The opinion
Filed 3/7/24
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
V LIONS FARMING, LLC, et al.,
F084763, F085102, F085220
Plaintiffs and Appellants,
(Super. Ct. Nos. BCV-15-101645,
v. BCV-15-101666, BCV-15-101679,
BCV-21-100533, BCV-21-100536)
COUNTY OF KERN et al.,
Defendants and Respondents; OPINION
CALIFORNIA INDEPENDENT
PETROLEUM ASSOCIATION et al.,
Real Parties in Interest and Respondents.
APPEAL from a judgment of the Superior Court of Kern County. Gregory A.
Pulskamp, Judge.
Shute, Mihaly & Weinberger, Rachel B. Hooper, Susannah T. French, Kevin P.
Bundy, Tori B. Gibbons, and Daniel P. Selmi for Plaintiff and Appellant V Lions
Farming.
Earthjustice, Colin C. O’Brien and Gregory D. Muren for Plaintiffs and Appellants
Natural Resources Defense Council and Sierra Club.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of the Facts, Proceedings, and parts I., III.,
IV., V., VI., VII., and V.III. of the Discussion.
Center on Race, Poverty & The Environment, Caroline Farrell and Daniel I. Ress
for Plaintiffs and Appellants Committee for a Better Arvin, Committee for a Better
Shafter, and Comité Progreso de Lamont.
Natural Resources Defense Council and Ann Alexander for Plaintiff and Appellant
Natural Resources Defense Council.
Center for Biological Diversity and Hollin K. Kretzmann for Plaintiff and
Appellant Center for Biological Diversity.
Margo A. Raison, County Counsel, Andrew C. Thomson, Deputy County
Counsel; Holland & Knight, Jennifer L. Hernandez, Bradley B. Brownlow, Marne S.
Sussman, Daniel R. Golub and Emily M. Lieban for Defendants and Respondents.
Pillsbury Winthrop Shaw Pittman, Blaine I. Green, Mark E. Elliott, and Eric
Moorman for Real Party in Interest and Respondent Western States Petroleum
Association.
Manatt, Phelps & Phillips, Craig A. Moyer, Benjamin G. Shatz and Sigrid R.
Waggner for Real Party in Interest and Respondent California Independent Petroleum
Association.
Environmental Law Clinic and Deborah A. Sivas for California Council of Land
Trusts as Amici Curiae on behalf of Appellants.
Environmental Law Clinic, Deborah A. Sivas and Rica Garcia for David J.X.
González, Ph.D., Rachel Morello-Frosch, Ph.D., Jill Johnston, Ph.D., Mary Willis, Ph.D.,
Jonathan Buonocore, Ph.D., Joan A. Casey, Ph.D., and Lisa Mckenzie, Ph.D. as Amici
Curiae on behalf of Appellants.
Frank G. Wells Environmental Law Clinic, Andria So, Cara Horowitz and Gabriel
F. Greif for H. Bradley Shaffer as Amici Curiae on behalf of Appellants.
-ooOoo-
2.
This is the second appeal addressing whether the County of Kern1 complied with
the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et
seq.)2 in approving an ordinance streamlining the permitting process for new oil and gas
wells. (King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814
(King & Gardiner).) In the first appeal, we determined the environmental impact report
(EIR) was defective and ordered the issuance of a writ of mandate directing the County to
correct those defects before reapproving the ordinance. (Id. at p. 901.) The County
prepared a revised supplemental recirculated environmental impact report (SREIR) and
an addendum, certified the completion of the SREIR, and adopted a slightly modified
ordinance. After the County filed a return, the superior court determined the CEQA
violations had been corrected and discharged the writ. This appeal followed.
In the published part of this opinion, we consider whether an agricultural
conservation easement (ACE) partially mitigates a conversion of agricultural land caused
by the project. In King & Gardiner, supra, 45 Cal.App.5th 814, we decided a narrow
aspect of the efficacy of ACE’s as mitigation by concluding ACE’s were not effective at
reducing the project’s conversion of agricultural land to a less than significant level for
purposes of CEQA. Here, we address the broader issue of whether ACE’s qualify as
compensatory mitigation for purposes of California Code of Regulations, title 14, section
15370, subdivision (e) (hereafter “Guidelines”),3 which defines mitigation to include
“[c]ompensating for the impact by … providing substitute resources.” (Guidelines,
§ 15370, subd. (e).) To promote CEQA’s purpose of long term protection of the
environment, we join the First District in interpreting the phrase “providing substitute
1 In this opinion, “County” refers to the governmental entity and “Kern County”
refers to the geographical area.
2 All unlabeled statutory references are to the Public Resources Code.
3 “Guidelines” hereafter refers to the regulations that implement CEQA and are
codified in California Code of Regulations, title 14, section 15000 et seq.
3.
resources” to encompass preserving existing agricultural land. (Masonite Corp. v.
County of Mendocino (2013) 218 Cal.App.4th 230, 238 (Masonite).) Thus, ACE’s
qualify as compensatory mitigation, even though they do not replace or otherwise offset
the acres of agricultural land converted by the project—that is, they do not ensure the
project results in no net loss of agricultural land. (Ibid.; see Black Warrior Riverkeeper,
Inc. v. U.S. Army Corps of Engineers (11th Cir. 2016) 833 F.3d 1274, 1281 [under
federal law, one of four methods of compensatory mitigation is the preservation of an
existing aquatic site]; 40 C.F.R. § 230.92 [definitions of compensatory mitigation and
preservation].)
In the unpublished part of this opinion, we address whether the SREIR’s
discussion of the cancer risk associated with the drilling of more than one well near a
sensitive receptor complied with CEQA. We conclude that discussion is inadequate for
purposes of CEQA because it lacks sufficient information for the public and decision
makers to meaningfully understand the cancer risk resulting from multiple wells drilled
outside the 210-foot setback distance specified in the ordinance. The health risk
assessment for the drilling of multiple wells used a setback distance of just under 1,000
feet instead of analyzing reasonably foreseeable situations that could arise under the
ordinance’s actual setback distances. This informational defect must be corrected before
the ordinance is reapproved.
We also address whether the County misconstrued CEQA when it decided to
remove a water supply mitigation measure because “there is no requirement in CEQA to
perform an analysis or provide mitigation for impacts to low-income or disadvantaged
communities.” While social and economic effects are not themselves environmental
impacts, social and economic effects are relevant in determining the significance of a
physical change to the conditions constituting the environment. (Guidelines, § 15064,
subd. (e).) Here, the County’s erroneous view of CEQA’s principles addressing social
and economic effects tainted its analysis of (1) the significance of lowering groundwater
4.
levels in wells and (2) appropriate mitigation for reducing the significance of the
project’s contribution to that cumulative impact.
We also conclude appellants have not carried their burden of establishing
prejudicial error involving (1) the air quality mitigation measures addressing emissions of
particulate matter, (2) the analysis of impacts to the Temblor legless lizard, or (3) the
absence of Spanish language translations of certain notices and portions of the SREIR.
We therefore reverse the judgment and discharge order and remand for further
proceedings.
THE PARTIES
Appellant V Lions Farming, LLC (Lions Farming) was named King and Gardiner
Farms, LLC before it amended its articles of organization in February 2021. The other
appellants are Natural Resources Defense Council, Sierra Club, Committee For A Better
Arvin, Committee For A Better Shafter, Comite Progreso de Lamont, and Center for
Biological Diversity (collectively, Sierra Club).
The respondents are the County, the Board, and real parties in interest Western
States Petroleum Association and California Independent Petroleum Association. They
filed a joint respondents’ brief to Lions Farming’s opening brief, a joint respondent’s
brief to Sierra Club’s opening brief, and are referred to collectively as the County.
FACTS*
The Project
The proposed project is an amendment of Title 19 of the Kern County Zoning
Ordinance that focuses on Chapter 19.98, which contains procedures and standards
applicable to the exploration, drilling and production of oil and gas. The amendment is
designed to streamline the process for obtaining permits for local oil and gas activities,
such as drilling new wells.
* See footnote, ante, page 1.
5.
The previous amendment streamlining the procedures in the zoning ordinance is
described in King & Gardiner, supra, 45 Cal.App.5th 814, and was effective from
December 9, 2015 through March 25, 2020. While it was in effect, 5,861 permits subject
to “Oil and Gas Conformity Review” were issued and 622 permits subject to “Minor
Activity Review” were issued.
The environmental review conducted for that amendment began in 2013 and
ended with the Board’s November 9, 2015 approval of the project, which included
adopting the amendment as set forth in ordinance No. G-8605 (Ordinance). (King &
Gardiner, supra, 45 Cal.App.5th at pp. 834–835.) The Board also certified the 2015 EIR
as complete and adopted (1) findings of fact to support its determinations relating to
significant environmental impacts; (2) a statement of overriding considerations; and (3) a
proposed mitigation measure monitoring program. (Id. at p. 835.)
Project Area, Subareas and Tiers
The project area contains 3,700 of Kern County’s 8,202 square miles. It includes
most of the San Joaquin Valley Floor located in Kern County. The SREIR divides the
project area into three subareas (western, central and eastern) and used those subareas in
its analysis of many of the project’s environmental impacts. (See King & Gardiner,
supra, 45 Cal.App.5th at pp. 832–833.)
In addition, a system of five tiers based on land use was adopted to classify the
land within the project area and subareas. Tier 1 land is where oil and gas activities are
the primary land use and the existing well and activity densities preclude almost all other
uses. Tier 2 land has agriculture as the primary land use. Tier 3 land is zoned for light,
medium or heavy industrial, natural resource, recreation forestry, floodplain, and a few
other uses. Tier 4 land is zoned for residential and commercial use and oil and gas
activities require a conditional use permit. Tier 5 land has specific plan boundaries either
adopted with a special planning district or which include specific provisions for oil and
gas operations.
6.
PROCEEDINGS*
Prior Appeal
In December 2015, Lions Farming and Sierra Club filed petitions for writ of
mandate and complaints. (King & Gardiner, supra, 45 Cal.App.5th at pp. 835–836.)
The superior court consolidated the matters based on the parties’ stipulation. (Id. at p.
836.) The trial court issued its ruling on the CEQA issues in March 2018, finding a
couple of CEQA violations and denying the others. (King & Gardiner, supra, at p. 836.)
In April 2018, the court entered a final judgment. (Ibid.) Lions Farming and Sierra Club
appealed. (Id. at p. 837.) In February 2020, we affirmed the judgment in part and
reversed it in part. (Id. at p. 901.) We directed the superior court enter a modified
judgment and issue a second peremptory writ of mandate directing the County to set
aside its approval of the 2015 ordinance. (Ibid.) We also stated the writ should direct the
County, in the event it decided to present the Ordinance for reapproval, to prepare a
revised EIR “correcting the CEQA violations relating to (a) water supply impacts and
mitigation measures, (b) PM2.5 emission impacts and mitigation measures, (c)
agricultural land impacts and mitigation measures, and (d) the analysis of noise impacts.”
(Ibid.)
Proceedings on Remand
In April 2020, the County issued an “INITIAL STUDY/NOTICE OF
PREPARATION” for a slightly revised ordinance. The notice stated that the SREIR,
including the “Multi-Well Health Risk Assessment,”4 would be recirculated for public
* See footnote, ante, page 1.
4 In the previous appeal, we agreed with the County’s statement that the assessment
titled “Cumulative Health Risk Assessment” was not a “cumulative impact” analysis as
that term is used in CEQA because the assessment did not address the “cumulative
impact from several projects” on human health risk in the project area. (Guidelines,
§ 15355, subd. (b) [definition of “[c]umulative impacts”].) As a result, we referred to,
and continue to refer to, the document as the “Multi-Well Health Risk Assessment.”
7.
review and comment and the County would prepare and publish responses to the
comments. The proposed revised ordinance limited the number of new well permits to
2,697 per year, instead of 3,746. (See King & Gardiner, supra, 45 Cal.App.5th at p. 832
[2015 EIR forecast 2,697 new wells would be drilled each year].) In May 2020, the
County held a virtual scoping meeting and solicited written and oral responses to the
notice of preparation. At that meeting, Spanish translation services were provided.
On June 12, 2020, the superior court (1) filed an order vacating portions of, and
modifying its order dated March 12, 2018, and (2) issued the first modified judgment.
On June 17, 2020, the court issued a second peremptory writ of mandate (Second Writ)
directing the Board to set aside its certification of the EIR, its findings of fact and
statement of overriding considerations, and its approval of the Ordinance. The Second
Writ stated the County “must refrain from reviewing and approving permits pursuant to
the Ordinance until and unless the Ordinance is readopted in compliance with CEQA and
this writ.” It also identified the CEQA violations that needed to be corrected before the
Ordinance, or a modified version, could be readopted.
On August 3, 2020, the County released a draft SREIR. Two weeks later, the
County’s department of planning and natural resources hosted a virtual public briefing
workshop to provide an overview of the draft SREIR and an opportunity for public
comments. At the end of August, the County filed an initial return to the Second Writ
stating the County’s approvals relating to the Ordinance had been set aside and the
issuance of permits had ceased as of the close of business on March 26, 2020. The initial
return also described the actions relating to the draft SREIR. The 45-day review period
for public comments on the draft SREIR ended on September 16, 2020.
On October 30, 2020, the County released a revised draft SREIR. In January
2021, the County released the final SREIR, which included responses to the public
comments received. The comments and response relevant to the issues raised in this
8.
appeal are described later in this opinion. In February 2021, the County release its
proposed findings of fact and statement of overriding considerations.
Approval of Revised Ordinance
On March 8, 2021, the Board held a special meeting and unanimously adopted
Ordinance No. G-8992 (Revised Ordinance), which amended title 19 of the County’s
Ordinance Code. The Board’s resolution found that certain environmental impacts could
not be mitigated, adopted a statement of overriding considerations, and found the final
SREIR was complete and complied with CEQA.
Challenges to Revised Ordinance
On March 10, 2021, Lions Farming and Sierra Club filed separate petitions for
writ of mandate and complaints for injunctive relief challenging the County’s adoption of
the Revised Ordinance, certification of the completion of the SREIR, and adoption of the
statement of overriding considerations. They requested the issuance of a writ of mandate
directing the County to vacate those decisions.
On April 6, 2021, the County filed a final return to the Second Writ stating it had
complied with the terms of the writ and adopted the Revised Ordinance in compliance
with CEQA and the writ. Three days later, Lions Farming and Sierra Club filed a joint
objection to the County’s final return to the Second Writ. The joint objection referred to
the CEQA violations set forth in the writ petitions and complaints they filed a month
earlier.
The County Begins Issuing Permits
In August 2021, Lions Farming and Sierra Club filed a joint motion to enforce the
Second Writ along with supporting papers. The joint motion asserted the County had
begun to review and issue permits under the Revised Ordinance in direct violation of the
Second Writ. The superior court heard the motion in September 2021, after the County
filed an opposition and Lions Farming and Sierra Club filed a reply.
9.
In October 2021, the superior court issued a written ruling granting in part the
joint motion to enforce the Second Writ. The court determined it, rather than the County,
should determine whether the Second Writ had been satisfied and directed the County to
immediately suspend operation of the Revised Ordinance and cease the review and
issuance of permits. The court did not retroactively invalidate the permits the County had
issued before its order.
Ruling on the Petitions for a Third Writ
On June 7, 2022, the superior court issued a ruling on the petitions of Lions
Farming and Sierra Club had filed in March 2021 to challenge the final SREIR and the
County’s approval of the Revised Ordinance. The court granted the petitions in part and
denied them in part, finding four CEQA violations. The court determined (1) a
mitigation measure of emission for particulate matter of 2.5 microns or less in diameter
(PM2.5)5 was not enforceable; (2) the SREIR did not adequately analyze water supply
impacts; (3) the elimination of a measure involving the removal of legacy equipment to
mitigate the project’s conversion of agricultural land was not adequately addressed; and
(4) the foregoing violations required the invalidation of the statement of overriding
considerations.
The superior court rejected other claims by determining (1) the County was not
required to adopt ACE’s as a mitigation measure for the conversion of agricultural land
because the 2020 opinion ruled ACE’s do not provide effective mitigation for such
conversions; (2) the health risk assessment addressing the risk of cancer from drilling
multiple wells near a sensitive receptor, such as a residence or school, was legally
adequate; (3) information in a 2019 study of the Temblor legless lizard was not “new
information” or “changed circumstances” for purposes of Guidelines section 15162 and,
5 (40 C.F.R. § 50.7(a) [definition of PM2.5]; Cal. Code Regs., tit. 17, § 70100, subd.
