Paulek v. California Department of Water Resources (October 31, 2014) Fourth District Court of Appeal Case No. E060038

Why it matters: In order to file a CEQA challenge, a petitioner is required under CEQA (Public Resources Code § 21177) to object to the approval of the project and present the reasons why it believes the agency has failed to comply with CEQA. This decision finds that a petitioner has sufficiently objected if he or she expresses general concerns about a proposed project by asking questions about the project. A petitioner does not have to specifically “object” to the project. Despite having standing to sue, the court found that the agency’s CEQA compliance was adequate and rejected the petitioner’s challenge because, among other issues, the agency’s initial decision to analyze three proposed activities together – and then dropping one from the project later – was not improper piecemealing of the project.

Facts: A foundation study of Perris Dam and Reservoir revealed structural deficiencies in its ability to withstand seismic events and recommended remediation measures to improve seismic stability of the foundation and additional seismic review. The California Department of Water Resources (Department) developed a proposal responding to the study that recommended (1) remediation of the foundation, (2) replacement of the existing outlet tower, and (3) construction of a new emergency outlet extension. The outlet extension was not recommended or discussed in the initial study, but was proposed to create a safe route for water released in an emergency that would otherwise flood residential areas downstream

A Draft EIR analyzing the environmental impacts of all three parts of the proposal was prepared and circulated. During the public review period, a workshop on the Draft EIR was held at which the petitioner, Tom Paulek, attended and asked questions about the project. Written comments on the Draft EIR were submitted by a local organization for which Paulek signed the letter. The Final EIR, however, did not include the emergency outlet extension component, which had been removed in response to comments suggesting consideration of additional alternatives. The Department certified the Final EIR for the dam remediation and outlet tower replacement.


Standing: The Department first argued that Paulek lacked standing to bring the challenge because he failed to object to the “approval of the project orally or in writing during the public comment period” or prior to close of the public hearing, as required by Public Resources Code § 21177. At the public workshop, Paulek expressed general concern that the proposed remediation measures were, as he understood them, insufficient. He specifically asked whether the “solution would fix the problem” and questioned whether the remediation would work. The court recognized that comments must be sufficiently specific so that the agency has an opportunity to evaluate and respond to them. According to the court, Paulek’s comments were “not generalized comments, but rather expressions of concern specifically regarding the proposed project – essentially, objections – that are sufficiently specific in both subject and level of detail . . . .” Paulek’s comments were also sufficient despite the fact that he raised no environmental issue because, according to the court, an objection challenging a project’s benefits is just as pertinent to the balancing of environmental impacts and project benefits required by CEQA. Finally, the court held that a comment that raises a question about whether a project will solve a problem it is supposed to remedy is understood as an expression of disapproval, regardless of whether it is phrased as a question or made as an affirmative statement of objection.

No Mitigation for Baseline Conditions: Paulek raised two arguments regarding the agency’s decision to drop the emergency outlet extension from the project in the Final EIR. Paulek first contended that removal of the emergency outlet extension was erroneous because it would result in a significant environmental impact (flooding of residential uses). The court rejected this argument, noting that the environmental impact would exist independent of the project and agencies are required only to mitigate or avoid the significant environmental effects of the project. Because the environmental impact was part of the baseline conditions and not a result of the project, the impact need not be mitigated.

Piecemealing: Paulek then argued that removal of the emergency outlet extension constituted improper piecemealing. The court rejected this argument, noting that other courts found improper segmentation when (1) the second project is a reasonably foreseeable consequence of the first project, (2) the second activity is a future expansion of the first that will change the scope of the first’s impacts, or (3) both activities are integral parts of the same project. The facts here did not fall into one of these situations. The court also noted that the Department’s initial decision to analyze each of the three proposed activities together in one Draft EIR is not “determinative, or even probative, of whether the emergency outlet extension is part of a single larger project.”

Response to Comments: Finally, Paulek argued that the responses to his public comments were insufficient. Paulek submitted a letter stating that the Draft EIR did not provide the necessary information and analysis for informed decisionmaking, but omitted specific examples of this deficiency. The Department’s response stated generally that the Draft EIR “adequately discusses the types and level of impacts this project will have on the environment.” The court found this response to be sufficient because a general comment requires only a general response.

Paulek also argued that a number of the responses were insufficient because they merely included references to analysis contained in the Draft EIR. The court found this argument unavailing, holding that references to an EIR are permissible and Paulek had not provided any analysis as to why the referenced sections of the Draft EIR were not responsive to the comments.

Conclusion: In conclusion, despite finding that Paulek had standing to bring the challenge, the court rejected all of Paulek’s substantive arguments regarding the adequacy of the Department’s CEQA compliance and upheld the agency’s decision and adequacy of its EIR.

Practice Pointers:

  • The threshold for “objecting” to a project under Public Resources Code § 21177 is low and may be met by expressions of concern about the design of the project. Just posing questions about a project may be sufficient to provide standing to challenge a project approval.
  • Improper segmentation occurs when (1) the second project is a reasonably foreseeable consequence of the first project, (2) the second activity is a future expansion of the first that will change the scope of the first’s impacts, or (3) both activities are integral parts of the same project.
  • When responding to public comments, the level of specificity of the response is dictated by the level of detail of the comment. Also, references to the EIR’s analysis can be a sufficient response provided they address the issues raised by the comment.