Filed 10/31/14

                           CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                     DIVISION TWO



ALBERT THOMAS PAULEK,

        Plaintiff and Appellant,                      E060038

v.                                                    (Super.Ct.No. RIC1120142)

CALIFORNIA DEPARTMENT OF                              OPINION
WATER RESOURCES,

        Defendant and Respondent.



        APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge.

Affirmed.

        Susan E. Nash for Plaintiff and Appellant.

        Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney

General, and Eric M. Katz, Deputy Attorney General, for Defendant and Respondent.

        Plaintiff and appellant Albert Thomas Paulek appeals the denial of his petition for

a writ of mandate under the California Environmental Quality Act (CEQA). He seeks a

writ directing defendant and respondent California Department of Water Resources

(Department) to vacate its approval of the final environmental impact report (EIR) with


                                             1
respect to the Perris Dam Remediation Project. In its draft EIR, the Department proposed

three activities: (1) remediating structural deficiencies in the Perris Dam, (2) replacing

the facility’s outlet tower, and (3) creating a new “Emergency Outlet Extension.” In

response to comments on the draft EIR, the emergency outlet extension was split off into

a separate environmental review process, and the final EIR at issue considers only dam

remediation and outlet tower replacement.

       Paulek contends on appeal that the lack of an emergency outlet extension

constitutes a significant environmental impact that the project as finally approved fails to

mitigate, and that the separation of the emergency outlet extension into a different project

constitutes impermissible segmentation. He further contends that the Department did not

adequately respond to written comments submitted by “Friends of the Northern San

Jacinto Valley,” an organization of which Paulek is the “Conservation Chair.”1 In

response, the Department argues that Paulek lacks standing, and the petition in any case

fails on its merits.

       For the reasons discussed below, we agree with the trial court that Paulek has

standing, and find no abuse of discretion in its denial of the petition on its merits. We

therefore affirm.




       1 Paulek brought suit on his own behalf, rather than as an organizational
representative; Friends of the Northern San Jacinto Valley is not party to the present
action.

                                              2
                   I. FACTS AND PROCEDURAL BACKGROUND

       Perris Dam and Reservoir is a multipurpose facility known collectively as Lake

Perris, located within the Lake Perris State Recreation Area in Riverside County. Perris

Dam was built in 1972. A foundation study of the dam—completed by the Department in

2005 and utilizing recent significant advances in soil liquefaction engineering—showed

structural deficiencies in its capacity to withstand seismic events not revealed in earlier

studies. The 2005 report recommended immediately reducing the water level in the

reservoir, remediation measures to improve the long-term seismic stability of the dam’s

foundation, and further study, including a seismic review of the dam’s outlet tower.2

       The Department responded to the first recommendation of the report by reducing

the amount of water held by the dam by about 40 percent. Department staff also

developed a proposal for long-term improvements to the dam with three parts:

(1) remediation of the structural deficiencies in the dam’s foundation through various

measures; (2) replacement of the facility’s existing outlet tower, the structural integrity of

which was found upon further seismic review to be deficient; and (3) construction of a

new “emergency outlet extension.”

       The third part of the planned improvements, the emergency outlet extension, was

not recommended or even considered by the 2005 report. The Department proposed it,

however, because the emergency water release facilities of the dam, as originally

       2  The outlet tower is a 105-foot-tall freestanding structure containing a number of
valves at various elevations, the function of which is to convey water to The Metropolitan
Water District of Southern California’s delivery facility located near the dam, and to
allow for release of water during emergencies.

                                              3
constructed, were designed to discharge water overland, inundating up to 2700 acres of

flood plain downstream from the dam, and allowing the water to find its own path to the

Perris Valley Storm Drain. Since the dam’s construction in 1972, however, substantial

residential developments had been built in that previously-empty flood plain. The

emergency outlet extension would create a safe route—a two-mile-long path, either

underground or in an open channel—for such water to flow, if necessary.

