Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08CV-5592
BLEASE, Acting P. J.
This is an unfortunate case in which a plaintiff, who represents himself, has filed an appellate brief that lacks an intelligible legal argument. This failure is tantamount to a concession that the evidence supports the findings, and any error is deemed waived.
Plaintiff Ken Berry filed this appeal from a judgment entered by the trial court in favor of defendant Amador Water Agency (AWA). Berry’s petition for writ of mandate sought to compel AWA to prepare a supplemental environmental impact report (EIR) to analyze the effects of an addendum to the Amador Transmission Project (the Project). The Project was to replace the Amador Canal with a pipeline, and to install a smaller pipeline to service existing customers along the canal. After the first part of the Project was installed, AWA approved an addendum for the purpose of giving the landowners along the canal a choice of placing the smaller pipeline in the canal or alongside the canal, and filling the canal or leaving it open.
After a non-jury trial, the court denied Berry’s petition for writ of mandate, brought pursuant to the California Environmental Quality Act (CEQA), which sought to compel AWA to set aside its approval of the Project and prepare a supplemental EIR for the Project because of the approval of the addendum.
Because Berry’s opening brief contains no coherent argument supported by authority, we shall treat the appeal as abandoned.
FACTUAL AND PROCEDURAL BACKGROUND
In 2005 AWA approved the Project to improve the Amador Canal by converting the largely open and earthen canal into a closed pipeline. The improvement was undertaken in part because of water loss due to leakage and evaporation. The Project involved two components: (1) replacing the 23-mile-long canal with a nine-mile pipeline, and (2) installing a small-diameter pipeline in the canal to service existing raw water customers along the canal.
Berry’s entire two and one-half page “Statement of Facts” contains only two citations to the record. Citations to the record without accurate page numbers do not support the facts for which they are cited and may be disregarded. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947.)
The AWA approved the Project after certifying a revised EIR in accordance with CEQA. The revised EIR predicted that the Project would result in reduced flow of Jackson Creek because operational losses and leakage from the Canal contributed to the flow of the creek. However, the revised EIR concluded Jackson Creek would remain a perennial stream between the City of Jackson’s wastewater treatment plant and Lake Amador.
The revised EIR analyzed the Project’s effect on the City of Jackson’s wastewater treatment plant. It concluded the Project would not change the frequency with which the City of Jackson could or could not meet the requirements of its NPDES (National Pollutant Discharge Elimination System) permit. The revised EIR also concluded the Project would not cause significant impacts to local wildlife and fisheries.
The Project as analyzed by the revised EIR provided that the canal would not be filled after installing the small-diameter pipeline to service existing customers. Rather, the intent was to lay the small-diameter pipeline along the bottom of the canal and cover it with minimal soil. After the first part of the Project (the nine-mile transmission pipeline) was completed, most of the affected landowners informed AWA that they preferred to have the canal filled after the installation of the small-diameter pipeline. Therefore, AWA prepared an addendum (Addendum No. 4) to the EIR to evaluate four options regarding the installation of the small-diameter pipeline.
AWA concluded the nature of the proposed Addendum No. 4 did not warrant the preparation of a subsequent EIR because the proposed changes did not: (1) result in substantial changes to the Project that would require major revisions to the approved EIR; (2) result in substantial changes with respect to the circumstances under which the project was undertaken, requiring major revisions to the approved EIR; or (3) create any new significant effects or substantially increase the severity of significant impacts identified in the approved EIR. AWA found no substantial change in the circumstances surrounding the project and no new information indicating that any mitigation measures or alternatives previously found not to be feasible would currently be considered feasible.
Public Resources Code section 21166 provides that no subsequent or supplemental EIR is required unless one or more of the following occurs: “a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report. [¶] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report. [¶] (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.”
At AWA’s August, 2008 Board of Director’s meeting, Berry submitted a letter arguing that AWA was required to prepare a supplemental EIR for the Project. Berry argued: (1) the change in runoff patterns would necessarily change the distribution of wetlands; (2) there was a change in circumstances because the City of Jackson wastewater treatment plant had been issued a new NPDES permit limiting the amount of effluent in Lake Amador to a maximum of five percent of the total water volume; and (2) there was new information indicating that contrary to the projections in the revised EIR, the dewatering of the canal had resulted in a significant adverse impact on the flow of Jackson Creek.
