(2013) 216 Cal.App.4th 614
On May 21, 2013, the First District Court of Appeal upheld Marin Municipal Water District’s EIR for the Marin Desalination Plant, finding substantial evidence supported the District’s analyses of aesthetic impacts, seismology, biological resources, hydrology, and water quality impacts, and the decision not to recirculate the EIR. Additionally, the court approved of the mitigation plans proposed in the EIR for aesthetic impacts and biological resources and held that mitigation was not required for energy and greenhouse gas emissions because the EIR found that the impacts were less than significant.
In August 2003, the District proposed building a desalination plant in San Rafael. The final EIR included a new alternative, which discussed water conservation and diverting water from the Russian River as an alternative to desalination. The District certified the final EIR in February 2009 and approved the project in August 2009. North Coast Rivers Alliance and others challenged the adequacy of the EIR under CEQA. In September 2011, the Marin County Superior Court ruled the analysis in the EIR was inadequate in several areas and that adding the new alternative to the EIR triggered recirculation. The District appealed. The First Appellate District reversed the trial court, rejecting all of the petitioners’ claims.
Notably, the court held that the EIR adequately relied on as-yet undetermined landscaping plan to mitigate project’s visual impact from two large water tanks. The landscaping plan “would identify success metrics such as survival and growth rates for the plantings.” The Alliance argued, and the trial court had agreed, that the mitigation measure was improperly deferred and indefinite. But the Court of Appeal held that the mitigation measure was acceptable in this situation because the mitigation was known to be feasible and practical considerations prevented the District from establishing more specific standards early in the process. The measure was sufficient because it committed the District to mitigation and set out a standard for the landscaping plan to follow: to reduce and soften the visual intrusion of the tanks. Although the specific details of how mitigation would be achieved under the plan were deferred until the construction phase, the EIR gave adequate assurance that visual impacts would be mitigated by the selection and location of appropriate plantings.
[RMM Partner Whit Manley, Associate Chris Butcher of the Thomas Law Group, and District General Counsel Mary Casey represented the District.]