Opinion
C088922
04-08-2021
CALIFORNIA COASTKEEPER ALLIANCE et al., Plaintiffs and Appellants, v. STATE LANDS COMMISSION, Defendant and Respondent. Poseidon Resources (Surfside) LLC, Real Party in Interest and Respondent.
Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Crown Quandrangle, Deborah A. Sivas, Alicia E. Thesing, Matthew J. Sanders, Amanda Zerbe and Ryan Gallagher for Plaintiffs and Appellants. Latham & Watkins, Christopher W. Garrett, Jennifer K. Roy, San Diego, Winston P. Stromberg, Los Angeles, and Natalie C. Rogers, San Diego, for Real Party in Interest, Poseidon Resources (Surfside) LLC. Kamala D. Harris and Xavier Becerra, Attorneys General, Daniel A. Olivas, Senior Assistant Attorney General, Jessica Tucker-Mohl, Supervising Deputy Attorney General, and Nicole U. Rinke, Deputy Attorney General for Defendant and Respondent, State Lands Commission.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of Part IV of the Discussion.
Environmental Law Clinic, Mills Legal Clinic at Stanford Law School, Crown Quandrangle, Deborah A. Sivas, Alicia E. Thesing, Matthew J. Sanders, Amanda Zerbe and Ryan Gallagher for Plaintiffs and Appellants.
Latham & Watkins, Christopher W. Garrett, Jennifer K. Roy, San Diego, Winston P. Stromberg, Los Angeles, and Natalie C. Rogers, San Diego, for Real Party in Interest, Poseidon Resources (Surfside) LLC.
Kamala D. Harris and Xavier Becerra, Attorneys General, Daniel A. Olivas, Senior Assistant Attorney General, Jessica Tucker-Mohl, Supervising Deputy Attorney General, and Nicole U. Rinke, Deputy Attorney General for Defendant and Respondent, State Lands Commission.
MURRAY, J. For a number of years, real party in interest Poseidon Resources (Surfside) LLC (Poseidon) has planned to establish a desalination plant at a site in Huntington Beach. In 2010, nonparty City of Huntington Beach (Huntington Beach), serving as lead agency performing environmental review of the proposed project pursuant to the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq. ), certified a subsequent environmental impact report (the 2010 subsequent EIR). However, the project did not move forward. Following changes in circumstances including significant regulatory changes, Poseidon proposed modifications to the project, which it addressed in a proposed lease modification with defendant California's State Lands Commission (Lands Commission). The Lands Commission determined that it needed to prepare a supplemental EIR to supplement Huntington Beach's 2010 subsequent EIR. In 2017, the Lands Commission certified its final supplemental EIR. Plaintiffs filed a petition for a writ of mandate asserting, among other things, that the Lands Commission failed to comply with the requirements of CEQA. The trial court denied the petition.
Further undesignated statutory references are to the Public Resources Code.
The parties sharply dispute the framing of the issues presented on appeal and whether the applicable standard of review is de novo review or review for substantial evidence. Plaintiffs assert the Lands Commission prejudicially abused its discretion by (1) failing to assume the role of CEQA lead agency and perform the attendant obligations, and (2) unlawfully piecemealing/segmenting its environmental review in several respects, matters addressed to whether the Lands Commission failed to proceed in a manner authorized by CEQA, subject to de novo review. The Lands Commission and Poseidon assert that the true issues on appeal are whether the Lands Commission properly proceeded with supplemental review and the results of that review, factual matters subject to substantial evidence review. Both standards of review will be implicated here.
We conclude that the Lands Commission properly elected to prepare a supplemental EIR, did not err in refusing to assume lead agency status, and did not unlawfully piecemeal or segment environmental review.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Project Site and Lease Amendment
The subject site consists of approximately 11.78 acres including tide and submerged lands in the Pacific Ocean offshore of Huntington Beach. In 1957, the Lands Commission authorized a 49-year lease to Southern California Edison for the construction of pipelines for a "once-through" cooling system. In 1998, the Lands Commission approved the assignment of the lease from Southern California Edison to AES Huntington Beach, LLC (AES). The Lands Commission subsequently authorized the lease with AES to span a 20-year term, expiring on August 7, 2026.
The Lands Commission "has exclusive jurisdiction over all ungranted tidelands and submerged lands owned by the State, and of the beds of navigable rivers, streams, lakes, bays, estuaries, inlets, and straits, including tidelands and submerged lands or any interest therein, whether within or beyond the boundaries of the State as established by law .... All jurisdiction and authority remaining in the State as to tidelands and submerged lands as to which grants have been or may be made is vested in the commission. [¶] The commission shall exclusively administer and control all such lands, and may lease or otherwise dispose of such lands, as provided by law, upon such terms and for such consideration, if any, as are determined by it." (§ 6301.)
The once-through cooling system draws seawater from the Pacific Ocean through an intake pipeline, circulates the seawater through the upland generating station for cooling purposes, and then discharges the seawater back into the ocean.
Project Background
Poseidon has been seeking to establish a desalination plant on the subject site since 1999. The purpose of the proposed project is to provide Orange County with a "long-term, reliable, high-quality, and local source of potable water." "Project implementation would create a local drought-proof supply of domestic water and could reduce Orange County's dependence on imported water, consistent with the goal of integrated water resource management." Poseidon applied to Huntington Beach to obtain land use approvals to construct and operate a desalination facility. The proposed desalination plant would have the capacity to deliver approximately 50 million gallons per day of reverse osmosis desalinated water. The desalinated water would be distributed to Huntington Beach and various cities and local water districts for use and consumption by Orange County residents and businesses.
Originally, the desalination plant was to obtain source seawater from the adjacent AES Huntington Beach Generating Station (HBGS). According to the 2010 subsequent EIR prepared by Huntington Beach as lead agency, the "source water for the proposed seawater desalination facility will be taken from the existing HBGS condenser cooling-seawater discharge pipeline system after the water has been used by HBGS for cooling. However, if in the future HBGS were to cease the use of once-through cooling, or if the HBGS were to permanently alter its cooling water system's historical operations, the proposed seawater desalination facility would intake water directly from the Pacific Ocean via the existing HBGS intake pipe. In either case, and in order to protect the marine environment, 50 [million gallons per day] of concentrated seawater would reenter the Pacific Ocean via the existing HBGS discharge pipe after blending with additional intake water to be used for dilution." Thus, according to the 2010 subsequent EIR, "[a] key advantage of the selected site is to utilize existing ocean intake/discharge lines of sufficient seawater volume to avoid the impact of constructing new ocean intake/discharge facilities."
In addition to the desalination plant itself, the project as proposed in 2010 "also consists of the construction and operations of off-site improvements, including water delivery pipeline (new pipeline and/or replacement of portions of existing pipeline) underground booster pump stations, and modifications to an existing booster pump station, all of which will be utilized by [Poseidon] to deliver desalinated seawater to Orange County retail water purveyors."
