By William W. Abbott

Paulek v. Department of Water Resources (2014) 231 Cal.App.4th 35.

It is a subtle shade of grey which separates a generalized comment on a project from an objection sufficient to support a later CEQA lawsuit. The California Department of Water Resources crafted this distinction in a case involving a CEQA challenge to a dam remediation project at Perris Lake, located within the Lake Perris State Recreation Area. The project included the following components: remediation of structural deficiencies; replacement of the existing outlet tower; and construction of an emergency outlet extension. In response to comments on the DEIR, the lead agency separated out the emergency outlet extension for separate CEQA review. In response to the CEQA lawsuit, the state (as the lead agency) argued that petitioner Paulek had only posed questions regarding the project, but had not “objected” to the project as required by Public Resources Code section 21177 and therefore, lacked standing to pursue a CEQA claim. Reviewing the transcript and comments, the court of appeal concluded that a question could readily be understood as an objection, as would questioning of the lead agency which inquired as to whether a project would achieve its objectives. On the latter point, the appellate court held this was part of the CEQA process as CEQA requires a balancing of interests. [Comment: in practical terms, this case affirms the widely held belief that it is not difficult for a potential CEQA petitioner to satisfy the obligation to object to the project as a condition precedent to bringing a CEQA claim.]

The appellate court then turned to the three substantive CEQA claims: (1) did removal of the emergency outlet extension result in a potentially significant impact; (2) did the separation of the emergency outlet extension result in improper project segmentation; and (3) were the responses to comments on the DEIR sufficient? As to the removal of the emergency outlet extension from the project, no new impact was created. The risk associated with the existing (inadequate) facility was part of the baseline. Thus, removal of the proposed improvement from the project would not create a new impact as it was part of the existing physical conditions. Regarding the claim of segmentation, the court concluded that the first two project elements could proceed without the third (the emergency outlet extension) and was not a reasonably foreseeable consequence of the dam and overflow tower repairs. Factually, this satisfied the independent utility test which allows lead agencies to conduct separate environmental reviews. Finally, as to the claim of the inadequate response to comment, the appellate court concluded that (a) there was no obligation to respond to comments submit prior to the release of the DEIR, and (b) the lead agency’s practice of referring the reader to particular sections of the DEIR responsive to a general DEIR comment satisfied CEQA’s requires, noting that generalized comments require only generalized responses.

William W. Abbott is a partner 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.