The Third District Court of Appeal recently held that a responsible agency under the California Environmental Quality Act (“CEQA”) must make independent findings regarding potential impacts of projects and related mitigation measures when issuing ancillary permits, and cannot rely solely on the findings of the lead agency in an Environmental Impact Report (“EIR”).

We Advocate Through Environmental Review v. City of Mount Shasta, — Cal.Rptr.3d —-, 2022 WL 1497932 (April 12, 2022) involved Crystal Geyser Water Company’s proposed project relating to a water extraction and bottling operation (the “Project”) located in Siskiyou County (“County”). Crystal Geyser sought, among other things, a permit from the County to build a caretaker’s residence for the bottling plant, and a permit from the City of Mount Shasta (“City”) to allow the bottling plant to discharge wastewater into the City’s sewer system. The County, acting as the lead agency under CEQA, prepared an EIR for the Project, which analyzed and mitigated, where appropriate, potential environmental impacts of the Project. The City was a responsible agency under CEQA.

The County ultimately certified the EIR and issued the requested building permit. Likewise, the City issued the discharge permit. However, the City did not make any specific findings, but instead relied on the EIR prepared by the County which found “no unmitigated adverse environmental impacts relating to the alternative discharge disposal methods.” (Id. at p. *3.) In addition, the City added to the final, approved version of the wastewater permit providing that wastewater also includes “condensate, boiler blowdown water, [and] cooling tower lowdown water.” (Id. at p. *2.) This language was not included in the the EIR.

We Advocate Through Environmental Review (“Petitioner”) filed a lawsuit challenging the City’s issuance of the wastewater permit. More specifically, they alleged the following: the City failed to make findings required by statute; the City should have formally adopted the mitigation measures provided in the EIR; and the City should have conducted additional environmental review of the language added to the final wastewater permit. The trial court rejected the Petitioner’s arguments, and the Petitioner appealed.

The Third District Court of Appeal ultimately reversed the trial court’s decision. The Court found that the City was required to make statutorily-prescribed findings for each significant effect identified in the EIR that was associated with the City’s permit. (Id. at p. *5.) The City’s general finding that it considered the EIR and found “no unmitigated environmental impacts,” without identifying the potentially significant effects of the project or providing a brief explanation of the City’s rationale for its nonexistent findings, was insufficient. (Ibid.) Accordingly, the Court reversed the trial court’s decision and remanded the case with instructions that the trial court grant the Petitioner’s petition and specify actions the City must take to comply with CEQA.

With regard to the language added to the final, approved version of the wastewater permit, the Court rejected the Petitioner’s challenge on this issue, and found the Petitioner was inappropriately attempting to challenge the County’s EIR in the lawsuit against the City. (Id. at p. *7.) In addition, the Court found that the City will be required to adopt mitigation measures or state that the mitigation would be the responsibility of another agency (e.g., the County) when it considers and reissues the permit at a later date. (Id. at p. *6.)

A copy of the Third District Court of Appeal’s decision is available HERE.

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