2005 EIR and 2010 Subsequent EIR
In 2005, Huntington Beach as lead agency certified an EIR. In 2006, Huntington Beach granted the project's conditional use permit and coastal development permit. However, the project was not built. Subsequently, Poseidon submitted a modified application to Huntington Beach, and Huntington Beach evaluated co-located, stand-alone operations and onshore facility and distribution pipeline revisions. Huntington Beach, as lead agency, prepared a subsequent EIR in 2010 as a result of changed circumstances and the development of new information. Huntington Beach certified the subsequent EIR in September 2010. Thereafter, no legal challenges were made to the 2010 subsequent EIR.
Once again, however, the project did not move forward. And, again, circumstances changed, including regulatory changes.
2015 Desalination Amendment
In 2015, the State Water Resources Control Board amended its Water Quality Control Plan for the Ocean Waters of California (Ocean Plan). The Ocean Plan addressed implementation provisions for desalination facilities (Desalination Amendment). ( Cal. Code Regs., tit. 23, § 3009.) Goals of the Desalination Amendment were to "Provide a consistent statewide approach for minimizing intake and mortality of marine life, protecting water quality, and related beneficial uses of ocean waters." The Ocean Plan required that the regional water quality control board conduct a Water Code section 13142.5, subdivision (b), analysis of all new and expanded desalination facilities. In conducting this review, the regional water quality control board "shall first analyze separately as independent considerations a range of feasible alternatives for the best available site, the best available design, the best available technology, and the best available mitigation measures to minimize intake and mortality of all forms of marine life. Then, the regional water board shall consider all four factors collectively and determine the best combination of feasible alternatives to minimize intake and mortality of all forms of marine life." Additionally, in performing that review, the Desalination Amendment required the regional water quality control board to "consult with other state agencies involved in the permitting of that facility, including, but not limited to: California Coastal Commission, [the Lands Commission], and California Department of Fish and Wildlife. The regional water board shall consider project-specific decisions made by other state agencies; however, the regional water board is not limited to project-specific requirements set forth by other agencies and may include additional requirements in a Water Code section 13142.5(b) determination." The Desalination Amendment provided that the regional water quality control board "shall require that the owner or operator evaluate a reasonable range of nearby sites, including sites that would likely support subsurface intakes."
The trial Court granted Poseidon's request that it take judicial notice of the Ocean Plan.
Water Code section 13142.5, subdivision (b), provides: "For each new or expanded coastal powerplant or other industrial installation using seawater for cooling, heating, or industrial processing, the best available site, design, technology, and mitigation measures feasible shall be used to minimize the intake and mortality of all forms of marine life."
The Ocean Plan defined "subsurface intake" as "an intake withdrawing seawater from the area beneath the ocean floor or beneath the surface of the earth inland from the ocean." Surface water intakes, by contrast, draw ocean water from the open ocean above the ocean floor.
The regional water quality control board, in consultation with the State Water Quality Control Board, "shall require subsurface intakes unless it determines that subsurface intakes are not feasible" based on specified considerations. If the regional water quality control board determines that subsurface intakes are not feasible and surface water intakes are proposed instead, the regional water quality control board must analyze potential designs for such intakes to minimize intake and mortality. In the event that subsurface intakes are not feasible, the regional water quality control board may approve surface water intakes subject to the condition, among others, that the surface intakes are screened with a one millimeter or smaller slot size screen or an alternative method if it is even more effective in avoiding intake and mortality.
The Desalination Amendment also provided that the preferred method for minimizing intake and mortality with regard to brine discharge was to commingle brine with wastewater, matching the salinity of the receiving water. "Multiport diffusers are the next best method for disposing of brine when the brine cannot be diluted by wastewater and when there are no live organisms in the discharge." (Asterisks omitted.) Multiport diffusers "are linear structures consisting of spaced ports or nozzles that are installed on submerged marine outfalls.... [M]ultiport diffusers discharge brine waste into an ambient receiving water body and enable rapid mixing, dispersal, and dilution of brine within a relatively small area."
Brine "is the byproduct of desalinated water having a salinity concentration greater than a desalination facility's intake source water."
Poseidon's Proposed Changes to the Project
In 2010, the Lands Commission approved the amendment of the lease to include Poseidon as a co-lessee.
In 2016 and again in 2017, Poseidon, by proposed Lease Modification Project, sought to amend its lease. Poseidon sought to amend to "[i]nstall four 1-millimeter wedgewire screens with a through-screen velocity of 0.5 feet per second or less on the offshore end of the seawater intake pipeline about 1,650 feet offshore to reduce entrainment and impingement to de minimis levels," to "[i]nstall a multiport duckbill diffuser on the offshore end of the discharge pipeline about 1,500 feet offshore to enhance brine mixing with seawater," and to "[r]educe seawater intake volume ... to 106.7 [million gallons per day] (approximately 30 percent less source water than the 152 [million gallons per day] volume approved by the [Lands] Commission in 2010)."
Impingement occurs when marine organisms are trapped against screens or other system components and die. Entrainment occurs when smaller marine organisms, such as fish larvae, are taken in through the pipeline system and mechanical systems, temperature increases, or toxic stress destroy all or most of the organisms.
In 2017, Poseidon further amended its Lease Modification Project application to the Lands Commission, this time to include a three-port brine diffuser rather than the previously proposed brine diffuser. Poseidon also proposed to install stainless steel wedgewire screens instead of copper nickel alloy screens.
The 2016 and 2017 amendments did not include proposed changes to the project's distribution system.
Actions to be Undertaken by Other Agencies
On October 3, 2016, the Lands Commission, the Santa Ana Regional Water Quality Control Board (Regional Water Board), and the California Coastal Commission entered into an interagency permit sequencing framework agreement. Under the agreement, the Lands Commission agreed to consider the project "in connection with the proposed amendment first at a properly noticed, public meeting." "Consistent with the requirements of [CEQA], the ... Lands Commission shall rely on the 2010 ... Huntington Beach certified Subsequent [EIR] as well as prepare any additional environmental analysis required by CEQA in connection with its consideration of the Poseidon Project. The CEQA environmental analysis will be sufficient to address Poseidon's proposed seawater intake and discharge technology modifications to the Project. The ... Lands Commission will reasonably consider any comments by the Coastal Commission and the [Regional Water Board] regarding the CEQA analysis conducted by the ... Lands Commission staff and will seek to obtain from each agency a sufficient description of the CEQA analysis of the proposed seawater intake and discharge technology modifications to the Project that these agencies deem necessary for them to rely on the ... Lands Commission's certified CEQA analysis." The Regional Water Board agreed to then consider Poseidon's application for a National Pollutant Discharge Elimination System (NPDES) permit and perform a Water Code section 13142, subdivision (b), compliance determination. The agreement further provided, "As a CEQA Responsible Agency, the Regional Board shall consult, as necessary, with the ... Lands Commission regarding the areas of CEQA analysis it may require on Poseidon's proposed seawater intake and discharge technology modifications prior to the release by the ... Lands Commission of the CEQA analysis for public comment, and the Regional Board agrees that, except as otherwise required by CEQA, in developing its draft Tentative Order it can rely on the 2010 ... Huntington Beach certified Subsequent [EIR] in combination with CEQA analysis prepared and approved by the ... Lands Commission in its evaluation of Poseidon's proposed seawater intake and discharge technology modifications for the purposes of complying with CEQA." Finally, the Coastal Commission would consider Poseidon's coastal development permit application.
