County of Inyo v. City of Los Angeles

EVANS, J., Dissenting.

As I review the history of this protracted and sometimes bitter proceeding, I perceive the issue confronting the court to be narrowly confined rather than as broad and all-encompassing as do the majority. The question to be resolved should be confined to whether the City of Los Angeles (City) has complied with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.; unless otherwise indicated, all code references will be to that code). On that narrowly confined issue, I would reject the county’s objection and conclude that the present EIR complies with those requisites.

This proceeding represents an underlying ultimate conflict between the parties over the allocation of decreasing resources among diverse increasing needs. The previous history of the litigation is found in County of Inyo v. Yorty (1973) 32 Cal.App.3d 795 [108 Cal.Rptr. 377]; County of Inyo v. City of Los Angeles (1976) 61 Cal.App.3d 91 [132 Cal.Rptr. 167]; County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185 [139 Cal.Rptr. 396]; and County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82 [144 Cal.Rptr. 71]. I believe analysis of those decisions is essential to a resolution of the present case, and I will make specific reference to them when necessary to explain my conclusion.

By way of general summary, this court held in County of Inyo v. Yorty, supra, 32 Cal.App.3d 795, that CEQA required the City to prepare, certify, and file an EIR relative to its continued and increased extraction of subsurface waters from the Owens Valley and issued a peremptory writ ordering the City to do so.

In County of Inyo v. City of Los Angeles (1977), supra, we found the City’s first EIR legally insufficient as it failed to provide “an accurate, stable and finite project description.” Specifically, the report’s truncated project description was limited to a discussion of increased pumping de*16signed for in-valley use and excluded increased subsurface extractions for export to Los Angeles. We also held the first EIR deficient as it failed to provide discussion of all reasonable alternatives to the project; specifically, it failed to provide a genuine “no project” alternative in the form of a “tangible, foreseeably effective plan for achieving distinctly articulated water conservation goals within the Los Angeles service area.” (71 Cal.App.3d at p. 203.)

In its present return and motion for order discharging the writ, the City contends the EIR, which was approved and certified by its board of water and power commissioners on June 28, 1979, is a “thorough, well-executed environmental assessment of the described project,” which fully complies with CEQA and the prior decisions of this court.

The county, however, disputes its sufficiency and seeks to expand the scope of the proceeding by a “supplemental writ” commanding City to refrain from groundwater pumping in the Owens Valley and to refrain from reducing surface supplies to local users until the City prepares an expanded supplemental EIR extending the scope of inquiry to that which was suggested by the dictum contained in the opinion of this court in County of Inyo v. City of Los Angeles, supra, 71 Cal.App.3d at pages 204-205, and to include discussion of all alternatives of effective water conservation in Los Angeles, selection of substitute sources of water, and an analysis of the interrelationship of surface and subsurface extractions and export to Los Angeles via the first aqueduct and the proposed subsurface takedown by increased pumping for both local and City use. The county further alleges that the City’s present and proposed extraction of subsurface water in Owens Valley is an unconstitutional waste and deprives the county, as the county of origin, of its right to water necessary for the protection and development of its environment and economy.

The county also seeks an order directing the City to reduce the interim pumping rate of 89 cubic feet per second (cfs), arguing such a reduction would effect a balance between the need to mitigate existing environmental damage against the City’s need to rely upon the availability of Owens Valley subsurface water.

