Santa Teresa Citizen v. City of San Jose

• Decision Date: 18 December 2003
• Docket Number: No. H024841.,H024841.
• Citation: 7 Cal.Rptr.3d 868,114 Cal.App.4th 689
• Court: California Court of Appeals Court of Appeals
• Parties: SANTA TERESA CITIZEN ACTION GROUP et al., Plaintiffs and Appellants, v. CITY OF SAN JOSE et al., Defendants and Respondents; Santa Clara Valley Water District et al., Real Parties in Interest and Respondents.

7 Cal.Rptr.3d 868

114 Cal.App.4th 689

SANTA TERESA CITIZEN ACTION GROUP et al., Plaintiffs and Appellants, v. CITY OF SAN JOSE et al., Defendants and Respondents Santa Clara Valley Water District et al., Real Parties in Interest and Respondents.

No. H024841.

Court of Appeal, Sixth District.

December 18, 2003.

Rehearing Denied January 13, 2004.

Stephan C.Volker, San Francisco, Gretchen E. Dent, Oakland, for Petitioners/Appellants:

Santa Teresa Citizen Action Group, Great Oaks Water Company.

Richard Doyle, City Attorney, George Rios, Assistant City Attorney, Joseph P. Diciuccio, Senior Deputy City Attorney, Brian C. Hopper, Deputy City Attorney, for Defendants/Respondents: City of San Jose, City Council of the City of San Jose.

Roger Beers, Anthony Bennetti, Emily J. Cote, for Real Party in Interest/Respondents: Santa Clara Valley Water District.

Stoel Rives, Anne E. Mudge, Christine W. Griffith, Christian L. Marsh, San Francisco, Realty Law, Joan R. Gallo, City of San Jose City Attorney, Joseph Karnes, for Real Party in Interest/Respondents: Calpine Corporation.

PREMO, J.

Petitioners Great Oaks Water Company (Great Oaks) and Santa Teresa Citizen Action Group appeal from an adverse judgment on their petition for writ of mandate and complaint for declaratory and injunctive relief. Petitioners challenge a decision by respondents, City of San Jose and the City Council of the City of San Jose (collectively, City) approving the extension of an existing water recycling program to North Coyote Valley. Petitioners argue that in approving the extension City violated the California Environmental Quality Act (CEQA). (Pub. Resources Code, § 21000 et seq.)¹ Petitioners also argue that extension of the recycled water program is inconsistent with City's general plan, threatens to be a nuisance, and offends the public trust doctrine. We conclude that City's action was consistent with CEQA's requirements. We shall reject petitioners' additional contentions and affirm the judgment.

I. FACTS

A. The Recycled Water Program

The impetus to develop a recycled water program came from the San Francisco Bay Regional Water Quality Control Board (RWQCB). By the late 1980's, freshwater discharge from City's sewage treatment facilities was destroying the saltwater habitat of endangered species along the edge of San Francisco Bay. RWQCB ordered City to reduce its discharge of fresh water. In response City participated in the creation of the San Jose Nonpotable Reclamation Project, now known as the South Bay Water Recycling Program (the Project). Instead of discharging wastewater into the bay, the Project proposed to treat some of it and use it for irrigation and other appropriate purposes.² The Project contemplated a waste treatment facility and pipeline system within what is known as the Golden Triangle, an area encompassing parts of the cities of San Jose, Milpitas, and Santa Clara. Future expansion beyond the Golden Triangle was part of the plan. City certified a final EIR for the Project in 1993 (the FEIR).

The one concern relating to the use of non-potable water that is central to petitioners' appeal is the concern that substances in the water that make it unfit to drink could find their way into the drinking water supplies. The FEIR addresses that concern. The FEIR evaluates the Golden Triangle portion of the Project at "project level" and the future expansion of the Project at "program level." (See Guidelines, § 15168.)³ The program portion of the FEIR describes the groundwater aquifers within the entire program area. In the central portion of the groundwater basin where the Golden Triangle is located, the upper and lower aquifers are separated by a nearly impermeable layer referred to as the aquitard. The aquitard helps prevent water on the surface from seeping down and getting into the lower aquifer, which is the aquifer used for drinking water. Around the edge of the groundwater basin the aquitard is discontinuous. Without the protection of an aquitard surface water passes more easily into the groundwater. The FEIR recognizes that infiltration of recycled water in the Golden Triangle area is particularly unlikely because the aquifer in that area is protected by the aquitard and also because the Golden Triangle has low rates of groundwater infiltration generally. Referring to the areas into which the Project was to be expanded, the FEIR recognizes that in some of those areas the aquifer is unconfined by an aquitard and is thus more vulnerable to degradation from surface water.

