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March 23, 2022  |  Written by Ellen M. Moskal, Kelley M. Taber

Third District Court of Appeal Rejects CEQA Challenge to Project Converting Open Ditch to Pipe, Providing Valuable Guidance Regarding the Analysis of Indirect and Wildfire Impacts

A recent decision by the Third District Court of Appeal upholding El Dorado Irrigation District’s (EID) environmental document for a ditch piping project will provide helpful guidance to water agencies and irrigation districts looking to conserve and protect water supplies.

In Save the El Dorado Canal v. El Dorado Irrigation District (2022) 75 Cal.App.5th 239, residents living along an open, unlined, earthen ditch used to convey surface water challenged EID’s approval of a project to convert three miles of the ditch to a buried pipeline to prevent water losses and protect water quality. The ditch in question, the Upper Main Ditch, was built by mining interests to convey water to the Placerville area in the late 1800s. The residents challenged EID’s certification of the project’s environmental impact report (EIR) under the California Environmental Quality Act (CEQA) on numerous grounds. The El Dorado County Superior Court rejected all the residents’ arguments, upholding the EIR and project approval. The residents’ appeal focused on the EIR’s project description, environmental setting, and impacts to hydrology, biological resources, and wildfire risk.

In a lengthy decision that quoted the EIR extensively, the Court of Appeal rejected all the residents’ arguments and upheld EID’s EIR in its entirety. The decision augments a relatively small number of published decisions addressing the adequacy of an EIR’s analysis of indirect environmental impacts as well as impacts related to wildfire risk.

In commenting on the draft EIR, residents argued that the project would result in significant flooding impacts. Residents asserted that property owners along the canal would fail to maintain the canal or would take affirmative action, such as dumping items in the canal, thus obstructing stormwater drainage and leading to localized flooding. The EIR determined such impacts were not reasonably foreseeable, citing evidence including residents’ property interest in preventing flooding on their properties or those of their neighbors. In upholding the EIR’s analysis, the Court of Appeal applied CEQA’s principles regarding a lead agency’s obligation to analyze a proposed project’s reasonably foreseeable indirect effects. Ultimately, the Court of Appeal concluded that EID’s significance determination was supported by substantial evidence. Moreover, EID was not required to speculate, or to treat future third-party actions as reasonably foreseeable indirect effects of the project. The decision adds to a limited body of case law addressing the types of indirect effects that should be treated as a reasonably foreseeable consequence of a project and, in particular, whether possible future actions or inaction by third parties should be so treated.

The decision is also one of only a few to address the adequacy of an EIR’s wildfire impact analysis. CEQA requires a lead agency to ask whether a proposed project would expose people or structures to a significant risk of loss, injury, or death involving wildland fires. The residents argued that EID’s analysis of the project’s wildfire impacts was deficient, specifically alleging that EID ignored a firefighter’s comment that conversion of the open ditch to a pipe would remove a valuable firefighting tool. The Court found EID’s treatment of wildfire impacts adequate and supported by substantial evidence, including evidence that contradicted assertions by the resident’s expert.

As irrigation and water districts throughout the State strive to conserve and protect increasingly scarce water supplies, proposals to line or pipe historic earthen ditches and canals will become increasingly common. Such projects often occur in the Sierra Nevada foothills, where drainage, wildfire, and biological resource concerns frequently are raised in the environmental review process. The Court’s opinion in Save the El Dorado Canal v. El Dorado Irrigation District quotes extensively from the project EIR, including responses to comments, and addresses both the type and quality of evidence and analysis that is sufficient to resolve concerns regarding indirect effects, biological impacts, and wildlife risks; the decision will be instructive to public water agencies and their consultants in evaluating how such concerns should be evaluated under CEQA.

Somach Simmons & Dunn advised EID in the development of the Main Ditch Piping Project EIR and represented it in the litigation at the trial court and Court of Appeal. For more information about this case, please contact Ellen Moskal at emoskal@somachlaw.com or Kelley Taber at ktaber@somachlaw.com.

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