       On June 1, 2007, the Department issued a notice of preparation of a draft EIR

regarding the three-part proposal. The written comments received in response to the

notice of preparation include, as relevant here, comments from Friends of the Northern

San Jacinto Valley, an organization with which Paulek is associated, but which were

drafted for the signature of the organization’s president, Ann L. Turner-McKibben.

       In January 2010, the Department issued a draft EIR for the “Perris Dam

Remediation Program,” analyzing the environmental impacts of the three-part proposal.

On February 3, 2010, the Department conducted a public workshop to discuss the draft

EIR and the proposed activities. Paulek participated in this meeting, as will be discussed

in more detail below. Additionally, on April 10, 2010, Friends of the Northern San

Jacinto Valley submitted written comments with respect to the draft EIR, signed by

Paulek in his capacity as “Conservation Chair” of that organization.

       In the final EIR, dated September 2011, the Department removed the emergency

outlet extension component of the proposal; this change was in response to comments




                                            4
received suggesting consideration of new alternatives.3 With respect to the dam

remediation and outlet tower replacement portions, the Department certified the final EIR

on November 18, 2011, and issued a notice of determination.

       Paulek filed his initial petition for a writ of mandate on December 21, 2011; the

operative first amended petition was filed August 7, 2012. On September 27, 2013, the

trial court heard oral argument with respect to the first amended petition. On October 1,

2013, the trial court issued a minute order denying the first amended petition, attaching a

14-page “Subsequent Ruling on Submitted Mandamus Petition” explaining its decision.

Judgment was entered on October 24, 2013.

                                    II. DISCUSSION

A. Paulek Satisfied CEQA Prerequisites for Bringing His Petition.

       The Department contends Paulek “lacks standing” to challenge the project

approval because he failed to comply with the requirements of Public Resources Code

section 21177, subdivision (b).4 The Department argues that Paulek’s comments during

the public hearing on the project constituted questions, but not objections, and therefore

do not satisfy the prerequisite for bringing a petition to challenge the Department’s

approval of the final EIR. We are not persuaded.


       3 The various alternatives for the emergency outlet extension are being considered
as a separate project with a separate CEQA review. The trial court took judicial notice of
the notice of preparation for the “DWR Perris Dam Emergency Release Facility Project
EIR,” issued on September 9, 2013, as well as a printout of a PowerPoint presentation
made at the scoping meeting for that project, held September 19, 2013.
       4 Further statutory references are to the Public Resources Code unless otherwise
indicated.

                                             5
       “‘Only a proper party may petition for a writ of mandate to challenge the

sufficiency of an EIR or the validity of an act or omission under CEQA.’”5 (Center for

Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 889.)

Section 21177 requires a petitioner to have “objected to the approval of the project orally

or in writing during the public comment period provided by this division or prior to the

close of the public hearing on the project before the filing of the notice of determination

pursuant to Sections 21108 and 21152.” (§ 21177, subd. (b).) “‘[G]eneralized

environmental comments’” or “‘relatively . . . bland and general references to

environmental matters’” or ‘“isolated and unelaborated comment[s]’” are insufficient, but

comments need only “‘“be sufficiently specific so that the agency has the opportunity to

evaluate and respond to them”’” to constitute an objection that confers standing. (Sierra

Club v. City of Orange (2008) 163 Cal.App.4th 523, 536.) Any person who objected to a

CEQA approval on some ground may also raise issues presented to the agency by any

other person who objected. (§ 21177, subd. (a); see Maintain Our Desert Environment v.

Town of Apple Valley (2004) 124 Cal.App.4th 430, 439 [Fourth Dist., Div. Two]

[“[section 21177] permits any person who objected to raise any ground asserted as an

objection by any other objecting party”].)

       5  Whether section 21177, subdivision (b) is better viewed as a requirement to
obtain standing or an application of the exhaustion of administrative remedies doctrine is
an academic debate in which we need not take sides. (See Tahoe Vista Concerned
Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 589-591 [discussing whether
section 21177 is properly considered an exhaustion of remedies statute or a standing
requirement].) Either way, satisfaction of section 21177, subdivision (b) is a
“jurisdictional prerequisite to maintenance of a CEQA action.” (Bakersfield Citizens for
Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1199.)

