California Court of Appeals, First District, Fourth Division
NORTH COAST RIVERS ALLIANCE ET AL., Plaintiffs and Respondents,
MARIN MUNICIPAL WATER DISTRICT BOARD OF DIRECTORS, Defendant and Appellant.
Marin County Superior Court Ct. No. CIV 094809 Trial Judge: Hon. M. Lynn Duryee
Counsel for Appellant: Remy Moose Manley, LLP, Whitman F. Manley, Mary R. Casey, Marin Municipal Water District, Thomas Law Group, Tina Thomas, Christopher J. Butcher
Counsel for Respondents: Law Offices of Stephan C. Volker, Stephan C. Volker, Stephanie L. Abrahams, Daniel P. Garrett-Steinman, Jamey M. B. Volker
The Marin Municipal Water District (the District) is the proponent of a project to build a seawater desalination plant in Marin County (the Project). The District certified an environmental impact report (EIR) for the Project. North Coast Rivers Alliance (the Alliance) challenged this action, claiming, among other things, that the EIR failed to analyze adequately the adverse environmental consequences of the Project. The trial court concluded the EIR was invalid under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) The District has appealed; we reverse the judgment. 
A. Overview of the Project
The District is a public utility which provides water to residents in its service area in Marin County. (Marin Mun. Water Dist. v. KG Land California Corp. (1991) 235 Cal.App.3d 1652, 1657.) In 1989, the District declared a water shortage emergency in its service area. (Ibid.) According to the District’s Water Supply Master Plan, water demand will exceed supply by 2025. Faced with this impending shortfall, the District advocated aggressive conservation methods. However, even with vigilant conservation, the District’s water demand will exceed its supply. The District and Marin County have long considered desalination as a feasible solution. Desalination is a process that removes dissolved minerals and other contaminants from seawater.
In August 2003, the District proposed to construct a 5 million gallon-per-day (MGD) desalination plant. Certain infrastructure would be oversized to accommodate potential expansion of the plant (10 MGD to 15 MGD). The desalination plant would extract raw seawater from San Rafael Bay and then would remove solids from the raw water by using reverse osmosis. The reverse osmosis process would produce potable water and a saline brine that would be discharged back into San Rafael Bay. The remaining brine would have a dissolved solids concentration about twice that of raw water. The brine would be discharged back to the San Rafael Bay by the existing Central Marin Sanitary Agency outfall, which treats municipal and industrial wastewater generated in central Marin County. The blending of the brine with the treated wastewater effluent would reduce the concentration of dissolved salts in the brine prior to its release into the Bay.
The desalination plant would be located on District-owned land in San Rafael. Bay water would be piped from an intake structure to be built at the end of the Marin Rod and Gun Club pier, which would be reconstructed to accommodate the new intake structure. In addition, the desalination plant would require construction of two reaches of pipeline, two pumping stations, and three storage tanks. The new tanks would include two 2-million-gallon tanks on San Quentin Ridge and another 2-million-gallon tank on a ridge dividing Mill Valley and Corte Madera east of U.S. Highway 101 (the Ridgecrest A tank). The first pipeline reach would connect the desalination plant to the storage tanks on San Quentin Ridge. The second reach would connect the San Quentin Ridge tanks to the Ridgecrest A tank and then to the District’s existing pipeline system.
B. The EIR
In November 2007, the District circulated a draft environmental impact report (DEIR) for the Project. The DEIR included a description of the Project generally as set out above. The stated objectives of the Project are “to provide high-quality, reliable potable water to help balance water supply and demand in [the District’s] service area, including during emergencies and drought conditions, in a manner that is cost-effective, protects public health and safety, fulfills [the District’s] service commitments, and minimizes environmental and community impacts.” The DEIR analyzed impacts of up to a 15 MGD plant.
During the public comment period, over 100 individuals and organizations, including the Alliance, objected to the Project. Specifically, the Alliance objected to the Project’s energy consumption, impacts on global warming, and growth-inducing effects.
In December 2008, the District released the final environment impact report (FEIR), which included a new Alternative 8 that would meet most of the Project’s objectives while avoiding its impacts. In February 2009, the Board of Supervisors of the District (the Board) adopted Resolution No. 7869, certifying the FEIR.
