Dumps v. State Water Res. Control Bd.

• Decision Date: 19 May 2015
• Docket Number: C072073
• Court: California Court of Appeals Court of Appeals
• Parties: BACKCOUNTRY AGAINST DUMPS et al., Plaintiffs and Appellants, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Respondent; SAN DIEGO GAS & ELECTRIC COMPANY, Real Party in Interest and Respondent.

BACKCOUNTRY AGAINST DUMPS et al., Plaintiffs and Appellants, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Respondent;SAN DIEGO GAS & ELECTRIC COMPANY, Real Party in Interest and Respondent.

C072073

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

May 19, 2015

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 34201180000787CUWMGDS)

This is an action brought under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).¹ Backcountry Against Dumps, East County Community Action Coalition, and Donna Tisdale (petitioners) challenge whether a waterquality certification order (Order) issued by the State Water Resources Control Board (Board) under section 401 of the Clean Water Act (CWA) (codified in 33 U.S.C. § 1341(a)(1)) certifying the construction and operation by real party in interest San Diego Gas & Electric Company (SDG&E) of the Sunrise Powerlink Project (Sunrise Powerlink or the Project) would comply with applicable provisions of the CWA, subject to various conditions contained in the Order.² Acting as a responsible agency under CEQA, the Board reviewed the Sunrise Powerlink Final Environmental Impact Report/Final Environmental Impact Statement (Final EIR/EIS), which was certified by the California Public Utilities Commission (CPUC), as the lead agency under CEQA, and the federal Bureau of Land Management (BLM), as the lead agency under the National Environmental Policy Act (NEPA). The Board found the mitigation measures contained in the Final EIR/EIS, supplemented by the conditions imposed by the Order, were "adequate to reduce water quality impacts to less than significant levels."

On appeal of the trial court's denial of their petition for writ of mandate, petitioners contend: (1) the Board "violate[d] CEQA when it issued a conclusory, one and one-quarter page Findings that failed to: [(a)] recognize each significant effect of the Project, (b) identify specific mitigation measures for each of those effects or explain why mitigation was infeasible, and (c) reveal the specific bases for the Board's approval"; and (2) the Board "violate[d] its own regulations when it (a) failed to give [petitioners] proper notice of the Order and (b) improperly denied [petitioners'] reconsideration petition as 'untimely' even though it was filed within 20 days after the Board belatedly gave [them]required notice and 30 days after the Order's approval date published on the Board's website."

We affirm the judgment. As we explain, with respect to the CEQA claim, petitioners failed to exhaust administrative remedies. With respect to the notice claim, the Board concedes it did not timely provide petitioners with notice of the Order and then mistakenly rejected their reconsideration petition as untimely. However, when the Board realized its mistake, it accepted the reconsideration petition, held a hearing, and concluded the petition did not raise any substantial issues appropriate for review. At no point during this process did petitioners challenge the Board's findings as inadequate. Accordingly, the notice claim was rendered moot by the Board's acceptance and review of the reconsideration petition. Nor were petitioners harmed by the Board's admitted mistake in not providing them with timely notice of the challenged Order.³

BACKGROUND

Proposed Project and Initial Environmental Review⁴

In 2005, SDG&E proposed construction of a 150-mile transmission line between Imperial and San Diego Counties (Proposed Project). The Proposed Project "would consist of a new 91-mile, single-circuit 500 kilovolt (kV) overhead electric transmissionline between the existing Imperial Valley Substation (in Imperial County near the City of El Centro) to a proposed new Central East Substation (in central San Diego County, southwest of the intersection of County Highways S22 and S2). Between the proposed new Central East Substation and SDG&E's existing Peñasquitos Substation (in the City of San Diego), SDG&E would construct a new 59-mile 230 kV double-circuit and single-circuit transmission line, portions of which would be underground." The 500 kV portion of the line would travel the length of Anza-Borrego Desert State Park (Anza-Borrego), a distance of about 25 miles. SDG&E filed a right-of-way grant application with BLM and an application for a certificate of public convenience and necessity with CPUC. Thereafter, SDG&E filed an amended application accompanied by a proponent's environmental assessment (PEA) for the Proposed Project.