2017 Supplemental EIR
The Lands Commission, as responsible agency, determined that the "proposed Lease Modification Project may involve new significant environmental effects or a substantial increase in the severity of previously identified significant impacts"; that the "2010 [subsequent EIR], which was the subject of several levels of environmental review through 2010, retains ‘relevance’ in light of the proposed modifications ... and continues to have ‘informational value’ consistent with the California Supreme Court's ruling in Friends of the College of San Mateo Gardens v. San Mateo Community College District (2016) 1 Cal.5th 937 [207 Cal.Rptr.3d 314, 378 P.3d 687] [( San Mateo Gardens )]"; and that only "minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed circumstances." (Italics added.) The Lands Commission therefore determined that, pursuant to California Code of Regulations, title 14, section 15163, it would prepare a supplemental EIR "to evaluate the potential significant impacts associated with the Lease Modification Project."
Regulatory guidelines for CEQA, promulgated by the state Natural Resources Agency, appear at California Code of Regulations, title 14, section 15000 et seq. (hereafter, in text, CEQA Guidelines).
The Lands Commission completed a draft supplemental EIR dated May 2017. A public hearing was conducted in June 2017. In October 2017, the Lands Commission issued a final supplemental EIR consisting of 2,816 pages.
The 2017 supplemental EIR stated: "The current ‘project’ or proposed lease amendment analyzed in this Supplemental EIR would modify the offshore components of a seawater desalination facility that ... Huntington Beach, as CEQA lead agency, approved in September 2010. The [Lands] Commission subsequently approved an amendment to [the] lease ... that granted Poseidon a vested right to use existing subsea seawater intake and discharge pipelines during desalination operations at the City-approved desalination plant through August 7, 2026 [citation]; from the [Land] Commission's perspective, its 2010 action continues to authorize desalination operations on the lease premises under the terms of the lease even though [Poseidon] has not, to date, received all permits needed to operate. The [Land] Commission's only consideration is the proposed modifications to the approved lease, not the larger desalination plant project approved in 2010 . Pursuant to ... CEQA Guidelines section 15163, subdivision (e), before the [Lands] Commission can act on the new lease amendment, the [Lands] Commission must consider the Final Subsequent EIR approved by ... Huntington Beach in 2010 ..., as revised by this Supplemental EIR, and must, pursuant to ... CEQA Guidelines section 15091, make a finding for each significant effect shown in the previous EIR as revised for the portion of the project within the [Lands] Commission's jurisdiction ." (Italics added.)
The parties refer to, and disagree about the status and significance of, any ongoing vested right Poseidon has to construct the project. We reach the same conclusion as did the trial court that this discussion has no relevance to the determinations we must make here.
With regard to its purpose and scope, the 2017 supplemental EIR stated: "The purpose of this Supplemental EIR is to identify the potential significant impacts on the environment from the Lease Modification Project, to identify alternatives that would reduce the significant effects of this project, and to indicate the manner in which those significant effects could be mitigated or avoided [citation]. This Supplemental EIR is intended to provide the [Lands Commission] with information required to exercise its jurisdictional responsibilities with respect to the Lease Modification Project .... The scope of this Supplemental EIR is limited to evaluating the changes to the 2010 lease and the incremental effects of those modifications, and should be read in conjunction with the 2010 [subsequent EIR] . The onshore facilities (which the City approved in 2010) are not included in this analysis." (Italics added.) That section continued: "A fundamental consideration in identifying potential significant impacts is establishing the appropriate baseline for the Supplemental EIR analysis. Impacts are identified by comparing changes to the environment caused by Poseidon's proposed Lease Modification Project activities with the environmental conditions associated with the offshore portions of the intake and discharge facilities analyzed in the 2010 [subsequent EIR]. Use of an appropriate baseline is also important for establishing alternatives to the proposed activities that can be analyzed in the Supplemental EIR. The alternatives need to be capable of reducing or avoiding one or more significant impacts of the Lease Modification Project, but do not need to address impacts associated with baseline conditions. The [Lands Commission] must identify which components of a project are known or reasonably foreseeable; if it finds that a particular impact is too speculative for evaluation, the [Lands Commission] should note its conclusion and terminate discussion of the impact."
In the Project Description, the supplemental EIR again stated: "This Supplemental EIR addresses only the Lease Modification Project (i.e., the proposed modifications to the approved 2010 Project that lie offshore within the [lease] footprint) which includes one operational change and two physical modifications offshore intended to address Santa Ana [Regional Water Quality Control Board] and [California Coastal Commission] policies and regulations." Again, the changes were the reduced intake of seawater, and the installation of wedgewire screens and multiport diffusers "if the Santa Ana [Regional Water Quality Control Board], pursuant to Water Code section 13142.5, subdivision (b), determines subsurface intakes are not feasible, and brine cannot be diluted by wastewater and there are no live organisms in the discharge—consistent with 2015 Ocean Plan Desalination Amendment."
The 2017 supplemental EIR incorporated by reference the 2010 final subsequent EIR prepared by Huntington Beach.
The 2017 supplemental EIR further specified, "In 2013, after certification of the 2010 [subsequent EIR], two Independent Scientific and Technical Advisory Panels (ISTAP[ ]) conducted a review of the feasibility of subsurface intake options for the Huntington Beach Desalination Plant. The ISTAP completed a more detailed analysis of an offshore Subsurface Infiltration Gallery, which was eliminated from further consideration as an intake alternative in the 2010 [subsequent EIR]. The ISTAP findings were considered in determining whether a Subsurface Infiltration Gallery should be evaluated in this Supplemental EIR. Ultimately, it was eliminated from consideration ...."
Alternatives actually evaluated in the 2017 supplemental EIR included a no-project alternative, a rotating brush-cleaned stainless steel screen alternative, copper-nickel alloy stationary wedgewire screens, and a six-port diffuser alternative. The Lands Commission concluded that the "lease Modification Project with the Rotating Brush-Cleaned, Stainless Steel Wedgewire Screens Alternative is the Environmentally Superior Alternative." The Lease Modification Project incorporated the modification including rotating brush-cleaned stainless steel wedgewire screen manifolds with one millimeter spacing at the end of the existing seawater intake pipeline. Public Hearing & Statement of Findings and Overriding Considerations
On October 19, 2017, the Lands Commission held a public hearing. Among other things, a representative of the Orange County Water District (OCWD) stated at the hearing: "At this point in time, the district does not required [sic ] changes to the distribution system as studied in ... Huntington Beach's 2010 supplemental [sic ] EIR. A final decision on integrating the desalinated water will come after the project has received all of its permits, and based on those results, the district concludes the project is technically and economically feasible."
