Los Angeles County Super. Ct. No. BS120033 APPEAL from an order of the Superior Court of Los Angeles County, Thomas I. McKnew, Jr., Judge. Affirmed.
The opinion of the court was delivered by: Epstein, P. J.
CERTIFIED FOR PUBLICATION
Santa Monica Baykeeper (Baykeeper), a non-profit corporation, appeals from the denial of its petition for writ of mandate. Its suit challenged the City of Malibu's (City) adoption of an environmental impact report (EIR) and approval of the Legacy Park project in Malibu, California. The suit was brought pursuant to the California Environmental Quality Act. (Pub. Resources Code, § 21000 et seq. (CEQA).) Baykeeper argues the EIR failed to adequately analyze: 1) construction-related water quality impacts; 2) the impact of using treated effluent from the adjoining Malibu Lumber Yard project on the project site; and 3) the cumulative groundwater impacts of the project.
City argues that the appeal is moot and should be dismissed on that ground. We agree that it is moot as to Baykeeper's challenge regarding construction-related impacts because the project was completed during the pendency of this appeal and no recognized exception to the mootness doctrine applies to warrant discretionary review of that issue. The other issues in the appeal are not moot. But the conclusions in the final EIR regarding the impact of using treated effluent from the adjoining Lumber Yard project are supported by substantial evidence, and as to these, Baykeeper has failed to demonstrate a prejudicial abuse of discretion warranting reversal. We also find substantial evidence supporting City's conclusion that the Legacy Park project reduces rather than creates groundwater impacts and therefore no cumulative groundwater impacts analysis was required. The judgment is affirmed.
FACTUAL AND PROCEDURAL SUMMARY
Malibu Creek is the primary drainage artery of a 110-square-mile watershed. It is subject to water quality impairments caused by stormwater runoff, dry-weather runoff, animal waste, and the potential that onsite wastewater treatment systems (OWTS) may fail. Malibu Creek, Malibu Lagoon, and Surfrider Beach are on the Clean Water Act's*fn1 list of impaired water bodies for bacteria and nutrients. After a number of studies and risk assessments conducted starting in 2000, the City of Malibu decided to address water quality problems associated with urban stormwater runoff and the potentially failing onsite wastewater systems in the Civic Center area (340 acres in the central part of the city). The Legacy Park project site (site) is described in the final EIR as 15 acres in the Malibu Civic Center, "at the terminus of the Malibu Creek watershed where Malibu Creek drains into Malibu Lagoon, which periodically discharges to Surfrider Beach when the berm separating the Lagoon from the ocean is breached."*fn2
The Malibu Lumber Yard commercial project is on the eastern side of the site. It was approved in August 2007 and included construction of an 85,600 square foot dispersal field within the Legacy Park site to which treated wastewater effluent from the Lumber Yard was to be discharged.*fn3 There were no challenges to the Lumber Yard project approvals. As part of the Legacy Park project, for ten months of the year all of the Lumber Yard effluent is expected to be used to irrigate vegetation at Legacy Park. During December and January, it is anticipated that excess treated Lumber Yard effluent not needed for Legacy Park irrigation will be discharged directly to Malibu Creek. A key issue in this appeal is whether this use of the Lumber Yard treated effluent will have an impact on groundwater as a result of its use for irrigation of Legacy Park.
As originally conceived, the Legacy Park project had four primary elements: "1) stormwater detention and treatment, 2) habitat restoration, 3) public park, and 4) wastewater treatment and reuse." The draft EIR explained: "Although different drivers exist for each of the four elements for the proposed project, the overall purpose of the proposed project is to provide an integrated plan for the Civic Center area that would protect water quality at nearby beaches and the Lagoon from nitrogen and pathogenic degradation and provide opportunities for restoration of native/sensitive habitats and public recreation."
