Filed 1/28/22 Save the El Dorado Canal v. El Dorado Irrigation District CA3
`NOT TO BE PUBLISHED
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`California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
`publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
`or ordered published for purposes of rule 8.1115.
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`IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
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`THIRD APPELLATE DISTRICT
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`(El Dorado)
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`Plaintiff and Appellant,
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`v.
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`SAVE THE EL DORADO CANAL,
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`EL DORADO IRRIGATION DISTRICT et al.,
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`Defendants and Respondents.
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`C092086
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`(Super. Ct. No. PC20190260)
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`Appellant Save the El Dorado Canal seeks reversal of a judgment entered after the
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`trial court denied its petition for writ of mandate. The petition challenged certification of
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`an environmental impact report (EIR) and approval of a project under the California
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`Environmental Quality Act (CEQA).1 The challenged project, the Upper Main Ditch
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`1
`CEQA is codified at Public Resources Code section 21000 et seq. Hereafter,
`undesignated statutory references are to the Public Resources Code. Regulations
`promulgated to implement CEQA are set forth in California Code of Regulations, title 14,
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`1
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`piping project, was approved by the El Dorado Irrigation District (District) and the El
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`Dorado Irrigation District Board of Directors (Board of Directors) (collectively,
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`respondents). The proposed project would have replaced roughly three miles of the
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`District’s unlined earthen ditch system (the Upper Main Ditch) with a buried water
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`transmission pipeline to be located either beneath the ditch itself or beneath the berm
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`alongside the ditch. Under this proposal, although the Upper Main Ditch would no
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`longer be utilized to convey the District’s water supply, it would remain available to
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`carry stormwater runoff and the District would retain an easement for maintenance.
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`Respondents approved an alternative to the proposed project, the Blair Road alternative,
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`which aligns a portion of the pipeline with the Upper Main Ditch but places the majority
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`of the pipeline beneath a roadway, Blair Road, resulting in the District’s abandonment of
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`most of the ditch.
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`On appeal, appellant contends respondents’ approval of the challenged project
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`violated CEQA because: (1) the EIR failed to provide an adequate project description
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`because it omits “a crucial fact about the ditch the District proposes to ‘abandon,’ ” i.e.,
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`“the Main Ditch system is the only drainage system” for the watershed; and (2) the EIR
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`failed to adequately analyze the impacts of abandonment to hydrology, biological
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`resources, and risks associated with wildfires.
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`We affirm. As we shall explain, respondents did not abuse their discretion in
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`approving the Blair Road alternative. The draft and final EIR’s adequately apprised
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`respondents and the public about both the nature of the watershed and the fact that the
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`District would no longer maintain the abandoned portion of the Upper Main Ditch.
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`section 15000 et seq. We shall refer to these regulations as “Guidelines.” (§ 21083,
`subds. (a), (f) [“Office of Planning and Research shall prepare and develop proposed
`guidelines” and “Secretary of the Resources Agency shall certify and adopt guidelines”];
`see also Association of Irritated Residents v. Kern County Bd. of Supervisors (2017) 17
`Cal.App.5th 708, 718, fn. 2 (Irritated Residents).)
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`2
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`These environmental documents also adequately analyzed the Blair Road alternative’s
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`impacts to hydrology, biological resources, and risks associated with wildfires.
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`BACKGROUND
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`The District, a public water agency located in El Dorado County, operates a water
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`system that relies exclusively on surface water to meet its potable water demand. The
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`system contains more than 1,250 miles of pipe and 27 miles of earthen ditches connecting
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`various water facilities, including five water treatment plants (WTP’s). One of the
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`District’s main water conveyance features is the Upper Main Ditch, a roughly three-mile
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`stretch of open and unlined ditch connecting the District’s Forebay Reservoir to the
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`Reservoir 1 WTP.