(j) [definition of fine suspended particulate matter].)
10.
therefore, further analysis of impacts to that species was not required; and (4) res judicata
barred Sierra Club’s challenge to the County’s decision not to translate notices and parts
of the SREIR into Spanish. Each of these four determinations are among those
challenged in this appeal.
The June 7, 2022 trial court ruling did not identify the relief that would be granted
for the CEQA violations. Instead, it directed the parties to meet and confer on the issue
before a case management conference addressing remedies. The parties did not agree on
the appropriate remedies, but did agree to a briefing schedule and a September 2022
hearing date.
Judgment and Third Writ
On October 4, 2022, the superior court issued a ruling on the remedies and relief
for the CEQA violations previously identified. The court concluded it was not necessary
to vacate the project approval or vacate the certification of the SREIR as complete. It
also extended the full suspension of project activities that had been entered earlier. The
same day, the court issued a “SECOND MODIFIED JUDGMENT” and a “THIRD
PEREMPTORY WRIT OF MANDATE” (Third Writ). The second modified judgment
stated the petitions for writ of mandate were granted in part and denied in part, set forth
the terms to be included in the Third Writ, and stated a full suspension of project
activities pending corrective action was sufficient to achieve compliance with CEQA and
protect the environment.
The Third Writ stated it replaced and superseded the Second Writ and directed the
County to address the four discrete CEQA violations identified in the June 7, 2022 ruling
and to file a return within 90 days setting forth how those violations had been addressed.
About a week later, the County filed a return to the Third Writ and requested the
writ be discharged. The County’s papers included a copy of the resolutions adopted by
the Board on August 23, 2022. One resolution included the Board’s approval of the
SREIR, a proposed addendum, revised and restated findings of fact, and a restated
11.
statement of overriding considerations. Another resolution approved a program called
the “VOLUNTARY DISADVANTAGED COMMUNITY DRINKING WATER
GRANT FUND PILOT PROGRAM” to which permit applicants could make voluntary,
nonrefundable contributions. That resolution stated that, before permitting had been
halted, permit applicants had contributed over $180,000 for use by the County public
health department in water challenged communities.
On November 2, 2022, the superior court discharged the Third Writ in an order
finding the County had complied with the writ in all respects. The order also lifted the
suspension of the operation of the Revised Ordinance.
Notices of Appeal
Lions Farming and Sierra Club filed separate notices of appeal from (1) the
superior court’s June 7, 2022 ruling on the merits of their petitions for a third writ of
mandate; (2) the October 4, 2022 second modified judgment and the related ruling on
remedies and relief; and (3) the November 2, 2022 order discharging the Third Writ. In
December 2022, after appellants’ motion to consolidate went unopposed, the three
appeals were consolidated by this court under case No. F084763.
Stay Granted
In December 2022, Lions Farming and Sierra Club jointly filed a petition for writ
of supersedeas and a request for stay to prevent the continuing issuance of permits under
the Revised Ordinance. On January 26, 2023, after respondents filed an opposition to the
petition and appellants filed a reply, this court granted a stay of the superior court’s
November 2, 2022 discharge order. As a result of the stay, the previously ordered
suspension of the operation of the Revised Ordinance remained in full force and effect.
Further Briefing
In June 2023, after appellants’ reply briefs were filed, H. Bradley Shaffer, Ph.D.,
applied for leave to file an amicus curiae brief in support of appellants on issues related to
the Temblor legless lizard. In July 2023, David J.X., Gonzalez, Ph.D., four other
12.
professors, and an environmental epidemiologist applied for leave to file an amicus
curiae brief in support of appellants on issues involving cancer risk and the Multi-Well
Health Risk Assessment. Also, that July, the California Council of Land Trust applied
for leave to file an amicus curiae brief in support of appellants on issues related to
agricultural conservation easements.
This court granted the applications and authorized the County to file a
consolidated answer to the three briefs. The order also directed the answer to address
three questions relating to the project’s conversion of agricultural land and allowed the
answer to “include an interpretation of the text of subdivision (e) of Guidelines section
15370 (as amended in 2018) and an application of that interpretation to the facts of this
case. (See 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act
(Cont.Ed.Bar 2d ed. 2023) § 13.72, pp. 13-100 to 13-102 [discussing relationship of King
& Gardiner … to 2018 version of Guidelines § 15370, subd. (e)].)”
In August 2023, this court granted Lions Farming’s application to file a reply to
the consolidated answer. Subsequently, this court issued an order giving the County an
opportunity to address specific issues relating to the interpretation of the discussion and
conclusions relating to agricultural conservation easements in our 2020 opinion. (See
King & Gardiner, supra, 45 Cal.App.5th at pp. 872–876, 878–879 [pts. VI.C.1. &
VI.C.5.].) The County elected to file a supplemental brief.
DISCUSSION
I. STANDARD OF REVIEW*
Section 21168.5 provides that in any action or proceeding addressing
noncompliance with CEQA, the judicial “inquiry shall extend only to whether there was a
prejudicial abuse of discretion. Abuse of discretion is established if the agency has not
proceeded in a manner required by law or if the determination or decision is not
* See footnote, ante, page 1.
13.
supported by substantial evidence.” (§ 21168.5.) Based on this provision and established
case law, the parties agree that the abuse of discretion standard of judicial review applies
in this appeal. (See Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512 [“standard
of review in a CEQA case … is abuse of discretion”].) When reviewing an agency’s
decision, courts must follow the “principle that there is no presumption that error is
prejudicial.” (§ 21005, subd. (b).)
Under CEQA, an abuse of an agency’s discretion usually occurs in one of two
ways. (King & Gardiner, supra, 45 Cal.App.5th at p. 837.) First, the “agency could fail
to proceed in the manner required by CEQA, thereby committing procedural (i.e., legal)
error.” (Id. at pp. 837–838.) “Whether the public agency has employed the correct
procedures—that is, followed applicable law—is subject to independent judicial review.”
(Id. at p. 838.) Examples of whether an agency followed applicable procedures include
whether the agency provided sufficient notice and opportunity to comment on a draft EIR
and whether the agency omitted the required discussion of alternatives. (Sierra Club v.
County of Fresno, supra, 6 Cal.5th at p. 512.)
Second, an agency could abuse its discretion by making findings of fact that are
not supported by sufficient evidence. (King & Gardiner, supra, 45 Cal.App.5th at p.
838.) The agency’s findings of fact are subject to the deferential substantial evidence
standard of review. (Ibid.) Substantial evidence includes “facts, reasonable assumptions
predicated upon facts, and expert opinion supported by facts” and excludes argument,
speculation, and unsubstantiated opinion. (§ 21082.2, subd. (c); Guidelines, § 15384.)
Sometimes, the inquiry into CEQA compliance does not fall neatly into one of
these two categories and, instead, “[t]he inquiry presents a mixed question of law and
fact.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516.) Generally, courts
conduct an independent review of mixed questions while applying the substantial
evidence standard to an agency’s underlying findings of fact. (Ibid.) However, when
“factual questions predominate, a more deferential standard is warranted.” (Ibid.) For
14.
example, an agency’s choice of methodology for analyzing a potentially significant
environmental effect is subject to review under the substantial evidence standard. (Id. at
pp. 514, 516.)
II. AGRICULTURAL CONSERVATION EASEMENTS
The parties dispute whether ACE’s qualify as a type of mitigation for the project’s
conversion of agricultural land. CEQA defines “ ‘[a]gricultural land’ ” as “prime
farmland, farmland of statewide importance, or unique farmland, as defined by the
United States Department of Agriculture land inventory and monitoring criteria, as
modified for California.” (§ 21060.1, subd. (a).) This opinion adopts this definition and
uses the terms “agricultural land” and “farmland” interchangeably.
To summarize the discussion that follows, in King & Gardiner, supra, 45
Cal.App.5th 814, we decided a narrow aspect of the efficacy of ACE’s as mitigation,
addressing only whether ACE’s were “effective” at reducing the project’s conversion of
agricultural land to a less than significant level for purposes of CEQA. We concluded
ACE’s were not “effective” at accomplishing that specific task.
Here, we address the broader question whether ACE’s are effective at providing
any type of mitigation for purposes of CEQA. The Guidelines define “ ‘[m]itigation’ ” by
giving five examples, including “[c]ompensating for the impact by … providing
substitute resources.” (Guidelines, § 15370, subd. (e).) We conclude this text is
ambiguous and, therefore, resolve the ambiguity by adopting the interpretation that best
effectuates CEQA’s purpose of the long term protection of the environment. The long
term protection of the environment is best promoted by accepting, rather than rejecting,
ACE’s as a type of compensatory mitigation. Consequently, we join the First District in
concluding “ACEs compensate for the loss of farmland within the Guidelines definition
of mitigation” by “preserving substitute resources,” even though ACE’s do not ensure the
project causes no net loss of farmland. (Masonite, supra, 218 Cal.App.4th at p. 238.)
15.
A. Background
1. Conservation Easements
The term “conservation easement” is statutorily defined as a limitation in the form
of an easement, restriction, covenant, or condition in an instrument executed by or on
behalf of the landowner; it is binding on successive owners; and its purpose is “to retain
land predominantly in its natural, scenic, historical, agricultural, forested, or open-space
condition.” (Civ. Code, § 815.1.) A conservation easement “shall be perpetual in
duration,” “shall constitute an interest in real property,” and its characteristics shall be
those specified in the written instrument. (Civ. Code, § 815.2, subds. (b), (c), (d).) A
conservation easement may be acquired and held by certain nonprofit organizations, state
or local government entities including a county or city, and certain Native American
tribes. (Civ. Code, § 815.3.) Other aspects of conservation easements, including
recordation and enforcement, are addressed in Civil Code sections 815.4 through 815.10.
The more specific term “agricultural conservation easement” is defined as “an
interest in land, less than fee simple, that represents the right to prevent the development
or improvement of the land, as specified in Section 815.1 of the Civil Code, for any
primary purpose other than agricultural production. The easement shall be granted for
the California Farmland Conservancy Program by the owner of a fee simple interest in
land to any of the organizations or entities specified in Section 815.3 of the Civil Code.
It shall be granted in perpetuity as the equivalent of covenants running with the land.”
(§ 10211; see § 10230.2 [California Farmland Conservancy Program].)
2. Interpreting Appellate Opinions
Our 2020 opinion discussed ACE’s as a mitigation measure for the project’s
conversion of agricultural land to another use. The parties disagree on how to interpret
that discussion and the resulting conclusions. (See King & Gardiner, supra, 45
Cal.App.5th at pp. 872–876 [pt. VI.C.1.].) Accordingly, we set forth the principles that
govern the interpretation of appellate opinions.
16.
Other CEQA decisions have addressed a disagreement among the parties about the
meaning or effect of an opinion published in an earlier appeal. (E.g., POET, LLC v. State
Air Resources Bd. (2017) 12 Cal.App.5th 52, 63 (Poet II); Protect Our Water v. County
of Merced (2005) 130 Cal.App.4th 488, 494 [issue of who was the prevailing party turned
on the import of this court’s earlier opinion]; San Bernardino Valley Audubon Society v.
Metropolitan Water Dist. (2001) 89 Cal.App.4th 1097, 1101–1102 [respondents’ narrow
interpretation of prior opinion rejected].) In Poet II, we addressed how POET, LLC v.
State Air Resources Bd. (2013) 218 Cal.App.4th 681 should be interpreted. (Poet II,
supra, 12 Cal.App.5th at p. 63.) We concluded (1) the interpretation of the earlier
opinion presented a question of law and (2) that question was subject to our independent
review. (Ibid.; see Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859
[interpretation of an appellate opinion is a legal issue subject to de novo review].)
In accordance with Poet II, we again conclude the interpretation of our prior
opinion presents a question of law subject to our independent review. We make this
opinion more explicit than Poet II or San Bernardino Valley Audubon Society v.
Metropolitan Water Dist., supra, 89 Cal.App.4th 1097, by noting that the “interpretation
of an appellate opinion is governed by the rules of construction that apply to any other
writing.” (16 Cal.Jur.3d (2020) Courts, § 331, p. 925.) Under those rules, an opinion
must receive an objectively reasonable interpretation—that is, (1) it must be read as
whole, (2) its language must be viewed in light of the facts and the issues before the
court, and (3) each statement must be considered in its proper context. (Ibid.; Kirk v.
First American Title Ins. Co. (2010) 183 Cal.App.4th 776, 797.) The scope of the
“[l]anguage used in any opinion is of course to be understood in the light of the facts and
the issue then before the court, and an opinion is not authority for a proposition not
therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2; Geiser v. Kuhns
(2022) 13 Cal.5th 1238, 1252 [cases are not authority for propositions not considered];
17.
see 9 Witkin, Cal. Procedure (6th ed. 2021) Appeal, § 530, pp. 563–564 [ratio decidendi
and dicta].)
The first step in analyzing the meaning of a writing is determining whether the
language is ambiguous. (In re Estate of Russell (1968) 69 Cal.2d 200, 208–209 [initial
determination is whether the terms of any written instrument are free from ambiguity];
see Joseph v. City of Atwater (2022) 74 Cal.App.5th 974, 982 [ambiguity is the threshold
question in contract interpretation]; Gutierrez v. Carmax Auto Superstores California
(2018) 19 Cal.App.5th 1234, 1249 [whether a statute’s language is ambiguous is the first
question of statutory interpretation].) “Ambiguous” means susceptible to more than one
reasonable interpretation. (Gutierrez, supra, at p. 1249; Estate of Newmark (1977) 67
Cal.App.3d 350, 355 [“ambiguity exists in a written instrument when its language is
properly susceptible to multiple constructions”].)
B. The 2020 Opinion
1. Effective Mitigation
In King & Gardiner, supra, 45 Cal.App.5th 814, Lions Farming raised several
issues related to the project’s conversion of agricultural land. (Id. at p. 872 [Part VI.B.,
Contentions of the Parties].) The issue relevant to this appeal arose from Lions
Farming’s contention that the mitigation measure for the conversion of agricultural land,
mitigation measure (MM) 4.2-1, “does not support the Board’s finding that conversions
of agricultural land would be reduced to a less than significant level.” (Ibid.) To resolve
this alleged CEQA violation, we evaluated “the effectiveness of each” of the four
mitigation options contained in MM 4.2-1. (King & Gardiner, supra, at p. 872.)
The first mitigation option, MM 4.2-1.a, authorized the use of ACE’s. (King &
Gardiner, supra, 45 Cal.App.5th at p. 872.) We analyzed the characteristic of ACE’s and
concluded “that MM 4.2-1.a does not provide effective mitigation for the conversion of
agricultural land.” (Id. at p. 876, italics added.) How to interpret this conclusion is at the
18.
heart of the parties’ dispute over ACE’s. The discussion immediately preceding the
conclusion stated:
“Entering into a binding agricultural conservation easement does not create
new agricultural land to replace the agricultural land being converted to
other uses. Instead, an agricultural conservation easement merely prevents
the future conversion of the agricultural land subject to the easement.
Because the easement does not offset the loss of agricultural land (in whole
or in part), the easement does not reduce a project’s impact on agricultural
land. The absence of any offset means a project’s significant impact on
agricultural land would remain significant after the implementation of the
agricultural conservation easement. Restating this conclusion using the
data from this case, the implementation of agricultural conservation
easements for the 2[98] acres of agricultural land estimated to be converted
each year would not change the net effect of the annual conversions. At the
end of each year, there would be 2[98] fewer acres of agricultural land in
Kern County. Accordingly, under the thresholds of significance listed in
the EIR, this yearly impact would qualify as a significant environmental
effect.” (King & Gardiner, supra, at pp. 875–876.)
Later, the opinion described the resulting noncompliance with CEQA by stating
the Board’s finding that the project’s estimated conversion of agricultural land was an
impact that “ ‘would be less than significant with mitigation’ ” was a “finding as to the
effectiveness of MM 4.2-1 [that was] not supported by substantial evidence and [wa]s
based on a legally incorrect view of the operation of [ACE’s].” (King & Gardiner, supra,
45 Cal.App.5th at p. 878.) Our ultimate conclusion was that “the EIR and the Board’s
finding as to the mitigation of a significant impact on agricultural land d[id] not comply
with CEQA.” (Id. at p. 879.)
