Approval of EIR Alternative for Irrigation Pipeline Project Upheld; Analysis in Responses to Comments Found Adequate

March 11th, 2022

By: Sam Bacal-Graves

In Save the El Dorado Canal v. El Dorado Irrigation Dist. (Jan. 28, 2022, No. C092086) ___Cal.App.5th___ [2022 Cal. App. LEXIS 125], Petitioners challenged an EIR and approval of an irrigation district’s project to replace three miles of unlined irrigation ditches with a buried transmission pipeline (Project). The Court found the approval of an alternative did not render the project description inaccurate, as the EIR clearly explained both the proposed project and the selected alternative, and that Petitioners failed to establish that analysis  on a range of impacts were not supported by substantial evidence.

The Project was approved by the El Dorado Irrigation District (District) with an EIR in 2019. Under the proposed Project evaluated in the EIR, the pipeline would have been placed under or near the existing irrigation ditch, and the ditch would have remained available to carry stormwater runoff, with the District retaining their easement for maintenance of the ditch. However, the District ultimately approved an alternative evaluated in the DEIR, under which the pipeline would be placed beneath a nearby roadway and most of the ditch and associated easement abandoned. Petitioners sued, arguing that the abandonment rendered the project description inadequate, and that the EIR failed to adequately address concerns about the impact of the abandonment on hydrology, biological resources, and wildfire risks. The trial court entered judgment in the District’s favor and Petitioners appealed.

Petitioners argued that the EIR’s project description had not been stable, accurate, and finite due to approval of the alternative. While the Court found Petitioners had waived an argument about the environmental setting by not briefing it under a separate heading, it did consider their argument that the DEIR’s project description was inadequate. However, it found that the EIR clearly distinguished between the descriptions of the proposed project and of the alternative. Thus, while the DEIR did say that the proposed project would partially fill and reshape the ditch, retaining the easement, it also clearly disclosed that the chosen alternative would abandon it.

Petitioners also argued, based on a DEIR comment, that this abandonment of the easement could lead to fill or clog of the ditch, which in turn could create stormwater runoff impacts requiring additional mitigation. But the District had explained in a lengthy response to comment that property owners would maintain the ditch. Petitioners failed to address this evidence or show why it was lacking. The Court concluded that the possibility of a property owner intentionally filling the ditch was not “reasonably foreseeable.” It found that failure to adequately maintain the ditch might be more foreseeable, but, nevertheless, agreed with the District’s analysis of this possibility, finding that the risk of administrative and civil liability would deter the owners from inadequately maintaining the ditch.

Additionally, Petitioners alleged that the District ignored comments from CDFW regarding biological impacts. But the District had responded to CDFW’s concerns, referring the agency to the relevant discussion of the DEIR stating that the ditch was not a natural feature and did not provide adequate habitat, and therefore that such impacts were not significant. The Court found the response to be adequate and, to the extent it disagreed with CDFW, sufficiently disclosed the disagreement.

Petitioners themselves submitted a letter on the DEIR about tree mortality. The District directed them to a master response to comments regarding tree impacts, addressing how changes in water availability might impact tree mortality. The comment concluded that the ditch would continue to passively convey stormwater, maintaining this water source for the remaining trees and would not render them vulnerable to bark beetle infestations.  The Court found this response to be adequate as well, and that Petitioner had not carried its burden to demonstrate why it was unsupported by substantial evidence.

Lastly, Petitioners challenged the EIR’s conclusion that long-term fire hazard would remain unaffected by the project, as there was no infrastructure or rights to use the water from the ditch for firefighting. Though some comments alleged that the canal was a firefighting resource used in a recent fire, a response noted that the canal was outside of that fire’s area and that other water sources had been used. The response also highlighted that the proposed project was consistent with the applicable CalFire strategic plan. Again, the Court found the response to adequately address the comments. As such, the District prevailed on all issues.

Key Points:

  • Approval of an alternative evaluated in a DEIR does not render the project description inaccurate.
  • A Petitioner’s failure to address the evidence supporting an EIR’s conclusions is fatal.