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`The Proposed Project
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`The District proposed to convert the Upper Main Ditch into a buried 42-inch
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`pipeline that would span the entirety of the existing ditch. Several reasons were
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`advanced for the conversion; foremost among these was water conservation. As the draft
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`EIR explains, citing a 2017 study, the open and unlined nature of the Upper Main Ditch
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`results in “11-percent to 33-percent” of the water conveyed through the ditch being lost
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`“due to seepage and evapotranspiration” each year, “depending on flow rates and annual
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`diversions.” Citing data from 2009 to 2015, the draft EIR estimates “minimum water
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`savings of approximately 1,350 acre-feet per year and an average of nearly 1,800 acre-
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`feet can be expected to result from piping the ditch.” This “would assist the District in
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`meeting water conservation mandates” imposed by the Legislature and the State Water
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`Resources Control Board, the latter acting at the direction of the Governor.
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`The proposed project would also improve water quality because “[t]he existing
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`unlined and uncovered Upper Main Ditch is currently susceptible to contamination and
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`failure, resulting in erosion and water quality issues that increase the contaminant load
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`that must be removed by the treatment process at the WTP.” Contaminants identified in
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`the Upper Main Ditch during a water quality analysis conducted by the District include
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`“total coliform, E. coli, and turbidity.”
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`The upstream end of the new pipeline would connect to the Forebay Reservoir
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`valve house and would then “follow[] the existing ditch alignment for the entire 15,400
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`feet” of the Upper Main Ditch. As the draft EIR explains, the buried pipeline “would
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`vary between being completely under the existing ditch to partially under the ditch and
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`partially under the berm, to completely under the berm.” Once the new pipeline is placed
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`beneath the ditch/berm, the District would backfill the pipe with “engineered fill and
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`select backfill material,” compact the surface, and reshape the ditch “to allow for passage
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`of stormwater flows up to the current 10-year storm event capacity.” Finally, “[a]t the
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`downstream end, a metering and inlet structure would also be constructed within the ditch
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`to turn water into the Reservoir 1 WTP.”
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`The Blair Road Alternative
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`In addition to the proposed project, the District considered three alternatives: two
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`alternative alignments for the pipeline, and a “No-Project Alternative” that would have
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`left the Upper Main Ditch unaltered in its operation. Because the Blair Road alternative
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`was ultimately chosen, we describe this alternative in some detail.2
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`The Blair Road alternative also converts the Upper Main Ditch into a buried
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`42‑inch pipeline, but rather than running the pipe along the existing ditch, this alternative
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`alignment places the pipe across District-owned property for about 400 feet from the
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`Forebay Reservoir valve house to Blair Road, continues along Blair Road for about 8,200
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`feet until it reaches the Upper Main Ditch crossing, then continues along the ditch for
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`2
`We do not describe the other alternative, referred to as the “Combined
`Alternative,” but note here that respondents ultimately rejected this alternative alignment
`because, among other reasons, it “would require the most number of trees to be removed,
`and tree removal is a matter of public concern in El Dorado County.”
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`4
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`about 1,500 feet before traveling another 2,200 feet across private property to the
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`Reservoir 1 WTP. The total length of this alignment is about 12,300 feet, about 3,100
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`feet shorter than the proposed project.
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`The pipeline connection at the Forebay Reservoir valve house and the inlet
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`structure at Reservoir 1 WTP would be the same as the proposed project. The portion of
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`the pipeline installed beneath the existing ditch would also “be constructed in the same
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`manner as the proposed Project.” With respect to “[t]he transition between the non-
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`constructed sections of ditch and constructed sections of ditch,” the draft EIR explains
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`that there would be “a graded slope . . . to allow normal gravity flow of stormwater
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`within the channel to be conveyed as under the current (No Project) conditions.” More
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`on this later.
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`Portions of the pipeline “that would go through cross-country terrain . . . would be
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`placed underground and the surface would be regraded with a two-percent cross slope
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`over the pipe for maintenance purposes.” Finally, as previously indicated, most of this
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`alternative alignment would be installed beneath Blair Road. Pipeline construction along
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`the roadway would be significantly different than placing it along the ditch alignment.
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`However, because this aspect of the project is not at issue in this appeal, we decline to
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`describe it in any detail.