                                             6
       At the public workshop with respect to the draft EIR, Paulek expressed concern

that the proposed remediation measures with respect to Perris Dam’s structural integrity,

as he understood them, were insufficient, commenting: “[O]ne thing that’s not clear to

me is will this solution fix the problem? . . . [¶] It . . . looks like you’re building another

dam in front of the existing dam. . . . [¶] . . . [¶] . . . Is this going to work?” He asked a

further question about why the capacity of the proposed emergency outlet extension,

which was still a part of the project at the time, was less than the existing emergency

release capability, implicitly expressing concern that the new structure’s capacity would

be sufficient.6 These are not generalized environmental comments, but rather

expressions of concern specifically regarding the proposed project—essentially,

objections—that are sufficiently specific in both subject and level of detail to allow the

Department to evaluate and respond to them. As such, Paulek satisfied the prerequisite

codified in section 21177, subdivision (b), for bringing his petition.

       The Department argues to the contrary that, because Paulek’s comments were

phrased as questions, they do not constitute objections in the meaning of section 21177.

The Department presents no case law in support of its narrow definition of “objection,”

and we are aware of none. Moreover, a comment that raises questions about whether a

proposed project will in fact solve the problem it is supposed to remedy is fairly

understood as an expression of disapproval, no matter whether phrased as a declarative

       6 According to the draft EIR, the existing emergency release structures were
designed to accommodate the release of 3800 cubic feet per second of water; the
proposed new emergency release structures would accommodate release of up to 1500
cubic feet per second.

                                               7
sentence or a question. As such, it constitutes an “objection,” even under the definition

of the word proposed by the Department, adopted from an online dictionary, which

includes “‘a feeling or expression of disapproval.’” The same reasoning applies to a

comment that raises questions about why a proposed structure that has less capacity than

the one it is replacing.

       The Department further suggests that Paulek should not be understood to have

“objected” within the meaning of section 21177, subdivision (b), because he “raised no

environmental issues whatsoever,” instead only “ask[ing] questions about whether the

project will achieve its objectives . . . .” This argument ignores that CEQA explicitly

requires balancing of the expected benefits of a project against its unavoidable adverse

environmental risks. (See Cal. Code Regs., tit. 14, § 15093, subd. (a) [“CEQA requires

the decision-making agency to balance, as applicable, the economic, legal, social,

technological, or other benefits . . . of a proposed project against its unavoidable

environmental risks when determining whether to approve the project.”].) An objection

challenging a project’s purported benefits is just as pertinent to the required balancing

analysis as an objection regarding environmental risks, and is equally adequate for

satisfying section 21177, subdivision (b).

       In short, Paulek satisfied the prerequisites for bringing his petition articulated in

section 21177, subdivision (b).7 We turn now to the merits of the petition.


       7 Having concluded that Paulek satisfied the requirements of section 21177,
subdivision (b), we need not consider whether the exception to those requirements in
section 21177, subdivision (e) applies, as Paulek has argued.

                                              8
B. Paulek’s Challenges to the Department’s Approval of the Final EIR Lack Merit.

       1. Standard of review.

       In reviewing compliance with CEQA, we review the agency’s action, not the trial

court’s decision; “in that sense appellate judicial review under CEQA is de novo.”

(Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007)

40 Cal.4th 412, 428.) The agency’s action is reviewed for prejudicial abuse of discretion.

(§ 21168.5.) An agency abuses its discretion if it fails to proceed in a manner required by

law or if substantial evidence in the record does not support the agency’s decision. (Save

Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th

99, 117.) “[A]n EIR is presumed adequate [citation], and the [petitioner] in a CEQA

action has the burden of proving otherwise.” (State of California v. Superior Court

(1990) 222 Cal.App.3d 1416, 1419.)

       2. Removal of the emergency outlet extension from the final EIR does not leave a

significant environmental impact of the project unmitigated.