2. Proposed Interpretations
The County’s interpretation of the 2020 opinion is set forth in the final SREIR’s
responses to comments. Response No. 0004-2 explained:
“The SREIR … has an expanded discussion explaining that, based on the
court’s analysis, it is not possible to reduce a projects impact on agricultural
land by requiring a conservation easement because such easements do not
offset the loss of agricultural land in whole or in part. Since an agricultural
19.
conservation easement does not create new agricultural land to replace the
agricultural land being converted to other uses at the end of each year there
would be a net loss of agricultural land equal to the amount converted by
the Project and the Project’s impact on agricultural land would remain
significant despite the implementation of the easement. Accordingly, under
the threshold of significance in the SREIR, conservation easements do not
provide an effective means of even partial mitigation for agricultural
conversion impacts.”
Thus, the County argues it cannot legally rely on ACE’s to mitigate the farmland
conversion impact. In contrast, Lions Farming asserts the 2020 opinion did not conclude
ACE’s are categorically ineffective at providing any type of CEQA mitigation, but
determined that ACE’s alone would not be effective at reducing the project-specific
impacts to a less than significant level because ACE’s could not ensure no net loss of
farmland. To determine which interpretation is correct, we apply the rules for construing
an opinion set forth in part II.A.2., ante.
C. Construing the Opinion
1. Threshold Question of Ambiguity
Pursuant to the general rules of construction that apply to writings, we begin by
considering whether the conclusion “that MM 4.2-1.a does not provide effective
mitigation for the conversion of agricultural land” (King & Gardiner, supra, 45
Cal.App.5th at p. 876, italics added) and other statements about the effectiveness of
ACE’s as mitigation are ambiguous. We conclude the statements are ambiguous because,
taken alone, they can be interpreted broadly as proposed by the County.
The conclusion that ambiguities exist also is supported by a CEQA practice
guide’s discussion of Masonite, supra, 218 Cal.App.4th 230, King & Gardiner, supra, 45
Cal.App.5th 814, and the 2018 amendment to Guidelines section 15370, subdivision (e)
along with the practice guide’s statement that “it is unclear whether it would be
appropriate for a lead agency to find that requiring an off-site conservation easement as
mitigation is sufficient to ‘avoid,’ ‘minimize,’ or ‘substantially lessen’ the impact to
20.
farmland that results when it is developed.” (1 Kostka & Zischke, Practice Under the
Cal. Environmental Quality Act, supra, § 13.72, pp. 13-100 to 13-101.)
2. Narrow Scope of the 2020 Opinion
The ambiguity in the 2020 opinion is resolved by applying the rules of
construction described earlier. Although those rules do not inquire into actual intent, we
confirm that the result produced by applying those rules reflects the actual intent of the
2020 opinion because we did not intend to adopt any principle of law about mitigation
that was not needed to decide the particular issue presented. (Ginns v. Savage, supra, 61
Cal.2d at p. 524, fn. 2 [opinions are “understood in the light of the facts and the issue then
before the court”].) The particular issue presented was whether the mitigation measure
authorizing the use of ACE’s supported the Board’s finding that the project’s estimated
annual conversion of 298 acres of farmland “would be reduced to a less than significant
level.” (King & Gardiner, supra, 45 Cal.App.5th at p. 872.)
The scope of this issue impliedly limited what the opinion meant by “effective
mitigation.” Specifically, to be regarded as “effective mitigation” in the context
presented, ACE’s would need to reduce or offset the project-specific impact “to a less
than significant level.” (King & Gardiner, supra, 45 Cal.App.5th at p. 872.)6 To explain
the limitation resulting from the issue presented, we turn to the definitions of “project-
specific impact” and “threshold of significance.”
6 A footnote in King & Gardiner stated our view that the determinations in
Masonite did not contradict our conclusion that the absence of an offset by the ACE’s
“means a project’s significant impact on agricultural land would remain significant after
the implementation of the [ACE].” (King & Gardiner, supra, at p. 875, fn. 32 and
accompanying text.) The footnote explained the lack of contradiction by stating in part:
“In Masonite, the court did not consider the net effect of implementing an agricultural
conservation easement and whether a significant impact could be reduced to a less than
significant level by such an easement.” (Ibid., italics added.) That explanation would
have been clearer if the italicized “and” had been replaced with the phrase “in the context
of deciding the narrow question of.”
21.
“ ‘Project-specific effect’ means all the direct or indirect environmental effects of
a project other than cumulative effects and growth-inducing effects.” (Guidelines,
§ 15191, subd. (j) [same]; see Guidelines, § 15358, subd. (a) [direct and indirect effects
defined].) In this case, the project-specific impact is the estimated conversion of 298
acres of agricultural land per year, which is the amount predicted in both the EIR and
SREIR.7 (See King & Gardiner, supra, 45 Cal.App.5th at p. 870.) They also predicted a
maximum (i.e., worst-case) conversion of 7,450 acres of farmland between 2015 and
2040, which was less than 1 percent of the farmland in Tier 2 of the project area. (Id. at
p. 871.)
Next, we compare the estimated conversion of agricultural land to the applicable
threshold of significance. “A threshold of significance is an identifiable quantitative,
qualitative or performance level of a particular environmental effect, non-compliance
with which means the effect will normally be determined to be significant by the agency
and compliance with which means the effect normally will be determined to be less than
significant.” (Guidelines, § 15064.7, subd. (a).) The EIR and the SREIR described the
applicable threshold of significance by stating the conversion of any agricultural land
would be considered a significant impact. (See King & Gardiner, supra, 45 Cal.App.5th
at p. 871.) Applying this threshold to the project-specific effect, both the EIR and the
SREIR concluded the conversion of agricultural land was considered significant. (Ibid.)
Consequently, under the threshold of significance adopted by the County, ACE’s
would be “effective” for purposes of the issue addressed in the 2020 opinion only if they
reduced or offset the conversion of farmland to zero acres. Stated another way, the
ACE’s would have had to achieve no net loss of agricultural land to render the
conversion insignificant. As a result, the 2020 opinion’s statement that ACE’s were not
7 The SREIR continued to use the EIR’s estimate despite a March 2021 staff report
on the Revised Ordinance stating: “The actual[] permitting from 2015, to March 2020,
resulted [in] impacts to 54.18 acres with an average of 12 acres per year.”
22.
“effective mitigation” and did not support the Board’s finding, meant ACE’s would not
reduce or offset the conversion of farmland to zero and, therefore, the project’s
conversion of agricultural land would remain significant after implementation of ACE’s.
In other words, “[a]t the end of each year, there would be 2[98] fewer acres of
agricultural land in Kern County. Accordingly, under the thresholds of significance listed
in the EIR, this yearly impact would qualify as a significant environmental effect.” (King
& Gardiner, supra, 45 Cal.App.5th at p. 876.)
Therefore, based on the issue actually presented and decided in King & Gardiner,
supra, 45 Cal.App.5th 814, we conclude the County construed the opinion too broadly
and mistakenly concluded the opinion established the principle that ACE’s “do not
provide an effective means of even partial mitigation for agricultural conversion
impacts.” Because the opinion did not decide, one way or the other, whether ACE’s
provide some form of mitigation despite their inability to reduce or offset the project’s
conversion of farmland to zero acres, the County’s misreading of the opinion, by itself,
does not establish the County violated CEQA. The County may have properly
interpreted CEQA and the Guidelines when it determined that ACE’s provide no
mitigation of any type for the conversion of agricultural land. Accordingly, we now turn
to whether ACE’s qualify as a type of mitigation despite their inability to achieve no net
loss of farmland. This inquiry is focused on whether ACE’s provide compensatory
mitigation.
D. ACE’s and Compensatory Mitigation
1. Background
CEQA and the federal legislation on which it was modeled, the National
Environmental Policy Act of 1969 (NEPA; 42 U.S.C. section 4321, et seq.), do not
themselves define “mitigation.” Instead, the term is defined in regulations. (Guidelines,
§ 15370; 40 C.F.R. § 1508.1(s) (2023); 28 C.F.R. § 91.51(c) (2023).)
23.
The federal definition of mitigation was adopted in 1978 as part of the regulations
implementing the procedural provisions of NEPA. (43 Fed.Reg. 55978, 56005 (Nov. 29,
1978).) “ ‘Mitigation’ includes: [¶] (a) Avoiding the impact altogether by not taking a
certain action or parts of an action. [¶] (b) Minimizing impacts by limiting the degree or
magnitude of the action and its implementation. [¶] (c) Rectifying the impact by
repairing, rehabilitating, or restoring the affected environment. [¶] (d) Reducing or
eliminating the impact over time by preservation and maintenance operations during the
life of the action. [¶] (e) Compensating for the impact by replacing or providing
substitute resources or environments.” (Ibid.; see 40 C.F.R. § 1508.20 (1979).) This
language remains unchanged in the five examples of mitigation contained in the current
NEPA regulation. (See 40 C.F.R. § 1508.1(s)(1)-(5) (2023).)
In 1983, the Guidelines were amended to add a definition of mitigation that
“originally mirrored the definition contained in the federal NEPA regulations.” (Natural
Resources Agency, Final Statement of Reasons for Regulatory Action Amendments to
the State CEQA Guidelines (Nov. 2018) p. 64 (FSOR 2018); see Register 83, No. 29-B
(July 16, 1983) p. 322.52.) The only difference in language was that subdivision (c) of
Guidelines section 15370 referred to the “impacted environment” instead of the “affected
environment.” In 2018, subdivision (e) of Guidelines section 15370 was amended to
include a clause referring to conservation easements:
“Compensating for the impact by replacing or providing substitute
resources or environments, including through permanent protection of such
resources in the form of conservation easements.” (Guidelines, § 15370,
subd. (e), italics added; see FSOR 2018, supra, at pp. 92–93.)
The fundamental dispute in this appeal about the use of ACE’s as mitigation is
whether the preservation of existing agricultural land qualifies as compensatory
mitigation by “providing substitute resources.” (Guidelines, § 15370, subd. (e).) The
dispute about whether preservation should constitute compensatory mitigation is not new.
Nearly a decade ago, commentators observed that “one of the central concerns with
24.
preservation as mitigation is that it does not prevent net loss of habitat.” (Morris &
Owley, Mitigating the Impacts of the Renewable Energy Gold Rush (Winter 2014) 15
Minn. J.L. Sci & Tech. 293, 369.) The commentators argued preservation as mitigation
is unsatisfying because preservation “generally protects off-site habitat without truly
offsetting project impacts.” (Ibid.) The County has made the same argument here, which
interprets the term “mitigation” narrowly to require a replacement or offset that can be
quantified and compared to the quantity of farmland converted.
As context for our textual analysis of Guidelines section 15370, we consider how
federal agencies have dealt with preservation as a form of compensatory mitigation. A
review of their approach is useful because CEQA was modeled on NEPA and California
courts treat judicial and administrative interpretations of the federal act as persuasive
authority in interpreting CEQA. (See Citizens of Goleta Valley v. Board of Supervisors
(1990) 52 Cal.3d 553, 565, fn. 4.) Also, we have located no published California
decision discussing the federal view of compensatory mitigation and the preservation of
existing resources.
2. Federal Approach to Compensatory Mitigation
Initially, we note definition of mitigation in the NEPA regulations is not applied
only to activities exclusively within the jurisdiction of the United States Environmental
Protection Agency (EPA). The NEPA regulation defining mitigation and other terms
states: “Federal agencies shall use these terms uniformly throughout the Federal
Government.” (40 C.F.R. § 1508.1.) Consequently, other federal regulations also state
that mitigation includes “compensating for the impact by replacing or providing
substitute resources or environments.” (1 C.F.R. § 601.3 [National Capital Planning
Commission definition of mitigation]; 10 C.F.R. § 960.2 [Department of Energy
definition of mitigation]; 32 C.F.R. § 651.15(a)(5) [Department of the Army definition of
mitigation]; 43 C.F.R. § 3809.5 [Bureau of Land Management definition of mitigation].)
25.
Although the NEPA regulations do not contain a definition of “compensatory
mitigation,” other regulations developed jointly by the EPA and other federal agencies
define the term. For example, the EPA and U.S. Army Corps of Engineers (Corps) have
adopted regulations containing standards and criteria for the use of compensatory
mitigation in connection with the Corps’ issuance of permits under section 404 of the
Clean Water Act (33 U.S.C. § 1344). (40 C.F.R. § 230.91(a)(1); see generally, 40 C.F.R.
§ 230 [Subpart J — Compensatory Mitigation for Losses of Aquatic Resources].) Those
regulations state:
“Compensatory mitigation means the restoration (re-establishment or
rehabilitation), establishment (creation), enhancement, and/or in certain
circumstances preservation of aquatic resources for the purposes of
offsetting unavoidable adverse impacts which remain after all appropriate
and practicable avoidance and minimization has been achieved. [¶] … [¶]
“Preservation means the removal of a threat to, or preventing the decline
of, aquatic resources by an action in or near those aquatic resources. This
term includes activities commonly associated with the protection and
maintenance of aquatic resources through the implementation of
appropriate legal and physical mechanisms. Preservation does not result in
a gain of aquatic resource area or functions.” (40 C.F.R. § 230.92, italics
added.)
In adopting this regulation, the EPA and Corps provided the following summary:
“Compensatory mitigation can be carried out through four methods: the restoration of a
previously-existing wetland or other aquatic site, the enhancement of an existing aquatic
site’s functions, the establishment (i.e., creation) of a new aquatic site, or the preservation
of an existing aquatic site.” (Compensatory Mitigation for Losses of Aquatic Resources,
73 Fed.Reg. 19594–01, 19594 (April 10, 2008); see Black Warrior Riverkeeper, Inc. v.
U.S. Army Corps of Engineers, supra, 833 F.3d at p. 1281.) Of interest for this appeal are
the comments presented to the agencies that, like the County’s argument, asserted
preservation alone was not a form of compensatory mitigation because it failed to
26.
promote no net loss of wetlands. In response, the agencies stated that, under part
203.93(h)(2) of title 40 of the Code of Federal Regulations:
“[P]reservation will be provided [only] in conjunction with aquatic
resource restoration, establishment, and/or enhancement activities, unless
the district engineer waives this requirement in a situation where
preservation has been identified as a high priority using a watershed
approach. If the district engineer makes such a waiver, a higher
compensation ratio shall be required. For each mitigation bank and in-lieu
fee project involving preservation, the district engineer, in consultation with
the [Interagency Review Team], will determine the number of credits that
will result from that preservation activity.” (Compensatory Mitigation for
Losses of Aquatic Resources, supra, 73 Fed.Reg. at p. 19635; see 33 C.F.R.
§§ 332.2 [definition of compensatory mitigation], 332.3(a)(2)
[compensatory mitigation may be performed by using preservation in
certain circumstances, with restoration generally being the first option],
332.3(h)(1) [criteria for using preservation as compensatory mitigation].)
Similar restrictions on the use of preservation appear in other federal regulations.
“Compensatory mitigation means the restoration (reestablishment or rehabilitation),
establishment (creation), enhancement, and/or, in certain circumstances, preservation of
aquatic resources for the purposes of offsetting unavoidable adverse impacts that remain
after all appropriate and practicable avoidance and minimization have been achieved.”
(24 C.F.R. § 55.2(a)(2), italics added; see 24 C.F.R. § 55.20(e)(2) [compensatory
mitigation includes the use of preservation easements or protective covenants; use of
compensatory mitigation is not a substitute for avoiding or minimizing impacts to the
maximum extent practicable].) A regulation adopted by the Federal Highway
Administration states in part: “Compensatory mitigation means restoration,
enhancement, creation, and under exceptional circumstances, preservation, of wetlands,
wetland buffer areas, and other natural habitats.” (23 C.F.R. § 777.2, italics added; cf.
Northwest Bypass Group v. U.S. Army Corps of Engineers (D.N.H. 2008) 552 F.Supp.2d
97, 120 [guidance letter issued by the Corps states “ ‘[p]reservation does not result in a
gain of wetland acres and will be used only in exceptional circumstances’ ”].)
27.
In 1996, the United States Fish & Wildlife Service and the National Marine
Fisheries Service issued the Habitat Conservation Plan Handbook, which states:
“Potential types of habitat mitigation include, but are not limited to: (1) acquisition of
existing habitat; (2) protection of existing habitat through conservation easements or
other legal instruments; (3) enhancement or restoration of disturbed or former habitat; (4)
prescriptive management of habitat to achieve specific biological characteristics; and (5)
creation of new habitats.” (Id. at pp. 3-21 to 3-22, italics added.) The first two mitigation
options do not lead to increased habitat but protect habitat that already exists. (Owley,
The Increasing Privatization of Environmental Permitting (2013) 46 Akron L.Rev. 1091,
1101.) Professor Owley also asserted that preservation of habitat was the most common
mitigation technique. (Ibid.)