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`The District’s Compliance with CEQA
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`In June 2015, the District issued an initial study and notice of preparation.3
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`During the subsequent 30-day public review and comment period, the District held a
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`3
`“[A]n initial study is the preliminary environmental analysis [citation] and its
`purposes include ‘[p]rovid[ing] the lead agency with information to use as the basis for
`deciding whether to prepare an EIR or negative declaration,’ ‘[e]nabl[ing] an applicant or
`lead agency to modify a project, mitigating adverse impacts before an EIR is prepared,
`thereby enabling the project to qualify for a negative declaration,’ and ‘[p]rovid[ing]
`documentation of the factual basis for the finding in a negative declaration that a project
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`5
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`scoping meeting to provide a forum for public comments on the scope and focus of the
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`EIR, including feasible alternatives. The District also conducted various public outreach
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`activities to encourage public involvement, including maintaining a Web site with
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`information about the proposed project and participating in a town hall meeting in
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`Pollock Pines in November 2017.
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`In June 2018, the District issued the draft EIR, analyzing potential significant
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`effects associated with the proposed project and three project alternatives, including the
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`Blair Road alternative. As mentioned, appellant’s challenge to the EIR is limited to
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`challenging the adequacy of (1) the project description related to the Upper Main Ditch’s
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`role in the watershed’s drainage system, and (2) the impact analysis related to hydrology,
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`biological resources, and risks associated with wildfires. We quote extensively from the
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`relevant sections of the draft EIR in the discussion portion of this opinion. For now, we
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`provide a very brief summary of the project description related to the Upper Main Ditch’s
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`role in the watershed and the relevant impact conclusions reached.
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`Beginning with the Upper Main Ditch’s role in the watershed, the draft EIR
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`describes the extensive system of open ditches constructed by the mining industry in the
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`1800’s and explains that this system was converted over time into a water delivery
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`system for residential and agricultural use. Part of this system is the Upper Main Ditch.
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`As mentioned previously, it spans roughly three miles from the Forebay Reservoir to the
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`Reservoir 1 WTP and “delivers a maximum of 15,080 acre-feet of raw water supplies
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`annually.” The draft EIR also notes that the Upper Main Ditch passes through private
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`property and the District “asserts an easement across such property to own and operate
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`will not have a significant effect on the environment.’ [Citation.]” (Lighthouse Field
`Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1180.) “A notice of
`preparation is a brief notice sent by the lead agency to (1) notify responsible agencies that
`the lead agency plans to prepare an EIR for the project and (2) solicit guidance from
`those agencies as to the scope and content of environmental information included in the
`EIR. [Citations.]” (Irritated Residents, supra, 17 Cal.App.5th at p. 723, fn. 4.)
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`the ditch for water supply conveyance.” The draft EIR further explains that in addition to
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`water conveyance for the District, “the Upper Main Ditch passively intercepts stormwater
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`runoff that would otherwise naturally flow down slope.” It does so for a drainage area of
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`approximately 315 acres and at full capacity “can currently accommodate stormflows that
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`are equivalent to a 10-year design stormflow.” Flows in excess of such a 10-year storm
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`event “overtop the ditch and follow their natural drainage course, eventually flowing
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`towards the South Fork of the American River.” The proposed project, as mentioned
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`previously, would “leave[] a remnant channel in place, thereby allowing stormwater for
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`10-year storm flows to continue following pre-Project drainage patterns.” Describing the
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`Blair Road alternative, the document states: “The ditch would continue to have the
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`capacity to passively receive and convey stormwater flows during storm events. Except
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`where the Blair Road Alternative would be located within the existing ditch corridor, the
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`District would no longer use the existing ditch under this alternative.”
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`The draft EIR analyzes this aspect of hydrology with respect to the Blair Road
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`alternative in impact HYD-3b. We provide this analysis in its entirety later. The draft
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`EIR concluded “the potential to substantially alter existing drainage patterns is less than
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`significant with mitigation incorporated” because a certain mitigation measure (MM
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`GEO-1)4 “would be implemented to reduce any potential construction impacts to a less
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`than significant level” and the existing ditch “would continue to have the capacity to
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`passively receive and convey stormwater flows during storm events.”
