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EIR Set Aside for Inadequate Alternatives Analysis and Failure to Prepare Water Supply Assessment

The Court of Appeal rejected an EIR for a proposed open-air composting facility in San Bernardino County. In Center for Biological Diversity v. County of San Bernardino, the court ruled that the EIR’s rejection of an enclosed facility alternative as economically and technologically infeasible was not supported by substantial evidence in the record. The court further determined that the project improperly failed to prepare a Water Supply Assessment (WSA), in violation of the Water Code and of CEQA requirements that such assessments be included in an EIR.

The project proposed an open-air human waste composting facility on a 160-acre site in the Mohave Desert. Using a combination of windrow (mechanical turning) and static pile (forced air and/or vacuum system) composting methodologies, the facility would operate all day, every day. The site was not served by electricity, public water or other utilities. Located in an overdrafted groundwater basin, the project proposed groundwater from a well or imported water, or a combination of both to meet the expected water demand of approximately 1,000 gallons per day, mostly intended for dust control. The County processed a Conditional Use Permit and prepared an EIR for the proposed facility.

The court determined that the EIR should have fully analyzed an enclosed composting facility as a potentially feasible alternative to address significant air quality impacts. The EIR improperly rejected an enclosed facility alternative as economically and technologically infeasible. The court faulted the finding of economic infeasibility due to substantially higher construction and operating costs and time since it was based on information from a single enclosed facility under construction by a public utility agency elsewhere in the county. Not only did the EIR fail to explain why the comparison facility was substantially over budget and far beyond its construction timeline, the EIR also failed to analyze other enclosed facilities in nearby counties and throughout the country that were referenced by the state Department of Health Services and other commenters. The court noted that “[i]f enclosed facilities are gaining in popularity, perhaps they are economically feasible, in that a reasonable profit can be made despite increased capital costs.” Especially where air quality was the most detrimental aspect of the project, the EIR should have examined more than one comparison enclosed facility to determine economic feasibility. The court likewise faulted the EIR for failing to explain its finding of technological infeasibility where the EIR stated that no electricity was available, but contained no discussion of the time or costs of bringing electricity to the site to service an enclosed facility.

Addressing water supply analysis, the court ruled that the EIR failed to include a required Water Supply Assessment (WSA). The court determined that under the plain language of Water Code section 10912(a)(5), the proposed facility was a project requiring a WSA and the WSA should also have been included the EIR. The court noted that the amount of water usage was not a factor under that particular section of the Water Code, so the minimal expected water use was also not a factor in determining whether to prepare a WSA. Further, a WSA is required even where no public water system is involved, contrary to a statement in the 2008 Gray v. County of Maderacase.

The decision also contains a useful summary of the private attorney general doctrine under Code of Civil Procedure section 1021.5. The court approved the award of attorneys fees and the amount set by the trial court. The case was remanded to determine the amount of the attorneys fee award for the appeal.

This decision counsels against cursory rejection of EIR alternatives in a Draft EIR based on economic or technological infeasibility. Following the principles set forth in cases such as Uphold Our Heritage v. Town of Woodside, findings on economic and technological infeasibility should be carefully and thoroughly supported by substantial evidence in the record, especially where the alternative could potentially avoid the project’s most serious impact. The decision also reinforces the importance of thorough water supply analysis in EIRs. The court interprets the Water Code requirements for WSAs strictly. Therefore, each element of the statutory triggers for a WSA should be carefully reviewed for applicability to projects.

For more information on the Center for Biological Diversity case, CEQA or other land use matters, please contact Julia Bond at 1.800.464.3559.