The 2010 final EIR prepared by Huntington Beach was a subsequent EIR (Cal. Code Regs., tit. 14, § 15162 ), not a supplemental EIR (Cal. Code Regs., tit. 14, § 15163 ).
In a Statement of Findings and Overriding Considerations, the Lands Commission stated: "The Commission has balanced the benefits of the Recommended Lease Modification Project against the significant and unavoidable impacts that will remain after selection of the approved project and with implementation of all feasible mitigation in the Supplemental EIR that is adopted as enforceable conditions of the Commission's approval of the lease amendment. Based on all available information, the Commission finds that the benefits of the approved Recommended Lease Modification Project outweigh the significant and unavoidable adverse environmental effects, and considers such effects acceptable. The Commission adopts and makes this Statement of Overriding Considerations with respect to the impacts identified in the Supplemental EIR and these Findings that cannot be reduced to a less-than-significant level. Each benefit set forth above or described below constitutes an overriding consideration warranting approval of the project, independent of the other benefits, despite each and every significant unavoidable impact." The Lands Commission concluded: "The Commission has considered the Final Supplemental EIR and all environmental impacts described therein including those that cannot be mitigated to a less-than-significant level and those that may affect Public Trust uses of State sovereign land. The Commission has considered the[ ] economic, legal, social, environmental, and technological benefits of the Recommended Lease Modification Project and has balanced them against the project's significant and unavoidable adverse environmental impacts and, based upon substantial evidence in the record, has determined that the project's benefits outweigh the adverse environmental effects. Based on the foregoing and pursuant to ... section 21081 and ... CEQA Guidelines section 15093, the Commission finds that the remaining significant and unavoidable impacts of the Recommended Lease Modification Project are acceptable considering the project's economic, legal, social, environmental, and technical benefits. Such benefits outweigh such significant and unavoidable impacts of the Recommended Lease Modification Project and provide the substantive and legal basis for this Statement of Overriding Considerations. [¶] The Commission finds that to the extent that any impacts identified in the Final Supplemental EIR remain unmitigated, mitigation measures have been required to the extent feasible, although the impacts could not be reduced to a less-than-significant level. [¶] Based on the above discussion, the Commission finds that the benefits of the Recommended Lease Modification Project outweigh the significant and unavoidable impacts that could remain even after mitigation is applied and considers such impacts acceptable."
The Lands Commission approved the recommendation to certify the supplemental EIR.
Petition for Writ of Mandate
Plaintiffs filed a petition for a writ of mandate asserting the Lands Commission failed to comply with the requirements of CEQA in certifying the final 2017 supplemental EIR and in approving the lease amendment. Plaintiffs asserted that the Lands Commission violated CEQA Guidelines, specifically CEQA Guidelines section 15052, subdivision (a), by failing to assume the role of lead agency in undertaking additional CEQA review. They further asserted that the Lands Commission violated CEQA Guidelines sections 15162 and 15163 by purportedly "ignoring its requirement to conduct a Subsequent EIR rather than a Supplemental EIR." Plaintiffs asserted that, in light of substantial changes proposed for the project, substantial changes to the surrounding circumstances, and new information of substantial importance, the Lands Commission should have performed a full EIR as lead agency. According to plaintiffs, the manner in which the Lands Commission proceeded led to unlawful segmentation of the environmental review process in violation of CEQA. They asserted that this piecemeal approach is precisely what CEQA seeks to avoid, and it undermines the public's ability to obtain a fully informed evaluation of the project. Plaintiffs maintained that the Lands Commission's failure to satisfy its CEQA obligations constituted a prejudicial abuse of discretion.
Plaintiffs also raised claims addressed to the Public Trust Doctrine. Because those claims are not at issue on this appeal, we do not discuss them here.
Trial Court's Judgment Denying Writ Petition
The trial court denied the writ petition in its entirety. We need not go into detail concerning the trial court's determinations. "An appellate court's review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court's: The appellate court reviews the agency's action, not the trial court's decision; in that sense appellate judicial review under CEQA is de novo." ( Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 427, 53 Cal.Rptr.3d 821, 150 P.3d 709 ( Vineyard Area Citizens ).)
DISCUSSION
I. CEQA Framework and Standard of Review
Through CEQA, " ‘the Legislature sought to protect the environment by the establishment of administrative procedures drafted to "[e]nsure that the long-term protection of the environment shall be the guiding criterion in public decisions." ’ [Citation.] At the ‘heart of CEQA’ [citation] is the requirement that public agencies prepare an EIR for any ‘project’ that ‘may have a significant effect on the environment.’ [Citations.] The purpose of the EIR is ‘to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.’ [Citation.] The EIR thus works to ‘inform the public and its responsible officials of the environmental consequences of their decisions before they are made,’ thereby protecting ‘ "not only the environment but also informed self-government." ’ " ( San Mateo Gardens, supra , 1 Cal.5th at p. 944, 207 Cal.Rptr.3d 314, 378 P.3d 687.)
"To ensure that governmental agencies and the public are adequately informed about the environmental impact of public decisions, [CEQA] [citation] requires a lead agency [citation] to prepare an [EIR] before approving a new project that ‘may have a significant effect on the environment.’ " ( San Mateo Gardens, supra , 1 Cal.5th at p. 943, 207 Cal.Rptr.3d 314, 378 P.3d 687.) " ‘Lead agency’ means the public agency which has the principal responsibility for carrying out or approving a project. The lead agency will decide whether an EIR or negative declaration will be required for the project and will cause the document to be prepared." ( Cal. Code Regs., tit. 14, § 15367 ; accord, § 21067.)
" ‘Responsible agency’ means a public agency which proposes to carry out or approve a project, for which a lead agency is preparing or has prepared an EIR or negative declaration. For the purposes of CEQA, the term ‘responsible agency’ includes all public agencies other than the lead agency which have discretionary approval power over the project." ( Cal. Code Regs., tit. 14, § 15381 ; accord, § 21069.) "Alternatively stated, ‘[r]esponsible agencies are agencies, other than the lead agency, that have some discretionary authority for carrying out or approving a project. [Citation.] Responsible agencies generally rely on the information in the CEQA document prepared by the lead agency [e.g., an EIR] and ordinarily are not allowed to prepare a separate EIR or negative declaration. [Citations.] Further, while the lead agency is responsible for considering all environmental impacts of the project before approving it, a responsible agency has a more specific charge: to consider only those aspects of a project that are subject to the responsible agency's jurisdiction.’ " ( RiverWatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186, 1201, 88 Cal.Rptr.3d 625.)