To summarize, federal agencies treat compensatory mitigation as including
preservation of existing habitat, but usually restrict the use of preservation to exceptional
circumstances. Despite this restriction, preservation is a common type of mitigation.
3. Principles for Interpreting the Guidelines
Before analyzing the text of Guidelines section 15370, subdivision (e), we
describe the principles governing its interpretation. When interpreting the Guidelines,
courts usually apply the same rules that govern the interpretation of statutes. (Los
Angeles Dept. of Water & Power v. County of Inyo (2021) 67 Cal.App.5th 1018, 1037
[the existence of ambiguity is the threshold inquiry when interpreting a regulation]
(County of Inyo).) Under those rules, the interpretation of Guidelines section 15370
presents a question of law that is subject to our independent review. (See BullsEye
Telecom, Inc. v. Public Utilities Com. (2021) 66 Cal.App.5th 301, 309 [questions of
statutory interpretation are questions of law subject to independent review].) The
threshold inquiry is whether the regulatory text is ambiguous. (County of Inyo, supra, at
p. 1037.) If the text contains ambiguities, the next step is to resolve those ambiguities.
28.
(Id. at p. 1039.) Generally, a court’s primary goal when construing an ambiguous
Guideline is to adopt the interpretation that best effectuates the legislative and regulatory
intent or purpose. (Ibid.)
4. The Ambiguities
Guidelines section 15370, subdivision (e) states that mitigation includes:
“Compensating for the impact by replacing or providing substitute resources or
environments, including through permanent protection of such resources in the form of
conservation easements.” Initially, we consider whether the clause “including through
permanent protection of such resources in the form of conservation easements”
unambiguously requires ACE’s to be treated as a type of compensatory mitigation in all
situations where a project converts agricultural land to other uses. (Guidelines, § 15370,
subd. (e).)
The County argues the clause does not, emphasizing the term “such resources.”
The County asserts that term refers back to earlier language in the subdivision and, to fall
within the earlier language, the ACE “must result in ‘substitute resources or
environments’ being ‘replac[ed] or provid[ed.]’ ” We accept the County’s construction
of the term “such resources.” As a result, the clause “including through permanent
protection of such resources in the form of conservation easements” (Guidelines,
§ 15370, subd. (e)) does not unambiguously require ACE’s to be accepted as
compensatory mitigation in all situations where agricultural land is converted. Instead, to
determine whether an ACE is mitigation that “[c]ompensat[es]” for the conversion of
agricultural land depends on whether the ACE “replac[es] or provid[es] substitute
resources or environments.” (Guidelines, § 15370, subd. (e).) Consequently, we next
consider whether “replacing or providing substitute resources or environments” is
ambiguous. (Ibid.) We address the two verbs—replacing and providing—separately.
29.
The County argues ACE’s do not replace the converted farmland and cites the
2020 opinion’s statement that “[e]ntering into a binding agricultural conservation
easement does not create new agricultural land to replace the agricultural land being
converted to other uses.” (King & Gardiner, supra, 45 Cal.App.5th at p. 875, italics
added; see Masonite, supra, 218 Cal.App.4th at p. 238 [“an ACE does not replace the
onsite resources”].) Accordingly, we conclude (1) the verb “replacing” is not ambiguous
in the context of this case and (2) the use of ACE’s would not compensate for the
conversion of 298 acres of agricultural land per year by “replacing” the converted acres.
(Guidelines, § 15370, subd. (e).)
Next, we consider whether the verb “providing” and the term “substitute resources
or environments” contain ambiguities. (Guidelines, § 15370, subd. (e).) The Guidelines
do not define the verb “providing” or the term “substitute resources.” One dictionary
definition of the verb “[p]rovide” is “[t]o make, procure, or furnish for future use,
prepare. To supply, to afford, to contribute.” (Black’s Law Dict. (6th ed. 1990) p. 1224.)
Another dictionary states that “provide” and “supply” are often interchangeable and the
former “may suggest equipping, stocking, or giving in the interest of preparing with
foresight.” (Webster’s Third New Internat. Dict. (1993) p. 1827.)
The County’s briefing suggests the verb “providing” should be interpreted to mean
“replacing.” We reject this suggestion because such an interpretation would make the
term “providing” redundant and such interpretations are disfavored. (See Kern County
Hospital Authority v. Dept. of Corrections & Rehabilitation (2023) 91 Cal.App.5th 1313,
1326 [courts avoid an interpretation that renders regulatory language mere surplusage].)
The County’s briefing also suggests that “providing” is not the equivalent of preserving
or protecting in perpetuity. In our view, the verb “providing” could be reasonably
construed narrowly to mean supplying something new, while excluding the preservation
of something that already exists. Alternatively, “providing” could be reasonably
construed more broadly to include preserving (i.e., protecting in perpetuity) because
30.
preserving and protecting in perpetuity could be equated to “giving in the interest of
preparing with foresight” (Webster’s Third New Internat. Dict., supra, p. 1827) against
long term depletion of agricultural land. Based on the different ways the verb
“providing” could be interpreted, we conclude it is ambiguous in the context of this case.
ACE’s must “provid[e] substitute resources or environments” for the converted
agricultural land to qualify as compensatory mitigation. (Guidelines, § 15370, subd. (e).)
The usual or ordinary meaning of the noun “substitute” is “that which stands in place of
another; that which stands in lieu of something else” and the verb form means “[t]o put in
the place of another person or thing; to exchange.” (Webster’s Third New Internat. Dict.,
supra, at p. 1429.) Taking these definitions into consideration, we conclude the term
“substitute resources” is ambiguous. It could be interpreted narrowly to mean that,
immediately after the substitute acreage has been provided, the amount of land suitable
for agricultural use is the same—that is, there is no net loss of farmland. (See generally,
Malloy, Symbolic Gestures or Our Saving Grace: The Relevance of Compensatory
Mitigation for Florida’s Wetlands in the Climate Change Era (2011) 27 J. Land Use &
Envtl. L. 103, 105 [no net loss policy adopted in 1989 by President Bush designed to
ensure total acres of wetlands remained constant].) This interpretation of what
constitutes “substitute resources” focuses on the immediate result. Alternatively, it could
be interpreted broadly to refer to other land that will be available in the future to grow
crops that could no longer be grown on the land being converted. Based on these
different interpretations, we conclude that, in the context of this case, the term “substitute
resources” is ambiguous. (Guidelines, § 15370, subd. (e).)
5. Resolving the Ambiguities
Having determined the phrase “providing substitute resources or environments”
and the derivative term “such resources” (Guidelines, § 15370, subd. (e)), are ambiguous,
the next step is to resolve the ambiguities. That step involves an independent review and
31.
our adoption of the interpretation that best effectuates the purpose of CEQA. (See
County of Inyo, supra, 67 Cal.App.5th at p. 1039.)
In 2018, the Natural Resources Agency explained the purpose of adding the phrase
“including through permanent protection of such resources in the form of conservation
easements” to subdivision (e) of section 15370 by stating:
“[We] revised Section 15370 of the CEQA Guidelines, however, to clarify
in the CEQA Guidelines that permanent protection of off-site resources
through conservation easements constitutes mitigation. The proposed
changes incorporate the First District Court of Appeal holding in Masonite
Corporation v. County of Mendocino (2013) 218 Cal.App.4th 230 wherein
the court ruled that off-site agricultural conservation easements constitute a
potential means to mitigate for direct, in addition to cumulative and
indirect, impacts to farmland.” (FSOR 2018, supra, at p. 64.)
Based on the role Masonite played in the amendment of section 15370,
subdivision (e), we next describe that decision. In Masonite, the First District reversed a
judgment denying a petition for writ of mandate, and directed the issuance of a writ
requiring the county to (1) set aside its certification of the EIR and approval of permits
for a quarry project and (2) correct deficiencies in the EIR involving ACE’s as mitigation
for the conversion of agricultural land. (Masonite, supra, 218 Cal.App.4th at p. 242.)
The court rejected the respondents’ contention that ACE’s were legally infeasible and
concluded “that ACEs may appropriately mitigate the direct loss of farmland when a
project converts agricultural land to a nonagricultural use, even though an ACE does not
replace the onsite resources.” (Masonite, supra, 218 Cal.App.4th at p. 238, italics
added.) The court stated its conclusion was “reinforced by the CEQA Guidelines, case
law on offsite mitigation for loss of biological resources, case law on ACEs, prevailing
practice, and the public policy of this state.” (Ibid.) The court then explained:
“ACEs preserve land for agricultural use in perpetuity. (See
Civ.Code, §§ 815.1, 815.2 [describing agricultural and other conservation
easements]; Pub. Resources Code, § 10211 [defining ‘agricultural
conservation easement’].) As the California Farm Bureau Federation
32.
(CFBF) observes in an amicus curiae brief advocating for the conclusion
we reach: ‘The permanent protection of existing resources off-site is
effective mitigation for [a project’s direct, cumulative, or growth-inducing]
impacts because it prevents the consumption of a resource to the point that
it no longer exists.... If agricultural land is permanently protected off-site
at, for example, a 1:1 replacement ratio, then at least half of the agricultural
land in a region would remain after the region has developed its available
open space.’ By thus preserving substitute resources, ACEs compensate for
the loss of farmland within the Guidelines’ definition of mitigation.
(Guidelines, § 15370, subd. (e) [mitigation includes ‘[c]ompensating for the
impact by replacing or providing substitute resources or environments’].)”
(Masonite, supra, 218 Cal.App.4th at p. 238, italics added.)
Although not stated in detail, the foregoing demonstrates that the First District
interpreted the phrase “providing substitute resources” to encompass preserving (i.e.,
permanently protecting) existing agricultural land. (Guidelines, § 15370, subd. (e).)
As further support for its conclusion that ACE’s mitigate the conversion of
agricultural land despite not replacing the converted land, the First District noted the
cases accepting offsite preservation of habitats for endangered species as a means of
mitigating impacts on biological resources and stated there was no good reason to
distinguish the use of offsite ACE’s to mitigate the conversion of agricultural land.
(Masonite, supra, 218 Cal.App.4th at pp. 238–239, citing Preserve Wild Santee v. City of
Santee (2012) 210 Cal.App.4th 260, 278 [loss of habitat mitigated by conservation of
other habitat at a one-to-one ratio]; California Native Plant Society v. City of Rancho
Cordova (2009) 172 Cal.App.4th 603, 610–611, 614–626 [mitigation by offsite
preservation of two acres of existing habitat or creation of one acre of new habitat for
each acre of habitat impacted by the project]; Endangered Habitats League, Inc. v.
County of Orange (2005) 131 Cal.App.4th 777, 794 [mitigation by “off-site preservation
of similar habitat”]; Environmental Council of Sacramento v. City of Sacramento (2006)
142 Cal.App.4th 1018, 1038 [purchase of a half-acre for habitat reserves for every acre of
development].)
33.
In addition, the First District discussed the “relatively sparse case law involving
ACEs” and determined those cases supported its conclusion. (Masonite, supra, 218
Cal.App.4th at pp. 239–240.) The court also noted ACE’s are commonly used in
California as mitigation. (Id. at p. 240.) Finally, the court stated the Legislature had
declared that the preservation of agricultural land is an important public policy and had
declared CEQA was intended to effectuate the policy. (Masonite, supra, at pp. 240–241,
citing Stats. 1993, ch. 812, § 1, p. 4428.)
The interpretation in Masonite of what constitutes compensatory mitigation for
purposes of Guidelines section 15370, subdivision (e) was confirmed by the First District
about nine years later when it rejected the argument that protection of an 85-acre site
“under a conservation easement would not result in the provision of any new resources to
offset or compensate for the [32 acres of] habitat permanently lost to the Project.” (Save
the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, 1117, italics added.)
Our inquiry into the meaning of compensatory mitigation does not end with the
First District’s interpretation of Guidelines section 15370, subdivision (e) because there is
no horizontal stare decisis within the California Court of Appeal. Also, while courts
ordinarily give deference to how the promulgating agency has interpreted its regulation
(Fischl v. Pacific Life Insurance Company (2023) 94 Cal.App.5th 108, 122), we conclude
the Natural Resources Agency’s interpretation of an ambiguous Guideline is not binding
on the courts. Under Government Code section 11342.2, “no regulation adopted is valid
or effective unless consistent and not in conflict with the statute and reasonably necessary
to effectuate the purpose of the statute.” We infer from this provision that the
interpretation of an ambiguous Guideline also must be consistent and not in conflict with
CEQA and reasonably necessary to effectuate CEQA’s purpose. (See generally,
Communities for a Better Environment v. California Resources Agency (2002) 103
Cal.App.4th 98, 105 [upholding invalidation of certain CEQA Guidelines].)
34.
The main purpose of CEQA is “to provide long-term protection to the
environment.” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105,
112.) Thus, “CEQA is to be interpreted ‘to afford the fullest possible protection to the
environment within the reasonable scope of the statutory language.’ ” (Ibid.) Another
purpose is identified in the Legislature’s declaration that CEQA “plays an important role
in the preservation of agricultural lands.” (Stats. 1993, ch. 812, § 1, subd. (d), p. 4428;
see Masonite, supra, 218 Cal.App.4th at p. 241.)
Interpreting the verb “providing” to encompass preserving or permanently
protecting and the term “substitute resources” (Guidelines, § 15370, subd. (e)) to include
existing agricultural land would promote the use of ACE’s, which would advance
CEQA’s purpose of long term protection of the environment and its specific role of
preserving agricultural land. In comparison, the interpretation that existing agricultural
land is not a “substitute resource” for purposes of compensatory mitigation would
diminish the use of ACE’s and result in less long term protection of California’s
agricultural land. Therefore, the interpretation offered by the County is not the one that
best effectuates CEQA’s purpose. As a result, we conclude the phrase “providing
substitute resources” (Guidelines, § 15370, subd. (e)) includes preserving (i.e.,
permanently protecting) existing agricultural land. Consequently, ACE’s are a type of
compensatory mitigation for the conversion of agricultural even though, operating by
themselves, they do not replace the converted land or otherwise result in no net loss of
agricultural land. (See generally, Sierra Club v. County of Fresno, supra, 6 Cal.5th at p.
523 [mitigation measures must be at least partially effective, even if they cannot mitigate
significant impacts to less than significant levels].)8
8 Based on this interpretation, we do not consider whether ACE’s provide a type of
mitigation for purposes of CEQA that is not among the five examples set forth in
subdivisions (a) through (e) of Guidelines section 15370. The latter question arises from
the use of “includes” before the list of examples in Guidelines section 15370. (See
Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1101 [“includes” ordinarily is “a term of
35.
Consequently, the County failed to comply with CEQA when it eliminated the use
of ACE’s as a mitigation measure for the conversion of agricultural land in situations
where the permit applicant’s adoption of other mitigation has not reduced the net loss of
agricultural land to zero acres.9 To remedy that noncompliance, the superior court shall
issue a fourth peremptory writ of mandate directing the County to take corrective action
before reapproving the Revised Ordinance. (§ 21168.9, subd. (b).)
III. MITIGATION OF PM2.5 EMISSIONS*
A. Background
1. Prior CEQA Violations
In King & Gardiner, supra, 45 Cal.App.5th 814, Sierra Club challenged the
mitigation measures for air quality impacts on several grounds. Our discussion of those
challenges was not published. (Id. at pp. 870, 900.) One challenge asserted the
mitigation measure for criteria pollutants,10 MM 4.3-8, should have separately addressed
enlargement rather than limitation”].) Also, because ACE’s are effective at providing
compensatory mitigation for project-specific impacts, the question whether they are
effective at only addressing cumulative impacts to agricultural land does not arise.
9 For some but not all permit applications, the mitigation measure requiring the
removal of unused legacy equipment and restoration of the surface will offset the
conversion of farmland caused by the drilling of a new well. Where an applicant’s
proposed conversion of farmland is completely offset by other mitigation, it would be
inappropriate to also require the applicant to provide compensatory mitigation, such as an
ACE.
* See footnote, ante, page 1.