On August 19, 2009, following two public hearings, the Board adopted Resolution No. 7925, approving the 5 MGD desalination Project. This timely lawsuit by the Alliance followed. The trial court granted the Alliance’s petition for writ of mandate, setting aside the Board’s decisions certifying the EIR and approving the Project. The District appealed.
A. Standards of Review
1. Adequacy of the EIR
“The foremost principle under CEQA is that the Legislature intended the act ‘to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’ [Citation.]” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390 (Laurel Heights I).) “The EIR is the primary means of achieving the Legislature’s considered declaration that it is the policy of this state to ‘take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.’ [Citation.] The EIR is therefore ‘the heart of CEQA.’ [Citations.] An EIR is an ‘environmental “alarm bell” whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.’ [Citation.] The EIR is also intended ‘to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.’ [Citations.] Because the EIR must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees. [Citations.] The EIR process protects not only the environment but also informed self-government.” (Id. at p. 392.)
“In a case challenging an agency’s compliance with CEQA, we review the agency’s action, not the trial court’s decision. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427.) In doing so, our ‘inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion 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.’ (§ 21168.5; see also Vineyard Area Citizens for Responsible Growth, Inc., supra, at pp. 426-427.)” (Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1446-1447 (Save Round Valley).) In this context, substantial evidence means “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (Cal. Code Regs., tit. 14, § 15384, subd. (a) (Guidelines).)
“We do not review the correctness of the EIR’s environmental conclusions, but only its sufficiency as an informative document. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 (Goleta Valley).) ‘We 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. “Our limited function is consistent with the principle that ‘The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.’ ” [Citation.] We may not, in sum, substitute our judgment for that of the people and their local representatives. We can and must, however, scrupulously enforce all legislatively mandated CEQA requirements.’ (Ibid.)” (Save Round Valley, supra, 157 Cal.App.4th at p. 1447.)
2. Exhaustion of Administrative Remedies
“ ‘No action or proceeding may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance  were presented to the public agency orally or in writing....’ (§ 21177, subd. (a).)” (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535 (Sierra Club).) “ ‘The essence of the exhaustion doctrine is the public agency’s opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review.’ ” (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1138 (Evans), quoting Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1198.) Comments must express concerns so the lead agency has “ ‘ “ ‘its opportunity to act and to render litigation unnecessary.’ ” ’ ” (Sierra Club, supra, 1623 Cal.App.4th at p. 535.) “The purposes of the doctrine are not satisfied if the objections are not sufficiently specific so as to allow the Agency the opportunity to evaluate and respond to them.” (Evans, supra, 128 Cal.App.4th at p. 1138.) “ ‘[R]elatively... bland and general references to environmental matters’ , or ‘isolated and unelaborated comment[s]’ ” do not satisfy the exhaustion requirement. (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515, 527 (CREED v. San Diego).) Rather, “ ‘[t]he “exact issue” must have been presented to the administrative agency....’ ” (Sierra Club, supra, 163 Cal.App.4th at p. 535.) Requiring anything less “would enable litigants to narrow, obscure, or even omit their arguments before the final administrative authority because they could possibly obtain a more favorable decision from a trial court.” (Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 594.)
Exhaustion of administrative remedies is a “jurisdictional prerequisite.” (California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 615 (CNPS v. Rancho Cordova).) The petitioner has the burden of proof to show exhaustion occurred. (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 909 (Porterville Citizens).) Inasmuch as the issue of exhaustion is a question of law, “[a]n appellate court employs a de novo standard of review when determining whether the exhaustion of administrative remedies doctrine applies.” (Sierra Club, supra, 163 Cal.App.4th at p. 536.)
B. The EIR’s Analysis of the Project’s Aesthetic Impacts
The Project requires construction of three water tanks to store desalinated water—one on Tiburon Ridge (Ridgecrest A tank), and two on San Quentin Ridge. The EIR concluded the construction of the Ridgecrest A tank would result in an insignificant impact on scenic vistas. With respect to the San Quentin Ridge tank site, the EIR concluded the construction of the proposed tanks would have a significant visual impact. The EIR identified, and the District adopted, a mitigation measure that requires the District to develop and implement a landscaping plan to help shield the tank site from view.
