Robert T. Sundstrom (hereafter appellant), appeals from a judgment of the Mendocino County Superior Court denying a petition for writ of mandate to set aside a use permit of Mendocino County (hereafter County) for noncompliance with the California Environmental Quality Act (CEQA). Appellant owns a shopping mall in the small unincorporated coastal town of Gualala. Real party in interest, Harold K. Miller (hereafter applicant or Miller), currently operates a small 17-unit motel with a 42-seat restaurant and filling station on the outskirts of town. He plans to build nearby a 40-unit motel with a 120-seat restaurant and cocktail lounge, manager's apartment, and 7-unit apartment. Located off Highway 1 on a bluff overlooking the ocean, the proposed development has been approved by the California Coastal Commission (Coastal Commission). The use permit at issue in this appeal concerns a private sewage treatment plant intended to serve the new development as well as Miller's existing motel complex.
For purposes of domestic waste disposal, Miller's businesses will have a population equivalent of 477 residents. The town of Gualala itself lacks a community sewage system and experiences widespread problems of seepage from overloaded septic systems. Acting on the advice of the Regional Water Quality Control Board, Miller proposes to build a relatively advanced and sophisticated waste disposal system — a tertiary treatment plant employing irrigation to dispose of treated water. The engineering firm designing the plant, the Clayton Engineering Company of St. Louis, Missouri, asserts that it will be constructed in a manner exceeding ordinary standards to assure reliable performance. In a letter to the Regional Water Quality Control Board, an official in the division of environmental quality for the State of Missouri confirms that plants of this design "do meet permit requirements." After reviewing preliminary plans, the Regional Water Quality Control Board approved the conceptual design and drafted discharge requirements providing, among other things, for a maximum of 8,700 gallons as the 7-day average of daily wastewater flow. Prior to construction, the regional board will review final design plans and specifications "to determine the adequacy of the proposed facilities."
The proposed site of the plant lies about 400 feet east of Highway 1 on a hillside just beyond the developed portion of Gualala. The land has a gentle gradient of 2 to 15 percent and is covered in equal portions by forest and meadow. The forest consists predominantly of bishop pine, redwood, and white fir with an understory of scotch broom, rhododendron and other coast brush species. The closest buildings, located on streets immediately to the west and south, are a machine shop, plumbing establishment, and a Baptist church described by a local resident as "a lovely white chapeled
The site, comprising about five acres, contains two small sewage lagoons that receive wastes from Miller's filling station. Upon construction of the treatment plant, the lagoons would be cleared and substantially enlarged so that they could store waste water from the motel/restaurant complex during the winter months. About two acres of the property are suitable for irrigation during the dry season of the year, the remainder being precluded by slope or soil conditions. The plans call for spray irrigation of the existing ground cover of forest, brush, and meadow.
After receiving Miller's application for a conditional use permit, the county planning staff filled out an "environmental checklist" intended to comply with regulatory provisions requiring an initial study to determine the necessity of an environmental impact report. The staff subsequently recommended that the planning commission grant the permit and adopt a negative declaration affirming that the environmental impact report is not required. Three conditions in the draft permit related to environmental considerations: that the treatment plant be "approved by the Regional Water Quality Control Board," that it comply with the regulations of the Air Pollution Control Board, and that a plan for sludge disposal "be approved by the Regional Water Quality Control Board and the Department of Public Health, Environmental Health Division."
The matter came up for hearing before the planning commission on February 27, 1986. When certain members of the public raised questions about the effect of the proposed irrigation on lower properties, the staff recommended two additional conditions: the submission of a hydrological study on the impact on adjacent sewage disposal systems and the establishment of a 50-foot buffer zone between the irrigation field and the street lying downhill to the west. But several commissioners still expressed concern that the Regional Water Quality Control Board had not submitted comments on the project. The commission deferred a decision and directed the staff to send the application and draft negative declaration to interested state agencies. (Cal. Code Regs., tit. 14, § 15073)
The county received substantive comments from the California Coastal Commission and the Regional Water Quality Control Board. The comment of the Regional Water Quality Control Board acknowledged potential problems relating to "ground and surface water hydrology" and "odor generation" from the plant and stated that the board would take these problems into account in reviewing the project plans and specifications. The Coastal
When the matter came again before the planning commission on April 3, 1986, the staff drafted further conditions to the use permit in response to public objections. Most pertinent to this appeal, it recommended that the applicant obtain a second hydrological study investigating the impact of the proposed irrigation on problems of surface runoff. Despite these concessions, the planning commission divided evenly in a three-to-three vote on granting the use permit. Since the effect of the tie vote was to deny approval of the permit, Miller appealed the decision to the board of supervisors.
