Filed 11/29/18 Atherton Cove Property Owners Assn. v. San Joaquin Area Flood Control Agency CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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This case arises under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000, et seq.) and concerns the Smith Canal Gate Project (project), designed to protect certain Stockton properties against flooding. Plaintiff Atherton Cove Property Owners Association (Atherton) appeals from the denial of its mandamus petition seeking to set aside the certification of an environmental impact report (EIR) by the San Joaquin Area Flood Control Agency (Agency). On appeal, Atherton outlines purported deficiencies in the EIR, claims the EIR should have been recirculated in response to new information, and claims the Agency’s findings do not support rejecting a particular project alternative. We shall affirm the judgment denying the writ.

BACKGROUND

Atherton Cove is upriver from (north of) the Smith Canal, a backwater slough roughly parallel to the Stockton Deep Water Ship Channel; the canal connects Stockton’s Yosemite Lake to the San Joaquin River. The levees there do not meet flood protection norms set by the Federal Emergency Management Agency (FEMA). Some 8,000 properties are at risk of flooding; 5,000 of them were placed in a flood hazard area and some 3,000 more are proposed to be added. There are two relevant alternatives. The project alternative will gate off the cove and canal, narrowing the cove opening from about 625 feet to 50 feet, and will make other ancillary changes. Atherton favors an alternative (“Alternative 2” or the “floodwall alternative”) that would wall off the Smith Canal with a gate and erect a floodwall bolstering the northern levee and connecting it to the FEMA-accredited levee near the Stockton Golf and Country Club. Atherton’s main objection to the project is that it will lessen the river’s ability to flush the cove to remove invasive water hyacinth (Eichhornia Crassipes) and freshen the water. Atherton alleges this would allow large hyacinth mats to proliferate, harmful materials to concentrate in the cove, and subject fish to predation at the newly restricted cove mouth.

The Agency applied to FEMA for a conditional letter of map revision (CLOMR) that would remove some properties from the flood zone. The CLOMR was issued in 2011. A 2013 election approved an assessment district to provide some project funding. In 2015 the Department of Water Resources approved some funding to contribute toward the project.

After the draft EIR was circulated, FEMA sent the Agency a letter, which we discuss in Part II of the Discussion, post.

On the day of the final hearing Atherton submitted a letter with attachments pointing to alleged problems with the EIR and its circulation.[1]

The Agency certified the EIR and approved the project.

Atherton then filed the instant mandamus petition, raising a number of claims, only some of which are pursued on appeal.[2] The trial court denied Atherton’s claims in a lengthy written ruling. Atherton then filed this appeal.

DISCUSSION

I

Adequacy of the EIR as an Informational Document

Atherton first contends the EIR fails as an informational document because it did not adequately analyze water hyacinth issues and mischaracterized hyacinth control as part of the project itself rather than as mitigation for project impacts. Atherton also faults the EIR’s treatment of four biological impacts: (1) dissolved oxygen; (2) methylmercury; (3) cyanobacteria; and (4) fish predation. We find no substantial failure of analysis in the EIR as posited by Atherton regarding these points.

A. Legal Principles and Standard of Review

As has often been said, “The EIR is the ‘heart of CEQA.’ [Citations.] ‘Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR “protects not only the environment but also informed self-government.” [Citation.]’ [Citation.] ‘To this end, public participation is an “essential part of the CEQA process.” [Citations.]’ [Citation.]” (Western Placer Citizens for an Agricultural and Rural Environment v. County of Placer (2006) 144 Cal.App.4th 890, 898 (Western Placer).)

The challenger bears the burden to demonstrate that an EIR is infirm. (See Lotus v. Department of Transportation (2014) 223 Cal.App.4th 645, 652-653 (Lotus).)

“When plaintiffs challenge CEQA decisions, reviewing courts generally will defer to the agency’s substantive judgments while requiring strict compliance with procedures required by law. Courts must not overturn an agency’s discretionary decisions and substitute their own opinions as to what constitutes wise public policy. [Citation.] ‘The court does not pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.’ [Citation.]” (Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1018.)