Preliminarily, I would reject county’s attempt to enlarge the scope of the present underlying writ. With the exception of arguments addressed to the legal adequacy of the EIR, the supplemental petition raises factual and legal issues beyond the focus of the existing controversy. The *17essence of the county’s argument is that the City should be required to prepare a comprehensive EIR encompassing its entire water gathering system and contends that an EIR concerning increased groundwater extractions alone is inherently insufficient because of the interrelationship between ground and surface water in the Owens Valley and between the Owens Valley and other supplies. In County of Inyo v. City of Los Angeles (1977), we limited the subject matter of this litigation to the measurement of the legal sufficiency of an EIR respecting the projected increase in subsurface drawdown in the Owens Valley. However, in “deliberate dictum,” we rejected any implication that the City’s compliance with the writ in this case would necessarily constitute the “full measure” of the City’s CEQA imposed obligations relating to its water management activities, and expressed our willingness to review the legal sufficiency of the City’s environmental report on subsurface extraction within an EIR of larger scope should the City elect to do so. (71 Cal.App.3d at pp. 204-205.) However, I point out that City was not obligated to do so and for whatever reason has not chosen to proceed with such an enlarged comprehensive report. I therefore reiterate that in accord with the prior writ, the sole inquiry in this proceeding should be limited to a determination of whether the City’s EIR relative to increased pumping of subsurface water in the Owens Valley meets CEQA requirements. (See also County of Inyo v. Yorty (1973), supra, 32 Cal.App.3d 795.) The scope of the inquiry by the EIR urged by the county presents a myriad of factual and legal questions that far exceed the scope of the inquiry as defined by the court in 1976 (61 Cal.App.3d 91) and again in 1977 (71 Cal.App.3d 185). The interrelationship question alone brings into inquiry the status of the first aqueduct project, i.e., whether or not it is a completed project exempt from the scope of CEQA (Pub. Resources Code, § 21151) or whether it is an ongoing project subject to those provisions, as well as the nature and scope of the water rights originally acquired by the City and whether the second aqueduct project encompasses the first project sufficiently to require comprehensive inclusion in the EIR under consideration.

This threshold question should be answered affirmatively before this court or any other tribunal may require the City to analyze the relationship of the first aqueduct project which continues to export surface and subsurface water, with the projected takedown of subsurface water levels by the second project’s local and export needs.

In the first instance in 1973 and again in 1976 and 1977, neither the parties nor the participating members of this court considered the scope *18of inquiry by the EIR should include the City’s total water project. Although such an inquiry has most attractive environmental possibilities and might ultimately be required, it is beyond the established periphery of this writ proceeding. It is for these reasons that I would decline the invitation by the county to enlarge the extent of the inquiry. This is neither the tribunal nor legal vehicle by which such an investigation into legal and factual problems should be pursued.

The conclusion reached by the majority effectively grants, sub silentio, the request of the county to expand the scope of the writ and requires analysis and discussions in the EIR of the interrelationship between the extraction or takedown of the subsurface water and the continuing export of surface water in aqueduct No. I.1 This requirement is not found within the bounds of this court’s description of the scope of the original writ.

I

In County of Inyo v. City of Los Angeles, supra, 71 Cal.App.3d at page 189, we described the scope of judicial review of an EIR. “Consideration of a filed EIR’s adequacy is a judicial function. (Environmental Defense Fund, Inc. v. Coastside County Water Dist. (1972) 27 Cal.App.3d 695, 704 [104 Cal.Rptr. 197].) In a lawsuit charging noncompliance with CEQA, judicial inquiry is limited to the question of abuse of discretion, which is established if the agency has not proceeded as required by law or if its decision is not supported by substantial evidence. (§ 21168.5; No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at p. 74 [118 Cal.Rptr. 34, 529 P.2d 66].) The court does not pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document. {Plan for Arcadia, Inc. v. City Council of Arcadia (1974) 42 Cal.App.3d 712, 725-726 [117 Cal.Rptr. 96]; Environmental Defense Fund, Inc. v. Coastside County Water Dist., supra, 27 Cal.App.3d at p. 705; see also San Francisco Ecology Center v. City and County of San Francisco (1975) 48 Cal.App.3d 584, 593 [122 Cal.Rptr. 100].)”

We also observe at page 192 that “[t]he EIR is the heart of the environmental control process. {County of Inyo v. Yorty, supra, 32 Cal.*19App.3d at p. 810.) CEQA describes the report’s purpose—to provide the public and governmental decision-makers (here, the board of water and power commissioners) with detailed information of the project’s likely effect on the environment; to describe ways of minimizing significant effects; to point out alternatives to the project. ([Pub. Resources Code] §§ 21002.1, 21061, 21100; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 263 [104 Cal.Rptr. 761, 502 P.2d 1049].) The EIR process facilitates CEQA’s policy of supplying citizen input. (See People v. County of Kern (1974) 39 Cal.App.3d 830, 841 [115 Cal.Rptr. 67].) By depicting the project’s unavoidable effects, mitigation measures and alternatives, the report furnishes the decision-maker information enabling it to balance the project’s benefit against environmental cost. (See § 21100; Environmental Defense Fund, Inc. v. Coastside County Water Dist., supra, 27 Cal.App.3d at p. 705.) The report should function as an environmental ‘alarm bell.’ (County of Inyo v. Yorty, supra, 32 Cal.App.3d at p. 810.)” (Italics added.)