Responding to the expressed need for further hydrological studies, Miller retained a civil engineer, George C. Rau, to study the effects of the proposed irrigation on adjacent sewage disposal systems. Rau questioned the suitability for irrigation of land lying within about 200 feet of the street bordering the property to the west, but concluded that irrigation on a remaining parcel of about two acres would have no adverse impact on neighboring properties. His calculations indicated that the evapotranspiration rate of water sprinkled on these two acres would exceed the average daily flow of waste water from the treatment plant. To the extent that some percolation of ground water did occur, a layer of clay 18 to 30 inches below the surface would channel the subsurface flow to a neighboring ravine through a route bypassing appellant's property. As precautionary measures, Rau recommended that a "collection swale" be dug around "the perimeter of the irrigated area" and that roadside ditches along the bordering streets be enlarged.
At the board of supervisors hearing on April 28, 1986, Rau delivered a presentation based on his hydrological study. A consulting sanitarian, William G. Rummel, spoke in opposition to the permit application. When certain residents of the town expressed concern that the project would discourage organization of a sewage district, the staff proposed further conditions to the permit requiring Miller to join a community sewage system within two years of its establishment. By a four-to-one vote, the board of supervisors approved the permit as so amended and adopted the negative declaration.
Petitioning for writ of mandate, appellant alleged that the county "committed a prejudicial abuse of discretion by approving a negative declaration for the project in that the records contained substantial evidence to show the project may have a significant effect on the environment" requiring preparation of an environmental impact report. This appeal follows the trial court's denial of the petition.
Forced later to confront the hydrological problems presented by the proposed irrigation system, the staff devised the solution of requiring the applicant to submit hydrological studies relating to subsurface and surface drainage. Specifically, the use permit required: "A. 7. The applicant shall have a study prepared by a civil engineer with a hydrology background or a hydrologist which concludes that adjacent sewage disposal systems and surface and ground water hydrology will not be adversely affected by the proposed sewage facility. Said study shall be subject to review and approval by the Mendocino County Planning Commission and Mendocino County Division of Environmental Health.... A. 9. The applicant shall have a study prepared by a civil engineer which evaluates potential effects of the proposed development upon soil stability, erosion, sediment transport, and the flooding of downslope properties and contains recommended measures to minimize such impacts. Said study shall be subject to review and approval by planning and building services. Mitigation measures recommended by the study shall be incorporated as requirements of this use permit."
The requirement that the applicant adopt mitigation measures recommended in a future study is in direct conflict with the guidelines implementing CEQA. California Code of Regulations, title 14, section 15070, subdivision (b)(1) provides that if an applicant proposes measures that will mitigate environmental effects, the project plans must be revised to incorporate these mitigation measures "before the proposed negative declaration is released for public review...." (Italics added.) Here, the use permit contemplates that project plans may be revised to incorporate needed mitigation measures
By deferring environmental assessment to a future date, the conditions run counter to that policy of CEQA which requires environmental review at the earliest feasible stage in the planning process. (See Pub. Resources Code, § 21003.1; No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d 68, 84.) In Bozung v. Local Agency Formation Com., supra, 13 Cal.3d 263, 282, the Supreme Court approved "the principle that the environmental impact should be assessed as early as possible in government planning." Environmental problems should be considered at a point in the planning process "`where genuine flexibility remains.'" (Mount Sutro Defense Committee v. Regents of University of California, supra, 77 Cal.App.3d 20, 34.) A study conducted after approval of a project will inevitably have a diminished influence on decisionmaking. Even if the study is subject to administrative approval, it is analogous to the sort of post hoc rationalization of agency actions that has been repeatedly condemned in decisions construing CEQA. (Id. at p. 35; No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d 68, 81; Environmental Defense Fund, Inc. v. Coastside County Water Dist. (1972) 27 Cal.App.3d 695, 706 [104 Cal.Rptr. 197].)
