County of Inyo v. City of Los Angeles

• Citation: 71 Cal.App.3d 185,139 Cal.Rptr. 396
• Parties: , 7 Envtl. L. Rep. 20,583 COUNTY OF INYO, a Political Subdivision of the State of California, Petitioner, v. CITY OF LOS ANGELES, a Municipal Corporation, and Department of Water andPower of the City of Los Angeles, et al., Respondents. Civ. 13886.
• Decision Date: 27 June 1977
• Court: California Court of Appeals

Page 396

139 Cal.Rptr. 396

71 Cal.App.3d 185, 7 Envtl. L. Rep. 20,583

COUNTY OF INYO, a Political Subdivision of the State of California, Petitioner, v. CITY OF LOS ANGELES, a Municipal Corporation, and Department of Water andPower of the City of Los Angeles, et al., Respondents.

Civ. 13886.

Court of Appeal, Third District, California.

June 27, 1977.

As Modified on Denial of Rehearing July 25, 1977.

Hearing Denied Oct, 6, 1977.

L. H. Gibbons, Dist. Atty., Inyo County, Los Angeles, Antonio Rossmann, San Francisco, for petitioner.

Brent N. Rushforth, John R. Phillips, Carlyle W. Hall, Jr., Los Angeles, as amici curiae on behalf of petitioner.

Burt Pines, City Atty. Edward C. Farrell, Chief Asst. City Atty. for Water and Power, Kenneth W. Downey, Asst. City Atty., for respondents.

FRIEDMAN, Acting Presiding Justice.

In 1973, at the instance of Inyo County, this court issued a writ of mandate directing the City of Los Angeles and its Department of Water and Power to prepare an environmental impact report (EIR) covering their extraction of subsurface water in the Owens Valley. (County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 814--816, 108 Cal.Rptr. 377.) In August 1976 the City of Los Angeles filed its return to the writ, submitting its final EIR, which had been approved and certified by its Board of Water and Power Commissioners on July 15, 1976. ¹ Inyo County, the petitioner, has objected to the return, charging that the final EIR fails to comply with the requisites of the California Environmental Quality Act (CEQA). ² We sustain the county's objection.

We shall not extend this opinion by narrating the history of Los Angeles' acquisition of extensive lands and water rights in the Owens Valley and its establishment of a system for exporting water to the City of Los Angeles. Nor do we describe the prior events in this litigation. The unconversant reader should read County of Inyo v. Yorty, supra, 32 Cal.App.3d 795, 108 Cal.Rptr. 377, and County of Inyo v. City of Los Angeles (1976) 61 Cal.App.3d 91, 132 Cal.Rptr. 167 to comprehend the present decision adequately. We shall refer to portions of these two earlier opinions only to explain and support our present decision.

Section 21151 of CEQA directs all local agencies (here, the Board of Water and Power Commissioners of the City of Los Angeles) to prepare and certify the completion of an EIR on any project they intend to carry out or approve which may have a significant effect on the environment. The term 'project' is sparsely defined as including 'activities directly undertaken by any public agency.' (§ 21065.) When the law requires preparation of an EIR, it must be considered by every public agency before it approves or disapproves the project. (§ 21061; Guidelines, Cal.Admin.Code, tit. 14, § 15012; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 79--80, fn. 8, 118 Cal.Rptr. 34, 529 P.2d 66.)

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, 104 Cal.Rptr. 197; see also, San Francisco Ecology Center v. City and County of San Francisco (1975) 48 Cal.App.3d 584, 593, 122 Cal.Rptr. 100.)

I

Volume I of the Final EIR commences with a section entitled 'Project Definition and Objectives.' In its entirety the section reads as follows:

'The Third District Appellate Court in County of Inyo v. Yorty (32 C.A.3d 795 (108 Cal.Rptr. 377)) found that the 'expanded groundwater extraction was a 'project' separate and divisible from the Second Aqueduct' (32 C.A.3d 806 (108 Cal.Rptr. 377)) and that an EIR was required on the increased pumping.

