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Addendum to Environmental Impact Report Sufficient to Outline Changes in Project’s Proposed Water Sources


Pala Band of Mission Indians v. County of San Diego Department of Environmental Health (2015) Cal.App. Unpub. LEXIS 3815, California’s Fourth Appellate District affirmed the trial court’s judgment upholding the adequacy of an Addendum to an Environmental Impact Report (EIR) and granted defendants their costs on appeal.

The conflict in Pala Band began in 1994 when San Diego County voters passed Proposition C, approving the Gregory Canyon Landfill (GCL). San Diego County Department of Environmental Health (DEH) certified the Project’s Final Environmental Impact Report (FEIR), and later, a 2005 decision held that the FEIR approved by the DEH failed to consider water sources for the construction and operation of the Project, as well as the impact of obtaining water from off-site sources. The 2005 court set aside both the 2003 FIER certification and the Solid Waste Facility Permit (SWFP). In 2007, the DEH certified a Revised Final EIR (RFEIR).  After certification of the RFIER, GCL contracted with the San Gabriel Valley Water Company (SGVWC) to supply recycled water for the Project, and DEH prepared an addendum to the RFIER (2009 Addendum). The 2009 Addendum addressed primary on-site water sources from the riparian underflow of the San Luis Ray River and percolating groundwater from on-site watersheds, and SGVWC water as an alternative source.

Plaintiffs sued, arguing the 2009 Addendum was inadequate. After the lawsuit was filed, DEH approved a new SWFP for GCL, and sent the certification and SWFP to the California Department of Resources Recycling and Recovery (CalRecycle) for concurrence. When CalRecycle concurred, plaintiffs filed a second action claiming significant changes to the Project required a Supplemental Environmental Impact Report (SEIR). The trial court ruled for defendants and plaintiffs appealed.

Once the EIR is created, the necessary study is presumed done, and the burden shifts to the opposing party to argue why an SEIR is necessary. Plaintiffs contended any changes to the water sources of a project require the preparation of an SEIR. The court disagreed, stating that the plaintiffs’ interpretation was at odds with CEQA Guidelines § 15160 – that SEIR preparation is inappropriate unless the lead agency determines that “substantive changes” require “major revisions” to the prior EIR.  Because the plaintiffs failed to meet their burden of proof, the court rejected their argument that an SEIR was required.

The court next considered the sufficiency of the 2009 Addendum.  First, the court held that the 2009 Addendum correctly concluded that GCL had the right to use riparian water and percolating groundwater from existing wells for ancillary uses, landscape irrigation, and fire protection.  Second, the court found that substantial evidence showed that on-site wells were reliable sources of water as stated in the 2009 Addendum.  Third, contrary to plaintiffs’ argument, the court determined that SGVWC’s CPUC-approved tariff schedule authorized the sale of recycled water to GCL.  Fourth, the court rejected plaintiffs’ argument that the 2009 Addendum was inadequate for failing to analyze the environmental impacts of using third-party clay to build the landfill liner.  The court explained that the environmental effects of a project need not be exhaustive and its sufficiency must be reviewed in the light of what is reasonably feasible.  Finally, while the County Fire Department submitted comments on the 2009 Addendum expressing concern that the Project would have a potentially significant impact on their ability to deliver emergency fire suppression, the court held that the 2003 FEIR had an extensive discussion of fire safety impacts and, thus, the comments did not render the 2009 Addendum inadequate.



dateJune 12th, 2015byby


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