1. Ridgecrest A Tank
The trial court determined that substantial evidence did not support the conclusion that construction of the Ridgecrest A tank would result in an insignificant visual impact. The trial court further ruled that the EIR was deficient for failing to discuss whether the Ridgecrest A tank was inconsistent with the Countywide Plan (Countywide Plan).
“An EIR must identify the ‘significant environmental effects’ of a proposed project. (§ 21100, subd. (b)(1);  Guidelines, § 15126, subd. (a).) For purposes of CEQA, ‘environment’ means physical conditions existing ‘within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance.’ (§ 21060.5.) Thus, aesthetic issues, such as public and private views, are properly studied in an EIR to assess the impacts of a project. (§ 21100, subd. (d); Ocean View Estates Homeowners Assn. Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 402–403.) However, a lead agency has the discretion to determine whether to classify an impact described in an EIR as ‘significant, ’ depending on the nature of the area affected. (Guidelines, § 15064, subd. (b); National Parks & Conservation Assn. v. County of Riverside (1999) 71 Cal.App.4th 1341, 1357 [varying thresholds of significance may apply depending on nature of area affected].) In exercising its discretion, a lead agency must necessarily make a policy decision in distinguishing between substantial and insubstantial adverse environmental impacts based, in part, on the setting. (Guidelines, § 15064, subd. (b).) Where the agency determines that a project impact is insignificant, an EIR need only contain a brief statement addressing the reasons for that conclusion. (Guidelines, § 15128.)” (Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492-493 (Mira Mar).)
In analyzing the visual impacts of the construction of the Ridgecrest A tank, the EIR set forth the following standards of significance: “For the purposes of this EIR, the project would have a significant impact with regard to aesthetics if it would: [¶] [1.] Have a substantial adverse effect on a scenic vista. [¶] For this EIR, a scenic vista is defined as a publicly accessible viewpoint that provides expansive views of a highly valued landscape. A viewpoint that is accessible only from private property is not considered a scenic vista. [¶] [2.] Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway. [¶] [3.] Substantially degrade the existing visual character or quality of the site and its surroundings. [¶] [4.] Create a new source of substantial light or glare that would adversely affect daytime or nighttime views in the area.” (Italics omitted.)
Based on the threshold criteria for significance presented in the EIR, the District concluded that development of the Ridgecrest A tank would have no significant effect on “scenic vistas.” As stated in the EIR, the Ridgecrest A tank would be approximately 25 feet tall by 120 feet in diameter. The EIR indicated that although the Ridgecrest Tank site is located in the Tiburon Ridge Open Space, the proposed tank would not be visible from the Tiburon Ridge Open Space “until hikers are almost upon the tank site, due to intervening topography.” Additionally, as described in the EIR, there is “intervening topography between the tank site and Ring Mountain Open Space; however, the tank would be visible at a distance (i.e., approximately 2, 000 feet) from the tank site within the Ring Mountain Open Space.” However, due to the site location—which is “within a saddle on the ridge, mature trees lie to the north and east, and the view location would be approximately 2, 000 feet away”—the Ridgecrest A tank “would not be visually imposing.” Additionally, the EIR indicates that “[b]ecause of the site topography and vegetation on the north slope, the site is not very visible from the north, although the closest residential development is to the north. The site is also not very visible from any nearby residences to the south[, ] west[, or] east.”
The EIR also included a visual simulation of the site, representing a “worst-case” aesthetic impact. From this vantage point, the Ridgecrest A tank “is slightly visible.” Thus, the EIR concluded the development of the Ridgecrest A tank “would not degrade the visual character of this location.”