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`Turning to the draft EIR’s analyses of potential impacts to biological resources, as
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`we explain more fully later, two are important to the issues raised in this appeal:
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`(1) whether the project would have a substantial effect on any riparian habitat or other
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`sensitive natural community (impact BIO-2); and (2) whether the project would conflict
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`4
`We describe this and other relevant mitigation measures adopted by respondents in
`the discussion portion of the opinion.
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`with any local policies or ordinances protecting biological resources, such as a tree
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`preservation policy or ordinance (impact BIO-3). Again, we provide these analyses in
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`their entirety later. The draft EIR concluded with respect to the first of these potential
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`impacts: “Because the Blair Road Alternative would be within the roadway and/or areas
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`lacking riparian habitat or other sensitive natural communities and impacts to oaks would
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`be mitigated through MM BIO-6, the impact would be less than significant with
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`mitigation.”
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`With respect to any potential conflict with local policies or ordinances protecting
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`biological resources, such as a tree preservation policy or ordinance, the draft EIR
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`concluded: (1) “the Blair Road Alternative does not conflict with the El Dorado County
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`General Plan Conservation Element”; (2) “with the implementation of MM BIO-6, the
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`Blair Road Alternative would be consistent with the [Oak Resources Management Plan]
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`and not conflict with a local plan or policy protecting biological resources”; and
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`(3) because “the District would adhere to the tree removal procedures required by the
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`County’s Tree Mortality Tree Removal Plan [citation], [and] the California Department
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`of Forestry and Fire Protection (CAL FIRE)[,] . . . impacts related to the spread of pine
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`bark beetle would be the same as that of the proposed Project,” i.e., “[l]ess than
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`[s]ignificant.”
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`Finally, the draft EIR analyzes potential wildfire risks associated with the Blair
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`Road alternative in impact HAZ-3b, noting this alternative alignment “would have
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`similar impacts related to wildland fire risk as described under the proposed Project,” i.e.,
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`“[l]ess than [s]ignificant.” This analysis will also be provided later in this opinion.
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`The CEQA-mandated 45-day public review and comment period for the draft EIR
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`ended in July 2018. During that period, the District held a public meeting to provide a
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`question and answer session for the public with District and consultant staff, and to
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`receive public comments. Due to a substantial number of requests to extend the review
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`and comment period, the Board of Directors voted to provide an additional 30 days for
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`the public to do so. That additional 30-day period ended in September 2018. The
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`District received about 200 comment letters/e-mails regarding the draft EIR. These
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`comments, as well as responses, are included in the final EIR. The final EIR was issued
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`in January 2019.
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`Appellant’s arguments in this appeal focus on three of the comments received, one
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`from El Dorado County (the County), one from California’s Department of Fish and
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`Wildlife (CDFW), and one from appellant. We provide the content of these comments,
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`as well as a representative example of individual comments expressing concern about
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`wildfires, and the final EIR’s responses to these comments, in the discussion portion of
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`this opinion.
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`Approval of the Blair Road Alternative
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`In April 2019, respondents approved the Blair Road alternative by resolution of
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`the Board of Directors. The resolution also certified the final EIR and adopted the
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`District’s findings of fact regarding the environmental review process, selection of the
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`Blair Road alternative, rejection of the proposed project and other alternatives as
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`infeasible, and implementation of mitigation measures as conditions to approval of the
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`project. A mitigation monitoring and reporting program (MMRP) was also adopted.
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`With respect to the no-project alternative, respondents found: “Implementing the
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`No Project Alternative would: 1) prevent [the District] from converting the Upper Main
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`Ditch from its current open conveyance status to a secure raw water buried transmission
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`pipeline, 2) not meet any of the project objectives, and 3) result in ongoing adverse
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`impacts associated with continued water loss and degradation of water quality. For these
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`reasons, the [District’s] Board of Directors rejects the No-Project Alternative as
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`infeasible within the meaning of CEQA.”