       Paulek contends that the decision to remove the new emergency outlet extension

from the project leaves a significant environmental impact of the project unmitigated,

pointing to the flooding that would occur in residential areas downstream of the dam in

the event of an emergency water release, absent the emergency outlet extension. This

argument fails, because nothing in the administrative record suggests the proposed dam

remediation or outlet tower replacement activities will cause or increase the risk of

flooding that the emergency outlet extension is intended to remedy.



                                             9
       CEQA requires that public agencies “mitigate or avoid the significant effects on

the environment of projects that it carries out or approves whenever it is feasible to do

so.” (§ 21002.1, subd. (b), italics added.) A project’s environmental effects “are

determined by comparison with the existing ‘baseline physical conditions.’” (In re Bay-

Delta etc. (2008) 43 Cal.4th 1143, 1167.) Environmental problems that would continue

to exist even in the absence of any project are “part of the baseline conditions rather than

program-generated environmental impacts . . . .” (Id. at 1168.)

       Here, the administrative record demonstrates, and Paulek has not contested, that in

the absence of any project, the danger of flooding residential areas below Perris Dam in

the event of an emergency release would remain; it is a product of the original design of

the dam’s emergency release facilities, which did not account for later-developed

residential areas in the previously empty flood plain. The proposed dam remediation and

outlet tower replacement would not increase that baseline danger. To the contrary, the

Department concluded the dam remediation and outlet tower replacement “would not

alter existing draining patterns or expose people to structures that could result in

significant injury or death through flooding.” Indeed, the two proposed activities, even

without the emergency outlet extension, will reduce the baseline flooding danger;

remediation of structural deficiencies in the dam and rebuilding the outlet tower to

current seismic standards decreases the likelihood of dam failure, thereby reducing the

likelihood any emergency release of water will be necessary. The flooding danger from

the lack of an emergency outlet extension, therefore, is part of the baseline conditions that

do not fall within the CEQA mitigation requirements.

                                             10
       Paulek misreads the final EIR when he infers that the Division of Safety of Dams

(DSOD), which is a part of the Department, has imposed requirements regarding dam

release capacity that require a different conclusion. Paulek here conflates two separate

issues: (1) the emergency release capacity of the dam, and (2) preventing flooding of

residential areas downstream from the dam in the event of an emergency release. Paulek

cites to a Department response to a comment referencing a DSOD requirement that a dam

facility be capable of drawing down 10 percent of its full capacity within 10 days, and

noting that a controlled release of 1500 cubic feet per second is required to meet that

capacity. Paulek ignores, however, that the dam as originally constructed meets that

requirement; it is capable of releasing 3800 cubic feet per second. The emergency outlet

extension originally proposed in the draft EIR, and now being considered in a separate

CEQA process (see fn. 4, ante), would also meet the DSOD release capacity requirement,

but with the additional benefit of not flooding residential areas beneath the dam in the

process. It does not follow that the project for dam remediation and outlet tower

replacement—which would have no effect on the current release capacity of the

facility—cannot be approved except together in the same CEQA process with the

emergency outlet extension, or that the DSOD release capacity requirement will remain

unsatisfied upon completion of only the two-part program contemplated by the final EIR.

       In short, Paulek fails to show any unmitigated environmental impact of the two-

part program considered in the final EIR and approved by DWR.




                                             11
       3. Considering alternatives for the emergency outlet extension in a separate

CEQA process does not constitute improper segmentation.

       Paulek contends the deferral of the emergency outlet extension constitutes

improper segmentation of the project, and that the emergency outlet extension “is an

integral part of the Perris Dam Remediation Program and must be part of the [final EIR].”

The Department disagrees, as do we.

