How much can one park do? That is the implicit question that environmental advocacy group Santa Monica Baykeeper posed regarding a combination passive recreation area and storm water retention facility planned in the City of Malibu. Sited near the iconic Surfrider Beach, the 15-acre Legacy Park would include a detention basin designed to capture three days' worth of storm water before diverting it to a treatment plant. Despite the city's hope that Legacy Park would be "the centerpiece of (its) commitment to water quality and the environment," Baykeeper has said that the park will not do enough to keep bacteria and other effluent out of the notoriously polluted area and filed suit under the California Environmental Quality Act.
In a decision handed down in April, the Second District Court of Appeal disagreed.
Baykeeper initially challenged the project alleging the EIR failed to analyze 1) construction-related project impacts; 2) the impact of using treated effluent from the adjacent Malibu Lumberyard; and 3) the cumulative groundwater impacts. In 2009 Baykeeper had filed suit to halt construction of the park, but in December 2009 a Los Angeles County Superior Court found in favor of the city, and then, in July 2010, a three-judge panel denied Baykeeper's request to halt the project while it filed its appeal. At that point, the park's construction was well underway; the park was, in fact, completed in October 2010, and yet Baykeeper forged ahead with its suit.
On appeal, the city argued the case was moot because the project construction was completed during the pendency of the appeal. The Court of Appeal found that the case was in fact moot as to the first issue of construction-related impacts. But it disagreed on the second and third issues. The appellate court upheld the trial court's denial of the writ with respect to the second and third issues, finding that Baykeeper failed to demonstrate the city had abused its discretion by approving the project.
Legacy Park Project and Administrative Process
Legacy Park was designed to reduce pollution impacts and improve water quality in Malibu Creek, Malibu Lagoon, and Surfrider Beach, all impaired water bodies under the Clean Water Act.
The project, as originally proposed, included: 1) stormwater detention and treatment; 2) habitat restoration; 3) a public park and 4) wastewater treatment. The purpose of the project was to provide an integrated plan for the city's Civic Center area that would protect the water quality at nearby beaches and lagoons from nitrogen runoff and pathogenic degradation and provide opportunities for restoration of native/sensitive habitats and public recreation. The project site is located at the terminus of the Malibu Creek watershed where Malibu Creek drains into Malibu Lagoon.
A draft EIR for the project was prepared and circulated. After the DEIR was circulated, the city eliminated the wastewater treatment portion of the project because draft studies demonstrated the percolation capacity of the project site was insufficient. Insisting that the treatment plant be salvaged, Baykeeper appealed the project, but was rebuffed by the City Council. Baykeeper thereafter sought a petition for writ of mandate.
Construction-Related Project Impacts
Baykeeper argued the EIR's analysis of construction impacts on hydrology and water quality from erosion, sedimentation, and potential release of hazardous materials was deficient because it failed to determine the level of significance. The city argued that the issue was moot because by then construction had already been completed. The appellate court agreed, distinguishing the case from Woodward Park Homeowners Association v. Garreks, Inc. (2000) 77 Cal.App.4th 880 (see CP&DR Legal Digest March 2000 ) where the court ordered the preparation of an EIR for a car wash, even though the construction of the car wash was completed during the pendency of the action.
The Woodward court based its decision on the fact that the ruling could still have a practical impact: for example, the project could be modified, torn down, or eliminated. (Id. at p. 888.) The Baykeeper court noted that in Woodward, the petitioners had attempted to avoid CEQA review all together, whereas the EIR at issue in Baykeeper included extensive mitigation measures to address construction phase impacts. The court went on to explain that Baykeeper failed to maintain the status quo by seeking an injunction or stay, citing to Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, where the court blamed plaintiffs for the claims being moot because plaintiff had failed to seek a stay or other preliminary relief pending the outcome of the case.
Lumber Yard Wastewater
The Legacy Park project proposes to use the treated wastewater produced by the separate Lumber Yard Project, in combination with treated stormwater, to irrigate Legacy Park. For two months out of the year, excess effluent from the Lumber Yard will be percolated to groundwater. The draft EIR initially proposed that treated stormwater would be reused to the extent possible for irrigation and or dispersal via underground perforated piping. The draft therefore identified groundwater mounding hazards because the depth of the groundwater within the project area was shallow (mounding is the disruption of the groundwater flow caused by shallow re-injection or other surface recharge method). The draft EIR concluded the impact was significant, but after the mitigation calling for a hydrologic assessment, it would be less than significant. The subsurface dispersal was eliminated from the final EIR, as was the discussion of the hydrologic assessment. The EIR instead states that there will be no seepage into groundwater. Baykeeper argued that neither the draft nor final EIR discussed the fact that the effluent from the Lumber Yard project would be discharged on the site and cause mounding, and that the EIR improperly relied on a future study to mitigate groundwater mounding.
The city argued that the only impact on groundwater at the Legacy Park would be from the previously approved Lumber Yard, which was approved in 2007. Further, the project would virtually eliminate the existing subsurface discharge of treated wastewater from the Lumber Yard because it would use it for irrigation.
The court found the EIR adequately addressed the use of the Lumber Yard treated wastewater because the dispersal was subject of prior environmental review that was not challenged and thus a challenge is time-barred. The court found the EIR discussed the scientific studies conducted for the Lumber Yard project and, based on those studies, concluded the portion of treated wastewater not used for irrigation is within the percolation capacity of the site. Importantly, the court noted that Baykeeper does not cite scientific evidence in the administrative record to contradict the studies. Finally, the record supported the conclusion that no treated stormwater collected pursuant to the project would be discharged onto the Legacy cite.
The EIR establishes that any groundwater mounding which occurs on the Legacy Park site will result from treated wastewater from the separate Lumber Yard project, not from the Legacy Park project itself.
Cumulative Groundwater Impacts
Baykeeper claims that the chapter on cumulative impacts failed to analyze the Lumber Yard. The city responded that the Legacy Park does not discharge anything into the groundwater, and therefore makes no contribution to cumulative groundwater impact. The court agreed with the city. Writing for the court, Presiding Justice Norman L. Epstein wrote, "the net effect of the Legacy Park project will be to improve, rather than harm the environment."
This case is one of a number of cases in recent years emphasizing Petitioner's duty to point to evidence contradicting the substantial evidence put forth by agencies, a trend giving some hope to developers and public agencies defending their CEQA decisions. (See also Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912; California Native Plan Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603.)
Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538.
For Santa Monica Baykeeper, Law Office of Rose M. Zoia and Rose M. Zoia
For the City of Malibu, Jenkins & Hogin, Christi Hogin and Gregg Kovacevich