EIR For Desalination Plant Upheld

By Katherine J. Hart

The Marin Municipal Water District (District) proposed to construct a desalination plant in Marin County, and certified an environmental impact report (EIR) for the project. The North Coast Rivers Alliance (Alliance) challenged the EIR on the grounds that the EIR failed to properly analyze various impact categories, including aesthetics, land use and planning, seismology, hydrology and water quality, biological resources, and greenhouse gases. The Alliance further claimed that a number of mitigation measures were improperly deferred, and that a feasible green energy alternative was not considered in violation of CEQA. The trial court granted the writ, but on appeal, the Court of Appeal, First Appellate District, reversed and ordered the trial court to issue a new judgment denying the writ petition. North Coast Rivers Alliance Et Al. v. Marin Municipal Water District Board of Directors (May 21, 2013, A133821, A135626) ___Cal.App.4th ___.

Background

The District provides potable water to residents in Marin County. In 1989, the District declared a water shortage emergency, having determined that water demand will exceed water supply by 2025, even with aggressive conservation measures.

In August 2003, the District considered the construction of a five million gallon-per-day desalination plant to extract seawater from San Rafael Bay and remove the salt, other solids and constituents from the water by reverse osmosis. The resultant potable water would be supplied to the District’s customers; the saline brine would be blended with treated wastewater effluent and discharged back into San Rafael Bay via the sanitary sewer system. In addition to the actual desalination plant, the District would need to construct two pipelines, two pumping stations, and three storage tanks (two on San Quentin Ridge and one on Tiburon Ridge).

The draft EIR for the project was circulated in November 2007, theFinal EIR was released in December 2008, and the District Board certified the EIR in February 2009, and then, following two more public hearings, approved the project in August 2009.

Aesthetics

The EIR concluded that there would be no significant visual impact on scenic vistas from the construction of a water tank on Tiburon Ridge although the tank would be “slightly visible” from various vantage points. The trial court held that substantial evidence did not support such a conclusion, but the appellate court reversed on the grounds that lead agencies are entitled to (and in fact, must) make policy decisions regarding what constitutes substantial versus insubstantial adverse environmental impacts based in part on the setting of the project. Where an agency finds that an impact is insignificant, the EIR is only required to contain a brief statement addressing the reasons for the conclusion. The appellate court held that the District did that. The EIR in question laid out the applicable thresholds of significance and determined there would be no significant impact on “scenic vistas” based on analysis of the location of the tank versus from where and by whom it would be seen. The appellate court then reminded readers that there is a different standard of review that applies to EIRs (versus negative declarations) and under the more deferential standard of review for EIRs, the only issue is “whether substantial evidence supports the agency’s conclusions, not whether others might disagree with those conclusions.”

To the contrary, the EIR concluded there would be an unavoidable significant impact with respect to the two water tanks proposed to be constructed on San Quentin Ridge. As required by CEQA, the EIR still included a mitigation measure, which required the District to work with the cities of San Rafael and Larkspur to prepare and implement a landscaping plan to shield the tank site on San Quentin Ridge from view. The Alliance argued the mitigation measure failed to comply with CEQA because it did not indicate what type of plants should be used or dictate the location of plantings. The trial court agreed that failure to include these “criteria” rendered the mitigation measure “indefinite” and thus, inadequate under CEQA. The District argued the Alliance failed to exhaust the issue, but in any event, the District’s mitigation measure complied with CEQA. Although the appellate court agreed the Alliance properly exhausted the issue, it again reversed the trial court on substantive grounds, holding that the District properly committed itself to working with the cities to reduce the visual impacts by implementing whatever plan was decided upon during project construction. The District also required itself to identify success metrics such as survival and growth rates for the plantings. All this was sufficient under CEQA.

Land Use and Planning

The Alliance argued that the EIR violated CEQA because it did not address whether the Tiburon Ridge tank would be consistent with the Countywide Plan. The District countered that the Alliance failed to exhaust its administrative remedies on the issue, but in any event, the EIR contained substantial evidence to the contrary. The trial court sided with the Alliance, but was again, reversed by the appellate court on the grounds that the Alliance failed to exhaust its administrative remedies, but also that the EIR contained substantial evidence in support of the District’s conclusion that the project was consistent with the county’s general plan.