       It is well established that “‘CEQA forbids “piecemeal” review of the significant

environmental impacts of a project.’” (Banning Ranch Conservancy v. City of Newport

Beach (2012) 211 Cal.App.4th 1209, 1222 (Banning Ranch).) Rather, CEQA mandates

“that environmental considerations do not become submerged by chopping a large project

into many little ones—each with a minimal potential impact on the environment—which

cumulatively may have disastrous consequences.” (Bozung v. Local Agency Formation

Com. (1975) 13 Cal.3d 263, 283-284 (Bozung).) Thus, the term “project” as used for

CEQA purposes is defined broadly as “the whole of an action, which has a potential for

resulting in either a direct physical change in the environment, or a reasonably

foreseeable indirect physical change in the environment . . . .” (Cal. Code Regs., tit. 14,

§ 15378, subd. (a).)

       “Courts have considered separate activities as one CEQA project and required

them to be reviewed together where, for example, the second activity is a reasonably

foreseeable consequence of the first activity [citation]; the second activity is a future

expansion of the first activity that will change the scope of the first activity’s impacts

[citation]; or both activities are integral parts of the same project [citation].” (Sierra Club

                                              12
v. West Side Irrigation Dist. (2005) 128 Cal.App.4th 690, 698 (Sierra Club)). Whether a

project has received improper piecemeal review is a question of law that we review

independently. (Banning Ranch, supra, 211 Cal.App.4th at p. 1224.)

       There is no basis in the administrative record to conclude that the emergency

outlet extension is a “reasonably foreseeable consequence” of the dam remediation and

tower rebuilding projects. (See Sierra Club, supra, 128 Cal.App.4th at p. 698.) To be

sure, as Paulek notes, all three activities are necessary to “remediate all the flood hazards

present at Lake Perris.” As discussed above, however, the need for an emergency outlet

extension is not a consequence of the dam remediation or outlet tower reconstruction.

Rather, it is necessitated by the original design of the dam’s emergency release facilities,

combined with the land use decisions resulting in construction of residential

developments in a previously empty flood plain below the dam. This case is therefore

distinguishable from cases where one stage of a project is the first domino to fall in a

causally-related series of events to follow. (See Bozung, supra, 13 Cal.3d at p. 279

[agency’s annexation of land was first step towards development of that land].) Neither

does approval of the dam remediation and outlet tower replacement legally or practically

compel completion of an emergency outlet extension. (See Banning Ranch, supra, 211

Cal.App.4th at p. 1223 [collecting cases where “reviewed project legally compels or

practically presumes completion of another action”].)

       Authority requiring separate activities to be reviewed together because a second

activity is a “future expansion” of the first that will “change the scope of the first

activity’s impacts” is also inapplicable. (See Sierra Club, supra, 128 Cal.App.4th at p.

                                              13
698.) For example, in Laurel Heights Improvement Assn. v. Regents of University of

California (1988) 47 Cal.3d 376 (Laurel Heights), the California Supreme Court required

a project involving university research facilities moving into part of a newly-purchased

building to be reviewed, together with plans to later occupy the remainder of the building,

once the leases of other tenants expires. (Id. at pp. 396-397.) Thus, if the Department

contemplated, say, remediation of structural deficiencies in the foundation of the right

abutment of Perris Dam, but also anticipated performing similar work on the left

abutment at a later time, Laurel Heights and similar authority might well require review

of the two separate activities in a single EIR. But those are not the facts of this case. The

emergency outlet extension of course has environmental impacts that are different from

those of the dam remediation and outlet tower reconstruction emergency outlet extension.

But there is no basis to conclude that it is a “future expansion” of either of the other two

projects.

       Neither is there any basis to conclude that the emergency outlet extension is an

“integral part of the same project” as the dam remediation and outlet tower replacement

projects. (See Sierra Club, supra, 128 Cal.App.4th at p. 698.) Dam remediation and

outlet tower replacement both are intended to improve the ability of the Lake Perris

facility to withstand seismic events. Those projects will both serve that purpose, no

matter whether an emergency outlet extension is built or not. The emergency outlet

extension does not improve the ability of the facility to withstand seismic events. Rather,

its purpose is to prevent downstream flooding in the event an emergency release of water

from Lake Perris is necessary (whether the emergency is caused by a seismic event, or

                                             14
some other circumstance). Again, even if the dam remediation were not performed, and

the outlet tower were not constructed, a new emergency outlet extension would serve its

primary purpose. Paulek’s assertion that the dam remediation and tower replacement

“would not be constructed without the construction of the ‘emergency outlet

conveyance’” is simply unsupported by anything in the administrative record.

