Environmental Defense Fund v. Coastside County Water District

No. 164677 (Cal. Super. Ct. January 28, 1972)

A preliminary injunction was issued enjoining work on a water treatment and supply project (the Denniston Creek Project) on the grounds that no environmental impact report had been filed on the project as required by the California Public Resources Code Section 21151. Such a report is required if the project may have a significant effect on the environment. The State of California intervened in this proceeding, joining plaintiff EDF in seeking the injunction.

Counsel for Plaintiffs
Thomas J. Graff
Environmental Defense Fund
2728 Durant Avenue
Berkeley, California 94704

Counsel for Defendants
John Vlahos
Hanson, Bridgett, Marcus & Jenkins
1 Kearny Street
San Francisco, California

[2 ELR 20067]

Dematteis, J.

The plaintiff, Environmental Defense Fund, Inc., and the intervenor, People of the State of California, seek a preliminary injunction enjoining the defendants from proceeding with further work, construction or other activity pertaining to the water treatment and supply project herein involved, pending a decision on the merits of this case. In addition, the intervenor requests a temporary restraining order of a similar nature pending the decision of the court on the application for a preliminary injunction.

The issue presented is whether the defendant is required by law to file an environmental impact report before proceeding with the construction of an overall improvement plan as set forth in a Conceptual Design Report prepared by Kennedy Engineers for the defendant. The plan consists of the following:

(1) Diversion of surface waters of Denniston and San Vincente Creeks;

(2) The drilling of wells along both creeks;

(3) Construction of a transmission line;

(4) Construction of a water treatment facility adjacent to Denniston Creek;

(5) Construction of a storage tank above the treatment plant.

The report was submitted on January 31, 1971. On September 14, 1971, a contract was awarded in the sum of $680,466.00 for the construction of what was referred to as the "Denniston Creek [2 ELR 20068] Project". The contract provides for the construction of the water treatment facility and the diversion of surface waters from Denniston Creek.

The applicable statute is Public Resources Code Section 21151, which provides as follows:

"The legislative bodies of all cities and counties which have an officially adopted conservation element of a general plan shall make a finding that any project they intend to carry out, which may have a significant effect on the environment, is in accord with the conservation element of the general plan. All other local governmental agencies shall make an environmental impact report on any project they intend to carry out which may have a significant effect on the environment and shall submit it to the appropriate local planning agency as part of the report required by Section 65402 of the Government Code."

The defendant contends that said section does not apply to any legislative body in San Mateo County because the county has not yet adopted a conservation element in its general plan. While the first sentence of the statute refers to counties and cities with a conservation element of a general plan, the second sentence refers to "All other local governmental agencies . . ." It would appear from such language that Section 21151 is applicable to a special district such as the defendant herein.

Secondly, the defendant asserts that it does not have to make any report under Government Code Section 65402 and therefore it need not file an environmental impact statement as a part of that report.

It is established that the County of San Mateo has adopted an outlined plan and a Parks and Open Space Element. The latter element specifically lists parks, trails, and scenic highways on Denniston and San Vincente Creeks as two out of twenty-seven planned projects for the entire county. From the documentary evidence presented, it appears to the court that under the provisions of Public Resources Code Section 21151 the defendant is required to make an environmental impact report if the project involved may have a significant effect on the environment.

There is a difference of opinion as to what constitutes the "project". The defendant contends that the only project really intended at this time is that which is designated as Phase I and consists of the following:

(1) Installation of a pump station to divert water from Denniston Creck utilizing an existing dam in the creek;

(2) Construction of a water treatment plant;

(3) Construction of a storage tank with a 1.5 million gallon capacity; and

(4) The construction of necessary inter-connecting pipelines between said facilities.

The plaintiffs assert that this project is merely the first phase of an overall project to develop surface and subsurface water supplies on Denniston and San Vincente Creeks.

In support of its view, the defendant cites the fact that the contract let at this time is only one portion of the plan submitted in the Kennedy Conceptual Design Report.

Without reviewing it in detail, there is substantial evidence to establish that the defendant intends to complete the entire plan. The minutes of the Board Meeting on September 14, 1971 when the contract was let, indicated that this is Phase I of the Denniston Creek Project. The project is estimated to double the District's capacity, etc. This can only be accomplished by implementation of the entire report. The estimated minimum flow of Denniston Creek is 450 gallons per minute (see Kennedy Declaration, Page 2). Since the District's current capacity is 1.5 million gallons per day, something else obviously must have been intended in making the projection that the project would double the District's capacity. The construction of the entire project is estimated to be $850,000.00 The portion of the project contracted for will cost $680,000.00, or eighty per cent of the entire project's cost. The water it will make available is only a small percentage of that to be made available by the whole plan. The capacity of the purification facility is much greater than that of the Denniston Creek flow. The defendant's designation of the work as "Phase I" further indicates that it is merely part of a larger project.

Whether the "project is considered to be the whole project as outlined in the Kennedy Report or a somewhat more limited portion referred to as "Phase I", it clearly is a project which "may have a significant effect on the environment". In such event, an environmental impact report will be required under the law.

Based upon the above conclusions, it appears to the court to necessitate the issuance of a preliminary injunction restraining the defendant District from proceeding with any further work, construction or other activity pertaining to the water treatment and supply project herein involved pending a decision on the merits of this case, and such will be the order.

In view of the aforesaid conclusion and order, the application for a temporary restraining order becomes moot.

The temporary injunction being granted on the application of the State, no bond is required.

Counsel for the plaintiffs shall prepare, serve and submit an appropriate order in accordance with the views herein expressed.