To mitigate the Project's potential impact on the aquifer the FEIR requires recycled water quality and use to conform to all standards and guidelines set by the pertinent federal, state, and local agencies. Title 22 of the California Code of Regulations contains Department of Health Services (DHS) guidelines for the design, operation, and monitoring of recycled water programs. (Cal.Code Regs., tit. 22, § 60301 et seq.) RWQCB establishes general guidelines for irrigating with recycled water. (Cal.Code Regs., tit. 23, § 490 et seq.) Real party in interest, Santa Clara Valley Water District (SCVWD) establishes standards for irrigation rates and timing within the program area, conducts baseline groundwater quality studies, and monitors groundwater quality. City and SCVWD are jointly responsible for mitigation. All use of recycled water is subject to review and approval by City and DHS. City and DHS review customers' plans for recycled water on a case-by-case basis. Any particular use is allowed only upon completion of these reviews and issuance of a permit. If degradation were ever detected, use of the recycled water would be modified.

The FEIR goes on to explain that groundwater impacts in the expansion areas would be "similar to construction and operation of the project in the Golden Triangle area and vicinity. Although the lower aquifer in portions of the expansion area is unconfined, expected reclaimed water quality and application rates would still afford adequate groundwater protection." DHS guidelines pertaining to the quality and use of recycled water "establish a conservative approach to protect groundwater in areas where shallow, unconfined aquifers could be affected by excessive infiltration of reclaimed water."

The FEIR concludes: "Given the required level of treatment for reclaimed water, the operational safeguards required by the [DHS] and RWQCB, and the physical characteristics of the aquifer in the project area neither the proposed project nor other future nonpotable reclamation projects would be expected to contribute significantly to groundwater degradation.... However, groundwater impacts of any future reclamation project would need to be evaluated to determine if groundwater degradation would result." (Italics added.)

B. Calpine's Application to Build a Power Plant

In 1999, real party in interest Calpine Corporation (Calpine) applied to the California Energy Commission (CEC) for approval to build a 600-megawatt natural gas fired electric generating facility in North Coyote Valley, south of the Golden Triangle. The proposed Metcalf Energy Center (MEC) was the subject of a lengthy and contentious public debate. The CEC ultimately issued a license for its construction.⁴ One of the conditions of that license is that MEC use recycled water rather than potable water in its closed cooling system. The CEC's environmental assessment analyzed the impact of using recycled water for that purpose and concluded that it presented no significant environmental impacts.

At the time the CEC approved the MEC project, City's Municipal Water System Division was the only retailer of recycled water in the area. Great Oaks had been willing to build a pipeline to deliver recycled water to serve MEC but it did not have the licenses and other approvals in place to do so.⁵ City was eventually identified as the primary supplier of recycled water for MEC.

C. City's Approval of the Silver Creek Alignment

The Project was designed at the outset to be expanded in phases. Phase 1 was primarily a build-out of the Golden Triangle project. Phase 2 planned to extend the Project in several directions. Of interest here is the Via del Oro extension that would have extended the Project into the southernmost portion of the original program area and somewhat beyond, terminating around the site proposed for MEC in North Coyote Valley.

An initial study for the Phase 2 expansion was completed in May 2000. This study presumed that recycled water would be used for landscape and agricultural irrigation in the expansion areas. The study determined that the impact of such use upon the groundwater was not significant in light of a specified mitigation and monitoring plan. The study stressed that additional monitoring would be conducted in areas with unconfined aquifers. The Phase 2 initial study resulted in a negative declaration adopted on July 12, 2000.

City considered the delivery of recycled water to MEC at three city council meetings in 2001. At the two meetings held in June, City discussed using the Via del Oro route and debated about the size of the pipeline. An alternate route, the Silver Creek alignment, was proposed in July 2001. The new route ran parallel to and just east of the Via del Oro route. The proposal was to build approximately nine miles of 30-inch pipe along the new route. Thirty-inch pipe had a capacity of 15 million gallons per day (mgd). Since MEC's peak usage was expected to be no more than 5 mgd, the new pipeline could carry 10 mgd that could be used by then-unidentified new customers along the Silver Creek route and further south.

The initial study evaluating the new route was conducted in August 2001. This study recognized that the FEIR and the Phase 2 initial study had evaluated the environmental impact of irrigating with recycled water in North Coyote Valley. The study pointed out that the use of water for irrigation along the Silver Creek...