County’s EIR for Water Bottling Plant Found Inadequate; Responsible Agency City Failed to Make Adequate Findings

August 31st, 2022

By: Dustin Peterson

In the partially published We Advocate Thorough Environmental Review v. County of Siskiyou (2022) 78 Cal.App.5th 683 (We Advocate v. County of Siskiyou) and the fully published We Advocate Thorough Environmental Review v. City of Mount Shasta (2022) 78 Cal.App.5th 629 (We Advocate v. City of Mount Shasta), the Third District considered two appeals from separate trial court decisions arising out of the proposed renovation of a former water bottling plant (Project) in Siskiyou County (County) by the Crystal Geyser Water Company (Crystal Geyser). In the published portion of We Advocate v. County of Siskiyou, the Court held that the County, acting as lead agency, violated CEQA by defining the project objectives too narrowly, and that changes in estimated greenhouse gas (GHG) emissions required recirculation of the EIR. In the unpublished portion of the opinion, which is not discussed further in this summary, the Court rejected petitioners’ claims regarding the EIR’s project description, the analyses of a number of impact areas, and alleged violations of local planning documents. In We Advocate v. City of Mount Shasta, the Court found that the City of Mount Shasta (City), acting as responsible agency, failed to make adequate CEQA findings in approving a wastewater permit.

After purchasing a former water bottling facility in 2013, Crystal Geyser began the process of seeking the various permits and agency approvals needed to facilitate the renovation. The County prepared an EIR to analyze the Project’s unavoidable significant impacts. The County approved the Project and certified the EIR in 2017, finding that these environmental impacts would be outweighed by the Project’s benefits. The City subsequently relied on the EIR as responsible agency when approving a wastewater discharge permit. We Advocate for Environmental Review and Winnehem Wintu Tribe (collectively, Petitioners) filed two lawsuits challenging each of the agency’s respective approvals.

We Advocate v. County of Siskiyou

Project Objectives

The property had previously operated as a bottling facility before Crystal Geyser acquired it. The EIR defined the Project’s objectives to largely describe resumption of that use. Thus, they contained references to “operating a bottling facility,” taking advantage of existing spring water on the site, “utilizing the full production capacity of the plant,” allowing the operation of the plant as soon as possible, and modifying the existing facility to incorporate practices to reduce water use. Petitioners argued that this precluded genuine consideration of Project alternatives. The Court agreed.

An EIR must contain a statement of objectives, which is used to develop the range of alternatives analyzed therein. Here, the Court found that the narrowly defined objectives, essentially describing the proposed project, precluded “any alternative other than the Project.” As such, the alternatives analysis was rendered “an empty formality” – a prejudicial error because it prevented informed decision making and public participation. As such, the Court held that the County would have to revise the Project objectives and undertake a genuine alternatives analysis.

Greenhouse Gas Emissions and Failure to Recirculate

Petitioners also argued that the County should have recirculated the EIR when it was revealed in the Final EIR (FEIR) that the Project would produce almost twice as many GHG emissions as originally expected in the draft EIR (DEIR).  The County reasoned that the increase was not significant new information requiring recirculation because the DEIR found the impacts to be significant and unavoidable, and the FEIR did not change that conclusion.

The Court disagreed, noting that this flawed reasoning was similar to finding that the loss of one endangered animal in a DEIR would be significant and unavoidable and then, in the FEIR, concluding that it is insignificant that the project would actually result in the extinction of the entire species. The Court found the County’s approach wrongly deprived the public of meaningful opportunity to comment on the Project’s impacts. As such, the Court held that the County was required to recirculate the EIR’s discussion of GHG emissions for public comment.

Although Petitioners made a number of other claims regarding the Project’s GHG emissions associated with the production of bottles, the Project’s heating and air system, and the adequacy of mitigation measures in the EIR, the Court rejected these claims for failure to point to supporting evidence, relying on a “stale set of facts,” misrepresenting the record, or otherwise not being supported by legal authority.

We Advocate v. City of Mount Shasta

The City, acting as a responsible agency, relied on the EIR when issuing the Project a wastewater permit.

Though the EIR found significant and unavoidable impacts of the Project, in issuing the permit the City concluded that there would be no unmitigated adverse impacts from the wastewater discharges. Petitioners argued that this did not comply with the mandate of Public Resources Code Section 21081 that an approving agency find, for each significant impact, either (1) the impact has been mitigated; (2) mitigation of the impact is the responsibility of another agency; or (3) other considerations make mitigation or alternatives infeasible and there are overriding benefits that outweigh the impact.

While the trial court had rejected the argument, the Court of Appeal agreed with Petitioners. The simple blanket statement that the City had “considered” the EIR and found no unmitigated environmental effects from wastewater was inadequate. While the trial court had ruled that a blanket statement is sufficient when all impacts are mitigated, a position echoed by the City on appeal, the Court of Appeal held the position to be untenable, as one of the findings under Section 21081 is that the impact has been adequately mitigated. Thus, in this circumstance, Section 21081 requires the agency to make that finding for each impact, not a blanket finding.

Petitioners also argued that the City should have themselves adopted the EIR’s mitigation measures in a mitigation and monitoring plan because the County as lead agency lacked authority to enforce them. Acknowledging that CEQA requires even responsible agencies to mitigate significant effects whenever feasible, the Court found no evidence that the County lacked such authority. The Court recognized that a responsible agency in the City’s position might be required to adopt feasible mitigation itself in some cases. However, it observed that it may find that such mitigation is in the exclusive jurisdiction of another agency. The Court declined to rule on whether the City could make such a finding on remand.

Without delving into the merits of the argument, the Court also rejected Petitioners’ claims that changes made to the EIR’s description of the wastewater permit after the draft stage required further environmental review, holding that the suit against the City was the not proper forum for challenging the adequacy of the County’s EIR, while also noting that Petitioners had mischaracterized the facts.

As such, Petitioners prevailed in both cases, requiring the County to revise and recirculate the EIR and the City to then make appropriate findings if reapproving its permit on the basis of the revised EIR.

Key Points:

  • Project objectives cannot be so artificially narrow that the results of the EIR’s alternatives analysis would become a foregone conclusion.
  • Recirculation is required when changes indicate a substantial increase in the severity of an impact, even though it was already found to be significant.
  • Public Resources Code Section 21081 requires both lead and responsible agencies to make impact-specific written findings whenever an EIR identifies potentially significant environmental effects, even if mitigated.

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