10 The EPA has established health-based ambient air quality standards, or allowable
limits, for seven “criteria pollutants”—ozone, carbon monoxide, nitrogen dioxide (NO2),
sulfur dioxide (SO2), lead, respirable particulate matter (PM10), and PM2.5. PM10
refers to particulate matter of 10 microns or less in diameter. (40 C.F.R. § 50.6(a); Cal.
Code Regs., tit. 17, § 70100, subd. (i) [definition of suspended particulate matter
(PM10)].) Because PM2.5 refers to particulate matter of 2.5 microns or less in diameter,
it is necessarily a subset of PM10. (40 C.F.R. § 50.7(a); Cal. Code Regs., tit. 17, §
70100, subd. (j).)
36.
PM2.5 and should have provided enforceable mitigation for that pollutant. That
challenge succeeded when we identified two CEQA violations that involved MM 4.3-8:
“First, the EIR did not discuss the impact of the measure on PM2.5
emissions or, alternatively, provide a rational explanation for why there is
no separate discussion of the measure’s impact on PM2.5 emissions.
Second, MM 4.3-8 does not provide for enforceable mitigation of PM2.5
emissions, and there is no finding that mitigation of this specific pollutant
was not feasible. These deficiencies must be remedied on remand.”
2. Revisions After Remand
The County attempted to remedy the CEQA violations identified in this court’s
opinion and the superior court’s writs of mandate by (1) preparing an SREIR with an
extensive discussion of PM2.5 emissions, (2) certifying the completion of the SREIR, (3)
adopting a clarified MM 4.3-8 that explicitly referred to PM2.5 emissions, and (4)
amending the oil and gas emission reduction agreement with the Air District (OG-ERA)
to explicitly address PM2.5.
The SREIR’s discussion of PM2.5 emissions describes the attainment status of the
San Joaquin Valley Air Basin (SJVAB) for PM2.5, attainment plans for PM2.5, and
potential adverse health effects of PM2.5 emissions. It states the SJVAB has not attained
federal or California PM2.5 standards, has not attained California PM10 standards, and
has attained federal PM10 standards. The SREIR includes a table summarizing ambient
PM10 and PM2.5 data collected at monitoring stations in Kern County, a 2012 baseline
of criteria pollutant emissions, significance thresholds for criteria pollutants (including
PM10 and PM2.5), and several tables estimating emissions that would be caused by the
project.
The SREIR also attempts to clarify the enforceability and impact of MM 4.3-8 on
PM2.5 emissions. As revised, the first two paragraphs of the MM 4.3-8 now provide:
“For criteria emissions not required to be offset under a District rule as
described in MM 4.3-1, and for Project vehicle and other mobile source
emissions, the County will enter into an emission reduction agreement with
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the [Air] District, pursuant to which the Applicant shall pay fees to fully
offset Project emissions of NOx (oxides of nitrogen), ROG (reactive organic
gases), PM10 (particulate matter of 10 microns or less in diameter) and
PM2.5 (particulate matter of 2.5 microns or less in diameter) (including as
applicable mitigating for reactive organic gases by additive reductions of
particulate matter of 10 microns or less in diameter) (collectively,
‘designated criteria emissions’) to avoid any net increase in these
pollutants. The air quality mitigation fee shall be paid to the County as part
of the Site Plan review and approval process, and shall be used to reduce
designated criteria emissions to fully offset Project emissions that are not
otherwise required to be fully offset by District permit rules and
regulations.
“As an alternative to paying the fee, an Applicant may reduce emissions for
one or more designated criteria emissions through actual reductions in air
emissions from other Applicant sources, as submitted to the County and
validated by the [Air] District. This Project offset requirement alternative
shall be enforced by the County and verified by [Air] District, and must be
approved in advance by the [Air] District. If a voluntary emission
reduction agreement is not executed by the County and [Air] District, then
each Applicant must mitigate for the full amount of designated criteria
pollutants as verified by the [Air] District, with evidence of such District-
verified offsets presented as part of the Site Plan Conformity Review
application documentation.”
Thus, MM 4.3-8 provides two pathways for mitigating emissions of criteria
pollutants—either activities undertaken directly by the applicant or activities funded by
the applicant’s fees in accordance with the terms of the OG-ERA. The third paragraph of
MM 4.3-8 provides examples of feasible air emission reduction activities that might be
implemented under either pathway.
The OG-ERA was revised to mention PM2.5 in two places. First, a recital in the
amended OG-ERA states that MM 4.3-8 requires applicants for permits issued under the
Revised Ordinance to fully mitigate emissions of oxides of nitrogen, reactive organic
compounds, PM10, and PM2.5 “through emission reductions that are either: (1)
implemented by the Applicant, with the quantity of emission reduction verified by the
[Air] District; or (2) funded by the Applicant through the [Air] District’s incentive
programs, as described below.” Section 1 of the amended OG-ERA provides:
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“Project-related Criteria Pollutant Emissions not required to be offset per
[Air] District rules shall be fully mitigated by achieving surplus,
quantifiable and enforceable emission reductions for ROG, NOx, PM10 and
PM2.5 (collectively, ‘Mitigation of Criteria Pollutants’). ‘Surplus’ emission
reductions are reductions that are not otherwise required by laws or
regulations. The determination of whether proposed emission reductions
are surplus shall be performed by the [Air] District.” (Italics added.)
Subsequent provisions of the OG-ERA address the emission mitigation required,
the emission mitigation fee required, and the use of the mitigation fees to reduce
emissions. The OG-ERA states that the County and the Air District shall regularly meet
and confer regarding potential projects and the final selection of emission reduction
projects to be funded by the mitigation fees.
The SREIR explains why table 4.3-32 includes a total PM value (i.e., combines
PM10 and its subset, PM2.5) for use in (1) calculating the mitigation fees charged
applicants and (2) tracking emission reductions achieved pursuant to the OG-ERA. One
reason is that, historically, the Air District has addressed PM2.5 and PM10 jointly in its
attainment plans and State Implementation Plan strategies for achieving both PM2.5 and
PM10 air quality standards. The Air District explained its approach in responding to
comments on a 2018 attainment plan:
“ ‘The [Indirect Source Review] rule targets NOx and PM10 emissions
from mobile source equipment related to the project construction and
operational activities. Particulate matter emissions from mobile source
equipment emissions are overwhelmingly PM2.5, a subset of PM10.
Therefore, the PM10 emission reductions achieved by our emission
reduction incentive grants through expenditure of offsite fees collected
under [Indirect Source Review] result directly in PM2.5 emission
reductions. In other words, PM10 emissions increases are being offset by
emission reductions that are overwhelmingly PM2.5, a positive impact on
PM2.5 concentrations. Adding a PM2.5 emission reduction requirement to
the existing PM10 emission reduction target will not contribute to further
reduce actual PM2.5 emissions.’ ”
The SREIR notes the State Air Resources Board (ARB) has accepted the Air
District’s approach to PM2.5 attainment and states that, under the Air District’s approach,
39.
the calculation of emissions reductions required by the OG-ERA includes PM2.5. The
SREIR states that the County has relied on the Air District’s judgment that differentiating
between PM2.5 and PM10 for purposes of incentive measures and tracking reductions
from emission reduction projects (such as the projects funded under the OG-ERA) is not
necessary and would not contribute to further reduction of actual PM2.5 emissions. The
SREIR justifies this reliance by noting that the Air District is the expert agency with
responsibility for air quality in the project area. The SREIR also states it is not currently
possible to identify and commit to specific emission reduction projects for each year
through 2035 and the OG-ERA provides flexibility to allow the mitigation fees to be
spent on the most effective projects available at the time the fees are received.
The SREIR forecasts that implementing MM 4.3-8’s two pathways “will offset
NOx, PM10, and PM2.5 emissions to net zero” but states that actual reductions of ROG,
NOx, PM10, and PM2.5 “remain impossible to certify as 100% reduced to zero.” Due to
this uncertainty, the SREIR concludes the project’s air quality impacts are significant and
unavoidable. It also states: “However, all reasonable and feasible mitigation has been
required and will reduce the air emissions as close to a ‘no net increase’ from the current
emissions over the next 21 years as is scientifically possible to quantify and confirm.”
The SREIR estimates that the mitigation fees collected over the 21-year period will range
from $260 million to $2.5 billion.11
B. Contentions of the Parties
Sierra Club contends the County has failed to comply with CEQA because (1)
CEQA requires the adoption of particular and fully enforceable mitigation measures for
11 A table in the SREIR sets forth the yearly amount of mitigation fees paid for
permits issued in 2016 through 2019. These fees totaled nearly $88.9 million and
accounted for 91 percent of all mitigation fees received by the Air District under its
various emission reductions agreements. By 2020, the Air District had entered into a
running total of 45 such agreements, which includes the OG-ERA.
40.
the project’s PM2.5 emissions; (2) the amended OG-ERA does not provide for such
mitigation; and (3) the County’s excuses for not adopting particular and fully enforceable
mitigation for PM2.5 emissions are unavailing.
The County contends MM 4.3-8 now uses mandatory language requiring
applicants to mitigate PM2.5 emissions from project activities to no net increase and,
similarly, the OG-ERA was amended to state that PM2.5 is a criteria pollutant that “shall
be fully mitigated by achieving surplus, quantifiable and enforceable emission
reductions.” On the issue of enforceability, the County asserts that, if projects funded
through the OG-ERA inadequately mitigate PM2.5 emissions, the Revised Ordinance
authorizes the County to take enforcement action and revoke any permit. The County
also asserts (1) it will monitor and enforce the required offset of PM2.5 emissions
pursuant to the mitigation monitoring and reporting program and (2) the required offset is
an enforceable condition of permit issuance.
In response, Sierra Club contends that MM 4.3-8 and the OG-ERA remain
unchanged in substance because they continue to allow reductions in PM10 to be treated
as offsets for PM2.5 emissions. It argues the County’s prediction that its approach will,
in practice, result in offsetting the project’s PM2.5 emissions, is not a lawful substitute
for adopting enforceable mitigation that actually requires PM2.5 emissions to be offset.
C. Mitigation Requirement for PM2.5 is Enforceable
1. Applicable Law
CEQA provides that a “public agency shall mitigate or avoid the significant effect
on the environment of projects that it carries out or approves whenever it is feasible to do
so.” (§ 21002.1, subd. (b).) “If, after the feasible mitigation measures have been
implemented, significant effects still exist, a project may still be approved if it is found
that the ‘unmitigated effects are outweighed by the project’s benefits.’ ” (Sierra Club,
supra, 6 Cal.5th at p. 524.) Even if a project’s benefits outweigh its unmitigated
41.
environmental effects, CEQA requires agencies to implement all mitigation measures
unless those measures are truly infeasible. (Sierra Club, supra, at pp. 524–525.) Before
approving a project that will have significant environmental effects after implementation
of all feasible mitigation measures, the agency must adopt a statement of overriding
considerations. (Id. at p. 525; § 21081, subd. (b) [agency finding that specific benefits
outweigh the significant environmental effects]; Guidelines, § 15093 [statement of
overriding considerations].) The foregoing requirements reflect the EIR’s purpose of
identifying the project’s significant environmental effects and describing how those
effects can be mitigated or avoided. (§ 21002.1, subd. (a); Guidelines, § 15126.4, subd.
(a).)
The mitigation measures adopted by a lead agency must be “fully enforceable
through permit conditions, agreements, or other measures. Conditions of project
approval may be set forth in referenced documents which address required mitigation
measures .…” (§ 21081.6, subd. (b).) Echoing this requirement, Guidelines section
15126.4, subdivision (a)(2) states: “Mitigation measures must be fully enforceable
through permit conditions, agreements, or other legally-binding instruments.” The
responsibility of the public agency does not end with simply requiring enforceable
mitigation measures. “The public agency shall adopt a reporting or monitoring program
for the … conditions of project approval, adopted in order to mitigate or avoid significant
effects on the environment.” (§ 21081.6, subd. (a)(1).) The purpose of a monitoring
program is to ensure compliance with the mitigation measures imposed as conditions of
the project approval. (Ibid.)
2. Particularity of the Mitigation
Sierra Club contends a mitigation measure must be particular and fully
enforceable. We conclude MM 4.3-8 contains the requisite particularity because, as
42.
clarified in the SREIR, it specifically addresses PM2.5 and PM10 using mandatory
language.
First, MM 4.3-8 provides that the County will enter into an emission reduction
agreement with the Air District. The County and the Air District have fulfilled this
aspect of MM 4.3-8 by adopting, then amending, the OG-ERA.
Second, MM 4.3-8 provides that, pursuant to the OG-ERA, applicants “shall pay
fees to fully offset Project emissions of … PM10 (particulate matter of 10 microns or less
in diameter) and PM2.5 (particulate matter of 2.5 microns or less in diameter) … to avoid
any net increase in these pollutants.” Section 1 of the amended OG-ERA complies with
MM 4.3-8 by providing that the project’s criteria pollutant emissions “shall be fully
mitigated by achieving surplus, quantifiable and enforceable emission reductions for …
PM10 and PM2.5.”
As a result, a CEQA defect in the prior version of MM 4.3-8—namely, the failure
to address PM2.5 emissions—has been cured. In addition, MM 4.3-8’s phrases “fully
offset” and “avoid any net increase” adequately describe the standard of mitigation of
PM2.5 emissions that must be achieved.
3. Enforceability of the Mitigation Standard
Sierra Club’s argument that MM 4.3-8 is not fully enforceable as applied to PM2.5
emissions raises two questions. First, does the County have the authority to enforce MM
4.3-8’s requirement that PM2.5 emissions be fully offset? Second, if the County shirks
its responsibility to enforce the mitigation measure, is there a means for enforcing the
mitigation measure? The answer to both questions is yes.
The County contends provisions in the Revised Ordinance provide it with the
authority to enforce MM 4.3-8. Section 19.98.040.A of the Revised Ordinance provides
that no oil and gas activities may be undertaken until an application for a permit, along
with payment of all fees, is submitted to and approved by the planning director as
43.
consistent with section 19.98.060. Section 19.98.060.D of the Revised Ordinance
provides that a permit applicant must “comply with all applicable Mitigation Measures as
shown in the steps to compliance checklist in the approved Mitigation Monitoring and
Reporting Program (MMRP).” To assist the County in determining whether the
mitigation requirements are met, item 11 of section 19.98.080.E and item 15 of section
19.98.085.F of the Revised Ordinance provide that the applicant’s site plan must include
written documentation showing all conditions required by section 19.98.060 will be
complied with, including all applicable mitigation measures listed in the MMRP. In
accordance with these provisions, if the applicant does not pay the criteria pollutant
mitigation fee or satisfy the alternate mitigation pathway, the County will enforce the
mitigation measure by refusing to issue a permit. As a result, we conclude that the
“measures are not vague as to how they will be [initially] enforced, [because] the County
will enforce them during the approval process.” (Sierra Club v. County of Fresno, supra,
6 Cal.5th at p. 526.)
Next, we consider the County’s ability to enforce the mitigation measure after the
permit has been issued. We consider this issue because of the time lag between an
applicant’s payment of a mitigation fee and the use of that fee to fund an emission
reduction project approved by the Air District. Section 19.98.160 of the Revised
Ordinance states that “[a]ny permit issued pursuant to this chapter may be revoked or
modified pursuant to Section 19.102.020 of this Title.” In turn, section 19.102.020
provides that any permit may be modified or revoked by the official or decision-making
body that originally approved the permit by the same procedure under which the permit
was issued if “any term or condition of the permit … has not been complied with.”
Under these provisions, if the County learns that the Air District’s emission reduction
projects and incentive programs funded with the mitigation fees are not achieving the
required level of mitigation of PM2.5 or other criteria pollutants, the County has the
authority to revoke the permits issued previously with the expectation that emission
44.
reduction projects would achieve the requisite offsets. Obtaining the information needed
to exercise this authority is aided by section 1.3(b) of the OG-ERA, which provides that
the Air District and the County shall meet and confer regularly regarding potential
emission reduction projects and the final selection of those projects. This contractual
provision provides the County with access to information about the emission reduction
projects and their effectiveness in offsetting the emissions of criteria pollutants, including
PM2.5. Consequently, we conclude the Revised Ordinance and the OG-ERA provide the
County with the authority to enforce the mitigation measure for PM2.5 after a permit has
been issued. Furthermore, the OG-ERA provides a mechanism for obtaining information
needed to enforce the mitigation requirements. Stated another way, the County has not
forestalled enforcement by agreeing to be kept in the dark.
Consequently, we conclude the County has the authority and the means to enforce
MM 4.3-8’s requirement that PM2.5 emissions be fully offset, both before and after
permits are issued.