Seismology

The Alliance contended that the EIR failed to analyze the project’s seismic impacts. Specifically, it argued that the EIR failed to explain the impacts of soil liquefaction or structural damage due to an earthquake. In its defense, the District asserted that the issues of soil liquefaction and structural damage were never raised so it could never address them. The trial disagreed, but was yet again, reversed by the appellate court. In holding for the District, the appellate court noted that oral testimony of a very general character was presented during a hearing about the impacts of an earthquake, but neither soil liquefaction nor structural damage of the tanks was specifically raised; thus, the issues were not properly exhausted. The appellate court also held that the EIR contained substantial evidence to support the District’s conclusion that the project would not have significant seismic impacts. In particular, the EIR outlined the geologic conditions in the area, considered the potential for seismic hazards (including ground shaking and liquefaction), and analyzed seven potential impacts associated with geologic risks. All this, the appellate court said, was more than adequate to respond to the public’s generalized comments regarding seismic impacts.

Hydrology and Water Quality

In analyzing whether the project would violate any water quality standards or waste discharge requirements, the EIR concluded that the project’s impacts would be less than significant since the wastewater would be treated to comply with applicable discharge permit limits. The EIR disclosed that periodic “shock chlorination” of the intake pipe would be necessary to control barnacles and mussels that would grow within the pipe, but that no chlorinated water would be discharged to the Bay without first being treated and dechlorinated to meet discharge permit requirements. The Alliance argued that the EIR failed to analyze the potential adverse impact on the Bay from the “shock chlorination.” The California Department of Fish and Game (now Fish and Wildlife) asserted that chlorine is toxic to aquatic life and cannot be discharged into the Bay. The trial court ruled for the Alliance, stating that the EIR failed to properly disclose the frequency of the shock chlorination treatments, and thus, it lacked substantial evidence to support the District’s conclusions on water quality. Reversing the trial court again, the court of appeals held that the EIRs discussion and explanation of the shock chlorination process, frequency and disposal was adequate.

Biological Resources

The desalination plant would pump seawater directly from the San Rafael Bay through the intake pipe to the plant. This could lead to entrainment of aquatic organisms, including fish. To study the impacts of entrainment, the District sampled source water from the project vicinity for one year. During the year, the District collected information on various fish and macroinvertebrates. None of the species collected from the project area were special status species. The District also proceeded with a one year pilot desalination plant, which was developed in coordination with NOAA and the CDFG. Part of the pilot study included source water sampling, which the District limited to February and March 2006 given biologic and cost considerations. The EIR analyzed the information from their studies, as well as decades of CDFG data, and the potential impact of the pumping on special status fish and aquatic life, and concluded that the project would not have a significant impact on due to entrainment.  NOAA and CDFG commented on the Draft EIR and stated that the source water sampling between February and March 2006 was insufficient and should have been carried out over an entire year. The Final EIR addressed NOAA and CDFG’s comments and responded that February and March were chosen for the source water sampling due to the peak abundance periods for key species and thus, the data represented the “worst case scenarios” regarding entrainment. Additionally, the District’s FEIR noted that source water sampling is disproportionately costs given the laboratory research requirements in comparison to the cost of the pilot program as a whole. The EIR concluded that because the analysis annualized peak entrainment data and assumed maximum plant operation, the results regarding impacts to aquatic life were conservative.

The Alliance claimed the EIR was inadequate because the District refused to follow NOAA’s and CDFG’s recommendations to perform a year-long source water sampling. Although the trial court agreed, the appellate court reversed. The court reasoned that the substantial evidence standard allows a lead agency to utilize methodologies different than another agency might like to study an impact. Citing the Sonoma County Water Coalition v. Sonoma County Water Agency (2010) 189 Cal.App.4th 33 (SCWC) case, the appellate court said, “[t]he only issue is whether the lead agency relied on evidence that a ‘reasonable mind might accept as sufficient to support the conclusion reached’ in the EIR.” In sum, a difference of opinion among experts does not invalidate an EIR – even where the experts are responsible agency staff.

The Alliance also alleged that the EIR’s description of the environmental setting was inadequate because it should have included the age and types of species likely to be found in the project vicinity. The trial court agreed, but was reversed by the appellate court. The court of appeals held that the EIR sufficiently described the intake site, the species and habitat that could potential be impacted, and the life cycle information for the species at issue.

