By Leslie Z. Walker

In Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, Santa Monica Baykeeper (“Baykeeper”) challenged the City of Malibu’s adoption of an Environmental Impact Report (“EIR”) and approval of the Legacy Park project. Legacy Park is a clean water project located in Malibu, near Surfrider Beach. Baykeeper challenged the project alleging the EIR failed to analyze 1) construction related project impacts; 2) the impact of using treated effluent from the adjoining Malibu Lumber Yard; and 3) the cumulative groundwater impacts. The trial court denied the writ. On appeal, the City argued the case was moot because the project construction was completed during the pendency of the appeal. The Court of Appeal found the case was moot as to the first issue, construction related impacts, but not as to the second and third issues. The appellate court upheld the trial court’s denial of the writ as to the second and third issues, finding Baykeeper failed to demonstrate the City had abused its discretion.

Legacy Park Project and Administrative Process

Legacy Park is a clean water project located on 15 acres in Malibu Civic Center. It was designed to reduce pollution impacts and improve water quality in Malibu Creek, Malibu Lagoon, and Surfrider Beach, all impaired water bodies under the Clean Water Act.

The project, as originally proposed included: 1) stormwater detention and treatment; 2) habitat restoration; 3) public park; and 4) a wastewater treatment. The purpose of the project was to provide an integrated plan for the Civic Center area that would protect the water quality at nearby beaches and lagoons from nitrogen and pathogenic degradation and provide opportunities for restoration of native/sensitive habitats and public recreation. The project site is located at the terminus of the Malibu creek watershed where Malibu Creek drains into Malibu Lagoon and periodically discharges to Surfrider Beach, Malibu Creek and Malibu Lagoon and are on the Clean Water Act list of impaired water bodies. 

A draft EIR for the project was prepared and circulated. After the Draft EIR was circulated, the City eliminated the wastewater treatment portion of the project because draft studies demonstrated the percolation capacity of the project site was insufficient. Baykeeper appealed the project and the City Council denied the appeal. Baykeeper thereafter sought a petition for writ of mandate.

Construction Related Project Impacts

Baykeeper argued the EIR’s analysis of construction impacts on hydrology and water quality from erosion, sedimentation, and potential release of hazardous materials was deficient because it failed to determine the level of significance. The City argued that the issue was moot because the construction had been completed. The appellate court agreed, distinguishing the case from Woodward Park Homeowners Association v. Garreks, Inc. (2000) 77 Cal.App.4th 880 where the court ordered the preparation of an EIR for a car wash, even though the construction of the car wash was completed during the pendency of the action. The Woodward court based its decision on the fact that the ruling could still have a practical impact, for example, the project could be modified, torn down, or eliminated. (Id. at p. 888.) The Baykeeper court noted that in Woodward, the petitioners had attempted to avoid CEQA review all together, whereas the EIR at issue in Baykeeper included extensive mitigation measures to address construction phase impacts. The court went on to explain that Baykeeper failed to maintain the status quo by seeing an injunction or stay, citing to Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, where the court blamed plaintiffs for the claims being moot because plaintiff had failed to seek a stay or other preliminary relief pending the outcome of the case.

Lumber Yard Wastewater

The Legacy Park Project proposes to use the treated wastewater produced by the separate Lumber Yard Project, in combination with treated stormwater, to irrigate Legacy Park. For two months out of the year, excess effluent from the Lumber Yard will be percolated to groundwater. The draft EIR initially proposed that treated stormwater would be reused to the extent possible for irrigation and/or dispersal via underground perforated piping. The draft therefore ideintified groundwater mounding hazards because the depth of the groundwater within the project area was shallow. The draft EIR concluded the impact was significant, but after the mitigation calling for a hydrologic assessment, it would be less than significant. The subsurface dispersal was eliminated from the final EIR, as was the discussion of the hydrologic assessment, and instead states that there will be no seepage into groundwater. Baykeeper argued that neither the draft nor final EIR discussed the fact that the effluent from the Lumber Yard Project would be discharged on the site and cause mounding, and that the EIR improperly relied on a future study to mitigate groundwater mounding.

The City argued that the only impact on groundwater at the Legacy Park would be from the previously approved Lumber Yard, which was approved in 2007. Further, the project would virtually eliminate the existing subsurface discharge of treated wastewater from the Lumber Yard because it would use it for irrigation.

The Court found the EIR adequately addressed the use of the Lumber Yard treated wastewater because the dispersal was subject of prior environmental review which was not challenged and thus a challenge is time barred. The court found the EIR discussed the scientific studies conducted for the Lumber Yard project, and based on those studies, concluded the portion of treated wastewater not used for irrigation is within the percolation capacity of the site. Importantly, the court noted that Baykeeper does not cite scientific evidence in the administrative record to contradict the studies. Finally, the record supported the conclusion that no treated stormwater collected pursuant to the project would be discharged onto the Legacy cite according to the court, the EIR establishes that any groundwater mounding which occurs on the Legacy Park site will result from treated wastewater from the separate Lumber Yard project, not from the Legacy Park project.

Cumulative Groundwater Impacts

Baykeeper claims that the chapter on cumulative impacts failed to analyze the Lumber Yard. The City responded that Legacy Park will not discharge anything into the groundwater, and therefore makes no contribution to cumulative groundwater impact. The court agreed with the city, and concluded that the record demonstrated that the project will help, rather than hurt the environment.


This case is one of a number of cases in recent years emphasizing Petitioner’s duty to point to evidence contradicting the substantial evidence agencies put forth, a trend giving some hope to developers and public agencies defending their CEQA decisions. (See also Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912; California Native Plan Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603.)

Leslie Z. Walker is an attorney 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, or 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.