The final question about MM 4.3-8’s enforceability is what would happen if the
County, either inadvertently or intentionally, fails to properly administer that measure.
Such a situation could arise if, among other things, the County fails to assure the
emission reduction projects funded with the mitigation fees do, in fact, fully offset the
PM2.5 emissions.
Our analysis of this question begins with the Board’s findings in support of its
adoption of the SREIR and approval of the project. In section 1 of the findings, the
Board (1) stated “the County hereby binds itself to implement these [mitigation]
measures” and (2) found that “[t]he County will use the MMRP to track compliance with
Project mitigation measures.” As a result, the Board explicitly bound the County to
implement the mitigation measures and track compliance pursuant to the MMRP. Any
failure of the County to fulfill this duty “would amount to an abuse of discretion, which
could be corrected in a court mandamus proceeding.” (Sierra Club v. County of Fresno,
45.
supra, 6 Cal.5th at p. 526; see Rominger v. County of Colusa (2014) 229 Cal.App.4th
690, 727 [abuse of discretion related to dust control mitigation measure “could be
remedied through the courts in mandamus”].)
Consequently, we conclude the mitigation measure for PM2.5 emissions is “fully
enforceable” as that term is used in section 21081.6, subdivision (b) and Guidelines
section 15126.4, subdivision (a)(2) and explained by our Supreme Court in Sierra Club v.
County of Fresno, supra, 6 Cal.5th 502.
IV. MULTI-WELL HEALTH RISK ASSESSMENT*
A. Background
1. Previous Decision
The introduction to our 2020 opinion stated the conclusions that (1) the Multi-
Well Health Risk Assessment prepared in October 2015 by Environmental Compliance
Solutions, Inc. constituted new information that had been omitted from the draft EIR; (2)
the new information was significant because the draft EIR inadequately addressed the
subject of multiple oil wells in a given area and there was no meaningful public review
and comment on the new assessment; and (3) the Multi-Well Health Risk Assessment
must be included in any revised EIR recirculated to correct the other CEQA violations.
(King & Gardiner, supra, 45 Cal.App.5th at p. 830.) An unpublished part of the opinion
set forth the supporting analysis and legal principles. That analysis did not address (1)
the adequacy of the discussion in the Multi-Well Health Risk Assessment or (2) the
methodologies employed. Our remand order required the superior court to issue a writ of
mandate directing the County to (1) recirculate a revised EIR and the Multi-Well Health
Risk Assessment for public review and comment and (2) prepare and publish responses
to the comments received before certifying the completion of any revised EIR and
reapproving the project. (Id. at p. 901.)
* See footnote, ante, page 1.
46.
2. Recirculation of the SREIR
The County’s April 2020 “Initial Study/Notice of Preparation” stated the SREIR,
including the Multi-Well Health Risk Assessment, would be recirculated for public
review and comment and the County would prepare and publish responses to the
comments. The Multi-Well Health Risk Assessment, the June 2015 single-well health
risk assessment, and the September 2015 updated single-well health risk assessment were
included in appendix B of the SREIR. In addition, a Supplemental Health Risk
Assessment Technical Memorandum dated October 2020 (technical memorandum) was
included in the SREIR as appendix B-1. The technical memorandum provided a further
explanation of the assumptions, modeling, and conclusions in the Multi-Well Health Risk
Assessment. An assumption important to this appeal was that the hypothetical sensitive
receptor being assessed “had a 300m x 300m (or approximately 1,000 foot fence around
it).”
Impact 4.3-3 of the October 2020 draft SREIR addressed the exposure of sensitive
receptors12 to substantial pollutant concentrations and described the three health risk
assessments prepared in 2015. The three assessments evaluated potential cancer risks,
acute (short term) noncancer risks, and chronic (long term) noncancer risks13 resulting
from toxic emissions associated with oil and gas processing equipment and with well
construction, drilling, and completion. Generally, an assessment of health risks involves
four steps: (1) hazardous emission estimations, (2) exposure assessment, (3) dose-
response assessments, and (4) quantification of potential health risks.
12 The Revised Ordinance defines a sensitive receptor as a church, hospital, single or
multi-family dwelling, or place of public assembly where 100 or more people gather in a
building or structure for purposes of amusement, entertainment or retail sales.
13 The temporal aspect of these types of risks was defined in a report prepared for
Lions Farming by Dr. Phyllis Fox, which stated: “Acute impacts are those that occur
over a 1-hour exposure time while cancer and chronic impacts result from a lifetime of
exposure.”
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Each assessment described the guidelines, software, and models used. The
assessments followed the California’s Office of Environmental Health Hazard
Assessment (OEHHA) “Air Toxics Hot Spots Program Risk Assessment Guidelines,” as
amended in March 2015. In accordance with the guidelines’ recommendation, the
assessments used the ARB’s “Hotspots Analysis and Reporting Program, Version 2”
(HARP2). HARP2 includes a dispersion module, an exposure-dose module, and a risk
module. The dispersion module incorporates the EPA’s AERMOD, which predicts
resulting cumulative concentrations from various emission sources. AERMOD includes
a terrain processor, AERMAP, that incorporates actual terrain elevations for sources and
receptors. The Multi-Well Health Risk Assessment stated that five years of
meteorological data required for AERMOD was obtained from the Air District.
The draft SREIR stated the Air District’s thresholds of significance considered the
following risks were acceptable: (1) a cancer risk equal or less than 10 in one million,14
(2) a chronic hazard index equal to or less than one, and (3) an acute hazard index equal
to or less than one. It also stated that the 2015 single-well assessments showed the
potential cancer risk exceeded the 10 in one million threshold “for drilling a 10,000-foot
well in any Project year, for drilling a 5,000-foot well in year 2015, and for operations of
the oil processing equipment.” The draft SREIR dealt with the cancer risk associated
with well drilling and construction by determining how far a receptor needed to be from
the well site and project boundary to have the receptor’s risk drop below 10 in one
14 Section 5.0 of the Multi-Well Health Risk Assessment stated a project’s cancer
risk equal to or less than 20 in one million is not considered significant under the Air
District’s published thresholds and, therefore, is acceptable. Section 1.0 of the September
2015 updated single-well health risk assessment stated the Air District’s comment letter
to the draft EIR requested that the assessment’s results be compared against the Air
District’s significance threshold for toxic air contaminants of 20 in one million. Thus, the
Board’s March 2021 findings in support of the project applied the Air District’s risk
threshold of 20 in one million. Similarly, this opinion uses 20 in one million as the
significance threshold for cancer risk.
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million. For example, the setback needed for a 10,000 foot-deep well drilled in the
western or central subarea was estimated at 367 feet in 2015 and 232 feet in 2020 after
stricter diesel emission standards went into effect. Based on these estimates, MM 4.3-5
provides that where a sensitive receptor is within 4,000 feet of a well construction site,
the application must provide information “showing the distance from the closest edge of
the well pad to the property line of the nearest sensitive receptor” and the minimum
distances shall be 367 feet for a 10,000 foot well in the western or central subarea and
296 feet for a 10,000 foot well in the eastern subarea. For wells 5,000 feet deep, the
setback distance is 116 feet in the western or central subarea and no setback is imposed in
the eastern subarea.
The draft SREIR described the Multi-Well Health Risk Assessment and some of
its underlying assumptions and noted the primary driver for cancer risk is days of drilling,
not well depth. The draft SREIR stated that under the conservative multi-well scenario
assumed, the Multi-Well Health Risk Assessment found the cancer health risk would be
9.3 in one million, which was below the Air District’s threshold of 20 in one million.
As to acute and chronic noncancer impacts, the draft SREIR stated they were not
considered because approximately 99.9 percent of the risk associated with the multi-well
scenario came from diesel particulate matter (DPM) and, as shown in the single-well
assessments, the acute and chronic noncancer impacts were well below the Air District’s
thresholds. For instance, Table 4.3-36 listed the potential acute impacts identified in the
June 2015 single-well health risk assessment as 0.0098 on a scale that regarded the
hazard as significant when it was 1.0 or more.
3. Comments to the SREIR
Lions Farming’s September 16, 2020 comment letter asserted the draft SREIR had
not corrected defects in the Multi-Well Health Risk Assessment. The letter referred to
Dr. Fox’s November 2015 report, which asserted the assessment did not analyze impacts
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from multiple wells at densities that actually occur in Kern County. Dr. Fox’s report
stated that 48 wells drilled in concentric circles around a sensitive receptor in an area
with a diameter of one mile (i.e., 2,011 acres) would have only 0.02 wells per acre (or
one well per 42 acres) and included photographs of oil fields where well densities were
much higher.
Sierra Club’s September 16, 2020 comment letter asserted the County must revise
the Multi-Well Health Risk Assessment because, among other things, the way the wells
were modeled in rings at distances of approximately 0.2 mile, 1/3 mile, 1/2 mile, and one
mile created artificially low pollutant concentrations. In addition, the letter asserted the
proposed setback requirements were arbitrary and inconsistent.
The ARB’s December 14, 2020 comment letter stated the draft SREIR should
clearly state the assumptions made in the Multi-Well Health Risk Assessment and
asserted the assessment may have severely underestimated the project’s potential health
risks to residents and communities near drilling and production activities. ARB’s
comments addressed acute risks and also asserted that, because over 2,000 notices of
intent to drill were submitted to the County in 2019 and wells continue to emit pollutants
throughout their productive lifespan, the Multi-Well Health Risk Assessment should have
examined the lifetime air quality impacts of new wells.
4. The County’s Responses to Comments
The County’s response No. 0008-27 addressed in two ways Lions Farming’s
comment that the well density used in the Multi-Well Health Risk Assessment did not
reflect actual well densities in Kern County. First, the response attempted to explain why
the well density used was appropriate. It stated the Multi-Well Health Risk Assessment
analyzed a well density of approximately 13 wells per square mile and asserted the
majority of Kern County has well densities in the range of one to 99 wells per square
mile and a much smaller subset of areas have well densities greater than 400 wells per
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square mile. The response stated Dr. Fox’s suggestion that a well density of more than
600 wells per square mile was common was not supported and provided a color-coded
map showing seven categories of well density across Kern County.
Second, response No. 0008-27 stated the driver of health risks was drilling, not
ongoing production operations. Accordingly, the response stated, “the relevant inquiry is
not the overall well density in any area in [Kern] County but (1) the density of wells
being drilled proximate in time to each other, and (2) the density of these wells near a
particular sensitive receptor such that the sensitive receptor will be exposed to the risks
from drilling multiple wells over time.” In other words, overall well density is not the
appropriate metric for multi-well modeling when the health risk is predominately related
to drilling. The response stated, the Multi-Well Health Risk Assessment did not assume a
well density for operating well “but for wells being drilled at the same time or in close
temporal succession.” More specifically, it assumed “that forty-eight 13,000-foot wells
would be drilled not only in close proximity to a single sensitive receptor but also close in
time to each other in order that they would impact one individual over their lifetime
living at the same location. See SREIR (October 2020), Vol. 1, at 4.3-152–155.” The
response asserted that this and other assumptions “are extremely conservative.” The
response explains that, at any given time between 2015 and 2020, there had been four to
12 drill rigs operating in Kern County and, since April 2020, that there had been only
three or four.15 The response predicted that the number was unlikely to increase in the
near future, but made no attempt to correlate drilling activity to the 2,697 ministerial
permits that Revised Ordinance section 19.98.040.C authorized to be issued each
calendar year. The response concluded that drilling 633 wells in one location was not
reasonably foreseeable because, based on the rigs present in Kern County, it would take
15 Table 1 in the September 2015 updated single-well health risk assessment stated it
takes “3 rigs at 1,040 HP each” drilling for 23 days to complete a 10,000-foot well and “3
rigs at 440 HP each” drilling for eight days to complete a 5,000-foot well.
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98 years, which was beyond the longest period it would be reasonable to assume the same
person was located at one sensitive receptor. The response also concluded that the
setback distances in the SREIR’s MM 4.3-5 “reduces impacts of health risk from Project
activities to below [Air District] thresholds” and the Multi-Well Health Risk Assessment
“demonstrates that this mitigation measure would adequately protect the public from the
potential health risks due to exposure from multiple wells.”
The County’s response No. 0009-33 addressed the Sierra Club’s comment that the
setback distances in the Revised Ordinance and various mitigation measures were
inadequate to protect public health. The response stated the setback distances were based
on the health risk assessments and referred to response No. 0008-27’s discussion of the
adequacy of those assessments and resulting setback distances. Addressing clarity and
enforceability, the response stated the minimum distances established by the mitigation
measures “are immutable—no new well may be located within 210 feet of a sensitive
receptor or within 300 feet of a school.” Addressing how the distances are measured, the
response stated the distances in “the air quality mitigation measures are measured from
the closest edge of the well pad to the property line of the nearest sensitive receptor.”
The County’s response No. 00014-7 addressed the ARB’s comment that health
risks might be underestimated because there is a potential to drill a new well every day of
the year—a comment supported by CalGEM data showing that over 2,000 notices of
intent to drill were submitted to the County in 2019. The response stated that only 759 of
the notices were for oil and gas production wells and, furthermore, not every well for
which a permit is obtained is drilled. The response also stated that for purposes of the
health risk assessments, it is the number of wells drilled proximate in time near a single
sensitive receptor that matters, not the total number of wells drilled across the entire
project area.
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5. Board’s Findings of Fact
The Board’s findings of fact in support of the final SREIR described various
assumptions made in the Multi-Well Health Risk Assessment, including that (1) “forty-
eight 13,000 foot wells would be drilled in concentric circles around a sensitive receptor,
12 at 1/8 of a mile, 12 at 1/4 of a mile, 12 at 3/4 of a mile and 12 at 1 mile”;16 (2) “all
phases of the drilling occurred concurrently”; (3) “each well would have an associated
mud sump with emissions”; and (4) “well re-work would occur on every well every other
year.” The Board found these assumptions were extremely conservative because (1)
wells of 13,000 feet were considerably deeper than the average well in Kern County; (2)
only 3 percent of such wells were deeper than 10,000 feet; (3) historically, between 2015
and 2020, four to 12 drill rigs were in Kern County at any given time; and (4) it would
take eight rigs drilling continuously for almost a year to drill 48 wells 13,000 feet deep.
Another assumption stated in the technical memorandum was that all PM10 was assumed
to be toxic DPM that was inhalable even though approximately 9 percent of DPM might
not be inhalable.
The Board addressed the alternative of an ordinance using a 2,500-foot setback
and found the alternative would not result in less severe environmental impacts than the
setbacks required by MM 4.3-5. To support this finding, the Board referred to the Multi-
Well Health Risk Assessment’s determination that, under conservative assumptions, the
cancer risk would only be 9.3 in one million, which was well below the Air District’s
threshold of 20 in one million. One way of interpreting this response is that, because the
identified cancer risk was not significant for purposes of CEQA, further consideration of
an alternative with a lower cancer risk was not required.
16 This description of the distances is inaccurate and conflicts with the technical
memorandum’s statement about a 300-meter fence. An eighth of a mile is 660 feet
(0.125 of a mile), while 300 meters is approximately 984.25 feet (0.1864 of a mile). The
County asserts it addressed the discrepancies in its responses to comments and the
findings would not be altered by correcting the discrepancies.
53.
B. Contentions
On appeal, Sierra Club contends the Multi-Well Health Risk Assessment does not
comply with CEQA because it does not analyze health risks posed by drilling allowed by
the Revised Ordinance—specifically, drilling two or more wells close to a home or
school. Sierra Club argues the Multi-Well Health Risk Assessment’s remarkable
prediction of a lower cancer risk from drilling 48 wells simultaneously than from drilling
a single well is explained by the fact that the Multi-Well Health Risk Assessment only
evaluated wells separated from sensitive receptors by distances much greater than
allowed by the Revised Ordinance. Sierra Club restates this argument by asserting the
Multi-Well Health Risk Assessment does not evaluate the nearest and most dangerous
drilling allowed by the Revised Ordinance and, thus, violates CEQA by failing to identify
and discuss a foreseeable and significant health risk.
