On May 11, 2022, the Third District Court of Appeal published its opinion in We Advocate Through Environmental Review v. City of Mount Shasta (2022) 78 Cal.App.5th 629, reversing the decision below and ordering the trial court to grant a petition for writ of mandate, specifying actions under CEQA that the City of Mt. Shasta (“City”) must take before issuing a wastewater permit for a water bottling facility. The court held that the City, acting as a responsible agency, had failed to make findings or support such findings as required by Public Resources Code section 21081 on the significant effects identified by the lead agency, Siskiyou County (“County”), in its environmental impact report (“EIR”). This is one of two CEQA cases brought by the same Petitioners challenging the facility; see our blog post on the related CEQA case here.
In 2013, the Crystal Geyser Water Company (“Crystal Geyser”) purchased a defunct water bottling plant facility in Siskiyou County and sought governmental approvals to operate the plant. The County acted as the lead agency and prepared a draft EIR for the facility. The EIR contemplated that Crystal Geyser would require a wastewater discharge permit from the City. Upon request, the City drafted and shared a proposed wastewater permit with the County, which was included in the EIR. In the initial draft permit, the definition of “wastewater” included wastewater from spilled product, wastewater from external cleaning, wastewater from sanitizing chemicals (e.g., sodium hydroxide and acids), flavor change rinse water, and final rinse water from product lines and tanks. The final version of the permit kept this language and added that wastewater also included condensate, boiler blowdown water, and cooling tower blowdown water. The City Council approved the revised permit and issued a single statement: “The City Council has considered the [EIR] prepared by the [County]… and finds no unmitigated adverse environmental impacts relating to the alternate waste discharge disposal methods.”
A local nonprofit, We Advocate Through Environmental Review (“Petitioners”), filed a petition for writ of mandate alleging that the City violated CEQA. Three claims made up the basis of the alleged CEQA violation: (1) the City violated Public Resources Code section 21081 because it approved the Project without making certain findings on significant impacts identified by the County in its EIR; (2) the City should have adopted mitigation measures to address the significant impacts identified in the EIR; and (3) the City was required to conduct additional environmental review after adding three unanalyzed waste-streams to the final permit. In addition, Petitioners asked the trial court to take judicial notice of two letters they argued should have been included in the administrative record. The trial court rejected all of the Petitioners’ arguments. Petitioners appealed.
The Court of Appeal reversed the decision of the lower court, holding that the City violated CEQA’s procedural requirements because they failed to make necessary findings and provide brief explanations of the rationale for those non-existent findings as required by Public Resources Code section 21081. As the Court of Appeal explained, under CEQA, lead agencies like the County must consider all environmental effects of the project’s activities and prepare an EIR before approving the project. (Pub. Res. Code, § 21067.) Responsible agencies, like the City here, carry a more limited responsibility and need only consider the environmental effects of those parts of the project that it to carry out. (Id.) Both lead and responsible agencies, however, are required to make one or more of the following findings with respect to each identified effect on the environment: (1) changes have been required in or incorporated into the project which mitigates effects on the environment; (2) the changes are within the responsibility of another public agency and have been, or can and should be, adopted by that other agency; or (3) specific considerations make the mitigation measures or alternatives identified in the environmental impact report infeasible. (Pub. Res. Code, § 21081(a).) In addition, the Court of Appeal made clear CEQA findings must be “accompanied by a brief explanation of the rationale for each finding.” (CEQA Guidelines, § 15091(a).) Here, the County’s EIR had identified several potentially significant impacts associated with Crystal Geyser’s proposed action—including the risk that wastewater discharge could exceed the capacity of the City’s wastewater treatment plant and that installing additional pipelines could impact fishery resources, endangered species, and cultural resources. Because the City only issued a single blanket statement that it had “considered the [EIR]… and f[ound] no unmitigated adverse environmental impacts relating to the alternate waste discharge disposal methods,” the Court of Appeal held the City did not satisfy CEQA’s requirements of making findings and providing accompanying explanations of their rationale for those findings.
As to the scope of the City’s responsibility under CEQA to adopt mitigation measures identified in the EIR for sewer improvements, the Court of Appeal declined to prematurely decide the issue. Here, Petitioners contended that the City should have adopted mitigation measures or at least made CEQA findings stating another agency carried the responsibility to mitigate the Project’s environmental effects. The Court of Appeal agreed only in general terms, explaining that while CEQA requires each public agency to mitigate or avoid the significant effects on the environment whenever feasible, CEQA does not require a public agency to undertake identified mitigation measures if the agency finds the measures should be adopted by another agency. (Pub. Res. Code, §§ 21002.1(b), 21081(a)(2); CEQA Guidelines, § 15096(g)(1).) Considering the impact of these provisions, the Court noted that the City may “disclaim  the responsibility to mitigate environmental effects … only when the other agency said to have responsibility has exclusive responsibility,” but did not go as far to determine which agency had the responsibility to mitigate the effects in this particular instance. (See City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 350; CEQA Guidelines, § 15091(c).)
Despite finding that the City had impermissibly failed to make the requisite findings, the Court rejected Petitioners’ argument that the City should have performed additional environment review before approving a revised version of the wastewater permit. Petitioners had complained about the City’s addition of “boiler blowdown water” and “cooling blowdown water” in the final version of the City’s permit. The Court ultimately found that these new elements to the permit did not reveal significant new or more severe impacts. Consequently, the City was not required to conduct further environmental review simply to address the expanded coverage in the permit.
On the Petitioners’ ancillary claim about the trial court’s decision to not include two letters in the administrative record, the Court found no reversible error. Petitioners contended that, even if unhelpful to the record, the letters should nonetheless be included in the record. In support, Petitioners cited Public Resources Code section 21167.6, which states that the record in CEQA cases must consist of “[a]ll written comments received in response to, or in connection with, environmental documents prepared for the project, including responses to the notice of preparation.” (Pub. Res. Code § 21167.6(e)(6).) The Court was unpersuaded, holding that reversal would be appropriate only if the exclusion of the two letters was prejudicial. (See Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 75.) Because Petitioners failed to make such a showing of prejudice, the Court of Appeal determined there was no reversible error on this issue.
In sum, the Court of Appeal’s decision makes clear that, under CEQA, responsible agencies must ensure they make the appropriate findings set forth in Public Resources Code section 21081.