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`With respect to the proposed project, respondents found this proposal would meet
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`all project objectives, but “would have greater potential impacts to residents along the
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`ditch, from construction and tree removal, and likely would require eminent domain
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`action if the District were unable to negotiate the necessary easement rights with private
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`property owners to construct the pipeline along this alignment.” The District concluded,
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`“[b]ased on prior unsuccessful efforts to negotiate the necessary easement rights for the
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`Proposed Project,” that it likely would again be unable to do so. “Accordingly, for
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`environmental, legal and social reasons, the [District’s] Board of Directors rejects the
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`Proposed Project as infeasible within the meaning of CEQA.”
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`With respect to the Blair Road alternative, respondents found this alternative
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`would also meet project objectives and “would require the least number of trees to be
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`removed, would primarily occur within the public right-of-way of Blair Road and would
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`therefore involve less construction activities in close proximity to private residences,
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`reducing community impacts of concern, and require the fewest number of acquisitions
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`of new permanent easements across private parcels to construct, maintain, and operate the
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`proposed pipeline. Accordingly, the [District’s] Board of Directors finds that the Blair
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`Road Alternative is feasible within the meaning of CEQA.”
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`Turning to the potential impacts raised by appellants in this appeal, respondents
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`found the mitigation measures alluded to earlier, and more fully discussed later in this
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`opinion, would lessen the significance of potentially significant impacts to less-than-
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`significant levels and adopted those measures as conditions to approval of the project.
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`A notice of determination was filed on April 22, 2019, stating the project would
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`not have a significant effect on the environment, an EIR was prepared, mitigation
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`measures were made a condition of approval, an MMRP was adopted, a statement of
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`overriding considerations was not adopted, and findings were made pursuant to CEQA.
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`Proceedings Before the Trial Court
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`In May 2019, appellant filed a petition for a writ of mandate challenging
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`certification of the EIR and approval of the project under CEQA. Extensive briefing was
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`submitted by the parties. In a 74-page ruling, thoroughly addressing each of 10
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`contentions raised by appellant, the trial court denied the petition.5 Judgment was
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`thereafter entered in respondents’ favor. This appeal followed.
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`DISCUSSION
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`I
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`CEQA Overview and Standard of Review
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`“With narrow exceptions, CEQA requires an EIR whenever a public agency
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`proposes to approve or to carry out a project that may have a significant effect on the
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`environment. [Citations.] ‘Project’ means, among other things, ‘[a]ctivities directly
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`undertaken by any public agency.’ [Citation.] ‘ “Significant effect on the environment”
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`means a substantial, or potentially substantial, adverse change in the environment.’
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`[Citations.] The Legislature has made clear that an EIR is ‘an informational document’
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`and that ‘[t]he purpose of an environmental impact report is to provide public agencies
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`and the public in general with detailed information about the effect which a proposed
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`project is likely to have on the environment; to list ways in which the significant effects
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`of such a project might be minimized; and to indicate alternatives to such a project.’
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`[Citations.]” (Laurel Heights Improvement Assn. v. Regents of University of California
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`(1988) 47 Cal.3d 376, 390-391, fns. omitted (Laurel Heights).)
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`“The EIR is the primary means of achieving the Legislature’s considered
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`declaration that it is the policy of this state to ‘take all action necessary to protect,
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`rehabilitate, and enhance the environmental quality of the state.’ [Citation.] The EIR is
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`therefore ‘the heart of CEQA.’ [Citations.] An EIR is an ‘environmental “alarm bell”
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`whose purpose it is to alert the public and its responsible officials to environmental
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`5
`As we explain immediately below, we are tasked in this appeal with reviewing
`respondents’ decision to approve the project, not the trial court’s ruling. (See Vineyard
`Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th
`412, 427 (Vineyard).) We therefore decline to describe that ruling in any detail.