“The court in California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 986 explained: ‘An EIR will be found legally inadequate—and subject to independent review for procedural error—where it omits information that is both required by CEQA and necessary to informed discussion.’ But CEQA challenges concerning the amount or type of information contained in the EIR, the scope of the analysis, or the choice of methodology are factual determinations reviewed for substantial evidence. [Citations.] Put another way, ‘[w]e apply the substantial evidence test to conclusions, findings, and determinations, and to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact, and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions.’ [Citation.]” (Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1546 (Santa Monica); cf. Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, 935-936 [whether EIR categorically omits relevant information is a legal question]; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435 [“While we determine de novo whether the agency has employed the correct procedures . . . we accord greater deference to the agency’s substantive factual conclusions”].)

B. Water Hyacinth

Water hyacinth is a non-native, invasive plant that has caused serious environmental problems. It is rootless, floats on the water, and can grow into large mats. It physically hinders boating; it also blocks sunlight and reduces dissolved oxygen in the water. In 1982 the Legislature directed the Department of Boating and Waterways (DBW) to implement an aquatic weed control program in the Sacramento-San Joaquin Delta to try to control hyacinth. Although the main control system involves chemical spraying, DBW increasingly uses mechanical removal. (See Harb. & Nav. Code, §§ 32, 64.) DBW published a draft EIR in 2009, and the hyacinth portion of the project at issue in this appeal is a “continuation of the [DBW] program.” “The Delta Plan,” a comprehensive document detailing efforts to protect and improve the Delta (see Wat. Code, § 85300 et seq.), is included in the administrative record. In part it explains the hyacinth problem addressed by DBW. The EIR explains that this project will be a “covered action” (id., § 85057.5, subd. (a)) under the Sacramento-San Joaquin Delta Reform Act of 2009 (id., § 85000 et seq.) and will be “consistent with the Delta Plan’s policies and objectives.”

The EIR posits that debris removal, including hyacinth mats, would be done regularly as determined by “visual monitoring” “through development and implementation of a water hyacinth control program” to keep hyacinth coverage at existing levels. “During the growing season, mechanical harvesting would be conducted using an aquatic weed harvester whenever cover of water hyacinth reaches 20% in the most impacted areas behind the sheet pile wall. The percent cover would be visually estimated from the shoreline behind the sheet pile wall.” “Eradication of water hyacinth is unlikely, but annual control of the population in the study area is feasible.” The EIR referenced a similar problem in the nearby Port of Stockton, which uses “an aquatic weed harvester” to remove the vegetation. The EIR found the proposed hyacinth control program would either have no impact on water quality or would improve it above the baseline.

Atherton’s main argument is that a narrowed cove opening will reduce river flushing and allow hyacinth mats to proliferate. In Atherton’s view, the EIR did not properly analyze the need to mechanically remove hyacinth, whether viewed as a mitigation measure or a component of the project itself.[3] Atherton contends the EIR omitted “necessary information about [the] Project’s exacerbation of baseline conditions as well as information about the effectiveness and impacts of mechanical harvesting itself.” Atherton also claims the need for mechanical hyacinth removal should have been analyzed as a mitigation measure for an anticipated environmental impact, rather than as part of the project itself. Atherton claims that by incorporating what (in its view) should have been treated as a mitigation measure into the project description, the Agency masked, or at least minimized, the presence of an impact, thereby subverting the informative purposes of the EIR.

Before the Agency and on appeal, Atherton contrasts this EIR with a mechanical harvesting “Integrated Weed Management Plan” for The Tahoe Keys Lagoons, a private homeowners association. That plan describes in some detail how mechanical harvesting would be done (though not specifically of hyacinth) and parses the anticipated impacts therefrom. But any portion of any project could be explained more thoroughly. (See Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 415-416 (Laurel Heights I).) The test is whether a given EIR adequately informs the public and decisionmakers. That is a question we (like the trial court) review for substantial evidence. (See, e.g., Santa Monica, supra, 193 Cal.App.4th at p. 1546.)

The EIR explains why, when, where, and how mechanical harvesting will occur; it will be done to ameliorate (not eliminate) hyacinth in areas of the cove subject to matting during the growing season when the hyacinth covers 20 percent of the surface area.