In 1977, we found the first EIR’s project description inadequate by its limitation to a consideration of increased water pumping designed for in-valley use only. At that time we again explicitly defined the parameters of the project: “The project which forms both the scope of this litigation and the subject of the EIR mandated by this court is the department of water and power’s program for increasing the average rate of groundwater extraction and use (both for export and in-valley use) above a baseline rate reasonably representing the average rate of groundwater extraction and use (both for export and in-valley use) preceding the second aqueduct’s availability for use.” (Fn. omitted; id., at p. 196.)

I conclude that the present EIR follows that admonition and in the first chapter summarizes its scope in part as follows:

“Project Description

“The project is to increase the pumping of groundwater from the Owens Valley basin beyond historic pumping rates (long-term and maximum annual average): to supply water for use within the City of Los Angeles; to make available water for agriculture, recreation, wildlife and other uses on City lands within Inyo and Mono Counties; and for other uses in Owens Valley.”

*20The report further develops that, to carry out the project, pumping will increase by an average of 105,000 acre-feet/year (AF/Yr.) (145 cubic feet per second [cfs]) above the average historical pumping rate (the “no-project” rate). The minimum pumping increase in wet years will be 33,000 AF/Yr. (45 cfs) and the maximum pumping increase in dry years will be 130,000 AF/Yr. (180 cfs).

The report states the historic pumping rate (no-project) would continue and would require subsurface pumping to maintain flow in the first Los Angeles aqueduct and to supply irrigation water for 600 acres of dairy land; the historic pumping rate is 7,000 AF/Yr. (10 cfs) long term (1935-1936 through 1965-1966) and 97,000 AF/Yr. (135 cfs) maximum (1960-1961).

The section concludes, “Under the recommended project, the increased pumping in any given year will be varied within the above limits in order to make water available for all of the following uses: 1) export to meet water needs in Los Angeles; 2) regular irrigation of 17,100 acres of land owned by Los Angeles and water for expanded recreation and wildlife habitat enhancement programs; and 3) water for town supplies and fish hatcheries in the Owens Valley. On a long-term average, approximately 48,000 AF/Yr. will be exported to Los Angeles and the increased pumping will make available approximately 57,000 AF/Yr. of water for uses in the Owens Valley.” (Fn. omitted.) In that portion of the report entitled “Project Operations” the City has stated:

“The increase in pumping, on an average annual basis, to make available water for project uses is 105,000 AF/yr. In wet years the increase in minimum pumping to provide for uses in Owens Valley (fish hatcheries and towns) is 33,000 AF/yr. (45 cfs). In dry years the increase in maximum pumping to provide for all uses is 130,000 AF/yr. Of the 105.000 AF/yr. (145 cfs) average annual increase in pumping, approximately 48,000 AF/yr. (66 cfs) would be used in Los Angeles and 57.000 AF/yr. (79 cfs) would be supplied directly or indirectly to uses in the Owens Valley. [Fn. omitted.]

“Increased groundwater pumping will ensure the availability of a regular irrigation supply to 17,100 acres and to the other project uses in Los Angeles and Inyo and Mono Counties during 29 of the 31 years of the hydrologic study period. For irrigation in Inyo and Mono Counties *21this means at least 72,000 acre-feet per year for 29 years of the 31-year hydrologic study period for a total of at least 2,088,000 acre-feet. During each of 13 of those 29 years, approximately 7,000 acre-feet would be available for irrigation as an additional supply, bringing the total of 2.179.000 acre-feet. Partial supplies would be available during the other two years. The irrigation supplies during those 2 years would total 118.000 acre-feet, bringing the grand total of the irrigation supply made available by the project during the study period to 2,297,000 acre-feet.” (Italics omitted.)