The stormwater treatment element of the project includes collection of stormwater in an eight acre foot detention pond which occupies three to four acres of the Legacy Park site. The pond would be lined with clay to prevent infiltration into the groundwater. The detention pond would operate in conjunction with a pre-existing stormwater treatment facility. It will hold 2.6 million gallons of stormwater. If a rain storm occurs and the pond is full, excess stormwater will flow from the pond to the treatment plant. If it continues to rain after treatment is complete, the water will be discharged to Malibu Creek, but will meet the bacteria TMDL.*fn4 If the rain stops, the flow will go from the pond to the treatment plant and back to the pond to irrigate the park. The plan is to drain the top four acre feet quickly, treat it, and discharge it into the creek. The bottom four acre feet would either be drained, treated and discharged, or treated and used for irrigation of the park. The detention pond would allow the City to achieve water quality that is, on average, five times greater than that required by the standards for bacterial contamination (bacteria TMDL), and is expected to reduce the number of exceedances to three per year.
The park element includes both the primary Legacy Park site and a 20-foot strip of land just north of Civic Center Way, designated "Linear Park." Legacy Park would allow passive recreation with meandering trails and pathways through various habitats. Educational centers and interpretative areas would be provided. Linear Park would include vegetation and drainage improvements to collect stormwater and convey it to Legacy Park for detention. The habitat restoration element includes coastal prairies, coastal bluffs, Southern California native woodlands, and riparian/wetland habitat. The goals for these habitats are to increase the amount of wetland, increase the amount of regionally rare habitat, provide biodiversity support, contribute to "habitat mosaic/connectivity," provide sustainable natural habitat, replace original habitats, and increase regional biodiversity.
As we shall discuss, the original element of a wastewater system was eliminated when further investigation established the site could not accommodate that plan.
B. Administrative Process
Preparation of the project began in January 2007. In conformity
with the requirements of section 15063 the State CEQA Guidelines*fn5
(Cal. Admin. Code, tit. 14), a Notice of Preparation was
prepared and distributed in late 2007. This notice presented a
description of the proposed project, potential environmental effects,
instructions on how to comment, and notice of a public scoping
meeting. The public review period for the Notice of Preparation ended
on December 13, 2007. The public scoping meeting was held at Malibu
City Hall on December 5, 2007 where an overview and history of the
project was provided with a description of CEQA requirements. A
number of potentially significant impacts were identified, and it was
determined that an EIR would be appropriate to address these potential
A draft EIR was prepared and circulated for public review and comment from May through July 2008. Twenty-six written responses were received, including input from Baykeeper. Two public workshops were held by the city in July 2008 to discuss the project, solicit ideas, and answer questions. A final EIR was prepared at the end of the public comment period. It included comments made to the draft EIR and the City's responses. The major change in the final EIR was the elimination of the wastewater element of the project as the result of studies which revealed that the percolation capacity of the project site was insufficient to accommodate that aspect of the plan.
The first version of the final EIR was made public on September 12, 2008. The Malibu Planning Commission held a hearing on the application, and continued the item to a date uncertain. Staff was directed to revise the EIR to: clarify the project description, supplement the responses to comments, include a discussion of hydrology studies in the area, discuss worst case scenario natural events and their impact, and clarify issues related to the "connectivity" of the Lumber Yard and Legacy Park sites.
A revised final EIR was made public on January 9, 2009. The same month, the Planning Commission gave conditional approval to the project. An appeal of the Planning Commission's action was filed by Baykeeper and other interested groups. These groups argued that CEQA was violated by eliminating the wastewater treatment element of the project six months after the close of the public comment period, and less than two weeks before the Planning Commission vote. They also contended that the revised final EIR failed to address nutrient contamination which will be caused by discharges of treated stormwater or the cumulative hydrology impacts of discharge of Malibu Lumber Yard effluent on the Legacy Park project site. In addition, the final EIR was criticized for failing to adequately respond to all draft EIR comments.
The City Council heard and denied the appeal on March 9, 2009. It adopted resolution 09-19, certified the EIR, adopted a mitigation monitoring and reporting program, made revised findings of fact, imposed various conditions, and otherwise took the steps necessary to approve the project.