       Communities for a Better Environment v. City of Richmond (2010) 184

Cal.App.4th 70, is instructive. In that case, the court of appeal considered an EIR for a

refinery upgrade that would include a new hydrogen plant that, in addition to improving

the refinery’s own operations, would allow production of additional hydrogen, beyond

that needed at the facility. (Communities for a Better Environment, supra, at pp. 97-98.)

The EIR did not consider as part of the same project a pipeline that would be needed to

transport any such excess hydrogen off site; that was being considered in a separate

CEQA process. (Communities for a Better Environment, supra, at p. 97.) The court of

appeal found that treating the pipeline as a separate project for purposes of CEQA review

did not constitute “illegal ‘piecemealing,’” reasoning that the principal purpose of the

refinery upgrade—to “‘improve the [r]efinery’s ability to process crude oil and other feed

stocks’” was different from the principal purpose of the pipeline—“to transport excess

hydrogen . . . to other hydrogen consumers . . . .” (Communities for a Better

Environment, supra, at p. 101.) Similarly, here, the principal purpose of the dam

remediation and outlet tower reconstruction—to improve the ability of the Perris Lake

facility itself to withstand seismic events—is different from, and does not depend on, the



                                             15
functioning of the emergency outlet extension, the purpose of which is to transport water

out of the lake and safely downstream from the dam, should it be necessary to do so.

       The circumstance that the draft EIR for the “Perris Dam Remediation Program”

described a three-part program, while the final EIR includes only two of those parts, is,

contrary to Paulek’s suggestion, immaterial to our analysis. Under CEQA, an agency

may prepare one EIR for several similar projects that do not comprise a single larger

project, or prepare one for each project, in its discretion. (Cal. Code Regs., tit. 14,

§ 15165.) The Department’s initial decision to analyze each of the three proposed

activities related to Lake Perris together in one draft EIR is not determinative, or even

probative, of whether the emergency outlet extension is part of a single larger project that

must be considered in a “single program EIR.” (Cal. Code Regs., tit. 14, § 15165.)

       Paulek’s contention that the project was improperly segmented is rejected.

       4. The Department’s responses to comments were adequate.

       Paulek contends that the Department’s responses in the final EIR to comments

submitted by the Friends of the Northern San Jacinto Valley—a July 2, 2007 letter

regarding the notice of preparation, and an April 10, 2010, letter regarding the draft EIR,

which makes reference to the first letter—are inadequate. We disagree; DWR’s

responses were sufficient.

       After issuance of a draft EIR, “[t]he lead agency shall evaluate comments on

environmental issues received from persons who reviewed the draft EIR and shall prepare

a written response.” (Cal. Code Regs., tit. 14, § 15088, subd. (a).) “Responses to

comments need not be exhaustive; they need only demonstrate a ‘good faith, reasoned

                                              16
analysis.’” (Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140

Cal.App.4th 911, 937 (Gilroy Citizens); Cal. Code Regs., tit. 14, § 15088, subd. (c).)

“‘“The determination of the sufficiency of the agency’s responses to comments on the

draft EIR turns upon the detail required in the responses. [Citation.] Where a general

comment is made, a general response is sufficient.”’” (Gilroy Citizens, supra, 140

Cal.App.4th at p. 937.) “Satisfactory responses to comments ‘“may be provided by

reference to the EIR itself.”’” (Ibid.)

       First, the April 10, 2010, letter comments that the draft EIR ignores or gives “short

shrift” to comments submitted in the July 2, 2007, letter.8 It further asserts that the draft

EIR “fails as a CEQA information document” in that it “does not provide the necessary

information and analysis for the public, lead, responsible, and trustee agencies to make

informed well reasoned decisions on this project.” The Department’s response in the

final EIR is as follows: “The draft EIR adequately discusses the types and level of

impacts this project will have on the environment.” Paulek contends this response was

legally inadequate.