The increased subsurface pumping will generally occur at existing wells, and the increased water supply will in most instances be conveyed through existing water courses in the Owens Valley.

In support of its challenge to the adequacy of the report, county asserts a failure to comply with CEQA because its project description “arbitrarily and artificially” defines the increased pumping as 48,000 AF/Yr. (66 cfs) for export to Los Angeles and 57,000 AF/Yr. (79 cfs) for use in the Owens Valley and contends that virtually all new water supply made available by the increased pumping is intended for export to Los Angeles.

The basis for the county’s assertion is extremely unclear. A similar unsubstantiated allegation was made in comments to the draft EIR by the Secretary of the State Resources Agency. The City denies the contention and asserts export from the Owens Valley would be limited to an increase of 11 percent (from 434,000 AF/Yr. to 482,000 AF/Yr.). The data submitted by the county in support of its position is contained in a chart which accompanied county comments to the draft EIR; the City characterizes the opposing chart information as based on an “erroneous conclusion.”

Again, I emphasize that the scope of this proceeding should be confined to the legal adequacy of the EIR related to increased subsurface extraction of water by City in the Owens Valley. Although an EIR broader in scope which included management of surface water in conjunction with increased groundwater extraction may have been desirable, it was not required under the clear terms of the prior writ.

Unlike its predecessor, the present EIR maintains a consistent project description which encompasses all increased extraction of subsurface water regardless of destination. The description is clear and unambi*22guous in its assessment of the total increase in pumping and is equally informative as to the quantity of water to be exported to Los Angeles and the quantity that will be made available (directly or indirectly) for use in the Owens Valley. The City unequivocally denies the county’s charge that substantially all water made available by the project will be exported; the City explicitly states that exports from the Owens Valley would be increased by 11 percent.

The scope of our review does not extend to a prediction of whether those who complete the project will deviate from its stated purpose and objectives. The project description contained in the present EIR overcomes the prior deficiencies found by the court (1973, 1976, 1977, and 1978) and satisfies the legal requirements of CEQA. Whether or not the City will confine its pumping and export of water to the stated project limits is a matter to be determined subsequently and by a proper tribunal. It is not for this court to decide by indulging in speculation.

II

Many of the county’s objections to the final EIR involve disputes over the methodology and accuracy of the report’s conclusions regarding the environmental effects of the proposed project. In its opposition to the motion to discharge the writ, county has submitted a plethora of comments and declarations of state water officials, various hydrologists, botanists, economists, other scientists, and residents of Inyo County which criticize and challenge the accuracy of the conclusions of both the draft and the final EIR. Essentially they accuse the report of failing to state fully the environmental harm resulting from the project. A substantial number of these exhibits were prepared after the City’s board of water and power commissioners approved the final EIR. Since the single inquiry is confined to the legal sufficiency of the EIR, and these later exhibits were not part of the record before the board, they should not be subject to consideration in this proceeding. However, in arriving at my conclusion, I have considered them, as well as the adverse comments made to the draft EIR; in essence I find them to be merely challenges by one group of experts to the conclusions of other experts. County has, in submitting the expert argument, apparently ignored our observation in County of Inyo v. City of Los Angeles, supra, 71 Cal.App.3d at page 197, that “[c]ourts are not equipped to select among the conflicting opinions of warring experts. It is not the function of the court to determine the accuracy of the report’s environmental forecasts. [Citations.] Reasonable foreseeability is enough. [Citation.]”

*23The terms of the final EIR are clear that the proposed project will adversely affect the environment of the Owens Valley. Primarily, these harmful effects result from a lowering of the water table by reason of the increased pumping. Within the zone of influence of the pumping wells, the lowered table will cause springs to dry, vegetation will change on 69,000 acres (43 percent of the valley floor), specifically a replacement of moisture-loving plants with semi-desert species will take place; the population of some species of fauna will be reduced, and they will be required to modify their range of habitat in response to vegetation changes. However, no species are threatened with extinction. Diversion of surface water into six affected springs will maintain a wet habitat and partially mitigate some of the impact on flora and fauna at those locations. The report states that impact on air quality in the Owens Valley cannot be estimated with reasonable accuracy, although it does acknowledge that reduced vegetation will cause increases in particulate concentrations during seasonal dust storms and could cause increases in suspended particulate during lower wind conditions.