Baykeeper filed a timely petition for writ of mandate challenging the certification of the EIR and project approval on the ground that CEQA requirements were violated. The City answered the petition. The trial court issued a detailed minute order analyzing Baykeeper's challenges and denying the petition. Judgment denying Baykeeper's petition for writ of mandate and in favor of Malibu was entered. This timely appeal followed. We denied Baykeeper's petition for writ of supersedeas and an immediate temporary stay.
I The standard of review of a trial court order denying a challenge to an EIR is well-established. "In reviewing an agency's compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts' inquiry 'shall extend only to whether there was a prejudicial abuse of discretion.' (Pub. Resources Code, § 21168.5.) Such an abuse is established 'if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.' [Citations.]" (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427 (Vineyard), footnotes omitted.)
In Vineyard the Supreme Court explained the difference between the two types of error which may constitute an abuse of discretion under CEQA. "[A]n agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. (§ 21168.5.) Judicial review of these two types of error differs significantly: while we determine de novo whether the agency has employed the correct procedures, 'scrupulously enforc[ing] all legislatively mandated CEQA requirements' (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564), we accord greater deference to the agency's substantive factual conclusions. In reviewing for substantial evidence, the reviewing court 'may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable,' for, on factual questions, our task 'is not to weigh conflicting evidence and determine who has the better argument.' [Citation.]" (Vineyard, supra, 40 Cal.4th at p. 435.) A public agency's decision to certify the EIR is presumed correct, and the challenger has the burden of proving the EIR is legally inadequate. (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530; Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117.)
Here, Baykeeper asserts that de novo review is appropriate since City did not proceed as required by law because the EIR failed to adequately analyze impacts. City disagrees, arguing "[w]hen a challenger alleges that an EIR fails to include sufficient information on a particular issue, the reviewing court should treat such an argument as a claim that the EIR is not supported by substantial evidence, rather than as a claim that the agency failed to proceed in the manner required by law." It cites Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1620 in support of this argument.
Baykeeper's argument regarding the standard of review is too simplistic. The court in California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 986 explained: "An EIR will be found legally inadequate--and subject to independent review for procedural error--where it omits information that is both required by CEQA and necessary to informed discussion." But CEQA challenges concerning the amount or type of information contained in the EIR, the scope of the analysis, or the choice of methodology are factual determinations reviewed for substantial evidence. (Id. at pp. 986-987, citing Barthelemy, supra, 38 Cal.App.4th at p. 1620.) Put another way, "[w]e apply the substantial evidence test to conclusions, findings, and determinations and to challenges to the scope of an EIR's analysis of a topic, the methodology used for studying an impact, and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions." (City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 898.)
"An appellate court's review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court's: [t]he appellate court reviews the agency's action, not the trial court's decision; in that sense appellate judicial review under CEQA is de novo. [Citations.] We therefore resolve the substantive CEQA issues . . . by independently determining whether the administrative record demonstrates any legal error by the [agency] and whether it contains substantial evidence to support the [agency's] factual determinations." (Vineyard, supra, 40 Cal.4th at p. 427.)
In reviewing an EIR, we focus on adequacy, completeness, and a good faith effort at full disclosure. (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1390 (Irritated Residents).) "'An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.' [Citation.]" (Ibid.)
With these principles in mind, we turn to the specific challenges raised by Baykeeper in this appeal.
II Baykeeper argues the EIR's analysis of construction-period impacts on hydrology and water quality from erosion, sedimentation, and the potential release of hazardous materials is deficient because "it fails to determine the level of significance of the impact, i.e., how significant is it?" Without this information, Baykeeper contends that effective mitigation measures cannot be established.
In its reply brief, City argues that this issue is moot because the aspect of construction on which Baykeeper's argument is based was completed months ago. It points out that Baykeeper did not seek a stay or other injunction in the trial court to delay construction until this issue could be reviewed.
In light of City's mootness argument, we invited counsel to submit supplemental briefing as to whether any part of this appeal is moot because we can provide no effective relief due to the progress of construction on the project. In its letter, City informs us that construction on the ...