In January 2008, a draft environmental impact report/environmental impact statement (Draft EIR/EIS) was issued jointly by CPUC and BLM, as lead agencies under CEQA and NEPA, respectively. The Draft EIR/EIS identified three basic objectives of the Proposed Project: "maintain reliability in the delivery of power to the San Diego region"; "reduce the cost of energy in the region"; and "accommodate the delivery of renewable energy to meet State and federal renewable energy goals from geothermal and solar resources in the Imperial Valley and wind and other sources in San Diego County." In more than 7,500 pages, the Draft EIR/EIS discussed the environmental setting and impacts of the Proposed Project and 27 alternatives (i.e., 18 alternative route segments along the Proposed Project route, 4 routes following portions of an existing southwest powerlink, 2 non-wires alternatives, 2 alternatives including components of a Lake Elsinore advanced pumped storage project (LEAPS), and a no project/no action alternative), as well as connected and future foreseeable projects. A 90-day public comment period on the Draft EIR/EIS ended in April 2008. The Board commented on the Draft EIR/EIS with respect to impacts to water quality.

In July 2008, CPUC and BLM issued a recirculated draft environmental impact report/supplemental draft environmental impact statement (Recirculated/Supplemental Draft EIR/EIS) to address certain changes to a related wind project in northern Mexico.⁵ A 45-day public comment period on the Recirculated/Supplemental Draft EIR/EIS ended in August 2008.

In October 2008, CPUC and BLM issued the Final EIR/EIS, consisting of the Draft EIR/EIS, the Recirculated/Supplemental Draft EIR/EIS, comments received on these documents, and responses to the comments. The Final EIR/EIS totaled over 11,000 pages. Adding to the analysis in the Draft EIR/EIS, the Final EIR/EIS evaluated and compared the environmental impacts of eight transmission and/or generation alternatives. The Final EIR/EIS also included a mitigation monitoring, compliance, and reporting program (Mitigation Monitoring Program) with mitigation measures recommended for the Proposed Project and all alternatives.

In December 2008, CPUC certified the Final EIR/EIS, granted SDG&E's application for a certificate of public convenience and necessity to construct Sunrise Powerlink using one of the alternative routes analyzed in the Final EIR/EIS—the Final Environmentally Superior Southern Route (Final Southern Route)—and adopted the Mitigation Monitoring Program recommended for the Final Southern Route in the Final EIR/EIS. BLM approved the Project the following month. With respect to environmental impact, CPUC's decision explained: "The Final EIR/EIS ranks the [FinalSouthern Route] fourth among all the alternatives studied . . . . Running a total of 123 miles, this alternative is substantially shorter than the Proposed Project or other Northern Routes and avoids Anza-Borrego. It crosses 19.2 miles of National Forest land but does so within acceptable land use zones and makes use of a Draft Department of Energy Section 368 West-wide Energy Corridor. In addition, the alternative is collocated with the Southwest Powerlink for only 36 miles, in an area of comparatively low fire risk. [¶] The Final EIR/EIS modifies the route proposed in the Draft EIR/EIS to avoid both the Campo and La Posta Reservations. . . . [¶] The [Final Southern Route] also contains modifications to avoid Forest Service land use zones that do not allow transmission lines or new access roads. Commission staff and BLM consulted extensively with the Forest Service and SDG&E to identify route modifications within Cleveland National Forest to minimize impacts to Forest Service resources and avoid incompatible land use zones." (Fns. omitted.)

CPUC's decision further explained: "The Final EIR/EIS concludes that three alternatives—the All-Source Generation Alternative, the In-Area Renewable Alternative, and the LEAPS Transmission-Only Alternative—have fewer significant unmitigable impacts than the [Final Southern Route]. However, we find that [these] alternatives . . . are not feasible when we consider certain other considerations, including meeting California's broader policy goals." One such goal was the achievement of greenhouse gas (GHG) reductions through expanding the state's renewable energy portfolio to 33 percent under the Renewables Portfolio Standard (RPS) in the shortest time with the greatest economic benefits. CPUC explained, "[t]he three top ranked alternatives would not facilitate even half the amount of renewable development that the [Final Southern Route] will facilitate" and this route "will generate more economic benefits to ratepayers than the top ranked alternatives." CPUC concluded: "[T]he [Final Southern Route] will facilitate our policy goal of renewable procurement at 33% RPS levels within areasonable period of time with the greatest economic benefits at the lowest environmental cost. While the Northern Routes analyzed in the EIR/EIS could achieve these benefits, they would do so at significantly greater environmental expense." CPUC also concluded...