An environmental impact report for a water pipeline project near Jackson has been rejected because the water agency in charge did not explain the reason why it concluded that a potential impact was not significant.

The potential impact was to six streams that are fed during the dry season by leaks in an earthen canal, which the Amador Water Agency proposed to replace with a pipeline. Without water from the leaks, some of the streams would dry up altogether during the summer and early fall, according to the EIR.

"[C]ontrary to CEQA requirements, the EIR fails to explain the reasons why the agency found the reduction in stream flow would not be significant," Justice Ronald Robie wrote for the Third District Court of Appeal.

The Amador Canal is a mostly unlined ditch that carries water 23 miles from Lake Tabeaud to Tanner Reservoir in the Amador County foothills near Jackson. The canal was originally built in 1870. Amador Water Agency proposed replacing the ditch with an 8-mile-long pipeline to improve water quality, reduce water loss and boost reliability.

In May 2001, the agency adopted an EIR and approved the pipeline project. The EIR said that surface flows in parts of six streams would decrease to varying degrees from June through October, making some of the streams intermittent during drier years. In particular, Jackson Creek would become intermittent "during August and September, and possibly October, in all but the wettest water years." Nevertheless, the EIR concluded the hydrological impacts were less than significant. The EIR reached the same conclusion regarding impacts to riparian vegetation.

A group called Protect the Historic Amador Waterways sued the agency, contending that the agency failed to analyze and mitigate significant effects to stream hydrology and riparian vegetation. Amador County Superior Court Judge Susan Harlan ruled for the agency. Project opponents appealed, and a unanimous three-judge panel of the Third District overturned the lower court.

The water agency had relied heavily on thresholds of significance, which the California Environmental Quality Act and the CEQA Guidelines permit lead agencies to use to determine whether an EIR is required and, if so, whether a possible impact is potentially significant. The agency further relied on a portion of the Guidelines, §15064, subdivision (h), that the Third District invalidated in Communities for a Better Environment v. California Resources Agency, (2002) 103 Cal.App. 4th 98 (see CP&DR, January 2003; CP&DR Legal Digest, December 2002). Interestingly, Justice Robie — then a Sacramento County Superior Court judge — had originally stricken § 15604, subdivision (h) at about the same time the agency adopted the EIR. The court rejected the guideline because it allowed an agency that had adopted thresholds of significance to rely on them solely, and not have to consider a "fair argument" that an impact was potentially significant. The court said the fair argument standard remained in place.

The water agency had adopted thresholds of significance based largely on the "Environmental Checklist Form" and "Environmental Information Form" in appendices G and H of the guidelines. Based on those thresholds, the agency determined the project would not have a significant impact. Project opponents contended that the sample questions in those forms were too narrow and were irrelevant to the pipeline project.

The Third District said it could not determine which side was correct because the agency provided no basis for its conclusion.

"[A]fter explaining how construction of the pipeline would ‘affect existing local hydrology’ by reducing surface flow in several streams, turning some of them into seasonally intermittent streams, the EIR simply states that ‘the change in local hydrology associated with dewatering the Amador Canal and eliminating all leakage is not considered to be a significant hydrological impact per se.’ This assertion is not a statement of reasons, but a bare conclusion. As such, it does not satisfy CEQA requirements," Robie wrote. "A statement of reasons is necessary to assure meaningful judicial review in the event, as here, the EIR is challenged in court."

As for impacts to riparian vegetation, the court was satisfied with the EIR’s single sentence of reasoning: "Similarly, the montane riparian vegetation would continue to thrive along local streamcourses, even if canal leakage is eliminated." Project opponents might have challenged the reasoning as lacking substantial evidence, but they did not, said the court, which then sided with the agency regarding habitat.

In directing the water agency to satisfy CEQA, the court made clear that "the agency need only correct the deficiency in the EIR that we have identified" and did not have to start over.

The Case:
Protect The Historic Amador Waterways v. Amador Water Agency, No. C042915, 04 C.D.O.S. 2273, 2004 DJDAR 3291. Filed March 12, 2004. Modified April 9, 2004 at 2004 DJDAR 4414.
The Lawyers:
For Protect The Historic Amador Waterways: J. William Yeates, (916) 860-2000.
For the agency: Alan Lilly, Bartkiewicz, Kronick & Shanahan, (916) 446-4254.