As part of the project, pile driving for the reconstruction of the Marin Rod & Gun Club pier would be required. The Alliance argued the pile driving would result in increased underwater noise and acoustic pressure waves which could have lethal effects on sensitive species. The District adopted a mitigation measure to reduce the potential impacts of the pile driving. Specifically, the mitigation measure required the District to consult with NOAA regarding appropriate measures, which could include specifying allowed seasonal work windows, and that the pile-driving activities be monitored for signs that fish are being injured. The District contended that the Alliance failed to exhaust its administrative remedies, but even if it did not, the mitigation measure is adequate under CEQA. The trial court held that the EIR was not sufficiently specific as to how the District would reduce sound pressure levels to less than significant. In reviewing the record, the appellate court noted that the while the adequacy of the mitigation measure was raised briefly, nothing in the letter suggested that the mitigation measures did not comply with CEQA or that the consultation with NOAA amounted to improper deferral. However, assuming the issues were exhausted, the court of appeal held that consultation under Section 7 of the Endangered Species Act, in conjunction with the District’s commitment to avoid the take of protected species was adequate mitigation under CEQA.

Alternatives: The Use of Green Energy Credits

Reverse osmosis, a major component of the project, is a highly energy-intensive process. The Alliance asserted that the District failed to consider a reasonable alternative to the project that would reduce the project’s energy impacts. The District conducted an alternative energy survey that reviewed six alternative energy scenarios for powering the project. While one of the alternatives considered by the survey was purchasing green energy credits, in the end, the EIR incorporated the alternative of replacing the existing power lines, not the purchase of green energy credits. Notably, the EIR concluded that the project would not have a significant energy impact. Here, the court of appeal noted that the green energy credits alternative was not required to be considered since the energy impacts of the project were not significant to begin with.

Cumulative Greenhouse Gases

The EIR set a threshold of reducing GHG emissions to 15 percent below the 1990 levels by 2020 in accordance with a locally adopted plan to reduce GHGs to the same level. The analysis assumed that the project would generate between 4,000 tons per year (5 MGD) and 30,000 tons per year (15 MGD) of GHG emissions; it then concluded that the project would not have significant impacts on GHG emissions. Notwithstanding this conclusion, the District Board required offsets for any project-related GHG emissions, and committed to purchasing only electricity that could be supplied from renewable sources. The Alliance disagreed with the EIR’s analysis of whether the project would have cumulatively considerable impact on GHG emissions; it also argued that the District’s commitment to purchase renewable energy was unenforceable and thus, improper under CEQA. The trial court agreed, and the court of appeal reversed. The appellate court noted that disagreement with an EIR’s analysis is not a reason to discard the analysis so long as the analysis is supported by substantial evidence in the record, which it was in this case. Additionally, the appellate court rejected the Alliance’s argument that the commitment to purchase only renewable energy was vague and unenforceable. Such a commitment was not considered a mitigation measure given the project had no significant impacts on energy, but even if it was being used as a mitigation measure, it would have been adequate under CEQA since the Board made a commitment to proceed with the project only if electricity could be supplied from renewable sources, and the record contained evidence that such a commitment was feasible.

Recirculation

The District added an eighth alternative to the EIR in a response to comments, but did not recirculation the alternatives chapter of the Draft EIR for public review and comment. The additional alternative proposed construction of a pipeline to deliver water from the Russian River to the District. The District found Alternative 8 to be infeasible given the evidence in the record indicated that the amount of water to be delivered from the Russian River may not be available in normal years, and would likely not be available drought years. The trial court undertook its own calculations of water supply and weighing of the evidence in the record to determine that the alternative could have been feasible and that the District should have recirculated the Draft EIR. The court of appeal reversed reasoning that Alternative 8 did not add any “new significant information” that had not already been considered by the District in Alternative 2, and thus, recirculation was not required. It also agreed that substantial evidence in the record supported the District’s finding of infeasibility.

Comment

This newest CEQA case is a stellar win for the Marin Municipal Water District. The case exemplifies the benefits of an agency going the distance to support of all its determinations with expert evidence in the administrative record. However, this case also reemphasizes the general premise that agencies have the discretion as to what studies they will conduct, even if one or more responsible agencies want to require more, and that courts will grant lead agencies great deference on such issues.

Katherine J. Hart is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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