Court of Appeal Finds Agency May Eliminate Component Of Original Three-Part Proposal From Final EIR Without Unlawful Segmentation

November 13, 2014 | Bulletin No. 1158667.1

In Paulek v. California Dept. of Water Resources (2014) (October 31, 2014, E060038)  __ Cal.App.4th __, the Court of Appeal upheld the final environmental impact report (“EIR”) prepared by the California Department of Water Resources (“Department”) under the California Environmental Quality Act (“CEQA”) for the Perris Dam Remediation Project (“Remediation Project”).

The court concluded that: (1) the flooding danger associated with the existing dam was part of baseline conditions, rather than a significant environmental impact of the Remediation Project; (2) the Department did not improperly segment the Remediation Project by considering the emergency outlet extension, which was originally part of a 3-part proposal, in a separate CEQA process; and (3) the Department’s responses to comments were adequate by providing general responses to general comments and referencing portions of the EIR. 

Background

The Perris Dam was built in 1972.  In 2005, the Department conducted a foundation study of the dam that showed structural deficiencies in the dam.  Department staff subsequently developed a proposal for long-term improvements to the dam with three parts: (1) remediation of the structural deficiencies in the dam’s foundation through various measures; (2) replacement of the facility’s existing outlet tower; and (3) construction of a new “emergency outlet extension.”  The “emergency outlet extension” portion was proposed to provide a safer route for the dam’s emergency water release facilities, which were originally designed and constructed to be released into a downstream floodplain that had since experienced significant residential development.

In January 2010, the Department issued a draft EIR for the “Perris Dam Remediation Program,” analyzing the environmental impacts of the three-part proposal.  In the final EIR, the Department removed the emergency outlet extension component of the proposal; this change was in response to comments received suggesting consideration of new alternatives for the emergency outlet extension. 

In late 2011, plaintiff Paulek filed a petition for a writ of mandate challenging the Department’s approval of the EIR on CEQA grounds.  The plaintiff contended that: (1) the lack of an emergency outlet extension for the dam constituted a significant environmental impact that the project failed to mitigate; (2) the separation of the emergency outlet extension into a different project for CEQA purposes constituted impermissible project segmentation; and (3) the Department did not adequately respond to written comments.  The Department contended that the plaintiff lacked standing to bring the CEQA suit, arguing that the plaintiff failed to “object” to approval of the project as required under Public Resources Code section 21177, subdivision (b).  The trial court denied the petition and the plaintiff appealed.   

Decision

Plaintiff “Objected To” Approval Of The Project, As Required To Bring A CEQA Action

The appellate court first addressed the Department’s contention that the plaintiff did not “object” to approval of the project, as required to bring a CEQA action.  The court held that the plaintiff satisfied Public Resources Code section 21177’s “objected to” prerequisite to bringing a CEQA claim, because he raised questions at the public hearing on the Draft EIR that were “expressions of concern specifically regarding the proposed project—essentially, objections—that are sufficiently specific in both subject and level of detail to allow the Department to evaluate and respond to them.”  The court concluded that these questions were “fairly understood as an expression of disapproval” and therefore satisfied the “objected to” requirement of Public Resources Code section 21177(b).

Flooding Risk Is Part Of Baseline Conditions, Not An Impact Of The Proposed Project

The court next addressed the plaintiff’s contention that the Department’s removal of the new emergency outlet extension from the project left a significant project impact unmitigated, due to the potential flooding that would occur in residential areas downstream of the dam in the event of an emergency water release, absent the emergency outlet extension.  The court began its analysis by stating the rule that “[e]nvironmental problems that would continue to exist even in the absence of any project are ‘part of the baseline conditions rather than program-generated environmental impacts . . . .’”  (Quoting In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1168.)    The court concluded that the danger of flooding residential areas below Perris Dam in the event of an emergency release was a product of the dam’s original design and part of baseline conditions.  The court also concluded that the Remediation Project would not increase this baseline danger.  The court therefore held that removal of the emergency outlet extension from the final EIR did not leave a significant environmental impact of the project unmitigated because the flooding danger was part of the baseline conditions that did not fall within the CEQA mitigation requirements.

Department Did Not Improperly Segment Project By Separately Analyzing Activity Originally Included In 3-Part Proposal

After applying the various case law tests for improper segmentation, the court rejected plaintiff’s contention that the deferral of the emergency outlet extension to a separate CEQA process constituted improper segmentation of the project.  The court stated that courts have considered separate activities as one CEQA project and required them to be reviewed together where, for example, “‘[1] the second activity is a reasonably foreseeable consequence of the first activity [citation]; [2] the second activity is a future expansion of the first activity that will change the scope of the first activity’s impacts [citation]; or [3] both activities are integral parts of the same project [citation].’” (Quoting Sierra Club v. West Side Irrigation Dist. (2005) 128 Cal.App.4th 690, 698.)  The court applied each of these tests to the facts of the case and concluded that analyzing the emergency outlet extension in a separate CEQA process did not constitute improper segmentation.  The court distinguished and analogized several cases regarding segmentation in supporting its conclusion.  The court also explained that the Department’s initial decision to analyze each of the three proposed activities related to Lake Perris together in one draft EIR is “not determinative, or even probative, of whether the emergency outlet extension is part of a single larger project that must be considered in a “‘single program EIR.’”

General Responses To General Comments And Reference To Relevant Portions Of The EIR Are Adequate

Finally, the court concluded that the Department’s responses to comments were adequate for several reasons.  First, the court held that an agency is not required to provide responses to comments received on the notice of preparation.  Second, the court held that a general comment on a draft EIR requires “only a general response.”  Third, the court held that it was perfectly appropriate for the Department to “provide a response by reference to the portions of the draft EIR in which the environmental impacts raised by the comment are analyzed.”

Questions

If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Elizabeth L. Leeper or Leslie Z. Walker | 916.321.4500