       The Department’s response was sufficient. First, the Department had no

obligation to respond to the July 2, 2007, letter. A response is required only with respect

to comments “from persons who reviewed the draft EIR.” (Cal. Code Regs., tit. 14,

§ 15088. subd. (a).) On July 2, 2007, there were no such persons, because the draft EIR

had not been circulated. Second, the April 10, 2010, comment references the earlier


       8   This portion of the letter is referred to as Comment 15A in DWR’s responses.

                                             17
letter, but provides no specific examples of how the draft EIR “fails as a CEQA

information document,” or what sort of “necessary information and analysis” was omitted

from the draft EIR. As noted, a general comment requires only a general response.

(Gilroy Citizens, supra, 140 Cal.App.4th at p. 937.)

       Second, the April 10, 2010, letter states that it attaches a “1979 Mitigation

Agreement,” to which the Department was a party, so that it may be included in the

administrative record. With respect to that agreement, the letter alleges that the draft EIR

failed to analyze environmental impacts on lands beneath the dam, or to address the need

for “wildlife mitigation replacement lands.”9 The Department’s response acknowledges

that the 1979 Mitigation Agreement will become a part of the administrative record,

because all comments submitted become a part of the administrative record.10

Additionally, the Department’s response points to specific portions of the draft EIR

analyzing permanent and temporary environmental impacts on lands beneath the dam.

The response affirms that permanent environmental impacts will be mitigated as required,

and notes that various other governmental agencies will have to be involved in

identifying any necessary replacement lands.

       Paulek complains that the Department’s response is “completely devoid of any

direct discussion of the [1979 Mitigation Agreement]” but points to no authority

supporting the notion that such “direct discussion” was required. To the contrary, it is

       9  These comments are referred to as Comment 15B in the Department’s
responses.
        10 The 1979 Mitigation Agreement is included in the administrative record, as
stated in the Department’s response.

                                             18
perfectly appropriate for the Department to provide a response by reference to the

portions of the draft EIR in which the environmental impacts raised by the comment are

analyzed. (Gilroy Citizens, supra, 140 Cal.App.4th at p. 937.) Paulek further complains

that the response does not “describe the disposition of the significant environmental

issues raised,” apparently demanding a complete accounting of what specific parcels will

be used as replacement for any land permanently impacted by the projects. But the

response adequately explains that approval of various other public agencies will be

necessary before such identification could be accomplished, and affirms the

Department’s intention to fully comply with applicable mitigation requirements. We

conclude the Department’s response fully complies with CEQA’s requirement to

demonstrate good faith, reasoned analysis.

       Paulek’s reliance on The Flanders Foundation v. City of Carmel-by-the-Sea

(2012) 202 Cal.App.4th 603, is misplaced. In that case, a comment proposed specific

mitigation measures, and the agency involved failed to provide any response to the

suggestion. (Id. at pp. 615-616.) Here, the Department did respond to the comment at

issue by pointing to the portions of the draft EIR that perform the analysis demanded, and

affirming the Department’s intention to comply with the mitigation requirements

referenced. Paulek additionally cites Katzeff v. California Deptartment of Forestry &

Fire Protection (2010) 181 Cal.App.4th 601, 614, for the proposition that “ . . . where a

public agency has adopted a mitigation measure for a project, it may not authorize

destruction or cancellation of the mitigation . . . without reviewing the continuing need

for the mitigation, stating a reason for its actions, and supporting it with substantial

                                              19
evidence.’” But it is not apparent what this proposition has to do with the proverbial

price of tea in China. Nothing in the Department’s response, or anywhere else in the

administrative record, suggests that the Department has authorized or contemplates

“destruction or cancellation” of any mitigation measure.