The fact the EIR did not go into greater detail is unimportant absent a showing based on the administrative record that greater detail was necessary or at least useful for the public and the Agency to understand the project. Nothing Atherton points to shows this is the case. The fact the private Lake Tahoe plan goes into greater detail does not show that the EIR in this case fails as an informative document. Further, there is no showing that environmental conditions at Lake Tahoe are similar to conditions in the Delta respecting hyacinth. We also observe that the private plan indicates “mechanical harvesting” is--as its name suggests--the simple act of pulling hyacinth out of the water, either by small hand-held tools or, more practically for large areas, with a machine that lifts the plants out of the water and removes the debris. Such a simple act does not require a full-blown explanation and analysis. The fact a private homeowners association obtained a more detailed analysis of mechanical harvesting for its purposes does not dictate the level of detail required of a public EIR.

Moreover, as the EIR explains, hyacinth control is under the bailiwick of DBW, which prepared a separate EIR therefor. Atherton attempts to use this against the Agency by arguing this shows there were impacts from harvesting. Even if so, it also means those impacts were studied in the prior EIR and are not as a result of this project.[4]

Our prior decision in Citizens for Environmental Responsibility v. State ex rel. 14th Ag. Assn. (2015) 242 Cal.App.4th 555--although involving different procedural facts--is pertinent to this point. The issue was whether a categorical exemption applied in a case involving a rodeo’s ongoing manure management plan (MMP); the challengers argued the MMP was a mitigation measure that precluded application of a CEQA exemption. (Id. at pp. 568-569.) They argued the MMP fell within a regulatory definition of “mitigation,” but we rejected that view, holding “the MMP is not a new measure proposed for or necessitated by the rodeo project. Rather, it is a preexisting measure previously implemented to address a preexisting concern, which was formalized in writing before the rodeo project was proposed. Thus, the MMP is actually part of the ongoing ‘normal operations’ of the Fairground.” (Id. at p. 569.) In effect, we held that because the MMP was in existence before the project was proposed, it was part of the baseline. We connected the regulatory definition of “mitigation” (Cal. Code Regs., tit. 14, § 15370) to the definition of a project, which requires ascertainment of baseline conditions to identify any impacts from “the activity which is being approved” (id., § 15378, subd. (c) [defining “project”]).

“Before the impacts of a project can be assessed and mitigation measures considered, an EIR must describe the existing environment. It is only against this baseline that any significant environmental effects can be determined. [Citations.]” (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 952.) The CEQA regulations “call for the environmental baseline to reflect conditions as they exist” and a lead agency “has discretion to treat historical conditions or conditions that predate publication of the notice of preparation as the baseline for evaluating an impact if its reasons for doing so are supported by substantial evidence.” (1 Kostka & Zischke, Practice Under Cal. Environmental Quality Act, supra, Project Description, Setting, and Baseline, § 12.20.) An agency has discretion “to resolve factual issues and to make policy decisions. If the determination of a baseline condition requires choosing between conflicting expert opinions or differing methodologies, it is the function of the agency to make those choices based on all of the evidence.” (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 120.) Atherton has not established error by the Agency’s decision to treat DBW’s existing hyacinth control program as part of the baseline conditions.

This answers Atherton’s general claim that mechanical harvesting should have been treated as a mitigation measure rather than part of the project itself.

Nonetheless, Atherton points to parts of the EIR that explain that on the Smith Canal side of the project “mats could accumulate adjacent to the gated fixed wall structure in the areas where there will be relatively little surface velocity. Without maintenance, the wall could enhance [meaning, increase] water hyacinth presence by preventing the hyacinth from drifting downstream” causing a “significant accumulation” of hyacinth. The EIR explains that “By conducting regular water hyacinth removal activities not currently conducted, implementation of [the project] would have no impact on water quality as a result of water hyacinth growth and may improve the present baseline condition, resulting in a potentially beneficial effect.” Atherton contends these passages amount to a concession that the hyacinth control plan was a mitigation measure to alleviate a significant environmental impact.