It is also clear that the conditions improperly delegate the County's legal responsibility to assess environmental impact by directing the applicant himself to conduct the hydrological studies subject to the approval of the planning commission staff. Under CEQA, the EIR or negative declaration must be prepared "directly by, or under contract to" the lead agency. (Pub. Resources Code, § 21082.1.) The implementing regulations explicitly provide: "The draft EIR which is sent out for public review must reflect the independent judgment of the lead agency." (Cal. Code Regs., tit. 14, § 15084, subd. (e).) Moreover, the EIR must be presented to the decisionmaking body of the agency. In Kleist v. City of Glendale (1976) 56 Cal.App.3d 770, 779 [128 Cal.Rptr. 781], the court held that the city council cannot delegate responsibility for considering the EIR to a planning board. By necessary inference, the board of supervisors cannot delegate the responsibility to the staff of the planning commission.
Finally, the use permit circumvents the provisions of CEQA governing the process of environmental review. The scope and content of an EIR or negative declaration are minutely prescribed under CEQA and its implementing guidelines. (Pub. Resources Code, §§ 21080, subd. (c), 21100; Cal. Code Regs., tit. 14, §§ 15071, 15120 et seq.) By merely requiring administrative approval of the hydrological studies, the use permit provides no similar guarantee of an adequate inquiry into environment effects. An EIR or negative declaration, moreover, are subject to review by the public and
In the case of the conditions regarding air and water quality standards, the County possessed "meaningful information" reasonably justifying an expectation of compliance. (No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d 68, 77, fn. 5.) Since compliance would indeed avoid significant environmental
Under the regulatory guidelines of CEQA, an EIR is required if "there is substantial evidence that any aspect of the project,... may cause a significant effect on the environment, ..." [Italics added.] (Cal. Code Regs., tit. 14, § 15063, subd. (b)(1).) The guideline reflects the judicial insistence on comprehensive judicial review of environmental problems under CEQA. Hence, the Supreme Court has demanded an EIR possess sufficient detail to help "`"insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug."'" (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn., supra, 42 Cal.3d 929, 935.) In a different context, the court has prohibited the unnecessary division of a project into parts resulting in a piecemeal environmental review. (Bozung v. Local Agency Formation Com., supra, 13 Cal.3d 263, 283-284.) Having no "relevant data" pointing to a solution of the sludge disposal problem, the County evaded its duty to engage in a comprehensive environmental review by approving the use permit subject to a condition requiring future regulatory compliance. (No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d 68, 84.)
The first Supreme Court decision construing CEQA held that the Legislature intended the act "to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 [104 Cal.Rptr. 761, 502 P.2d 1049].) In the landmark
While a fair argument of environmental impact must be based on substantial evidence, mechanical application of this rule would defeat the purpose of CEQA where the local agency has failed to undertake an adequate initial study. The agency should not be allowed to hide behind its own failure to gather relevant data. Thus, in Christward Ministry v. Superior Court, supra, 184 Cal.App.3d 180, 197, the city adopted an initial study and negative declaration concluding in brief, conclusory language that the project would not have a significant environmental impact. Ordering the preparation of an EIR, the court commented, "the City's assertion it could find no `fair argument' there would be any potentially significant environment impacts rests, in part, in its failure to undertake an adequate environmental analysis." CEQA places the burden of environmental investigation on government rather than the public. If the local agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record. Deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences.
The issue of sludge disposal offers a clear illustration of this principle. The record merely discloses that the plant is designed to hold but 3,900 gallons of sludge, and that no disposal site is available in the county. In the absence of any further information, the record thus permits the reasonable inference that sludge disposal presents a material environmental impact.
The record suggests little previous disturbance of the site; it evidently contains a typical, but relatively complex, coastal ecosystem with abundant brush species as well as trees and meadows. The proposed sprinkler irrigation system will maintain the ground conditions of the rainy season throughout the year by keeping the soil continuously in a state of near saturation. What will be the effect of this uninterrupted soil humidity on an ecosystem adapted to seasonal drought? CEQA exists to compel local agencies to address questions like this. As the implementing guidelines recognize, CEQA's objective of preserving "high quality ecological systems" demands "an interdisciplinary approach which will ensure the integrated use of the natural and social sciences and the consideration of qualitative as well as quantitative factors." (Cal. Code Regs., tit. 14, § 15142; Pub. Resources Code, § 21000, subd. (b).) Some degree of interdisciplinary consultation may be necessary in an initial study as well as in preparation of an EIR. Without seeking the opinion of, say, a qualified botanist or ecologist, the planning commission staff was not in a position to dismiss the possibility of potentially adverse vegetative change.