Despite this detailed analysis, the Alliance contends the EIR failed to analyze adequately the visual impacts of the Ridgecrest A tank. The Alliance acknowledges that the substantial evidence test governs, but none of the cases it cites involves this standard of review. Rather, in each of the cases cited by the Alliance, the issue was not whether substantial evidences supported the agency’s visual impact analysis, but whether the record contained a “fair argument” of a visual impact, necessitating the preparation of an EIR. For example, the Alliance cites to our opinion in Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 586 (Bowman), for the proposition that “ ‘[a] project that interferes with scenic views has an adverse aesthetic effect on the environment.’ ” In Bowman, however, we reviewed a challenge to a mitigated negative declaration (MND) and not an EIR. (Id. at p. 580.) Review of an MND “ ‘ “involve[s] a question of law requiring a certain degree of independent review of the record, rather than the typical substantial evidence standard [applicable to EIRs] which usually results in great deference being given to the factual determinations of an agency.” ’ ” (Baldwin v. City of Los Angeles (1999) 70 Cal.App.4th 819, 842.) In Bowman, we expressly rejected the relevance of a case addressing aesthetic impacts analyzed in an EIR. (Bowman, supra, 122 Cal.App.4th at p. 589 [“Because an EIR was prepared in Sequoyah Hills [Homeowners Assn. v. City of Oakland (1993) 23 Cal.App.4th 704 (Sequoyah Hills)]... the decision is essentially irrelevant for our purposes”].) So too here, because the cases cited by the Alliance involve the preparation of MNDs, those decisions are irrelevant to our task of reviewing the conclusion in the EIR that development of the Ridgecrest A tank would result in an insignificant visual impact. (See Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 401-403 (Ocean View) [record contained fair argument that proposed reservoir cover would have significant impact on views from public trails, requiring preparation of EIR]; Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1604-1607 [photographs with story poles and testimony by surveyor constituted fair argument that proposed houses would block panoramic ocean views and degrade scenic vista]; Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 936-939 (Pocket Protectors) [testimony of residents and architects regarding extent to which housing project would degrade visual character of site required preparation of EIR].)
Where, as here, the agency prepares an EIR, the issue is whether substantial evidence supports the agency’s conclusions, not whether others might disagree with those conclusions. (Pocket Protectors, supra, 124 Cal.App.4th at p. 938, fn. 26 [acknowledging differing standard of review applicable to EIRs].) Although the Alliance conflates the issue, this distinction is crucial for purposes of our review. (See Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, 243-244 (Clover Valley) [upholding EIR’s conclusion that, although residential project on ridge-top would be visible, impact would be less-than-significant due to topography and existing visual character of area]; Mira Mar, supra, 119 Cal.App.4th at pp. 485, 492-494 [upholding EIR’s conclusion that 96-unit condominium complex in coastal zone would not have a significant impact on views]; Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 375-376 (Eureka) [upholding EIR’s “ ‘qualitative judgment’ ” that playground would not have significant aesthetic impact].)
For example, in Clover Valley, supra, 197 Cal.App.4th 200, the EIR acknowledged the visual character of the site would undergo a “ ‘high level’ ” of change, but concluded the impact on scenic vistas was less-than-significant due to a buffer between the valley floor and new homes, and because other residential uses existed in the area. (Id. at pp. 243-244.) Rejecting an adjacent city’s challenge, the court stated: “By containing factual statements addressing why this impact is not significant, the EIR provided substantial evidence supporting its conclusion....” (Id. at p. 244; see also Save Round Valley, supra, 157 Cal.App.4th at pp. 1446-1447, 1469 [substantial deference is due to lead agency’s aesthetic impact determinations in EIRs].)
In the instant case, the EIR included a detailed discussion of potential aesthetic impacts of development of the Ridgecrest A tank, including the size and shape of the tank, satellite image analysis of impacts from four directions, visual simulation, and impacts on vistas from homes and hiking trails and the highway. This analysis constitutes substantial evidence supporting the conclusion that the impact is less than significant. “In exercising its discretion, a lead agency must necessarily make a policy decision in distinguishing between substantial and insubstantial adverse environmental impacts based, in part, on the setting. [Citation.]” (Mira Mar, supra, 119 Cal.App.4th at p. 493.) Where an EIR contains factual evidence supporting the conclusion that aesthetic impacts will be insignificant, that conclusion must be upheld. (Eureka, supra, 147 Cal.App.4th at pp. 375-376; Clover Valley, supra, 197 Cal.App.4th at pp. 243-244.) Courts “ ‘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.’ ” (Mira Mar, supra, 119 Cal.App.4th at p. 486.)
To summarize, the EIR addressed the possible visual impacts of the construction of the Ridgecrest A tank and concluded it would have a less than significant effect on the scenic vistas. This analysis was legally adequate. The Alliance’s disagreement with the EIR’s conclusions does not establish that the analysis which led to those conclusions was deficient. (Marin Mun. Water Dist. v. KG Land Corp., supra, 235 Cal.App.3d at p. 1663.)
