert conducted “[a]nalytical modeling . . . to determine potential impacts from the pumping of DEX-6 and the Domestic Well on nearby residential wells” and that this modeling did not show significant impacts on nearby residential wells. Considering these responses and the record before us, we do not find that the County violated CEQA simply because it declined to run a pump test on DEX-6. As the County itself explained, “CEQA does not require a lead agency to conduct every test or perform all research, study, and experimentation recommended or demanded by commenters.” (See
Appellants also allege that the pump test was flawed because it was too short—only three days. They reason that the record shows “no factual basis” for selecting this time period and that “the overly brief 3-day period precluded a serious examination of 4 out of 7 of the wells” that were monitored during the pump test.
But although it is true that the expert ultimately found the data from four wells useless, Appellants have not shown that this was because the pump test was too short in duration. And although true that the pump test was only three days, the County’s expert explained why it believed it sufficient to conclude that “the impact to the local groundwater resources by the pumping of the Domestic Well will not be significant.” First, the expert explained that the test involved a far higher average rate of pumping than would be expected under the proposed project. Under the test, again, the expert extracted 247 gpm from the domestic well; but under the proposed project, Crystal Geyser would only extract an average of 16 gpm from this well. During the three days of the pump test, then, the expert extracted more groundwater from the domestic well than Crystal Geyser would likely extract over a 45-day period.4 Second, the expert found it significant that the test involved continuous pumping, while the proposed project would likely require only intermittent pumping. In particular, the expert stated that “the pump will likely be cycling on and off during the day as the demand is needed” and, as a result, “when the
V. Consistency with the County and City General Plans
Finally, we turn to Appellants’ contention that the project is inconsistent with the County’s and the City’s general plans.
Under California law, each county and city must “adopt a comprehensive, long-term general plan” for its “physical development” and “of any land outside its boundaries which in the planning agency’s judgment bears relation to its planning.”
According to Appellants, the project here would be inconsistent with the County’s and the City’s general plans. They reason that the draft EIR “found that the Project would result in noise impacts to at least one residence that conflicts with the General Plan noise standards.” We reject their argument. Considering the one page in the record that they cite, Appellants appear to base their argument on the EIR’s statement that, “according to the standards for determining a substantial increase in the ambient noise environment presented in Table 4.10-7, the Proposed Project would result in a substantial increase in ambient traffic noise levels along Mt. Shasta Boulevard from Ski Village Drive to Nixon Drive and CGWC Drive. The nearest sensitive receptor to CGWC Drive is located approximately 400 feet from the roadway centerline, resulting in low ambient
DISPOSITION
The judgment is reversed. The trial court is instructed to enter, consistent with this opinion, a new judgment granting the petition for writ of mandate and specifying those actions the County must take to comply with CEQA. Those actions include the need to (1) revise the statement of the project objectives, (2) revise the alternatives analysis in light of this new statement, and (3) recirculate the EIR’s discussion of greenhouse gas emissions to allow comment on the new emission estimates. Appellants are entitled to recover their costs on appeal.
\s\
BLEASE, Acting P. J.
We concur:
\s\
ROBIE, J.
\s\
HULL, J.