Atherton relies on Lotus, supra, 223 Cal.App.4th 645, which involved a project to improve United States Route 101 through Richardson Grove State Park and its impact on old growth redwood trees along the route. (Id. at pp. 647-648.) The EIR at issue in Lotus addressed “the ‘community’ of redwood trees as a whole, rather than . . . individual trees,” and explained that a number of trees would have “fill” placed over their “structural root zone;” further, the area of “impervious roadway materials” would be increased. (Id. at p. 649.) However, data within that EIR identified specific trees that would have specific levels of fill and showed where they (and their root zones) were in relation to the project. (Id. at p. 654.) Various mitigation measures were incorporated into the project, leading the EIR to find there were no significant environmental impacts. (Id. at p. 651.) A referenced handbook could have been used to determine standards of significance of impacts and impacts on specific trees but was not so used. (Id. at p. 655.) In the most pertinent part of the case for our purposes, Lotus held as follows:

“Caltrans compounds this omission by incorporating the proposed mitigation measures into its description of the project and then concluding that any potential impacts from the project will be less than significant. As the trial court held, the ‘avoidance, minimization and/or mitigation measures,’ as they are characterized in the EIR, are not ‘part of the project.’ They are mitigation measures designed to reduce or eliminate the damage to the redwoods anticipated from disturbing the structural root zone of the trees by excavation and placement of impermeable materials over the root zones. By compressing the analysis of impacts and mitigation measures into a single issue, the EIR disregards the requirements of CEQA. [Citations.] The EIR fails to indicate which or even how many protected redwoods will be impacted beyond the tolerances specified in the handbook and, by failing to indicate any significant impacts, fails to make the necessary evaluation and findings concerning the mitigation measures that are proposed. [S]hould Caltrans determine that a specific tree or group of trees will be significantly impacted by proposed roadwork, that finding would trigger the need to consider a range of specifically targeted mitigation measures, including analysis of whether the project itself could be modified to lessen the impact. [Citations.] The finding also triggers the need to adopt an enforceable monitoring program. [Citation.] Simply stating that there will be no significant impacts because the project incorporates ‘special construction techniques’ is not adequate or permissible.” (Lotus, supra, 223 Cal.App.4th at pp. 655-657, fn. omitted.)

Lotus characterized this as a structural deficiency in the EIR, a shortcut that “subverts the purposes of CEQA by omitting material necessary to informed decisionmaking and informed public participation. It precludes both identification of potential environmental consequences arising from the project and also thoughtful analysis of the sufficiency of measures to mitigate those consequences. The deficiency cannot be considered harmless.” (Lotus, supra, 223 Cal.App.4th at p. 658.) However, in a footnote, Lotus acknowledged that sometimes the distinction between what should be deemed an element of a project or a mitigation measure may not be clear. (Id. at p. 656, fn. 8.)

The seemingly automatic prejudice analysis of Lotus was later clarified by the same court in Mission Bay Alliance v. Office of Community Investment & Infrastructure (2016) 6 Cal.App.5th 160 (Mission Bay), as Atherton concedes. In relevant part, Mission Bay noted regulations distinguishing a project description from a mitigation measure as follows: “The CEQA Guidelines define a ‘project’ as including ‘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 . . . .’ [Citation.] A mitigation measure, by contrast, involves ‘feasible changes in any or all activities involved in the project in order to substantially lessen or avoid significant effects on the environment . . . .’ [Citation.]” (Id. at p. 184.) After discussing the Lotus footnote and another case touching on the possible difficulty of drawing the line between project description and mitigation measure, Mission Bay concluded “Any mischaracterization is significant . . . only if it precludes or obfuscates required disclosure of the project’s environmental impacts and analysis of potential mitigation measures.” (Id. at p. 185.) Mission Bay found no such problem. (Ibid.)

Assuming there was any mischaracterization in this case, Atherton has not explained how it obscured analysis by the Agency or understanding and input by the public of the issues surrounding water hyacinth control.

Mission Bay began with the general observation that “Although in some instances defendants’ analysis of potential environmental impacts might have been expanded, as is commonly the case, in general the record reflects a thorough and exhaustive study of all environmental impacts to be anticipated . . . and identification of numerous mitigation measures to lessen adverse impacts to the extent feasible.” (Mission Bay, supra, 6 Cal.App.5th at p. 170, italics added.) This illustrates the point we made earlier: whether any EIR might be better is not the test we apply.