       The April 10, 2010, letter further attaches a Department of Fish and Game

authorization implementing the “Stephens’ Kangaroo Rat Habitat Conservation Plan

(SKR HCP), and requests its inclusion in the administrative record. It also cites various

provisions of law related to the SKR HCP, including the role of the Riverside County

Habitat Conservation Agency (RCHCA) regarding the Stephens’ kangaroo rat under

California’s Endangered Species Act, and requirements for mitigation of “incidental

take” of endangered species generally.11 The Department’s response points to portions

of the draft EIR discussing the Stephens’ kangaroo rat and the SKR HCP, acknowledges

that RCHCA approval will be needed for any impacts within the area governed by the

SKR HCP, and cites to a mitigation measure requiring the Department to comply with the

requirements of the SKR HCP.12

       Again, the rule that a general comment requires only a general response applies.

Paulek fails to identify specifically any manner in which this response is deficient, and

we can discern none.


       11  These comments are referred to as Comment 15C in the Department’s
responses.
       12 The authorization regarding the SKR HCP is included in the administrative
record, as Paulek had requested.


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       The April 10, 2010, letter further asserts that the “Draft EIR fails to properly

qualify and quantify the incidental take this project will precipitate on the endangered

[Stephens’ kangaroo rat],” and fails to fully minimize or mitigate such incidental take, or

to conduct an analysis of the cumulative impact of the proposed activity together with

other past and reasonably foreseeable future activities.13 The Department’s response

points to its analysis in the draft EIR with respect to potential impacts on biological

resources, explicitly including analysis of impacts on the Stephens’ kangaroo rat, and

including a detailed cumulative impact analysis. The response further points to surveys

conducted and included in the administrative record that found no Stephens’ kangaroo

rats would be directly impacted by the project, because none were located in project

areas, and the areas anticipated to be impacted by the projects have not been identified as

historically occupied by the Stephens’ kangaroo rat. The response also refers to

discussion in the EIR of mitigation measures adopted with respect to any potential

impacts, and acknowledges again that compliance with the SKR HCP would be required,

including approvals from the RCHCA for any temporary or permanent impacts to

grasslands.

       Paulek asserts that this response is overly general and fails to respond in detail to

the “significant environmental issues” raised by the comments. Again, however,

response by reference to the draft EIR itself is permissible. (Gilroy Citizens, supra, 140

Cal.App.4th at p. 937.) Paulek provides no cogent analysis as to why the referenced

       13 These comments are referred to as Comment 15D in the Department’s
responses.

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sections of the draft EIR are not responsive to the comments. For example, Paulek insists

that the Department’s “failure to address the cumulative impact of taking SKR habitat

within the SKR reserve is particularly egregious.” He fails to articulate, however, any

reason why the cumulative impact analysis that is in the draft EIR—the comment’s false

assertion of a complete lack of such analysis notwithstanding—does not suffice. And he

ignores entirely the circumstance that CEQA does not require exhaustive analysis of

cumulative impacts. (Cal. Code Regs., tit. 14, § 15130, subd. (b) [“The discussion of

cumulative impacts shall reflect the severity of the impacts and their likelihood of

occurrence, but the discussion need not provide as great detail as is provided for the

effects attributable to the project alone.”] Further, the response acknowledges that the

Department would be required to comply with the SKR HCP and obtain the approvals

required under that conservation plan, which was specifically designed to facilitate

preservation and management of habitat occupied the Stephens’ kangaroo rat within a

large area encompassing multiple developments.14 (See Banning Ranch, supra, 211

Cal.App.4th at p. 1231 [discussing purpose of conservation plan].)

       In sum, Paulek has failed to meet his burden of showing the Department’s

responses to written comments regarding the draft EIR to be inadequate.




       14  To the extent Paulek may suggest compliance with the SKR HCP is insufficient
to protect the Stephens’ kangaroo rat, that is a matter beyond the scope of this action, and
should have been raised during proceedings regarding the adoption of the SKR HCP.

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                                     III. DISPOSITION

      The judgment appealed from is affirmed. Defendant and Respondent California

Department of Water Resources shall recover its costs on appeal.

      CERTIFIED FOR PUBLICATION.


                                                             HOLLENHORST
                                                                      Acting P. J.
We concur:

      KING
                                J.

      CODRINGTON
                                J.




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