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Paulek v. Department of Water Resources

California Court of Appeals, Fourth District, Second Division

October 31, 2014

ALBERT THOMAS PAULEK, Plaintiff and Appellant,
v.
DEPARTMENT OF WATER RESOURCES, Defendant and Respondent.

APPEAL from the Superior Court of Riverside County No. RIC1120142. Daniel A. Ottolia, Judge. Affirmed.

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COUNSEL

Susan E. Nash for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney General, and Eric M. Katz, Deputy Attorney General, for Defendant and Respondent.

OPINION

HOLLENHORST Acting P. J.

Plaintiff and appellant Albert Thomas Paulek appeals the denial of his petition for a writ of mandate under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.). He seeks a writ directing defendant and respondent Department of

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Water Resources (Department) to vacate its approval of the final environmental impact report (EIR) with respect to the Perris Dam Remediation Project. In its draft EIR, the Department proposed three activities: (1) remediating structural deficiencies in the Perris Dam, (2) replacing the facility’s outlet tower, and (3) creating a new “Emergency Outlet Extension.” In response to comments on the draft EIR, the emergency outlet extension was split off into a separate environmental review process, and the final EIR at issue considers only dam remediation and outlet tower replacement.

Paulek contends on appeal that the lack of an emergency outlet extension constitutes a significant environmental impact that the project as finally approved fails to mitigate, and that the separation of the emergency outlet extension into a different project constitutes impermissible segmentation. He further contends that the Department did not adequately respond to written comments submitted by “Friends of the Northern San Jacinto Valley, ” an organization of which Paulek is the “Conservation Chair.”[1] In response, the Department argues that Paulek lacks standing, and the petition in any case fails on its merits.

For the reasons discussed below, we agree with the trial court that Paulek has standing, and find no abuse of discretion in its denial of the petition on its merits. We therefore affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Perris Dam and Reservoir is a multipurpose facility known collectively as Lake Perris, located within the Lake Perris State Recreation Area in Riverside County. Perris Dam was built in 1972. A foundation study of the dam—completed by the Department in 2005 and utilizing recent significant advances in soil liquefaction engineering—showed structural deficiencies in its capacity to withstand seismic events not revealed in earlier studies. The 2005 report recommended immediately reducing the water level in the reservoir, remediation measures to improve the long-term seismic stability of the dam’s foundation, and further study, including a seismic review of the dam’s outlet tower.[2]

The Department responded to the first recommendation of the report by reducing the amount of water held by the dam by about 40 percent.

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Department staff also developed a proposal for long-term improvements to the dam with three parts: (1) remediation of the structural deficiencies in the dam’s foundation through various measures; (2) replacement of the facility’s existing outlet tower, the structural integrity of which was found upon further seismic review to be deficient; and (3) construction of a new “emergency outlet extension.”

The third part of the planned improvements, the emergency outlet extension, was not recommended or even considered by the 2005 report. The Department proposed it, however, because the emergency water release facilities of the dam, as originally constructed, were designed to discharge water overland, inundating up to 2700 acres of flood plain downstream from the dam, and allowing the water to find its own path to the Perris Valley Storm Drain. Since the dam’s construction in 1972, however, substantial residential developments had been built in that previously-empty flood plain. The emergency outlet extension would create a safe route—a two-mile-long path, either underground or in an open channel—for such water to flow, if necessary.

On June 1, 2007, the Department issued a notice of preparation of a draft EIR regarding the three-part proposal. The written comments received in response to the notice of preparation include, as relevant here, comments from Friends of the Northern San Jacinto Valley, an organization with which Paulek is associated, but which were drafted for the signature of the organization’s president, Ann L. Turner-McKibben.

In January 2010, the Department issued a draft EIR for the “Perris Dam Remediation Program, ” analyzing the environmental impacts of the three-part proposal. On February 3, 2010, the Department conducted a public workshop to discuss the draft EIR and the proposed activities. Paulek participated in this meeting, as will be discussed in more detail below. Additionally, on April 10, 2010, Friends of the Northern San Jacinto Valley submitted written comments with respect to the draft EIR, signed by Paulek in his capacity as “Conservation Chair” of that organization.

In the final EIR, dated September 2011, the Department removed the emergency outlet extension component of the proposal; this change was in response to comments received suggesting consideration of new alternatives.[3]

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With respect to the dam remediation and outlet tower replacement portions, the Department certified the final EIR on November 18, 2011, ...


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