I find the final EIR does forecast those environmental impacts of the project which are reasonably foreseeable.

Ill

County next challenges that portion of the report dealing with alternatives to the project. The argument is made that the stated alternatives do not meet CEQA guidelines as they assertedly fail to compare each alternative to no-project conditions. I find the contention to be baseless. Each alternative is compared to the project and makes some comparison to no-project conditions.

The county also argues the report fails to adequately define alternatives to the project. Specifically, the argument is made that development of the alternative of conservation is again not considered. Again, I conclude the contention is blatantly in error. The report presents, in considerable detail, five alternatives, including alternate “B” dealing with conservation in both Los Angeles and the Owens Valley. “A” thoroughly discusses “no-project.”2 Alternate “C” deals with water *24reclamation (treated domestic sewage effluent) which is also another form of conservation. “D” relates to lining with concrete, 93 miles of canals and ditches on City-owned land in the Owens Valley as a seepage retardant, and finally, “E” deals with maximum production of groundwater for uses not projected in the proposed undertaking.

Alternative “B” deals with the implementation of water conservation programs in Los Angeles and the Owens Valley. Activation of a mandatory conservation ordinance is to be required to achieve at least a 10 percent reduction in use up to a maximum reduction of 20 percent; such need reduction is expected to be necessary 45 percent of the time. Water needs remaining after implementation of a maximum mandatory conservation rate would then be met by increased groundwater pumping in the Owens Valley. Increased pumping is expected to occur 20 percent of the time; at that time the average annual export pumping would increase from 7,000 AF/Yr. no-project level to 9,000 AF/Yr. with a dry year peak-pumping rate of approximately 111,000 AF/Yr. Improved irrigation efficiencies on City-owned land in Owens Valley is also included.

I perceive county’s conservation objection essentially ás a disagreement with the policy decision to reject total conservation as a desirable alternative to the project. Again, in contrast with the first EIR, the present report overcomes the previous deficiency of total omission of a conservation alternative. (See County of Inyo v. City of Los Angeles, supra, 71 Cal.App.3d at p. 203.)

Finally, county asserts an inadequacy in the specification of feasible measures in mitigation of environmental damage. Once again, the contention ignores applicable judicially established criteria.

“It is true that an environmental impact report must identify both feasible mitigation measures and feasible project alternatives. (§§ 21002, 21002.1, subds. (a), (b).) But if the feasible mitigation measures substantially lessen or avoid generally the significant adverse environmental effects of a project, the project may be approved without resort to an evaluation of the feasibility of various project alternatives contained in the environmental impact report. Furthermore, if economic or social conditions make infeasible the mitigation of one or more significant adverse environmental effects of a project, such project may *25nevertheless be approved provided the project is otherwise permissible under applicable laws and regulations. (§ 21002.1, subd. (c).) [1i] ... CEQA does not mandate the choice of the environmentally best feasible project if through the imposition of feasible mitigation measures alone the appropriate public agency has reduced environmental damage from a project to an acceptable level.” (Laurel Hills Homeowners Assn. v. City Council (1978) 83 Cal.App.3d 515, 520-521 [147 Cal.Rptr. 842].)

The proposed feasible mitigation measures of the environmental effects identified in the EIR include diversion of surface water into six springs to maintain a wet habitat which will partially lessen vegetation changes and corresponding reduction in the population of various fauna at those locations. Domestic livestock will be removed from City lands if competition with Tule elk develops. Further mitigation of the vegetation change and of the lowering water table were not deemed to be feasible. Identification of mitigation measures with respect to air quality was also characterized as infeasible. The report also provides for other means which will minimize stress on vegetation by excluding the areas containing rare and threatened plant species from grazing pressure; it also provides for a range management program and one of controlling undesirable plants (i.e., saltcedar, a highly competitive phreatophyte).