Atherton has not demonstrated any prejudicial failing in the EIR regarding water hyacinth control issues.

C. Biological Impacts

Atherton contends the EIR does not adequately address dissolved oxygen, methylmercury, cyanobacteria, and fish predation impacts from the project. Atherton largely bases its claims on the BSK Associates technical report it tendered at the hearing.[5] Atherton contends it raises categorical omissions in the EIR, triggering de novo review, rather than challenging the adequacy of the EIR’s discussion, which would be subject to review for substantial evidence. (See Santa Monica, supra, 193 Cal.App.4th at p. 1546.) We find no basis for reversal.

1. Cyanobacteria, Dissolved Oxygen, and Methylmercury

The EIR explains that water quality standards, including for dissolved oxygen and bacteria, are set by relevant Regional Water Quality Control Boards. The EIR mentions “mercury, organic enrichment/low DO [dissolved oxygen]” as being of concern. Mercury exists elementally and as methylmercury, which can attach to particles with water turbidity; generally, mercury can “bioaccumulate in fish to levels that are toxic to humans and wildlife.” The EIR defined thresholds of significance of water quality. If the cove opening were too narrow, circulation would decrease and allow accumulation of contaminants; further, hyacinth can block sunlight and reduce dissolved oxygen.

But the EIR found--partly via computer modeling--that there would be no significant reduction in water flow in the cove, therefore there would be no accumulation of organic material, algae, or nutrients that cause “eutrophication.”[6] The models measured “residence time,” meaning “the average time a particle resides in a particular hydraulic system,” and found “residence time would be unaffected by any of the proposed gated fixed wall structures because the gate opening would be sufficiently large to enable tidal flow to propagate into Smith Canal and Atherton Cove without causing tidal muting.”

At the hearing staff addressed “blue green algae” (i.e., cyanobacteria) and explained the biologists had not found any at the site or mention of it there in the literature, and in any event because the flows would not be diminished significantly, the algae would not bloom.[7]

The BSK report asserts--contrary to the hydraulic modeling described in the EIR--that the project “will create a backwater effect that reduces the beneficial mixing from the San Joaquin River,” causing a variety of problems. As for “blue-green algae (cyanobacteria),” it references algae blooms in the Delta, but not in Atherton Cove or the Smith Canal. It links the dissolved oxygen issue with water hyacinth proliferation.[8] It acknowledges the EIR’s references to mercury, but contends “the project’s influence on the formation of methylmercury is simply ignored; since there is no analysis of the project’s allowed reduced DO and increased organic carbon from the ‘20% coverage’ of water hyacinth on the estimated methylmercury cycling. There is no analysis on the project’s allowed contribution of methylmercury through induction and bio-accumulation and -concentration on human health and the environment.” (Fn. omitted.) It faulted the hydraulic modeling as in effect cherry-picking data rather than evaluating worst-case situations.

On appeal Atherton contends the EIR failed to address the operational impacts on water quality, i.e., increased methylmercury and decreased dissolved oxygen. But these potential impacts would occur only if the water flows were diminished, which will not occur as explained by the flow modeling in the EIR.

Atherton’s expert report disagreed with the flow modeling, but a disagreement among experts does not establish a deficiency in the EIR. (See Laurel Heights I, supra, 47 Cal.3d at p. 409.) Therefore, Atherton’s reliance on its own expert’s views does not establish a categorical deficiency in the EIR.

2. Fish Predation

The EIR discusses impacts to fish due to construction-related activities, including temporary “dewatering” of some areas. A 2014 memorandum from the project manager to a project consultant that references the hydraulic flow modeling in part states: “Characterization of with-project flow velocities: the concentration of flow through the gate opening is likely to attract predators (e.g. striped bass, pikeminnow, largemouth bass). We would like to see the report characterize these velocity differences bit more, as the flow comparison doesn’t seem to capture this difference. The velocity patterns shown for flood and ebb appear to show the velocity shear zones that predators might like.” The BSK report faulted the EIR’s discussion of impacts on fish, including the purported loss of habitat from the effective closure of the cove mouth and increased fish predation “commonly attributed to projects that change the channel margin, and in particular those that create in-water structure and restrictions.” The BSK report acknowledged that the draft EIR discussed construction-related problems but argued that did not address “post-implementation” or operational impacts on both listed and game species.