The County contends the SREIR’s analysis of health risks is adequate for purposes
of CEQA and its findings of fact are supported by substantial evidence. The County
relies on the principle that CEQA requires an EIR to study only reasonably foreseeable
consequences of the project. (See High Sierra Rural Alliance v. County of Plumas (2018)
29 Cal.App.5th 102, 125, citing Laurel Heights Improvement Assn. v. Regents of
University of California (1988) 47 Cal.3d 376, 390–391 (Laurel Heights I).) The County
also contends a dispute over the methodology used to evaluate an environmental impact
is subject to the substantial evidence test and the hypothetical assumed by Sierra Club is
not supported by substantial evidence. The County characterizes Sierra Club’s attack as
asserting “the County must analyze … 48 wells located at the closest distance allowed by
the Ordinance [citation] regardless of whether that scenario is reasonably foreseeable or
likely.”
Sierra Club’s reply asserts the County has persisted in mischaracterizing its claim
and the County’s brief is devoted to knocking down a straw man. Sierra Club contends
the County’s failure to analyze the drilling of multiple wells at the shorter distances
54.
allowed by the Revised Ordinance is an informational defect, not a methodological
choice, and the County’s failure to explain the absence of an evaluation of health risks
from drilling at shorter distances constitutes a separate CEQA violation.
C. Impact Zone and Methodology
In Sierra Club v. County of Fresno, supra, 6 Cal.5th 502, the Supreme Court
stated that a public agency’s “decision to use a particular methodology and reject another
is amenable to substantial evidence review.” (Id. at p. 514.) The court reframed this
principle by stating “underlying factual determinations—including, for example, an
agency’s decision as to which methodologies to employ for analyzing an environmental
effect—may warrant deference.” (Id. at p. 516; accord, Bakersfield Citizens for Local
Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1198.) In contrast, “whether
a description of an environmental impact is insufficient because it lacks analysis or omits
the magnitude of the impact is not a substantial evidence question.” (Sierra Club v.
County of Fresno, supra, at p. 514.)
The parties agree a choice of methodology is entitled to deferential review, but
dispute whether the setback distances adopted in the Multi-Well Health Risk Assessment
qualifies as a choice of methodology. They also dispute whether this case is comparable
to Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86 (Sierra Watch).
1. Sierra Watch
In Sierra Watch, the real party in interest sought the county’s approval of a
proposal to develop a 94-acre resort. (Sierra Watch, supra, 69 Cal.App.5th at p. 91.)
The project’s EIR did not consider noise impacts occurring more than 50 feet from the
expected construction activity, except for impacts on a boarding school. (Id. at p. 106.)
The school was 250 feet from the construction activity and the EIR acknowledged the
school would experience noise levels up to 85 decibels and those noise levels would
cause a significant impact. (Id. at p. 107.) The EIR did not discuss the reasons for
55.
omitting an evaluation of other noise impacts outside the 50-foot zone. (Id. at p. 106.)
The plaintiff’s CEQA claims asserted, among other things, the EIR’s analysis of the
project’s construction noise impacts was inadequate. (Sierra Watch, supra, at p. 104.)
The plaintiff argued that “ ‘the EIR does not analyze the Project’s full geographic range
of noise impacts, for it ignores activities occurring farther than 50 feet from sensitive
receptors.’ ” (Id. at p. 106.) The Third District agreed that the EIR’s analysis was
inadequate and instructed the trial court to issue a writ of mandate. (Id. at pp. 104, 111.)
In Sierra Watch, the court concluded use of a 50-foot zone was “arbitrary line
drawing,” which resulted in the EIR ignoring expected impacts occurring outside the area
defined by the 50-foot boundary. (Sierra Watch, supra, 69 Cal.App.5th at p. 107.)
Although the opinion did not state this conclusion about arbitrariness was essentially a
factual determination, we regard it as such. (See Halaco Engineering Co. v. South
Central Coast Regional Com. (1986) 42 Cal.3d 52, 79 [whether agency’s conduct is
arbitrary or capricious for purposes of Gov. Code § 800 is essentially a question of fact].)
The court in Sierra Watch gave two reasons to support its factual determination that noise
impacts were expected to occur outside the 50-foot zone. First, “while the EIR would
acknowledge significant impacts to a receptor sitting 50 feet from expected construction
activity, it would altogether ignore potential impacts to a receptor sitting an inch more
distant — even though the noise levels at these two distances would presumably be the
same.” (Sierra Watch, supra, at pp. 106–107.) Second, the EIR acknowledged that noise
impacts at the boarding school, which was 200 feet beyond the 50-foot zone, would be
significant. (Id. at p. 107.) The existence of a significant noise impact at an additional
200 feet from the 50-foot zone strongly supported the inference that other significant
noise impacts could occur beyond the 50-foot zone. As a result, the court concluded the
EIR should have considered potential noise impacts to other receptors over 50 feet from
the project or, alternatively, explained why those impacts were excluded from the
discussion. (Ibid.)
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After setting forth the foregoing application of CEQA’s principles to the facts of
the case and the resulting conclusions, the court in Sierra Watch provided a further layer
of analysis by explaining the defects in arguments made by the real party in interest.
Those arguments asserted that (1) it was “ ‘standard’ ” to focus on receptors located
within 50 feet of construction activity and (2) the agency’s use of that distance was a
methodological issue entitled to deference. (Sierra Watch, supra, 69 Cal.App.5th at p.
107.) The court rejected the use of a so-called “standard” for the simple reason that the
record contained evidence of noise impacts outside the 50-foot radius. (Ibid.) The court
also concluded an agency “cannot employ a methodological approach in a manner that
entirely forecloses consideration of evidence showing … impacts to areas sitting beyond
50 feet from construction activities.” (Ibid.) In other words, if the use of a 50-foot radius
was a methodological choice, that choice was not supported by substantial evidence and,
moreover, directly contradicted the evidence about noise impacts.
We interpret Sierra Watch as concluding the EIR’s approach to the project’s noise
impacts resulted in two CEQA violations. First, the use of the 50-foot zone itself was a
violation of CEQA because it excluded from consideration some of the project’s
significant noise impacts. Stated another way, substantial evidence did not support a
factual finding that the construction activities would have no significant noise impacts
beyond the 50-foot zone. Indeed, the evidence showed the opposite. (Sierra Watch,
supra, 69 Cal.App.5th at p. 107.) Second, the EIR was inadequate as an informational
document because it did not explain why “it declined to consider potential noise impacts”
to receptors other than the boarding school that were outside the 50-foot zone. (Ibid.; see
Guidelines, § 15121 [EIR is an informational document].) In our view, the second
violation identified in Sierra Watch is less important in the context of that case because
the action taken to correct the first violation most likely would remedy the EIR’s
informational defect—that is, a corrected EIR likely would discuss the significant noise
57.
impacts beyond the 50-foot zone and, thus, would not need to explain why those impacts
were not considered.
The parties dispute whether Sierra Watch is analogous to the present case; they do
not contend it contains legal error and, therefore, different principles should be applied
here. To address the parties’ dispute, we summarize the relevant precedent contained in
Sierra Watch. First, from a broad perspective, Sierra Watch adopted an approach for
analyzing CEQA compliance where an EIR’s evaluation excludes an area or zone where
there is, or might be, significant environmental impacts. We will use Sierra Watch’s
approach as the broad framework for analyzing the “excluded zone” in this case—a term
we use for the area outside the setbacks adopted in the Revised Ordinance and inside the
300-meter by 300-meter fence17 that the Multi-Well Health Risk Assessment assumed
surrounded the sensitive receptor.
As described two paragraphs earlier, the first inquiry in that broad framework is
whether the agency’s adoption of an excluded zone violated CEQA because it resulted in
a significant environmental impact not being considered. Here, the evidence does not
plainly demonstrate that there would be significant cancer risk impacts within the
excluded zone. Thus, we cannot adopt the first conclusion reached in Sierra Watch—
namely, that the EIR violated CEQA by failing to address some significant environmental
impacts whose existence was plainly demonstrated by the record. Instead, we are
confronted with a case where it is unclear whether it is reasonably foreseeable that
activity from the project within the excluded zone would cause a significant
environmental impact—specifically, a significant cancer risk over the lifetime of a
sensitive receptor. Due to this lack of clarity, we must address the second inquiry in
17 The County’s use of the term “fence” is, for practical purposes, a euphemism or
shorthand way of describing a setback distance that is larger than the 210-foot and 300-
foot setbacks contained in the Revised Ordinance. When 300 meters is multiplied by
3.28084 feet per meter, the result is 984.252 feet (approximately 0.1864 of a mile).
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Sierra Watch’s broad framework and consider whether the SREIR violates CEQA
because it is inadequate as an informational document.
2. Potentially Significant Effect
The broad question of whether the SREIR adequately discussed the project’s
cancer risks, presents a series of more specific questions. Under our interpretation of
CEQA and the case law, the initial question is whether the risk of cancer from drilling
multiple wells near a sensitive receptor is a potentially significant effect. That question is
derived from the principle that an EIR must “consider and resolve every fair argument
that can be made about the possible significant environmental effects of a project.”
(Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116
Cal.App.4th 1099, 1109.) We interpret the quoted language as the equivalent of our
Supreme Court’s references to “the discussion of potentially significant effects in an
EIR” and “the discussion of a potentially significant effect.” (Sierra Club v. County of
Fresno, supra, 6 Cal.5th at pp. 515–516, italics added.) The latter phrase appears in the
court’s statement of the basic principle that “a reviewing court must determine whether
the discussion of a potentially significant effect is sufficient or insufficient, i.e., whether
the EIR comports with its intended function of including ‘ “ ‘detail sufficient to enable
those who did not participate in its preparation to understand and to consider
meaningfully the issues raised by the proposed project.’ ” ’ ” (Ibid.) Deciding “whether
a discussion is sufficient is not solely a matter of discerning whether there is substantial
evidence to support the agency’s factual conclusions. [¶] The ultimate inquiry ... is
whether the EIR includes enough detail ‘to enable those who did not participate in its
preparation to understand and to consider meaningfully the issues raised by the proposed
project.’ [Citations.] The inquiry presents a mixed question of law and fact.” (Id. at p.
516; see pt. I., ante [Standard of Review].)
59.
The question whether the cancer risk from drilling multiple wells near a sensitive
receptor is potentially significant is easily answered. First, the SREIR and the Multi-
Well Health Risk Assessment themselves have addressed the cancer risk of drilling
multiple wells, which implies that the risk caused by the project has the potential to be
significant. Second and most importantly, our independent review of the record has
located substantial evidence to support a fair argument that the drilling of multiple wells
near a sensitive receptor may have a significant environmental impact due to an increased
risk of cancer. (See generally, Guidelines, § 15384, subd. (a) [term “fair argument” used
in the definition of “substantial evidence”].) That substantial evidence includes, without
limitation, (1) the fact that the Revised Ordinance’s setback distances were based on the
point from the receptor where the cancer risk from drilling a single well dropped below
the 10 in one million threshold of significance; (2) the fact that the Revised Ordinance
authorizes 2,697 permits to be issued annually, which relates to the potential volume of
well drilling per year; and (3) the evidence of existing wells, which shows that wells can
and have been located close to one another. Therefore, we conclude the cancer risk of
drilling multiple wells is a potentially significant impact for purposes of CEQA that must
be discussed in the EIR.
3. Adequacy of the Discussion
The SREIR and the Multi-Well Health Risk Assessment did discuss the potentially
significant risk of cancer from drilling multiple wells and set forth the conclusion that the
risk was not significant. Whether that discussion was legally sufficient for purposes of
CEQA depends on whether the SREIR included details sufficient to enable those who did
not participate in its preparation to understand and to consider meaningfully the issues
raised by the proposed project. (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p.
516.) This presents a mixed question of law and fact. (Ibid.) We analyze the underlying
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factual determinations under the deferential substantial evidence standard of review.
(Ibid.)
The SREIR and the Multi-Well Health Risk Assessment evaluated the project’s
cancer risk for sensitive receptors by assuming sensitive receptors were located 300
meters (984.25 feet) from the nearest well being drilled, adopting other assumptions, and
plugging those assumptions and other data into the models chosen (e.g., HARP2,
AERMOD, and AERMAP). The 984.25-foot “fence” or setback used in the SREIR is
much larger than the setbacks required by section 19.98.060.A of the Revised Ordinance,
which provides that no oil or gas well shall be drilled within (1) 100 feet of any building
utilized for commercial purposes, (2) 210 feet of any sensitive receptor, and (3) 300 feet
from the property line of a parcel containing a school.
The failure of the SREIR and the Multi-Well Health Risk Assessment to analyze
the risk for a sensitive receptor, such as a residence, where at least one of several wells
was drilled near the 210-foot setback distance specified in the Revised Ordinance creates
the following question: Does substantial evidence support an implied factual finding that
the drilling of a single well near the 210-foot setback distance from a residence or other
sensitive receptor is not reasonably foreseeable?18
18 We assume, without deciding, that this and any other implied findings discussed
below (so long as supported by substantial evidence) would justify the SREIR’s failure to
discuss a multiple well scenario where at least one well is drilled near the 210-foot
setback. This assumption about implied findings is favorable to the County when
compared to the alternative of requiring explicit findings supported by substantial
evidence to support the conclusion that omitting a discussion of such a scenario would
not harm the ability of the Board and the public “to understand and consider
meaningfully the [cancer risk] raised by the project.” (Laurel Heights I, supra, 47 Cal.3d
at p. 405; see Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516; Guidelines, §
15002, subd. (a)(1) [a basic purpose of CEQA: “Inform governmental decision makers
and the public about the potential, significant environmental effects of proposed
activities”].) .
61.
The terms of the Revised Ordinance demonstrate there is a potential for wells to
be drilled about 210 feet from a sensitive receptor. (Revised Ordinance, § 19.98.060.A.)
Therefore, we next consider whether the evidence supports a finding that drilling such a
well, while possible, is not reasonably foreseeable. (See Guidelines, §§ 15144
[forecasting], §15145 [speculation].) In conducting our review, we located no evidence
supporting the inference that drilling a well approximately 210 feet or slightly further
from a sensitive receptor is not reasonably foreseeable. Furthermore, the County has not
addressed this factual question and, thus, has not referred to any evidence supporting an
implied finding that drilling such a well is unforeseeable. Therefore, on this narrow yet
basic question, we conclude an implied finding that the drilling of such a well was not
reasonably foreseeable lacks evidentiary support. (Cf. King & Gardiner, supra, 45
Cal.App.5th at p. 869, fn. 23 [an implied finding by the Board was not supported by
substantial evidence].) As a result, we reject the existence of such an implied finding.
Having addressed the drilling of a single well within the excluded zone and near
the 210-foot setback distance from a sensitive receptor, we next consider the drilling of
additional wells that might impact the same receptor. Again, we frame the issue as
whether substantial evidence supports an implied factual finding that it is not reasonably
foreseeable that additional wells would be drilled near a sensitive receptor with a well
drilled just outside its setback distance.
As before, we have not located substantial evidence supporting an implied finding
that it is unforeseeable that additional wells could be drilled near a sensitive receptor that
has had a well drilled just outside the setback distance. The County’s appellate briefing
has not addressed this specific question and, thus, has not cited any evidence on point.
In contrast, the scenario evaluated in the SREIR and the Multi-Well Health Risk
Assessment assumes wells are drilled near one another. Figure 1 in Dr. H. Andrew
Gray’s September 15, 2020 memorandum illustrates the scenarios’ use of four rings of
wells centered around sensitive receptors.
62.
In Figure 1 of the memorandum, orange dots represent each of the 48 wells
located on the concentric rings. On both the first (inner) and second rings, two wells are
positioned near one another in the twelve o’clock, three o’clock, six o’clock and nine
o’clock locations, with one additional well positioned on each ring midway between the
four pairs of wells. Thus, the two innermost rings contain 12 wells each. Gray’s
memorandum states that the wells on the first ring are located from 0.18 to 0.22 miles
from the centrally located receptors and the second ring wells are located from 0.31 to
0.34 miles from the receptors. Therefore, the distance between the wells at the 12
o’clock position on the first and second rings is approximately 0.13 miles or 684.4 feet.
Thus, if a sensitive receptor were located 210 feet above (presumably north of) the 2
wells on the first ring’s 12 o’clock position, the receptor would be roughly 474 feet from
the two wells in the 12 o’clock position on the second ring. Consequently, the Multi-
Well Health Risk Assessment’s configuration of multiple wells relatively close together
suggests it is reasonably foreseeable that additional wells could be drilled near a sensitive
receptor that has had a well drilled just outside the applicable setback distance.
Consequently, we conclude substantial evidence does not support an implied
factual finding that it is not reasonably foreseeable that additional wells could be drilled
near a sensitive receptor that has had a well drilled just outside the setback distance.