We review an agency's CEQA determination for prejudicial abuse of discretion. ( Vineyard Area Citizens, supra , 40 Cal.4th at p. 426, 53 Cal.Rptr.3d 821, 150 P.3d 709 ; § 21168.5.) " ‘[A]n agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. [Citation.] Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, "scrupulously enforc[ing] all legislatively mandated CEQA requirements" [citation], we accord greater deference to the agency's substantive factual conclusions. In reviewing for substantial evidence, the reviewing court "may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable," for, on factual questions, our task "is not to weigh conflicting evidence and determine who has the better argument." ’ " ( Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, 935, 216 Cal.Rptr.3d 306, 392 P.3d 455 ( Banning Ranch ).)
II. Substantial Evidence Supporting the Decision to Prepare a Supplemental EIR
A. Parties’ Contentions
The Lands Commission asserts that plaintiffs are attempting to reframe the relevant issues in order to invoke a more favorable standard of review. The Lands Commission asserts that the issue is not whether it should have stepped into the role of lead agency or whether the environmental review was improperly piecemealed. Rather, according to the Lands Commission, the issue is whether substantial evidence supported its determination to proceed by supplemental EIR. The Lands Commission and Poseidon assert that substantial evidence supports the Land Commission's analysis of the lease modification using its supplemental EIR coupled with Huntington Beach's 2010 subsequent EIR. The Lands Commission asserts that it determined: (1) the 2010 subsequent EIR retained informational value, and (2) it was appropriate to rely on a supplemental EIR to analyze the changes to the project and approve the proposed modifications. The Lands Commission further asserts that its determinations were supported by substantial evidence, and that plaintiffs failed to show any prejudice resulting from its actions.
In order to address plaintiffs’ contentions as to whether the Lands Commission was required to assume the role of lead agency, as well as to provide necessary context for a discussion of piecemealing, it is necessary to consider the various types of subsequent environmental review under CEQA and whether the Lands Commission properly proceeded via supplemental EIR instead of a subsequent EIR.
B. CEQA Subsequent and Supplemental Review
1. Subsequent Review Generally and "Subsequent" EIRs
"When an [EIR] has been prepared for a project pursuant to [CEQA], no subsequent or supplemental [EIR] shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs: [¶] (a) Substantial changes are proposed in the project which will require major revisions of the [EIR]. [¶] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the [EIR]. [¶] (c) New information, which was not known and could not have been known at the time the [EIR] was certified as complete, becomes available." ( § 21166, italics added; accord, San Mateo Gardens, supra , 1 Cal.5th at p. 943, 207 Cal.Rptr.3d 314, 378 P.3d 687.)
CEQA Guidelines section 15162, subdivision (a), applicable specifically to subsequent EIRs, provides: "When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following: [¶] (1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; [¶] (2) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant, environmental effects or a substantial increase in the severity of previously identified significant effects; or [¶] (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, shows any of the following: [¶] (A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration; [¶] (B) Significant effects previously examined will be substantially more severe than shown in the previous EIR; [¶] (C) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents decline to adopt the mitigation measure or alternative; or [¶] (D) Mitigation measures or alternatives which are considerably different from those analyzed in the previous EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative."
Subdivision (c) of CEQA Guidelines section 15162 provides: "Once a project has been approved, the lead agency's role in project approval is completed, unless further discretionary approval on that project is required. Information appearing after an approval does not require reopening of that approval. If after the project is approved, any of the conditions described in subdivision (a) occurs, a subsequent EIR or negative declaration shall only be prepared by the public agency which grants the next discretionary approval for the project, if any. In this situation no other responsible agency shall grant an approval for the project until the subsequent EIR has been certified or subsequent negative declaration adopted."
Our high court examined the subsequent review process in depth in San Mateo Gardens, supra , 1 Cal.5th 937, 207 Cal.Rptr.3d 314, 378 P.3d 687. The court explained: "when an agency proposes changes to a previously approved project, CEQA Guidelines section 15162 generally prohibits the agency from requiring a subsequent or supplemental EIR unless the agency determines, ‘on the basis of substantial evidence in the light of the whole record,’ that ‘[s]ubstantial changes ... will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.’ " ( Id . at p. 957, 207 Cal.Rptr.3d 314, 378 P.3d 687, quoting Cal. Code Regs., tit. 14, § 15162, subd. (a).) "[T]he substantial evidence test referred to in the Guidelines does not ... refer to substantial evidence that the project, as modified, will necessarily have significant environmental effects. It instead refers to substantial evidence that the proposed modifications will involve ‘[s]ubstantial changes’ that ‘require major revisions of the previous EIR or negative declaration due to the involvement’ of new or significantly more severe environmental effects." ( San Mateo Gardens , at p. 957, 207 Cal.Rptr.3d 314, 378 P.3d 687, quoting Cal. Code Regs., tit. 14, § 15162, subd. (a).)
Our high court further noted the limitations in section 21166 and CEQA Guidelines section 15162 concerning the limited circumstances under which subsequent review must be prepared "are designed to balance CEQA's central purpose of promoting consideration of the environmental consequences of public decisions with interests in finality and efficiency." (
San Mateo Gardens, supra , 1 Cal.5th at p. 949, 207 Cal.Rptr.3d 314, 378 P.3d 687.) " ‘The purpose behind the requirement of a subsequent or supplemental EIR ... is to explore environmental impacts not considered in the original environmental document .... The event of a change in a project is not an occasion to revisit environmental concerns laid to rest in the original analysis. Only changed circumstances ... are at issue.’ " ( Ibid . ) " ‘In a case in which an initial EIR has been certified, section 21166 comes into play precisely because in-depth review of the project has already occurred, the time for challenging the sufficiency of the original CEQA document has long since expired, and the question before the agency is whether circumstances have changed enough to justify repeating a substantial portion of the process.’ " ( San Mateo Gardens , at p. 956, 207 Cal.Rptr.3d 314, 378 P.3d 687.)
The San Mateo Gardens court further explained: "The subsequent review provisions ... are ... designed to ensure that an agency that proposes changes to a previously approved project ‘explore[s] environmental impacts not considered in the original environmental document.’ " ( San Mateo Gardens, supra , 1 Cal.5th at p. 951, 207 Cal.Rptr.3d 314, 378 P.3d 687.) "This assumes that at least some of the environmental impacts of the modified project were considered in the original environmental document, such that the original document retains some relevance to the ongoing decisionmaking process. A decision to proceed under CEQA's subsequent review provisions must thus necessarily rest on a determination—whether implicit or explicit—that the original environmental document retains some informational value. If the proposed changes render the previous environmental document wholly irrelevant to the decisionmaking process, then it is only logical that the agency start from the beginning under section 21151 by conducting an initial study to determine whether the project may have substantial effects on the environment." ( San Mateo Gardens , at p. 951, 207 Cal.Rptr.3d 314, 378 P.3d 687.)
