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Appellate Court Upholds EIR for Perris Dam Remediation Project in Riverside County


In Paulek v. California Department of Water Resources, 2014 Cal. App. LEXIS 999, the Court of Appeal for the Fourth District upheld the trial court’s denial of a writ of mandate challenging the Department of Water Resources’ (Department) approval of an environmental impact report (EIR) for a dam remediation project at Perris Dam in Riverside County.

Following a 2005 study of the dam’s foundation that found structural deficiencies, the Department developed a three-part plan for long-term improvements. The three parts included: 1) fixing the structural deficiencies in the dam’s foundation; 2) replacing the facility’s outlet tower; and 3) constructing a new emergency outlet extension. Despite an initial notice of preparation of a draft EIR that included all three parts, the final EIR did not include construction of the emergency outlet extension. Petitioner sought a writ vacating the Department’s approval of the EIR.

After establishing the petitioner had standing to bring the lawsuit, the court rejected petitioner’s argument that removal of the emergency outlet extension from the final EIR left a significant environmental impact unmitigated. The California Environmental Quality Act (CEQA) only requires a public agency to mitigate the environmental impacts of “projects that it carries out or approves.” The court found the danger from the current emergency outlet extension existed regardless of whether the seismic improvements were made to the other portions of the dam. As a result, the flooding danger was part of the baseline condition that did not fall within the mitigation requirements of CEQA.

The court also rejected petitioner’s argument that removal of the emergency outlet extension into a separate CEQA analysis constituted improper segmentation. While CEQA prohibits “piecemeal” review of projects to avoid a cumulative significant impact, the court found the emergency outlet was a distinct project. It was not a “reasonably foreseeable consequence” of the dam remediation and tower rebuilding because those two projects could occur and remedy the structural deficiencies without the emergency outlet extension. The outlet extension was also not an integral part of same project and not a future expansion of the dam remediation and tower rebuilding that would change the scope of their impacts. Accordingly, the project was not improperly segmented.

Finally, the court found the Department’s responses to petitioner’s comments on the EIR were adequate. Petitioner’s comments did not point to specific deficiencies in the EIR; rather, the comments generally stated the EIR was inadequate and expressed the need for mitigation. The court held the Department’s reference to portions of the EIR addressing petitioner’s concerns were sufficient stating, “a general comment only requires a general response.”

KEY POINT

The court reiterated the standard for improper segmentation of CEQA projects. Although CEQA defines project broadly in favor a comprehensive environmental review, public agencies have discretion to remove discrete portions of a project from the final EIR, even if the removed portion was included in the initial notice.



dateNovember 18th, 2014byby


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