May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates

Skip To Content

MIPTC Author:


The Sled:

Listed in Latino Who's Who, June 2014
Categories [more]
General (1985)
Lawyer 2 Lawyer (284)
Latest Blogs
This Month's Posts [more]
Links of Interest [more]
Locations of visitors to this page

Creative Commons License
This work is licensed under a Creative Commons License.

Quote of the Day - It is nice country here. It is a scenic drive, ... It is better than Kansas where it is flat. - Kevin Ross
Adjust font size: A A+ A++
Claim Your Profile on Avvo

Oh my! The Folks in Marin Might Have to Look At Big Water Tanks

Faced with a predicted water shortage in 2025, the Marin Municipal Water District imposed significant water conservation restrictions on its residents and businesses.  When those efforts failed, however, the District started looking around for more water sources.  Fortunately, they didn't have to look too far since the Pacific Ocean abuts Marin County.

The ocean's so big it's hard to miss.  Plus, it's got plenty of water; just not drinkable water.

With a desalinization plant, however, the MMWD could easily meet its predicted water shortage, and perhaps then some.  With the type of planning unknown to other governmental agencies like CalTrans, even though the MMWD needed an additional 5 million gallons per day, the District planned to build a plant that could produce as much as 15 million gallons per day. 

As an aside here, can we send some of the MMWD's engineers over to CalTrans to teach them how to build overcapacity highways?   But I'm getting off-track here.

In order to hold the potable (drinkable) water that the MMWD plant is expected to produce once built, the District also planned to build three big water tanks, sufficient to hold 2-3 million gallons of water.  Those tanks have to go somewhere, and the MMWD planned to place them on nearby mountain ridges. 

According to the laws of gravity, water flows downhill, so putting a water tank higher than the homes and businesses it services means that those folks will have water pressure for their sinks, faucets, showers and toilets.  It also means that they get to see the tanks perched on the top or near the top of mountain ridges, and affecting the scenic views.

And Marin has some beautiful scenic views.

You know what comes next.  That's right.  The folks at the North Coast Rivers Alliance didn't like the idea of looking at big water tanks on mountain ridges, so they did what every red-blooded Northern Californian would do:  they sued.

That's right.  The NCRA filed a lawsuit challenging the sufficiency of the EIR (Environmental Impact Report) under the California Environmental Quality Act that the MMWD used to approve the project.  The NCRA claimed that the EIR did not provide enough information to the MMWD Board of Directors to allow them to approve the placement of the tanks.

Now let's pause for a moment here for some background on EIRs.  An EIR is simply designed to provide information about significant environmental impacts.  Projects that have significant environmental impacts can still be approved - they just have to be adequately mitigated or the approving agency can override the adverse impacts with the appropriate findings of necessity.  But, the EIR is simply informational.

As the court said in its opinion:  "the issue is whether substantial evidence supports the agency's conclusions, not whether others might disagree with those conclusions."  That's a hard pill for environmental groups to swallow.  There's some legal jargon in that quote that didn't know you might have overlooked, but you shouldn't have.  "Substantial evidence" has been defined by courts as not much more than a "scintilla." 

Most groups like the NCRA challenge EIRs because the challenge creates a long delay that typically kills a project because the developer cannot service the debt load of the project without income from home sales in the interim.  And since the development can't be built while the legal challenge is pending, the project dies due to lack of funding.

But the MMWD doesn't have that problem.  In fact, it has an almost endless supply of tax dollars.  Those tax dollars come from some who belong to the NCRA, so those folks are actually funding both sides of the dispute; the ultimate irony here. 

When the dispute gets to the court, the court then looks at a series of criteria to determine whether the EIR provided enough information to the MMWD Board of Directors to make the decision to proceed with the project, despite the adverse visual impact.  To mitigate this impact, however, the Board required a landscaping plan to hide the tanks on the ridges.  Nonetheless, you'd still be able to see where the tanks were if you looked.

In the court's analysis, it looked at the EIR, which set forth the following standards of significance: "For the purposes of this EIR, the project would have a significant impact with regard to aesthetics if it would:

          [1.]     Have a substantial adverse effect on a scenic vista. For this EIR, a scenic vista is defined as a publicly accessible viewpoint that provides expansive views of a highly valued landscape. A viewpoint that is accessible only from private property is not considered a scenic vista.

          [2.]     Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway.

          [3.]     Substantially degrade the existing visual character or quality of the site and its surroundings.

          [4.]     Create a new source of substantial light or glare that would adversely affect daytime or nighttime views in the area."

Where these elements are met, the court has no choice but to approve the agency's decision.  Here, the court ruled:

the EIR included a detailed discussion of potential aesthetic impacts of development of the [...] tank, including the size and shape of the tank, satellite image analysis of impacts from four directions, visual simulation, and impacts on vistas from homes and hiking trails and the highway. This analysis constitutes substantial evidence supporting the conclusion that the impact is less than significant.

So with that, the court thought that the MMWD Directors had enough information and made a fully informed decision to overcome a significant public issue:  the need for water. 

Marin will get its desalinization plant and three water tanks, and the residents of the area will have to see three big tanks on their mountains, hopefully mostly blocked by landscaping designed to hide the tanks. 

Insert "Awwww..." here if you're from Southern California, where most folks don't understand the things that bother their fellow residents up North, and for that matter, vice versa.  As Joni Mitchell sang, they "paved over paradise" in SoCal, and that's what they're trying to prevent in Marin.

The message to take away from this case was succinctly stated by the court itself:  ‘the reviewing court may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable, "for, on factual questions, [the court's] task" is not to weigh conflicting evidence and determine who has the better argument" (citations omitted).   

In other words, the court's task is simply to determine whether the EIR provided enough information to the District's Directors to make the decision they did.  The court cannot substitute its own decision for the District's Directors. 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, May 23, 2013 at 10:04 Comments Closed (0) |
Share Link