Thus, "under CEQA, when there is a change in plans, circumstances, or available information after a project has received initial approval, the agency's environmental review obligations ‘turn[ ] on the value of the new information to the still pending decisionmaking process.’ [Citation.] If the original environmental document retains some informational value despite the proposed changes, then the agency proceeds to decide under CEQA's subsequent review provisions whether project changes will require major revisions to the original environmental document because of the involvement of new, previously unconsidered significant environmental effects." ( San Mateo Gardens, supra , 1 Cal.5th at pp. 951-952, 207 Cal.Rptr.3d 314, 378 P.3d 687, fns. omitted.) "[W]hether an initial environmental document remains relevant despite changed plans or circumstances—like the question whether an initial environmental document requires major revisions due to changed plans or circumstances—is a predominantly factual question. It is thus a question for the agency to answer in the first instance, drawing on its particular expertise. [Citation.] A court's task on review is then to decide whether the agency's determination is supported by substantial evidence; the court's job ‘ " ‘is not to weigh conflicting evidence and determine who has the better argument.’ " ’ " ( Id. at pp. 952-953, 207 Cal.Rptr.3d 314, 378 P.3d 687.)
As for a reviewing court's substantial evidence review, the San Mateo Gardens court cautioned, "[w]e expect occasions when a court finds no substantial evidence to support an agency's decision to proceed under CEQA's subsequent review provisions will be rare, and rightly so; ‘a court should tread with extraordinary care’ before reversing an agency's determination, whether implicit or explicit, that its initial environmental document retains some relevance to the decisionmaking process." ( San Mateo Gardens, supra , 1 Cal.5th at p. 953, 207 Cal.Rptr.3d 314, 378 P.3d 687, fn. omitted.)
2. "Supplemental" Review Distinguished from "Subsequent" Review
CEQA Guidelines section 15163 provides, in pertinent part: "(a) The lead or responsible agency may choose to prepare a supplement to an EIR rather than a subsequent EIR if: [¶] (1) Any of the conditions described in Section 15162 would require the preparation of a subsequent EIR, and [¶] (2) Only minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation. [¶] (b) The supplement to the EIR need contain only the information necessary to make the previous EIR adequate for the project as revised." ( Cal. Code Regs., tit. 14, § 15163, subds. (a), (b) ; see City of Irvine v. County of Orange (2015) 238 Cal.App.4th 526, 539, 189 Cal.Rptr.3d 279 ( City of Irvine ); City of San Jose v. Great Oaks Water Co. (1987) 192 Cal.App.3d 1005, 1016, 237 Cal.Rptr. 845.)
Under CEQA Guidelines section 15163 "if there has been a substantial change, which would otherwise require a subsequent EIR under CEQA Guidelines section 15162, but ‘[o]nly minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation,’ then the lead agency has the discretion (the key phrase is ‘may choose’) [citation] to prepare a supplemental EIR that ‘need contain only the information necessary to make the previous EIR adequate for the project as revised.’ " ( City of Irvine, supra , 238 Cal.App.4th at p. 539, 189 Cal.Rptr.3d 279.) Thus, CEQA Guidelines section 15163 applies when "an EIR can be made adequate by additions or changes that respond to a limited set of issues" whereas a subsequent EIR is necessary "[w]hen the previous EIR must be rewritten from the ground up to make its environmental analysis adequate." (2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed. 2019) § 19.5, p. 19-9.) "Regardless, the supplemental EIR must still be ‘given the same kind of notice and public review’ as an initial draft EIR." ( City of Irvine, at p. 539, 189 Cal.Rptr.3d 279.) C. Informational Value of the 2010 Subsequent EIR
A third type of subsequent review, an addendum pursuant to CEQA Guidelines section 15164, is appropriate where some changes or additions to a previously certified EIR "are necessary but none of the conditions described in Section 15162 calling for preparation of a subsequent EIR have occurred." (Cal. Code Regs., tit. 14, § 15164, subd. (a).) Addenda are not at issue here.
"If no action or proceeding alleging that an [EIR] does not comply with the provisions of [CEQA] is commenced during the period prescribed in subdivision (c) of Section 21167, the [EIR] shall be conclusively presumed to comply with the provisions of [CEQA] for purposes of its use by responsible agencies, unless the provisions of Section 21166 are applicable." (§ 21167.2.) Huntington Beach's 2010 subsequent EIR was never challenged, and thus it was conclusively presumed to comply with CEQA for purposes of its use by the Lands Commission. (§ 21167.2.)
The Lands Commission determined that Huntington Beach's "2010 subsequent EIR ... retains ‘relevance’ in light of the proposed modifications to [the lease] and continues to have ‘informational value’ consistent with" San Mateo Gardens, supra , 1 Cal.5th at pages 951 and 952, 207 Cal.Rptr.3d 314, 378 P.3d 687. Based on the changes Poseidon sought to make through the Lease Modification Project, the Lands Commission further determined that only minor additions or changes would be needed to make the 2010 subsequent EIR adequately applicable to the project in the changed circumstances. ( Cal. Code Regs., tit. 14, § 15163, subds. (a)(2), (b).) Consequently, the Lands Commission determined that a supplemental EIR pursuant to CEQA Guidelines section 15163 would suffice.
The parties agree, ["no party has ever disputed that most of the certified 2010 EIR remains relevant"]; ["everyone agrees that the prior 2010 EIR prepared by ... Huntington Beach retains substantial informational value ...."] as do we, that the 2010 subsequent EIR retained "some informational value." ( San Mateo Gardens, supra , 1 Cal.5th at pp. 951, 952, 207 Cal.Rptr.3d 314, 378 P.3d 687.) Accordingly, the Lands Commission properly "proceed[ed] to decide under CEQA's subsequent review provisions whether project changes will require major revisions to the original environmental document because of the involvement of new, previously unconsidered significant environmental effects." ( Id . at p. 952, 207 Cal.Rptr.3d 314, 378 P.3d 687, fn. omitted.)
Having determined substantial evidence supports the decision to proceed under CEQA's subsequent review provisions, "the next—and critical—step is to determine whether the agency has properly determined how to comply with its obligations under those provisions." ( San Mateo Gardens, supra , 1 Cal.5th at p. 953, 207 Cal.Rptr.3d 314, 378 P.3d 687.) D. The Decision to Prepare a Supplemental EIR
CEQA Guidelines section 15163 ’s "may choose" language provides discretion to choose between proceeding by way of supplemental EIR instead of subsequent EIR, and that choice is to be evaluated under a reasonableness standard. ( City of Irvine, supra , 238 Cal.App.4th at pp. 539-540, 189 Cal.Rptr.3d 279.) The question of whether the Lands Commission acted reasonably in electing to proceed by way of a supplemental EIR is a fact-based inquiry into whether its determination was supported by substantial evidence. It does not present a question as to whether the Lands Commission failed to proceed in the manner CEQA provides. (See generally Banning Ranch, supra , 2 Cal.5th at p. 935, 216 Cal.Rptr.3d 306, 392 P.3d 455 [an "agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence"].)