Next, because the SREIR addresses the timing of the drilling of multiple wells, we
examine when those wells might be drilled. In particular, we consider whether the
drilling would be close enough in time that the additional wells would impact one
individual over his or her lifetime living at the same location—that is, a location where a
first well was drilled just outside the setback distance. This reference to wells being
drilled “close in time” is taken from the Board’s discussion of the Multi-Well Health Risk
Assessment’s assumption about multiple wells “drilled not only in close proximity to a
single sensitive receptor but also close in time to each other in order that they would
impact one individual over their lifetime living at the same location.” (Italics added.)
63.
The Board also referred to sensitive receptor “exposed to the risks from drilling multiple
wells over time.”
The Multi-Well Health Risk Assessment made the conservative assumption that
the wells would be drilled simultaneously, and stated it was unlikely to actually happen
due to the large project area where wells might be drilled and the small number of drilling
rigs operating in Kern County. However, the four to 12 drilling rigs reported to be active
in Kern County does not preclude the drilling of the wells sequentially or at least close
enough in time to impact one individual over his or her lifetime of living at that location.
Consequently, we conclude the size of the project area and number of active drilling rigs
is not sufficient by itself to support an implied finding that the drilling of additional wells
near a sensitive receptor close in time to the drilling of a well just outside the applicable
setback distance is not reasonably foreseeable.
Having eliminated the implied factual findings discussed above, we turn to the
legal side of the mixed question of whether the SREIR’s discussion of cancer risks was
sufficient or insufficient. The adequacy of the SREIR as an informational document
depends upon whether that document serves its intended function of including sufficient
detail to enable those who did not participate in its preparation to understand and consider
meaningfully the issues raised by the project. (Sierra Club v. County of Fresno, supra, 6
Cal.5th at p. 516.) In particular, we address whether the final SREIR provided a
sufficient explanation of the Multi-Well Health Risk Assessment’s assumption that the
sensitive receptors were surrounded by a 984.25-foot by 984.25-foot “fence” (i.e.,
setback).
The final SREIR included a technical memorandum dated October 2020 that
acknowledged the assumption “that the sensitive receptor had a 300m x 300m (or
approximately 1,000 foot fence around it).” While acknowledging its use, the technical
memorandum does not explain why the 984.25-foot (300 meter) setback distance was
chosen and, moreover, does not acknowledge that the assumption created an excluded
64.
zone when compared to the actual setback distances of 100, 210 and 300 feet adopted in
the Revised Ordinance. We conclude the failure to explain why a 984.25-foot setback
was assumed in the Multi-Well Health Risk Assessment when the setbacks in the Revised
Ordinance were much smaller rendered the SREIR’s discussion insufficient for purposes
of CEQA because it precluded a meaningful understanding of the cancer risks created by
the setbacks actually adopted.
In reaching the conclusion that the SREIR did not provide an adequate discussion
of the project’s cancer risk, we have considered whether the scenario of 48
simultaneously drilled wells used in the Multi-Well Health Risk Assessment is an
appropriate substitute for an analysis that, in contrast, does not create an excluded zone
over an eighth of a mile wide.19 We conclude the information provided does not allow
the public or decision makers reading the SREIR to meaningfully understand how the
analysis of a scenario with the excluded zone is a logical substitute to an analysis without
an excluded zone. Perhaps the conservative assumptions about other factors offset the
reduction in cancer risk resulting from the overly large setback distance of 984.25 feet.
But, maybe not. The critical point is that, someone reading the SREIR would not develop
a meaningful understanding of the cancer risk resulting from a well being drilled just
outside the 210-foot setback and other reasonably foreseeable wells drilled nearby. The
repeated statements about conservative assumptions on other parameters do not rationally
explain why the unrealistically large setback distance of 984.25 feet and the resulting
creation of an excluded zone was appropriate or, alternatively, was harmless error.
In Sierra Watch, supra, 69 Cal.App.5th 86, the court was able to determine “the
EIR fell short with this arbitrary line drawing.” (Id. at p. 107.) Here, we lack sufficient
information to go that far. But, from the opposite point of view, we also lack sufficient
19 984.25 feet minus 210 feet is 664.25 feet, which is more than 660 feet (i.e., 5,280
feet per mile divided by eight).
65.
information to determine that the line drawn 984.25 feet from a sensitive receptor was not
arbitrary in light of the setback distances set forth in the Revised Ordinance. The lack of
information for the latter determination means the SREIR contains an informational
defect that must be corrected on remand. (See § 21005, subd. (a) [noncompliance with
the information disclosure provisions of CEQA may constitute a prejudicial error].)
We recognize that in Sierra Watch, supra, 69 Cal.App.5th 86, the court’s
discussion of noise impacts addressed the issue from two perspectives. The first
addressed whether the EIR’s noise impact discussion complied with CEQA. That
discussion was sufficient to fulfill the court’s constitutional obligation to provide a
decision “in writing with reasons stated.” (Cal. Const., art. VI, § 14.) The second
separately addressed arguments raised by the real party in interest and explained why
those arguments were unconvincing. (Sierra Watch, supra, at p. 107.) Here, we do not
address the County’s arguments in the detail provided in Sierra Watch because we agree
with Sierra Club that the County has advanced a straw man argument by stating Sierra
Club’s attack is based on the premise “that the County must analyze a theoretical worst-
case scenario—i.e., 48 wells located at the closest distance allowed by the Ordinance
[citation] regardless of whether that scenario is reasonably foreseeable or likely.” Sierra
Club’s papers clearly show that extreme scenario is not the foundation for its claims of
error.
Finally, we note that we are unable, as a court of review, to suggest the parameters
or assumptions that should be plugged into the models in connection with another multi-
well analysis prepared for the County after remand. Based on the standard adopted by
our Supreme Court, we can reiterate that, among other things, the use of a setback
distance in the models that is greater than the setback distances in the Revised Ordinance
should be explained to enable members of the public “to understand and to consider
meaningfully the issues raised by the proposed project.” (Laurel Heights I, supra, 47
Cal.3d at p. 405; Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516.)
66.
V. WATER SUPPLY IMPACTS*
The parties dispute whether the SREIR’s analysis of water supply impacts and
related mitigation measures complies with CEQA. In particular, Sierra Club contends the
County failed to adequately analyze localized water supply conditions and impacts and
unlawfully rejected proposed mitigation measures when it removed MM 4.17-5 based on
a legal error involving social and economic impacts.
A. Background
1. Water Code Provisions
Context for the parties’ dispute about the proper analysis of water supply impacts
and related mitigation measures is established by various provisions in the Water Code
addressing groundwater. These provisions are part of the “Regulatory Setting” addressed
in section 4.9.3 of the SREIR.
The Legislature has stated an established policy of California is “that every human
being has the right to safe, clean, affordable and accessible water adequate for human
consumption, cooking, and sanitary purposes.” (Wat. Code, § 106.3, subd. (a); Stats.
2012, ch. 524 § 1.)
In 2009, the Legislature amended the Water Code to require the Department of
Water Resources (DWR) to implement a California statewide groundwater elevation
monitoring (CASGEM) program. (Stats. 2009-2010, 7th Ex.Sess., ch. 1, § 1; see Wat.
Code, §§ 10920–10936.) The Legislature intended “that on or before January 1, 2012,
groundwater elevations in all groundwater basins and subbasins be regularly and
systematically monitored locally and that the resulting groundwater information be made
readily and widely available.” (Wat. Code, § 10920, subd. (a).) The SREIR stated that
the CASGEM program collects data on groundwater levels and use for 515 designated
* See footnote, ante, page 1.
67.
basins in the state, including the Kern County subbasin that underlies most of the project
area.
In 2014, the Legislature adopted the Sustainable Groundwater Management Act
(SGMA; Wat. Code, § 10720 et seq.) to provide for sustainable management of
groundwater basins, to enhance local management of groundwater consistent with the
rights to use and store groundwater, to preserve the security of water rights to the greatest
extent possible consistent with sustainable management of groundwater, to provide local
groundwater agencies with the authority and assistance necessary to sustainably manage
groundwater, to avoid or minimize subsidence, to improve data collection and
understanding of groundwater, to increase groundwater storage, and to remove
impediments to recharge. (Wat. Code, § 10720.1.) SMGA “will not be fully
implemented for several years, allowing groundwater overdraft to continue in some
regions.” (Wat. Code, former § 13807, subd. (b).) The SREIR states that to achieve its
objectives, the SGMA empowers local agencies to form groundwater sustainability
agencies (GSA’s) to manage basins and requires the GSA’s to adopt groundwater
sustainability plans (GSP’s).
SMGA required the Kern County subbasin to be managed under a GSP, or a
coordinated set of plans, by January 31, 2020, because the subbasin had been designated
as high or medium priority under the CASGEM program and was subject to critical
overdraft conditions. (King & Gardiner, supra, 45 Cal.App.5th at p. 840–841.)20 The
Kern County subbasin is being managed under a coordination agreement among 11
GSA’s implementing five GSP’s and 15 management area plans to attain SGMA’s goals
20 In 2017, the Legislature added Water Code former sections 13807 through
13808.8 to address new wells in critically overdrafted groundwater basins, which
includes the project area. (Stats. 2017, ch. 538, § 1, pp. 4053–4055.) Among other
things, the legislation (1) required applicants for new wells in such basins to include
information about the proposed well in their permit applications and (2) made that
information available to the public and GSA’s. (Wat. Code, former §§ 13808, 13808.2.)
68.
by 2040. These plans are based on adaptive management principles and, the SREIR
states it is virtually certain that the nature and extent of SGMA projects used in the
project area will be modified significantly during the five-year reviews of the plans,
during the 20-year SGMA compliance period, and during SGMA’s 50-year planning and
implementation horizon.
2. 2020 Opinion
In King & Gardiner, supra, 45 Cal.App.5th 814, Lions Farming contended CEQA
required the EIR to analyze water supply impacts to the extent reasonably possible and
the EIR failed to meet this standard because it only analyzed water supply impacts at a
regional level and, without adequate justification, disregarded local impacts. (Id. at p.
838.) The County responded by arguing the EIR met the applicable standard by
performing a detailed, systematic analysis of water supply impacts within three separate
subareas using the best available data. The County argued a more localized analysis was
not required by CEQA because of (1) the technical challenges in using more
geographically specific area and (2) the many uncertainties in forecasting long term use
at the local level, some of which stemmed from how SMGA, which was new, would be
implemented.
In the 2020 opinion, we concluded (1) the EIR, at the time it was circulated, did
not violate CEQA’s requirement for an analysis of water supply impacts to the extent
reasonably possible; (2) the EIR’s discussion of mitigation measures for the project’s
significant impacts to water supplies was inadequate; and (3) the analysis of water supply
in a revised EIR must be brought up to date. (King & Gardiner, supra, 45 Cal.App.5th at
pp. 845–846 and fn. 15.) We also stated: “Whether the updated information will warrant
an analysis of impact[s] to water supplies at a level other than the subareas used in the
original EIR is a question that must be decided in the first instance by the County in its
role as lead agency.” (Id. at p. 846, fn. 15.)
69.
3. October 2020 Draft SREIR
The draft SREIR of October 2020 stated that (1) the demand for municipal and
industrial (M&I) water from oil and gas activity was projected to increase about 2,982
acre-feet per year (AFY) from 2012 to 2035; (2) there is no surplus M&I water in the
project area; (3) new uses of M&I water would increase the regional groundwater
shortfall if supplied by groundwater extraction; and (4) increasing M&I water demand
under overdraft conditions would contribute to a significant cumulative water supply
impact in the project area. It also stated it was not feasible to implement mitigation
measures (1) directly curtailing oil and gas activities to reduce water demand or (2)
indirectly curtailing other activities (such as agriculture) to reduce water demand.
On the subject of groundwater supplies, the draft SREIR stated that such “supplies
exist in specific basins.” It also stated that such supplies do not exist in localized pockets
of subbasins where a local water district controls all the water. As a result, the draft
SREIR concluded that the three subareas it adopted for other purposes were appropriate
for analyzing groundwater supply. It also stated the Kern County subbasin that underlies
most of the project area has been designated by the DWR as high-priority and critically
overdrafted.
The draft SREIR noted that, under SGMA, GSA’s in the project area are the
exclusive local agencies for implementing SGMA in accordance with duly adopted
GSP’s and management area plans. It also stated (1) most GSP’s and management area
plans include water supply and demand projections over a 50-year planning and
implementation horizon and (2) none of the adopted GSP’s or management area plans
within the project area identify oil and gas operations as a significant factor affecting the
achievement of the SGMA objectives. Based on this and other aspects of the plans, the
SREIR stated the review of the plans did not provide any new information indicating the
water supply or other SGMA-related impacts, including water quality, would be greater
in magnitude or scope than previously considered.
70.
Among the mitigation measures discussed in the draft SREIR was the possibility
that “produced water” from oil and gas activities could be used elsewhere and, thus,
would have a positive impact on the water supply. “Produced water is groundwater that
naturally occurs in oil and gas reservoirs, is brought to the surface with the extracted oil
and gas, and is separated from the hydrocarbons after extraction.” (King & Gardiner,
supra, 45 Cal.App.5th at p. 840.) Produced water usually is poor quality water unsuited
for agricultural, residential, commercial or industrial uses without substantial treatment to
remove contaminants. (Ibid.) The draft SREIR concluded that, based on current
technological and economic restraints, the available evidence did not show that produced
water would continue to be utilized or that expanded produced water reuse would occur
in the project area in predictable volumes over time. Thus, a mitigation measure
requiring additional use of produced water was rejected as infeasible.
The draft SREIR included three mitigation measures addressing groundwater
supply. MM 4.17-3 provides that permit applicants may use groundwater only from
wells equipped with a water meter and requires permit applications to include estimates
of the source and use of groundwater along with the source and estimated use of
reclaimed water. The County will compile the water use information, post it online each
year, and send a copy to all GSA’s and the Kern County Water Agency.
MM 4.17-4 applies to oil and gas activities that fall outside the Revised
Ordinance’s streamlined permitting process and, thus, require conditional use permits. It
provides: “Public Notices of all Conditional Use Permits for oil and gas activities shall
be sent to appropriate Water Districts, Groundwater Authorities, and the Kern County
Water Agency for review and comment on water availability and usage.”
MM 4.17-5 required permit applicants to pay a fee of $50 or $250 per well,
depending on whether they are subject to minor activity review or oil and gas conformity
review. The fees were to be deposited into a grant fund to be implemented and
administered by Kern County Public Health. The grants were to be available for projects
71.
in disadvantaged communities in the valley portion of Kern County that involved the
design, permitting, and construction of physical improvements to water wells or water
systems serving an identified disadvantaged community.
The draft SREIR noted that Water Code section 10723.2 requires GSA’s to
consider the interests of all beneficial uses and users of groundwater in developing and
implementing GSP’s and management area plans. The statutory list of such users
includes domestic well owners, municipal well operators, public water systems,
disadvantaged communities, and others. (Wat. Code, § 10723.2, subds. (a)(2), (b), (c),
(i).) Disadvantaged communities include, but are not limited to, “those served by private
domestic wells or small community water systems.” (Wat. Code, § 10723.2, subd. (i).)21
Despite SGMA’s requirement that the interests of all beneficial users be considered, the
draft SREIR stated there was substantial evidence that disadvantaged communities’
interest in groundwater supplies had not been sufficiently considered in the development
and implementation of GSA’s and management area plans. The draft SREIR concluded
that project M&I water use would contribute to a cumulatively significant impact on
disadvantaged communities that use groundwater but are not adequately considered in the
plans adopted under SGMA in the project area. It stated the funds collected under MM
4.17-5 would mitigate the project’s fair share of cumulative impacts to disadvantaged
communities that are insufficiently considered in the existing SGMA process.
21 Section 21080.47, subdivision (a)(2) states: “ ‘Disadvantaged community’ means
a community with an annual median household income that is less than 80 percent of the
statewide annual median household income.” Section 21080.47 provides an exemption
from CEQA requirements for projects consisting solely of the installation, repair, or
reconstruction of water infrastructure that primarily benefits a small disadvantaged
community water system or a state small water system. (Legis. Counsel’s Dig., Sen. Bill
No. 974, (2019–2020 Reg. Sess.).
72.
4. Comments, Reponses and Briefing
Sierra Club’s September 2020 comment letter asserted the draft SREIR’s analysis
of water supply mitigation measures did not comply with CEQA. Sierra Club contended
the County (1) improperly relied on SGMA to
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