In Save El Dorado Canal v. El Dorado Irrigation Dist. (Cal. Ct. App. Feb. 16, 2022), the Third District Court of Appeal upheld El Dorado Irrigation District’s decision to certify an environmental impact report (EIR) for and approve the Upper Main Ditch piping project, affirming the trial court’s judgment denying a petition for writ of mandate.

The Upper Main Ditch is an unlined earthen ditch system that spans approximately three miles and delivers a maximum of 15,080 acre-feet of raw water annually. The Upper Main Ditch also passively intercepts stormwater runoff and can accommodate stormflows equivalent to a 10-year design stormflow. A 2017 study cited in the EIR found that 11% to 33% of the water conveyed through the ditch is lost to seepage and evaporation each year.

The Project, which would have replaced the ditch with a buried water transmission pipeline, was intended to conserve water and allow the District to meet water conservation mandates. The District selected and approved an alternative to the project, the Blair Road Alternative, which aligned a portion of the pipeline with the Upper Main Ditch but placed the majority of the pipeline beneath a roadway, resulting in the District’s abandonment of most of the ditch.

Appellant Save the El Dorado Canal challenged the Project alleging that the EIR (1) failed to provide an adequate project description; and (2) failed to adequately analyze impacts to hydrology, biological resources, and risks associated with wildfires. The Court of Appeal rejected all of Appellant’s arguments and upheld the EIR in its entirety.

Project Description

Appellant argued that the project description failed to include abandonment of the ditch and downplayed the environmental consequences of the abandoned segment being the only drainage system for its watershed. The court rejected Appellant’s arguments and held that the project description was adequate.

The project description explained that under the Blair Road Alternative, the pipeline would mostly be located outside the existing ditch corridor and that the District would “no longer use the existing ditch.” Further, the project description revealed that “the ditch would continue to have the capacity to passively receive and convey stormwater flows during storm events.” Citing South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321, 332 the court noted that “when assessing the legal sufficiency of an EIR, [courts] do not look for perfection, but ‘adequacy, completeness, and a good faith effort at full disclosure.’” The court held that this standard was met; the project description adequately disclosed the nature of the Project and made clear that the Blair Road alternative would result in abandonment of most of the existing ditch.

Hydrology

Appellant next argued that the EIR’s hydrology analysis failed to address the possibility that drainage of the watershed would be adversely impacted due to private owners altering or failing to maintain to the ditch. The court rejected this argument, finding that the EIR reasonably assumed that the ditch would retain its existing capacity.

The court found that while an EIR must adequately address “reasonably foreseeable indirect effects of a project,” the possibility that a property owner might deliberately fill the ditch in the future was not a reasonably foreseeable indirect effect of the project.  The court also found that Appellant failed to offer any evidence that the County would not be able to adequately regulate such activities.  The court acknowledged that the ditch could become overgrown with vegetation, but found the EIR reasonably assumed that would not occur.

Biological Resources

Appellant challenged the biological resources analysis as it related to: (1) whether the project would have any substantial effects on any riparian habitat or other sensitive natural community; and (2) whether the project would conflict with any local policies or ordinances protecting biological resources. The court upheld the District’s biological resources analysis and found it supported by substantial evidence.

Wildfire Risks

Appellant challenged the EIR’s finding of no impact with regard to long-term fire risk, arguing that abandoning the ditch will remove a water source for firefighting. The court upheld the EIR’s findings that the existing intermittent nature of the flows in the ditch made it an unreliable source of firefighting water, and that the project would not significantly alter this.

Conclusion

The decision in Save El Dorado Canal v. El Dorado Irrigation District (2022) ___Cal.App.5th___ is a well-reasoned opinion that will inform the many agencies faced with CEQA compliance for water-related infrastructure.  It reaffirms the critical burden of proof for CEQA litigants challenging an EIR and provides helpful discussion of the scope of an agency’s obligation to analyze reasonably foreseeable indirect effects, which can be particularly complex in the context of infrastructure projects like the one at issue here.

Photo of Breana M. Inoshita Breana M. Inoshita

Drawing on her educational background in community and regional development, Breana Inoshita assists governmental agencies and private clients with a wide variety of complex land use and environmental issues. (Read more…)

Photo of Kathryn L. Oehlschlager Kathryn L. Oehlschlager

With nearly twenty years of experience in environmental law, Kathryn Oehlschlager has built a robust practice spanning environmental and land use compliance counseling, state and federal enforcement defense, and major litigation.

Public and private clients turn to Kathryn for advice on compliance with…

With nearly twenty years of experience in environmental law, Kathryn Oehlschlager has built a robust practice spanning environmental and land use compliance counseling, state and federal enforcement defense, and major litigation.

Public and private clients turn to Kathryn for advice on compliance with all facets of environmental and land use law, including NEPA and CEQA, federal and state endangered species laws, contaminated site remediation, water quality and supply issues, and laws regulating solid and hazardous waste.  She routinely represents clients in all aspects of the CEQA project review process, including preparation, review, and analysis of negative declarations, draft environmental impact reports, and final environmental impact reports. (Read more…)