" ‘[S]ubstantial evidence’ is defined by the CEQA Guidelines to mean ‘enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.’ " ( Nelson v. County of Kern (2010) 190 Cal.App.4th 252, 282, 118 Cal.Rptr.3d 736 ( Nelson ), quoting Cal. Code Regs., tit. 14, § 15384, subd. (a).) "Substantial evidence includes ‘facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts,’ but does not include ‘[a]rgument, speculation, unsubstantiated opinion or narrative, [or] evidence which is clearly erroneous or inaccurate.’ " ( Nelson , at p. 282, 118 Cal.Rptr.3d 736, quoting Cal. Code Regs., tit. 14, § 15384, subds. (b), (a).)
The contemplated changes to the project, from the 2010 iteration to the 2017 version, represented by the Lease Modification Project, were: (1) the installation of one-millimeter stainless steel wedgewire screens, (2) the installation of three-port diffusers to diffuse the brine as it reentered the ocean and mixed with seawater, and (3) a reduction in the seawater intake volume from 152 million gallons per day to 106.7 million gallons per day. These changes were responsive to provisions of the Desalination Amendment.
We conclude that substantial evidence supports the Land Commission's determination that the foregoing changes, considered in the context of the project as a whole, would necessitate "[o]nly minor additions or changes ... to make the previous EIR adequately apply to the project in the changed situation." ( Cal. Code Regs., tit. 14, § 15163, subd. (a)(2).) Accordingly, we conclude that the Lands Commission did not prejudicially abuse its discretion in electing to proceed via supplemental EIR pursuant to CEQA Guidelines section 15163 as opposed to the more comprehensive subsequent EIR pursuant to CEQA Guidelines section 15162. In fact, plaintiffs do not argue that it was a prejudicial abuse of discretion to proceed by supplemental EIR pursuant to CEQA Guidelines section 15163 instead of subsequent EIR pursuant to CEQA Guidelines section 15162, although they do seem to largely disregard any distinction between the two, as we discuss post . Rather, plaintiffs’ argument is that this election did not relieve the Lands Commission of its responsibility to assume the role of lead agency.
Poseidon repeatedly asserts that plaintiffs’ failure to set out substantial evidence supporting the Lands Commission's determinations forfeits any substantial evidence arguments and that such failure is fatal to plaintiffs’ appeal. The Lands Commission echoes this contention. " ‘ "As with all substantial evidence challenges, an appellant challenging an EIR for insufficient evidence must lay out the evidence favorable to the other side and show why it is lacking. Failure to do so is fatal. A reviewing court will not independently review the record to make up for appellant's failure to carry his burden." ’ " (Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, 632, 255 Cal.Rptr.3d 889 (Citizens for Positive Growth ).) The Lands Commission also asserts that plaintiffs’ failure to address the substantial evidence question is fatal to their claims. In light of the manner in which plaintiffs have couched their claims, we address the merits of their contentions.
III. Assumption of Lead Agency Status
Plaintiffs assert that the Lands Commission erred in refusing to assume the role of lead agency and perform the attendant obligations. Huntington Beach completed its CEQA obligations in 2010. According to plaintiffs, when the original lead agency has completed its statutory obligations, but project changes or new information require additional environmental review, the next public agency to take discretionary action on the project, here the Lands Commission, "shall" step into the role of lead agency. Plaintiffs argue that "[t]his mandatory shift in lead agency status is critical to ensuring that only a single updated EIR for the project is prepared, certified, and available for use by all other approving agencies and that the courts have a single updated EIR to review." They further assert that "the lead agency role requires the preparation of a single updated EIR that adequately addresses all necessary facets of the project as a whole." Plaintiffs assert that all requirements of CEQA Guidelines section 15052, subdivision (a), governing assumption of lead agency status, were satisfied, thus requiring the Lands Commission to step in as lead agency. Plaintiffs assert that the Lands Commission's refusal to do so was a legal error that resulted in the unlawful segmentation of the updated CEQA analysis.
CEQA Guidelines section 15052, subdivision (a)(2), provides: "Where a responsible agency is called on to grant an approval for a project subject to CEQA for which another public agency was the appropriate lead agency, the responsible agency shall assume the role of the lead agency when any of the following conditions occur: [¶] ... [¶] (2) The lead agency prepared environmental documents for the project, but the following conditions occur: [¶] (A) A subsequent EIR is required pursuant to Section 15162 , [¶] (B) The lead agency has granted a final approval for the project, and [¶] (C) The statute of limitations for challenging the lead agency's action under CEQA has expired." (Italics added.)
Contrary to plaintiffs’ contentions, CEQA Guidelines section 15052 did not mandate that the Lands Commission assume lead agency status under the circumstances presented here. As we have concluded, substantial evidence supported the Lands Commission's election to prepare a supplemental EIR instead of a subsequent EIR because the changes to the project would only necessitate "minor additions or changes ... to make the previous EIR adequately apply to the project in the changed situation." ( Cal. Code Regs., tit. 14, § 15163, subd. (a).) Because, under these circumstances, the Lands Commission could properly elect to proceed via supplemental EIR and forego preparing a subsequent EIR, one of the requirements of CEQA Guidelines section 15052, subdivision (a)(2), was not satisfied: that "[a] subsequent EIR is required pursuant to Section 15162." ( Cal. Code Regs., tit. 14, § 15052, subd. (a)(2)(A), italics added.) And because this requirement was not satisfied, the obligation imposed by CEQA Guidelines section 15052, subdivision (a)(2), that a former responsible agency step in as lead agency, was inapplicable.