'The project is an increase in pumping from 89 cubic feet per second (cfs) to 140 cfs measured on a long-term average and from 250 cfs to 315 cfs during the highest single year. The increased puming (sic) is necessary to supply uses of water on City of Los Angeles lands in Inyo and Mono Counties that were not anticipated in 1963 when the Second Aqueduct project was adopted. Those uses consist of greater irrigation for ranching, recreation, fish and wildlife habitat projects, expansion of two fish hatcheries, and domestic supplies for the towns.'

So described, the project consists of a proposed increase of 51 cfs in the long-term subsurface extraction rate and an increase of 65 cfs in the high-year rate, these increases being destined solely for 'unanticipated' uses within the Owens Valley. So described, the project excludes subsurface extractions designed for export to Los Angeles via the Department's twin aqueduct system.

The EIR, however, discusses proposals far broader than the initially described project. Indeed, the project concept expands and contracts from place to place within the EIR. These conceptual fluctuations are particularly distinct in an EIR section entitled 'Recommended Project.' This section opens by focusing on the EIR's initial, narrow project description. ³ Next, it adopts a somewhat broader stance, referring to the designated 'project' as one part of the larger operation of the Los Angeles Aqueduct System, thus impelling a 'reappraisal' of the rate of export through the aqueducts. This statement provides a transition to a yet wider description of the recommenced project, which appears in the footnote below. ⁴

As compared with the initially defined project, that is, pumping for unanticipated Owens Valley needs, the 'recommended project' represents a vastly enlarged concept. It includes a number of described technical features, including: concrete-lining two canals to reduce percolation to the groundwater basin; in years of high runoff, exportation of additional water from the Owens Valley for the purpose of recharging the San Fernando groundwater basin in Los Angeles County; a water conservation program within the City of Los Angeles; rearrangement of Owens Valley reservoir operations in dry years by cutting the export rate as well as the supply of irrigation water within the valley; reduction of stockwater supplied within the Owens River basin from 18,600 to 5,600 acre-feet; extraction of groundwater at a long-term average pumping rate of 140 cfs and a high-year average of 315 cfs for export via the twin aqueducts as well as for in-valley use.

Two sections of the Final EIR describe the recommended project's environmental impact within the Owens Valley. (Vol. I, pp. B--5 to B--13; Vol. II, ch. 6, Part A.) Inferably, the environmental forecasts are premised upon the 140 cfs long-term extraction rate of the 'recommended project' rather than the 51 cfs increase specified in the officially described 'project.' ⁵ In general, pumping at a long-term rate of 140 cfs would lower the water table of the subsurface basin 10 to 15 feet, altering the ecosystem of the valley floor. Descent of the water table would cause irreversible changes in the pattern of natural vegetation, replacing moisture-loving plants with semidesert species; in some zones decreases in vegetative cover would expose the soil to wind erosion, causing seasonal increases of atmospheric dust. (Final EIR, Vol. I, pp. B--5 to B--9; C--13 to C--28.) The shift in the character of the vegetation community would have an impact on fauna, reducing but not eliminating the pepulation of certain animal species. (Id., pp. B--9 to B--11.)

After its completion by the Department's staff the Final EIR was submitted to the Board of Water and Power Commissioners of the City of Los Angeles. On July 15, 1976, the Board adopted a resolution approving the EIR and the 'proposed project.' The approval resolution commences with an explanation of the project's character; the explanation, as we interpret it, parallels the narrowly restricted project description at the outset of the EIR; the explanation excludes from the project the 89 cfs rate of subsurface extractions designed for export via the Los Angeles aqueduct system. Following that explanation the resolution describes the essential factors of 'the proposed increased groundwater pumping project' and approves the project so described. ⁶

II

The EIR is the heart of the environmental control process. (County of Inyo v. Yorty, supra, 32 Cal.App.3d at p. 810, 108 Cal.Rptr. 377.) 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. (§§ 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, 104 Cal.Rptr. 197.) The report should function as an environmental 'alarm bell.' (County of Inyo v. Yorty, su...