Again, Atherton characterizes the EIR’s failure to discuss the operational impacts to fish as a categorical omission that deprived the public and the Agency of necessary information and the ability to comment thereon.

Some of the Agency’s responses to Atherton’s arguments are not persuasive. The Agency stresses the detailed analysis of construction-related impacts, but that does not answer the concern about operational impacts. The Agency suggests it found that only construction-related impacts will occur, but it does not point to anything in the EIR explicitly so stating. The Agency argues the 2014 memorandum was a comment on an early draft, and argues the final draft was prepared nine months later, therefore predation concerns “were considered and evaluated.” But absent from the Agency’s briefing is an explanation of what was added to the EIR in those nine months or any citation to the record supporting the claim that someone, somehow, must have taken this point into consideration. As Atherton points out in its reply brief, “mere passage of time” does not show this point was analyzed.

However, the Agency does correctly note that the EIR sets out thresholds of significance for fish impacts (see Cal. Code Regs., tit. 14, § 15064.7), such as a substantial reduction in habitat and so forth. Further, the EIR explains in one passage that it would “remove invasive plants as part of operations and maintenance, which would decrease predatory fish (e.g. black bass) habitat in the project area.” These passages indicate that the Agency found no significant operational impacts on fish from predation, although the EIR does not explicitly so state.

Even if we were to conclude that the EIR falls short because it does not explicitly explain the lack of impacts due to fish predation, we would find no prejudice. Contrary to Atherton’s implicit view, it bore the burden not only to show error, but to show prejudice, as in an ordinary (non-CEQA) appeal. Our Supreme Court has held that an erroneous omission in an EIR will be “deemed prejudicial if it deprived the public and decision makers of substantial relevant information about the project’s likely adverse impacts. Although an agency’s failure to disclose information called for by CEQA may be prejudicial ‘regardless of whether a different outcome would have resulted if the public agency had complied’ with the law [citation], under CEQA ‘there is no presumption that error is prejudicial’ [citation]. Insubstantial or merely technical omissions are not grounds for relief. [Citation.] ‘A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.’ [Citation.]” (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 463.)

This flows from the intention of our Legislature “that, in undertaking judicial review . . . courts shall continue to follow the established principle that there is no presumption that error is prejudicial.” (Pub. Resources Code, § 21005, subd. (b).) For example, in one case we assumed that an EIR did not correctly state the amount of water a project would use, but found the challengers “cited nothing to suggest” the correct (higher) figure would have a significant environmental impact. (Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 184, 226 [“The fact the overall water usage on the Project may have been understated in the DEIR would not appear to preclude informed decisionmaking or informed public participation unless the increased usage would have a significant environmental impact. We will not presume that to be the case here”] (Mount Shasta).)

Atherton does not head and argue a claim of prejudice, despite the fact that, as appellant, it bore the burden to demonstrate both error and prejudice. (See, e.g., Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200 [administrative case; appellant bore the burden “ ‘of spelling out in his brief exactly how the error caused a miscarriage of justice”]; Quail Lakes Owners Assn. v. Kozina (2012) 204 Cal.App.4th 1132, 1137 [special proceeding; “Absent an explicit argument that a procedural error caused prejudice, we are under no obligation to address the claim of error”].) In any event, we see no prejudice. The record shows that any omission about the operational impacts on fish predation did not thwart the twin goals of public participation and the Agency’s understanding of the project. (See Mount Shasta, supra, 210 Cal.App.4th at p. 226.) The EIR explains that the Smith Canal itself (a man-made feature) is not a good biome for fish. Atherton Cove may be more hospitable, but it represents an infinitesimal fraction of the area of the San Joaquin River (over 300 miles long, according to the EIR) and there is no indication it has any special significance as a fish habitat; indeed, the EIR describes the area generally as a “dead-end slough.” There is substantial evidence that there will not be a significant change in fish predation during operations.