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`changes before they have reached ecological points of no return.’ [Citations.] The EIR is
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`also intended ‘to demonstrate to an apprehensive citizenry that the agency has, in fact,
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`analyzed and considered the ecological implications of its action.’ [Citations.] Because
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`the EIR must be certified or rejected by public officials, it is a document of
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`accountability. If CEQA is scrupulously followed, the public will know the basis on
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`which its responsible officials either approve or reject environmentally significant action,
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`and the public, being duly informed, can respond accordingly to action with which it
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`disagrees. [Citations.] The EIR process protects not only the environment but also
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`informed self-government.” (Laurel Heights, supra, 47 Cal.3d at p. 392.)
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`Our review of respondents’ compliance with CEQA in this case “ ‘extend[s] only
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`to whether there was a prejudicial abuse of discretion.’ [Citation.] Such an abuse is
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`established ‘if the agency has not proceeded in a manner required by law or if the
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`determination or decision is not supported by substantial evidence.’ [Citations.]”
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`(Vineyard, supra, 40 Cal.4th at pp. 426-427, fns. omitted.) “Judicial review of these two
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`types of error differs significantly: While we determine de novo whether the agency has
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`employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated
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`CEQA requirements’ [citation], we accord greater deference to the agency’s substantive
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`factual conclusions. In reviewing for substantial evidence, the reviewing court ‘may not
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`set aside an agency’s approval of an EIR on the ground that an opposite conclusion
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`would have been equally or more reasonable,’ for, on factual questions, our task ‘is not to
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`weigh conflicting evidence and determine who has the better argument.’ [Citation.]” (Id.
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`at p. 435.)
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`“Whether an EIR has omitted essential information is a procedural question
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`subject to de novo review.” (Banning Ranch Conservancy v. City of Newport Beach
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`(2017) 2 Cal.5th 918, 935.) However, we do not “ ‘pass upon the correctness of the
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`EIR’s environmental conclusions, but only upon its sufficiency as an informative
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`document.’ [Citation.] [¶] This standard of review is consistent with the requirement
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`that the agency’s approval of an EIR ‘shall be supported by substantial evidence in the
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`record.’ [Citation.] In applying the substantial evidence standard, ‘the reviewing court
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`must resolve reasonable doubts in favor of the administrative finding and decision.’
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`[Citation.] The Guidelines define ‘substantial evidence’ as ‘enough relevant information
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`and reasonable inferences from this information that a fair argument can be made to
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`support a conclusion, even though other conclusions might also be reached.’ [Citation.]”
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`(Laurel Heights, supra, 47 Cal.3d at pp. 392-393.)
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`Finally, as stated previously, we review “the agency’s action, not the trial court’s
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`decision; in that sense appellate judicial review under CEQA is de novo. [Citations.] We
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`therefore resolve the substantive CEQA issues . . . by independently determining whether
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`the administrative record demonstrates any legal error by [respondents] and whether it
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`contains substantial evidence to support [respondents’] factual determinations.”
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`(Vineyard, supra, 40 Cal.4th at p. 427.)
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`II
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`Adequacy of the EIR’s Project Description
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`Appellant contends approval of the challenged project violated CEQA because the
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`EIR failed to adequately describe the project by omitting “a crucial fact about the ditch
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`the District proposes to ‘abandon,’ ” i.e., “the Main Ditch system is the only drainage
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`system” for the watershed. We disagree.
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`As a preliminary matter, respondents assert this contention is forfeited because
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`appellant failed to set forth the relevant portions of the draft EIR’s project description in
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`its opening brief on appeal, relying on our decision in Citizens for Positive Growth &
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`Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609 (Citizens). There, the
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`appellant asserted that the EIR challenged in that case was deficient because it did not
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`adequately discuss any of the project alternatives. (Id. at p. 626.) We addressed the
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`adequacy of the EIR’s discussion of only one of these alternatives, however, because the
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`appellant’s briefing on appeal “addresse[d] only the ‘no project’ alternative discussion.”
