In a published decision filed October 31, 2014 (Paulek v. California Department of Water Resources (4th Dist., Div. 2, 2014) ___ Cal.App.4th ____, Case No. E060038), the Fourth District Court of Appeal affirmed the Riverside County Superior Court’s judgment denying a petition for a writ of mandate challenging an EIR for the Perris Dam Remediation Project.  The Department of Water Resources’ (“DWR”) DEIR proposed three activities:  (1) remediating the dam’s structural seismic deficiencies; (2) replacing its outlet tower; and (3) creating a new “Emergency Outlet Extension.”  The FEIR addressed a modified project including only the first two components and splitting the emergency outlet extension into a separate project and environmental review process.

Appellant Paulek, the “Conservation Chair” of Friends of the Northern San Jacinto Valley, argued on appeal that the elimination of the emergency outlet extension constituted a significant, unmitigated environmental impact of the project and impermissible segmentation or piecemealing, and that the FEIR failed to adequately respond to comments.  The DWR argued Paulek lacked standing and that his petition lacked substantive merit.

The Court of Appeal affirmed the trail court’s judgment denying the writ, holding Paulek had standing to sue under CEQA, but that his substantive arguments lacked merit.

The case’s basic facts are straightforward.  The Perris Dam facility, built in 1972, was discovered through a 2005 study to have structural deficiencies in its foundation’s capacity to withstand seismic events.  The study recommended reducing the reservoir’s water level by 40%, and making long-term improvements including:  (1) remediating the dam foundation’s structural deficiencies; and (2) replacing its structurally-deficient outlet tower.  A third improvement, building a new “emergency outlet extension,” was not recommended in the 2005 study, but was proposed by the DWR to create a safe route around the previously-empty floodplain that the current outlet was designed to discharge into — a floodplain now populated with substantial residential developments that had been constructed over the decades since 1972.

The DWR issued the Notice of Preparation (NOP) on June 1, 2007, issued the DEIR in January 2010, and certified the FEIR and issued a Notice of Determination (NOD) in November 2011.  Paulek filed suit on December 21, 2011, the trial court heard oral argument on his first amended petition on September 27, 2013, and judgment denying that petition was entered October 24, 2013.

Key “takeaways” from the Court of Appeal’s decision include:

  • Paulek had standing under Public Resources Code § 21177(b) because he objected to the project before the filing of the NOD, even though his objections were phrased as questions.  Per the Court, Paulek’s questions were “not generalized environment comments, but rather expressions of concern specifically regarding the proposed project – essentially, objections — that [were] sufficiently specific in both subject and level of detail to allow the [DWR] to evaluate and respond to them.”  Further, according to the Court, no case law supported the DWR’s definition of “objection” to exclude questions, and “a comment that raises questions about whether a proposed project will in fact solve the problem it is supposed to remedy is fairly understood as an expression of disapproval, no matter whether phrased as a declarative sentence or a question.”
  • Again, according to the Court, Paulek’s questions/objections also raised “environmental issues” sufficient to invoke CEQA standing because they challenged the project’s purported benefits, “[a]n objection … just as pertinent to [CEQA’s] required balancing analysis [of a proposed project’s purported benefits against its unavoidable environmental risks] as an objection regarding environmental risks, and equally adequate for satisfying [§] 21177 … (b).”
  • Turning to the merits, the Court rejected Paulek’s argument that elimination of the new emergency outlet extension from the project under consideration left a significant project impact unmitigated:  “[N]othing in the administrative record suggests the proposed dam remediation or outlet tower replacement activities will cause or increase the risk of flooding that the emergency outlet extension is intended to remedy.”  Rather, “[t]he flooding danger from the lack of an emergency outlet extension … is part of the baseline conditions that do not fall within the CEQA mitigation requirements,” which only require a public agency to “”mitigate or avoid the significant effects of projects that it carries out or approves whenever it is feasible to do so.””  (Court’s emph., quoting Pub. Resources Code § 21002.1(b).)  Here, with or without the project, “the danger of flooding residential areas below Perris Dam in the event of an emergency release, would remain” and “is a product of the original design of the dam’s emergency release facilities, which did not account for later-developed residential areas in the previously empty flood plain.”
  • Paulek’s “piecemealing” argument was likewise unmeritorious, for cognate reasons.  While all three components of the originally-proposed project were needed to remediate all of Lake Perris’ flood hazards, the need for an emergency outlet extension was neither a consequence or a “future expansion” of the structural dam remediation or new outlet tower construction.  Neither was it an “integral part of the same project.”  Unlike the first two components, the emergency outlet extension simply addresses the prevention of dangerous downstream flooding in the event of an emergency release of water from any cause, and does not improve the facility’s structural ability to withstand seismic events.  Thus, the principal purpose of the dam remediation and outlet tower reconstruction was different from, and did not depend on, the emergency outlet extension’s function.  Accordingly, it was within the DWR’s discretion whether to prepare one EIR for several similar projects not comprising a single larger project, or to prepare separate EIRs as it ultimately chose to do here.  (Citing 14 Cal. Code Regs., § 15165.)
  • The FEIR’s responses to comments were also adequate under CEQA.  First, DWR had no obligation to respond therein to a letter submitted on the NOP during the scoping process because “[a] response is required only with respect to comments “from persons who reviewed the draft EIR”” and at the time the letter on the NOP was submitted there obviously were no such persons since the DEIR hadn’t yet been prepared.  (Citing 14 Cal. Code Regs., § 15088(a).)
  • General responses to later comments actually made after review of the DEIR were also sufficient because, as the Court observed, “a general comment requires only a general response.”  (Citing Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 937.)  Further, “it is perfectly appropriate for the [DRW] to provide a response by reference to the portions of the draft EIR in which the environmental impacts raised by the comment are analyzed.”  (Ibid.)  The DWR’s “response[s] fully complie[d] with CEQA’s requirement to demonstrate good faith, reasoned analysis.”
  • Finally, the general comments criticizing the DEIR’s alleged “complete lack” of a cumulative impact analysis addressing the project’s impacts on Stephenson’s Kangaroo Rat habitat failed to specify why the cumulative impact analysis actually contained in the DEIR was inadequate.  Moreover, Paulek “ignores entirely the circumstance that CEQA does not require exhaustive analysis of cumulative impacts.”  (Citing and quoting 14 Cal. Code Regs. §§ 15130(b) [“The discussion of cumulative impacts shall reflect the severity of the impacts and their likelihood of occurrence, but the discussion need not provide as great detail as is provided for the effects attributable to the project alone.”].)

The Court’s opinion addresses a number of interesting issues and subjects that frequently arise in CEQA litigation.  Its rather liberal characterization of questions as “objections” sufficient to confer standing is unhelpful to lead agencies and project proponents, and helpful to would-be CEQA petitioners, but the better practice for the latter group obviously remains to make a straightforward objection.  While they do not directly address the “CEQA-in-reverse” issue that is now pending before the California Supreme Court, the Court of Appeal’s analyses on CEQA’s mitigation requirements and baseline issues underscore why CEQA’s structure and logic do not support a reverse analysis requirement – i.e., CEQA requires mitigation only for impacts caused by the project under review, not for those caused by and existing under baseline conditions.  The Court’s application of CEQA’s sometimes murky piecemealing rules is clear and practical.  Its treatment of responses to comments helpfully clarifies that NOP comments “don’t count” in terms of requiring a response in the FEIR, while reaffirming that general responses and references to the relevant DEIR sections will suffice to respond to general comments.