Accordingly, we find no prejudicial error regarding the adequacy of the EIR.

II

FEMA Letter and Recirculation

Atherton contends the 2015 letter from FEMA reflected new information that required recirculation of the EIR. We disagree.

A. Background

The 2015 FEMA letter begins by referencing a 2011 FEMA letter regarding the Agency’s 2010 CLOMR request. The 2015 letter summarized the understood purpose of the project to be reducing the flood hazard along the Smith Canal “from high tide events combined with high flows in the Sacramento and San Joaquin Rivers, for an area landward of the Smith Canal levee system.” The proposed gate structure would be used “between November 1st and April 30th . . . to isolate Smith Canal from the Sacramento-San Joaquin River Delta during extreme tide events. The closure structure would remain open at other times to allow for navigation.” The letter listed data submitted to FEMA via the CLOMR request and outlined further information FEMA wanted from the Agency. FEMA wanted information about (1) the operation and maintenance plans (which had to be formally adopted by a defined agency) and (2) “the interior flooding.”

The interior flooding issue was a concern that when the cove gate is closed the Smith Canal could in effect be turned into a detention basin; storm runoff water from interior properties could back up along the canal. FEMA wanted more data about when the gate would be closed; it wanted an assessment about when high tides and heavy rainstorms (each of which would contribute water to the canal) could be expected to occur at the same time. This was important because the Smith Canal levees had been “de-accredited” and FEMA was concerned that high detained water could stress the levees to the same degree that they would have been stressed in the absence of the project.

B. Analysis

It is expected that the CEQA process--which includes circulation of a draft EIR, receipt of public commentary, and a hearing, followed by a lead agency’s deliberation--will reveal new information. As the Agency points out, recirculation of an EIR is intended to be “an exception, rather than the general rule.” (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1132; see South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 328 (South County).) But if significant new information is presented to an agency, recirculation of the EIR is required to allow further public comment and additional analysis by the lead agency. (See Western Placer, supra, 144 Cal.App.4th at pp. 899-903; Pub. Resources Code, § 21092.1.)

Information “is not ‘significant’ unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that the project’s proponents have declined to implement.” (Cal. Code Regs., tit. 14, § 15088.5(a).) A decision not to recirculate an EIR must be supported by substantial evidence in the record. (Id., subd. (e).)

“An express finding is not required on whether new information is significant; it is implied from the agency’s decision to certify the EIR without recirculating it. [Citations.]” (South County, supra, 221 Cal.App.4th at p. 328.) Therefore Atherton, as the challenger, “bears the burden of proving a double negative, that the [lead agency’s] decision not to revise and recirculate the final EIR is not supported by substantial evidence. [Citations.] That is, [the challenger] must demonstrate that there is no substantial evidence to support a determination that the [FEMA letter] was not significant new information.” (Id. p. 330; see Western Placer, supra, 144 Cal.App.4th at p. 903.)

The 2015 FEMA letter was not a comment on the draft EIR or generated in response thereto. It was part of an ongoing (if protracted) correspondence about FEMA’s flood mapping of the properties in the area along the Smith Canal. It did not provide any information about the proposed project to the Agency; it requested information from the Agency about the possibility of water backing up in the canal.

As the Agency correctly explains, the EIR addressed the possibility of interior flooding of the Smith Canal area in case heavy rainfall coincided with high tides, as well as the need to develop operational gate-closure plans to account for such events. During the EIR public input process the Agency responded to commentators concerned about flooding, and in part explained that the project would not cause any greater flooding than would occur absent the project.

In its reply brief, Atherton argues the 2015 FEMA letter was commenting on a report that formed the basis of the EIR’s discussion of interior flooding, and reads the FEMA letter as challenging assumptions in that report. Atherton argues the FEMA letter revealed that the EIR analysis was incomplete because the projected impact was (or might be) greater than assumed by that report. In Atherton’s view, this triggers a portion of a regulation providing for recirculation when new evidence shows “A substantial increase in the severity of an environmental impact.” (Cal. Code Regs., tit. 14, § 15088.5, subd. (a)(2).)