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`(Ibid.) As we explained: “An appellant must direct us to the parts of the record that
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`show the claimed error. ‘An appellate court is not required to search the record to
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`determine whether or not the record supports appellant[’s] claim of error. It is the duty of
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`counsel to refer the reviewing court to the portions of the record which support
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`appellant[’s] position.’ [Citation.] Under the California Rules of Court, each brief must
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`‘[s]upport any reference to a matter in the record by a citation to the volume and page
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`number of the record where the matter appears.’ [Citation.] ‘If no citation “is furnished
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`on a particular point, the court may treat it as [forfeited].” ’ [Citation.]” (Id. at p. 626,
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`fn. 8.)
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`Here, appellant does something different, but equally problematic. Under the
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`heading “The Project Description omits crucial facts,” appellant provides the applicable
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`legal standard for assessing the sufficiency of a project description, but then, in arguing
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`that standard is not met, shifts the argument to assert the EIR provides “an ‘inadequate
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`description of the environmental setting for the project . . . .’ ” These are separate and
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`distinct issues. (See San Joaquin Raptor Rescue Center v. County of Merced (2007) 149
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`Cal.App.4th 645, 654-659.) In order to properly raise the latter issue, appellant was
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`required to do so under a separate heading. (Cal. Rules of Court, rule 8.204(a)(1)(B); San
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`Joaquin River Exchange Contractors Water Authority v. State Water Resources Control
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`Bd. (2010) 183 Cal.App.4th 1110, 1135 [argument forfeited for lack of separate
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`heading].) Then, still under the heading indicating the project description is at issue,
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`appellant challenges the EIR’s impact analysis and conclusion that the Blair Road
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`alternative’s abandonment of most of the Upper Main Ditch “would not result in
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`significant damage” to the environment through flooding.6 Finally, the argument returns
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`to discuss the importance of an accurate, stable, and finite project description. Because
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`
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`6
`This issue is properly raised and argued later in the opening brief under a separate
`heading. We address it in the next section of the discussion.
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`14
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`that is the only issue indicated by the heading of this particular section of appellant’s
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`opening brief, that is the only issue we address in this portion of the opinion. Any
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`assertion that the EIR failed to adequately describe the existing environmental setting is
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`forfeited.
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`
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`We now address the project description. As our colleagues at the First Appellate
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`District recently explained in South of Market Community Action Network v. City and
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`County of San Francisco (2019) 33 Cal.App.5th 321, 332 (South of Market):
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`“A [draft EIR] must include a project description. [Citation.] The project
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`description must contain (1) the precise location and boundaries of the proposed project;
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`(2) a statement of the objectives sought by the proposed project, including the underlying
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`purpose; (3) a general description of the project’s technical, economic, and environmental
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`characteristics; and (4) a statement briefly describing the intended uses of the EIR.
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`[Citation.] The description should not, however, ‘supply extensive detail beyond that
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`needed for evaluation and review of the environmental impact.’ [Citation.] The
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`description must include the entirety of the project, and not some smaller portion of it.
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`[Citation.]
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`
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`“ ‘[A]n accurate, stable and finite project description is the sine qua non of an
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`informative and legally sufficient EIR.’ [Citation.] ‘Only through an accurate view of
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`the project may affected outsiders and public decision-makers balance the proposal’s
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`benefit against its environmental cost, consider mitigation measures, assess the advantage
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`of terminating the proposal . . . and weigh other alternatives in the balance.’ [Citation.]
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`A project description that gives conflicting signals to decision makers and the public
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`about the nature of the project is fundamentally inadequate and misleading. [Citation.]
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`Further, ‘[a] curtailed, enigmatic or unstable project description draws a red herring
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`across the path of public input.’ [Citation.] ‘Whether an EIR correctly describes a
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`project is a question of law, subject to de novo review.’ [Citation.]” (South of Market,
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`supra, 33 Cal.App.5th at p. 332.)
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`15
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`Appellant’s assertion that the draft EIR failed “to disclose the true nature of the
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`Upper Main Ditch” is without merit. The draft EIR explains: “Thousands of miles of
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`earthen/open ditches were constructed in the American River watershed in the 1800’s to
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`support the gold mining industry. As land uses and water demands shifted from gold
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`mining to agriculture and domestic and municipal uses, some of these ditch systems were
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`incorporated into the water delivery systems of public and private