2. San Quentin Ridge Tank Site
In an effort to mitigate the unavoidable significant visual impact of the San Quentin Ridge tank site, the EIR identified and the District adopted mitigation measure 4.1-3, which required the District to “work with a landscape architect and the cities of San Rafael and Larkspur” to develop and implement a landscaping plan to help shield the site from view. The EIR indicated that the landscape plan “will identify the location and types of planting (i.e., trees and shrubs) that will soften the visual intrusion of the tanks and identify success metrics such as survival and growth rates for the plantings.”
The trial court, citing Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 794 (EHL), ruled that the mitigation measure was indefinite and did not comport with CEQA because it did “no more than require a report be prepared and followed.” The District argues that the Alliance failed to exhaust its administrative remedies concerning the adequacy of mitigation measure 4.1-3 and, in any event, the measure complies with CEQA.
We have reviewed the comment letters from the City of Larkspur and the City of San Rafael and conclude that the adequacy of mitigation measure 4.1-3 was raised. Specifically, in its letter the City of Larkspur commented on the mitigation measure associated with the San Quentin Ridge, noting that adequate discussion of “the mitigation” was “lacking.” The City of Larkspur also faulted the proposed “landscaping plan to screen the tanks, ” stating that “[t]his mitigation measure seems to ignore that the south side of the ridge was a quarry site and vegetation does not grow easily in the rock as is evidenced by the bare rock face on the site of the proposed tanks to the south.” Similarly, the City of San Rafael noted its concern with the “unmitigated significant visual impact” of the proposed San Quentin Ridge tank site. In this comment letter, the City of San Rafael also attached its comments to the draft EIR, in which the city indicated that additional methods beyond those proposed in mitigation measure 4.1-3 needed to be explored. Specifically, the City of San Rafael noted that the draft EIR “concludes that the significant visual impacts of the proposed tanks cannot be mitigated, even with landscape planting due to the size and location of the tanks. The EIR must explore and evaluate other feasible mitigation measures, such as different construction methods or techniques, or different tank locations, including possible sites not on land owned by [the District]. The ability of the proposed site to grow screen vegetation should also be examined due to extensive bedrock.”
The comments by the City of Larkspur and the City of San Rafael complied with the exhaustion requirement, as they sufficiently raised the issue regarding the adequacy of mitigation measure 4.1-3 and its proposed landscaping plan.
Turning to the merits, the trial court ruled that the mitigation measure was deficient because “it established no guidelines or criteria” to evaluate the adequacy of the landscaping plan. The trial court also found the plan to “ ‘soften’ ” the visual impact was a “vague metric that is difficult to quantify.” The court faulted the District for failing to “commit itself to a landscaping plan that is designed to reduce the amount of the tank in view by 25%, 50%, or 75% [, ]” and for failing to “oblige [itself] to participate in a management plan for replanting shrubs and trees if [the proposed success metric] is not met.” Based on these reasons, the trial court found the mitigation did not comply with CEQA because it was “indefinite” and “does no more than require a report be prepared and followed.” (EHL, supra, 131 Cal.App.4th at p. 794.)
We disagree with the trial court’s analysis. As we explained in Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 906 (Oakland Heritage): “ ‘[I]t is improper to defer the formulation of mitigation measures until after project approval; instead, the determination of whether a project will have significant environmental impacts, and the formulation of measures to mitigate those impacts, must occur before the project is approved.’ ([CNPS v. Rancho Cordova, supra, ] 172 Cal.App.4th [at p. 621], citing Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296 (Sundstrom), and Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, [ ].) However, ‘when a public agency has evaluated the potentially significant impacts of a project and has identified measures that will mitigate those impacts, the agency does not have to commit to any particular mitigation measure in the EIR, as long as it commits to mitigating the significant impacts of the project. Moreover, ... the details of exactly how mitigation will be achieved under the identified measures can be deferred pending completion of a future study.’ (CNPS [v. Rancho Cordova, supra, ] 172 Cal.App.4th at p. 621, citing Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011 (SOCA).) As explained in SOCA, ‘ “for [the] kinds of impacts for which mitigation is known to be feasible, but where practical considerations prohibit devising such measures early in the planning process..., the agency can commit itself to eventually devising measures ...