We disagree with this view. The EIR discussed interior flooding in some detail and the 2015 FEMA letter did not purport to challenge that analysis. Instead, FEMA wanted more information about interior flooding for its own (flood mapping) purposes. Even assuming the report discussed in the EIR was not adequate for FEMA’s purposes, it does not follow that the section of the EIR discussing that report was inadequate as an informative document for CEQA purposes, or that FEMA’s letter disclosed an under-analyzed or previously un-analyzed impact. Whether the letter’s discussion of the report underlying the EIR revealed a “substantial” increase in environmental risk was for the Agency to determine in the first instance, and its decision not to recirculate the EIR shows (at least impliedly) that it did not deem the information to be substantial. (See Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1063-1064; Western Placer, supra, 144 Cal.App.4th at pp. 903-904.) Nothing in Atherton’s briefing demonstrates otherwise. (Cf. Western Placer, at p. 903.)

III

Floodwall Alternative

Atherton contends the findings adopting the project and thereby rejecting Alternative 2, the floodwall alternative, were erroneous. We find no error.

A. Background

An EIR must describe reasonable and potentially feasible alternatives to a proposed project, as well as a no-project alternative. (See Cal. Code Regs., tit. 14, § 15126.6.) “ ‘[A]n EIR for any project subject to CEQA review must consider a reasonable range of alternatives to the project . . . which: (1) offer substantial environmental advantages over the project proposal [citation]; and (2) may be “feasibly accomplished in a successful manner” considering the economic, environmental, social and technological factors involved.’ [Citation.]” (South County, supra, 221 Cal.App.4th at pp. 326-327.) Feasibility analysis takes place at two different stages of CEQA review. First, in considering what alternatives the EIR should study, a lead agency may eliminate infeasible alternatives. Second, if a project will have a significant environmental impact and the agency wants to select an alternative other than the environmentally superior alternative, it must make findings (supported by the evidence) explaining why that superior alternative is not feasible. (See The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603, 620-621; Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1353.)

The EIR in this case evaluated the project (Alternative 1), the floodwall alternative preferred by Atherton (Alternative 2), an alternative involving dual gated walls (Alternative 3), and a no-project alternative. The project alternative was found to be environmentally superior.

The floodwall alternative was not selected for three reasons, as follows: (1) its cost would exceed the Agency’s current funding ability and would require an additional public vote for further funding; (2) it would take a year longer to build and the construction would produce additional environmental impacts including equipment emissions, habitat effects, and other construction-related disturbances; (3) it “is not expected to be resilient to climate change and associated sea level rise.” These three points were not characterized as infeasibility findings.

Because the project would have significant unavoidable impacts, a statement of overriding considerations was adopted.

B. Analysis

Generally, Public Resources Code section 21081, subdivision (a) provides that an agency shall not approve or implement a project if an EIR identifies a significant environmental effect unless two conditions occur; (1) the agency finds changes have been made or incorporated to mitigate those effects or required mitigation measures or alternatives are infeasible; and (2) if infeasibility is found, the agency has determined that “specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment.”

Although Atherton argues the Agency’s infeasibility findings were inadequate because the Agency found that the project alternative (which included mitigation measures and accompanied a finding of overriding considerations) was the environmentally superior alternative, it had no need to make a finding that Alternative 2 was infeasible. We reject Atherton’s assertion to the contrary, which is not supported by the authority it cites.

The Agency found three reasons for rejecting the floodwall alternative (Alternative 2). Its reasons were that it would cost more than the secured funding, it would take longer to build and generate increased construction impacts, and it would not protect Atherton Island. Atherton argues none of these reasons make Alternative 2 infeasible. However, as just explained, the Agency did not have to find Alternative 2 infeasible if it chose the environmentally superior alternative, which it did.[9] Thus, Atherton has not demonstrated error regarding the Agency’s consideration of alternatives to the Smith Canal Gate Project.

DISPOSITION

The judgment is affirmed. Atherton shall pay the Agency’s costs on appeal. (See Cal. Rules of Court, rule 8.278.)

/s/

Duarte, J.

We concur:

/s/

Mauro, Acting P. J.

/s/

Hoch, J.