In their briefing, plaintiffs avoid the import of the regulatory language by paraphrasing critical segments rather than quoting it. Plaintiffs assert, for example, that CEQA Guidelines section 15052, subdivision (a), "command[s] that the next public agency to make a discretionary decision ‘shall assume the role of the Lead Agency’ when (i) additional CEQA review is necessary , (ii) the original lead agency has issued its final approval, and (iii) the statute of limitations for the original EIR has expired." (Italics added.) Plaintiffs elsewhere assert that CEQA Guidelines sections 15162, subdivision (c), and 15052, subdivision (a)(2), establish that "when the original lead agency has completed its statutory duties, but project changes or new information require additional environmental review , the next public agency to take discretionary action on the project shall step into the role of the ‘lead agency.’ " (Italics added.) However, in these characterizations, plaintiffs omit the specific regulatory language concerning the requirement of a "subsequent EIR" ( Cal. Code Regs., tit. 14, § 15052, subd. (a)(2) ), a requirement we consider controlling here. Thus, plaintiffs’ assertion that "[a]ll three of the[ ] conditions" in CEQA Guidelines section 15052, subdivision (a)(2), are satisfied here is wrong. If the provision requiring a responsible agency to step in as lead agency was to apply to circumstances where only a supplemental EIR was required pursuant to CEQA Guidelines section 15163, CEQA Guidelines section 15052, subdivision (a)(2), would have so specified. Curiously, plaintiffs’ main argument on this point was relegated to a footnote. According to plaintiffs, "there is no dispute that the first condition listed in section 15052(a) – ‘[a] subsequent EIR is required pursuant to Section 15162 ’ – is satisfied here. CEQA section 21166 identifies those circumstances that trigger the requirement for a ‘subsequent or supplemental’ EIR." The footnote continued: "An agency's election to prepare a supplemental rather than a subsequent EIR, once the subsequent EIR requirement is triggered, does not abrogate its obligation to assume lead agency status for the whole project undersection 15052(a) . The substitute lead agency obligation applies whenever a subsequent EIR is required, and a subsequent EIR is always required before an agency elects to prepare a more limited supplemental EIR , as the Lands Commission did here. Thus, whether the next agency taking discretionary action labels its CEQA document a subsequent or supplemental EIR, it must assume lead agency status under section 15052(a) and complete a single, legally adequate analysis for the whole project." (Italics added.)
We understand plaintiffs’ footnoted argument, but conclude it is wrong. Where the circumstances permit an agency to prepare a supplemental EIR rather than a subsequent EIR because, among other things, "[o]nly minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation," then a subsequent EIR necessarily is not required . Therefore, the predicate to CEQA Guidelines section 15052 that "[a] subsequent EIR is required pursuant to Section 15162," is not satisfied. ( Cal. Code Regs., tit. 14, § 15052, subd. (a)(2)(A), italics added.) We do not read these regulations to mean, in effect, that a project with a changed situation that qualifies for treatment by a supplemental EIR also retains the quality of requiring a subsequent EIR because CEQA Guidelines section 15163, subdivision (a)(1), conditions that subdivision's applicability to circumstances where "[a]ny of the conditions described in Section 15162 would require the preparation of a subsequent EIR." In other words, we do not agree with plaintiffs that, where a supplemental EIR is appropriate pursuant to CEQA Guidelines section 15163, a subsequent EIR is also required . Instead, we view the option to proceed by a supplement to the EIR where the required circumstances are present as an exception to the requirement for a subsequent EIR.
Our reading of CEQA Guidelines section 15052, subdivision (a), is buttressed by statutory and regulatory language indicating a supplemental EIR may be prepared by a responsible agency. As we have noted, section 21166 provides in pertinent part: "When an [EIR] has been prepared for a project ..., no subsequent or supplemental [EIR] shall be required by the lead or by any responsible agency " unless one of several triggering conditions occur. Thus, as the italicized language makes clear, a supplemental EIR can be prepared by a responsible agency. Consistent with the statutory language, subdivision (a) of CEQA Guidelines section 15163 expressly provides in pertinent part: "The lead or responsible agency may choose to prepare a supplement to an EIR rather than a subsequent EIR ...." (Italics added.) CEQA Guidelines section 15096(f), addressing the duties of a responsible agency, provides that a responsible agency can prepare a supplemental EIR as provided in section 15163. Thus, the statutory and regulatory language clearly contemplates that responsible agencies can prepare supplemental EIRs under the appropriate circumstances and need not assume the lead agency status to do so.
Consequently, we disagree with plaintiffs’ assertion that "[a]n agency's election to prepare a supplemental rather than a subsequent EIR, once the subsequent EIR requirement is triggered, does not abrogate its obligation to assume lead agency status for the whole project under section 15052(a)." Instead, we conclude that the regulations do exactly that. Where the election to prepare a supplemental EIR is proper, we conclude that the determination to do so does indeed remove the subsequent review from the scope of the CEQA Guidelines section 15052 requirement to step in as lead agency. We read CEQA Guidelines section 15052, subdivision (a)(2), to mean what it says, limiting its application to cases where, among other things, "[a] subsequent EIR is required pursuant to Section 15162." ( Cal. Code Regs., tit. 14, § 15052, subd. (a)(2)(A).) That is not the case here. And we read subdivision (a) of CEQA Guidelines section 15163 allowing a responsible agency to proceed by a supplemental EIR to also mean what it says, thus, the Lands Commission did not violate CEQA by preparing the supplemental EIR without assuming lead agency status.
Plaintiffs assert that, notwithstanding its refusal to assume lead agency status, the Lands Commission nonetheless acted like a lead agency. Plaintiffs assert: "the Commission behaved like a CEQA lead agency in all other respects: It circulated a Notice of Preparation and held an initial CEQA scoping meeting [citation], issued a 2,163-page Draft EIR for public review [citation], filed a Notice of Completion for the Draft EIR with the Office of Planning and Research [citation], accepted and responded to public and other agency comments [citation], produced a 2,181-page Final EIR [citation], issued a Notice of Availability and Intent to Consider Certification of the Final EIR [citation], held a final approval hearing where it made extensive CEQA Findings, certified the Final EIR, and adopted a Statement of Overriding Considerations for the Project's significant and unavoidable impacts [citation], and filed a final Notice of Determination with the State Clearinghouse." Contrary to plaintiffs’ argument, we conclude the Lands Commission acted like a responsible agency preparing a supplement to the EIR under CEQA Guidelines section 15163, subdivision (a). As a responsible agency, the Lands Commission's actions fulfilled the requirement that "the supplemental EIR ... be ‘given the same kind of notice and public review’ as an initial draft EIR." ( City of Irvine, supra , 238 Cal.App.4th at p. 539, 189 Cal.Rptr.3d 279, fn. omitted, quoting Cal. Code Regs., tit. 14, § 15163, subd. (c).)
We conclude that the Lands Commission did not fail to proceed in the manner CEQA provides by declining to assume the role of lead agency.
IV. Unlawful Piecemealing/Segmentation Review
See footnote *, ante .
Plaintiffs filed a motion requesting that we take judicial notice of an information request from Hope Smyth, Executive Officer of the Regional Water Board, seeking additional information in connection with that body's NPDES order and Water Code section 13142.5, subdivision (b), determination. Ruling on the request was deferred pending calendaring and assignment of the panel. We deny plaintiffs’ request for judicial notice on the ground that the post-judgment matter addressed in the information request is unnecessary to our decision. (City of Grass Valley v. Cohen (2017) 17 Cal.App.5th 567, 594, fn. 13, 226 Cal.Rptr.3d 543 [denying requests for judicial notice " ‘because the proffered material is unnecessary to our decision’ "]; accord, Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, 31 Cal.Rptr.2d 358, 875 P.2d 73 [matter to be judicially noticed must be relevant to a material issue].)
The judgment is affirmed. Respondents shall recover their costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(1) & (2).)
We concur:
RAYE, P. J.
HULL, J.