Appellant protests, "[t]here are large number of redwood, white fir and red fir on this site. They cannot take that amount of water year round or they will surely die." We of course have no way of assessing the correctness of this contention, which, however, is unmet in the record. But, lacking the benefit of expert testimony, we can only conclude that the applicant may substantially alter the vegetative cover in a manner adverse to the scenic quality of the town and the hydrological balance of the proposed irrigation field.
The applicant's own engineering study reveals another potentially adverse environmental effect. The use permit prohibits irrigation along the western margin of the property in a buffer zone extending 50 feet from an adjacent street. But the engineering study questions the suitability for irrigation of an area extending approximately 200 feet from the street. The engineer, George Rau, found that most of the parcel has an impermeable clay layer lying close to the surface that would channel ground water toward a nearby gulch. On the western margin of the property, however, soil conditions change somewhat and the slope is more uncertain. The applicant assured Rau that he did not intend to irrigate within 100 feet of the street.
Though intended to reassure the County, Rau's study provides data for some of appellant's most telling arguments. The study estimates the rate of application of water by the proposed irrigation system and the rate of evapotranspiration on the site. Calculating that the rate of application would be less than the rate of evapotranspiration, Rau concluded that the irrigation system would not have adverse environmental effects. Both halves of his analysis present serious questions.
The study assumed that the irrigation system would deposit .16 inches of water per day on the site. Although he does not explain how he reached this figure, the context of the report — and appellant's calculations — suggest that it was based on a daily application of 8,700 gallons, the maximum discharge allowable under the draft order of the Regional Water Quality Control Board. Appellant argues forcefully that this calculation fails to take into account the disposal of waste water stored in holding lagoons during the rainy season. He calculates that the actual rate of application could be about twice this figure. Without substituting our calculations for those of a licensed civil engineer, we may observe that the firm designing the plant, Clayton Engineering Company, estimated a markedly different rate of application. In a letter dated March 31, 1986, it asserted that the irrigation system would spray "approximately 0.33 inches per acre per day" on the site. On this critical point, the record thus discloses the sort of disagreement among experts that under the CEQA guidelines may indicate the need for an EIR. (Cal. Code Regs., tit. 14, § 15064, subd. (h).)
Rau's calculation of the evapotranspiration rate is in reality a confession of his inability to find reliable data. The study states, "[w]hile we could find no specific studies which have been completed on rates of evapotranspiration it is common knowledge that 3 feet (36 inches) to 6 feet (72 inches) of water is needed to maintain permanent pasture during an irrigation season. The Hopland Field Station was used to conduct a study about the effect of
This process of reasoning added to such amorphous referents as — "common knowledge" of pasture irrigation and a single watershed study in another location — is used to construct a tenuous inference. Both premises lack any direct empirical basis in the climatic and ecological conditions actually existing on the site. Most disturbing, the calculations indicate a narrow margin of safety: the application of water, Rau calculated, will equal 73 percent of the expected evapotranspiration rate. In short, the study demonstrates the need for further investigation. If more precise estimates of the evapotranspiration rate are available, they should be brought to the attention of the County, and if the matter is inherently uncertain, the design of the plant should include fallback measures which take into account the margin of error in the calculations.
The hydrological study presents other uncertainties. The design engineers have not yet submitted a site plan showing precisely the size and location of the storage lagoons to be used in the rainy season. Rau acknowledged that he made no borings to determine the possibility of subsurface drainage from these lagoons. Again, a shallow ditch and small berm enclosing the irrigation field will intersect two small seasonal swales. The applicant has offered no data on the surface runoff in these watercourses. The environmental success of the treatment plant depends on maintaining a self-contained hydrological system, and the present state of the record permits a fair argument that the system may overload the absorptive capacity of the proposed site, increasing surface and subsurface drainage to the detriment of downslope properties.
For all of the above reasons we find that respondent County has failed to comply with the clear requirements of CEQA. Consequently, the judgment is reversed and the trial court is ordered to issue the requested writ of mandate. Costs to appellant.
The petitions of respondent County and respondent Miller for review by the Supreme Court were denied September 14, 1988.