In its resolution approving the project, the City’s board of water and power commissioners made findings identifying those measures as feasible mitigation steps, considered the circumstances which made infeasible the identification or adoption of additional mitigation measures, and considered economic, social, and other factors which made the alternatives to the project not feasible.

The board acknowledged that inherent in the project were significant adverse environmental effects, especially on water levels and flora, which could not be fully mitigated. Nevertheless, the board determined the need to provide a reliable, long-term, and dry-year water supply to City, the relatively lower cost of water provided by the project, and the generation of clean hydroelectric power by the project were “overriding considerations” and justified approval of the project.

I find the foregoing summary of the mitigation measures as indicative of the report’s adequacy.

There is substantial evidence in support of the board’s findings of specific economic and social conditions which supersede the project’s *26admitted adverse environmental consequences and support its approval of the project.

I would conclude that the extent of our review has been completed; the merits of policy choices transcend the scope of that review. I find the City’s final EIR complies with the requisites of CEQA and meets the mandate of our previous writ.

In reaching that conclusion, I have strictly adhered to those principles of review stated in Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 909-910 [165 Cal.Rptr. 401] (hg. den.), ‘“A ‘major purpose of an EIR is to inform other governmental agencies, and the public generally, of the environmental impact of a proposed project . . . ’ and to inform the decision-making agency of the full range of adverse environmental effects and alternative measures prior to its decision to approve or disapprove such project . . ., the underlying policy of the act to ‘[ensure that the long-term protection of the environment shall be the guiding criterion in any public decision’ (§ 21001, subd. (d)), dictates that the ‘initial and primary responsibility for striking [the necessary] balance between competing concerns must rest with the [decision-making] agency itself, .. . ’ [citations] and whose consideration cannot be merely a ‘post hoc rationalization’ of a decision already made.’”” (P. 907.) “An EIR must describe all reasonable alternatives to the project (Pub. Resources Code, § 21061), including those capable of reducing or eliminating environmental effects; the specific alternatives of ‘no project’ must also be evaluated (Pub. Resources Code, §§ 21002, 21100; Guidelines, Cal. Admin. Code, tit. 14, § 15143, subd. (d)). [Citation.] The discussion of alternatives need not be exhaustive, and the requirement as to the discussion of alternatives is subject to a construction of reasonableness. The statute does not demand what is not realistically possible, given the limitation of time, energy and funds. ‘Crystal ball’ inquiry is not required.

“The statutory requirement for consideration of alternatives must be judged against a rule of reason. There is no need for the EIR to consider an alternative whose effect cannot be reasonably ascertained and whose implementation is deemed remote and speculative .... Absolute perfection is not required; what is required is the production of information sufficient to permit a reasonable choice of alternatives so far as environmental aspects are concerned. It is only required that the offi*27ciáis and agencies make an objective, good-faith effort to comply.” (Italics added; pp. 909-910.)

I would deny the county’s motion to reduce the interim pumping rate and its petition for a supplemental writ.

The majority opinion by indirection effectively has expanded the scope of the writ as requested by the county.

That issue should have been directly confronted and either granted or denied. Instead I find the majority opinion and result to be based upon an undescribed expansion of the writ, transcending the stated limits required of the parties prescribed in the first instance.

A petition for a rehearing was denied October 28, 1981. Evans, Acting P. J., was of the opinion that the petition should be granted but for reasons other than those proposed. Respondents’ petition for a hearing by the Supreme Court was denied December 9, 1981.

Counsel for the county conceded at oral argument that in order to reach the interrelationship conclusion which is the foundation of the ultimate majority decision, the motion to expand the scope of the writ must first be granted. This was apparently accomplished by indirection.

The report states that historically, Owens Valley groundwater was not available on Los Angeles lands leased for agriculture. Only after export requirements to Los Angeles were fulfilled was surface water available to irrigate up to 30,000 acres of City-owned land. The report states the project will furnish a secure supply to irrigate the best 17,100 acres of the 30,000 acres irrigated during normal years under preproject conditions. Total productivity would not be reduced significantly but economic stability would be increased.