On August 28, 2008, the AWA Board of Directors voted to approve the resolution certifying Addendum No. 4. Addendum No. 4 provided that the individual landowners along the canal would be given three additional installation options for the small-diameter raw water pipeline on their property. The resolution determined Addendum No. 4 would result in no new significant environmental effects, that no substantial changes had occurred with respect to the circumstances under which the Project would be undertaken that would involve new significant environmental effects, and that no new information had been presented that showed significant new effects not discussed in the revised EIR, substantially more severe effects than shown in the revised EIR, newly feasible mitigation measures, or new mitigation measures. The Board certified Addendum No. 4 as being in compliance with CEQA. A Notice of Determination was filed on August 29, 2008, and this action was commenced within 30 days.
The original EIR provided the pipeline would be installed in the canal and covered with imported soil. Addendum No. 1 to the Project changed the installation by leaving the pipe in the canal uncovered. In addition to this option, Addendum No. 4, the only action at issue here, added the following options: (1) the pipeline would be placed in the canal, but adjacent soil would be used to backfill and bury the pipeline; (2) the pipeline would be buried in the berm immediately adjacent to the canal and the canal would be left unfilled; and (3) the pipeline would be buried in the berm immediately adjacent to the canal and the canal would be backfilled with soil located adjacent to the canal.
Berry’s trial brief argued a supplemental or subsequent EIR should have been prepared because of new circumstances and new information. He argued the issuance of a NPDES permit to the City of Jackson wastewater treatment plant requiring a dilution level of 19 to 1 constituted a new circumstance. He conceded the revised EIR evaluated a 20 to 1 dilution level, but maintained the revised EIR did not adequately discuss the issue.
Berry’s new evidence consisted of graphs indicating the flows in Jackson Creek became intermittent after the first part of the Project was implemented and the water from the Amador Canal was diverted to the new pipeline. Berry claimed this was in direct contradiction to the prediction in the revised EIR that the creek would remain perennial. Berry did not raise his previously-asserted argument that the change in runoff patterns would change the distribution of wetlands.
AWA argued that even if Berry’s evidence were accurate, it did not indicate a significant hydrological impact under the significance thresholds in the revised EIR, and his evidence indicated only a small increase over the projections in the revised EIR, which did not indicate a new or substantially more severe impact than predicted in the revised EIR. AWA also presented evidence that Jackson Creek had some water flowing in it at the monitoring point in question, contrary to Berry’s claim.
Neither party requested a statement of decision. The trial court entered judgment in favor of AWA, denying the petition for writ of mandate. Implicit in the judgment was a determination that the AWA’s decision to certify Addendum No. 4 without preparing a supplemental EIR was supported by substantial evidence.
DISCUSSION
As best we can determine from the plaintiff’s rambling brief and more lucid oral argument, he claims that a supplemental EIR should have been prepared because the expert opinion underlying the revised EIR, that the flows in Jackson Creek would remain perennial, proved to be wrong after completion of the first part of the Project. Plaintiff tendered evidence showing that the flows in Jackson Creek became intermittent after the first part of the Project was implemented and the water from the Amador Canal was diverted to the new pipeline.
The plaintiff primarily relies on two cases, neither of which is on point. In Mira Monte Homeowners Assn. v. County of Ventura (1985) 165 Cal.App.3d 357, the court held that new information discovered after the certification of an EIR required the preparation of a supplemental EIR. However, the discovery occurred prior to the construction of the project. In this case, the plaintiff’s evidence relates to events occurring after completion of the relevant parts of the Project. The evidence had no causal relationship to Addendum No. 4, that had not been completed. It provided that the individual landowners along the canal would be given three additional installation options for the small-diameter raw water pipeline on their property.
Similarly, Sutter Sensible Planning, Inc. v. Board of Supervisors of Sutter County (1981) 122 Cal.App.3d 813, held that a revised EIR that contained significant new information was improperly approved without recirculating it prior to construction of the project.
DISPOSITION
The judgment is affirmed. The costs on appeal are awarded defendant.
We concur: SIMS, J., HULL, J.