Center for Biological Diversity v. County of San Bernardino (Nursery Products LLC) No. D056652 (May 25, 2010) available at CourtWebsite.
This case deals with the support necessary for rejecting alternatives in a Final EIR ("FEIR") and the requirements for performing a water supply assessment (“WSA”). The court found that the FEIR’s rejection of the alternative to use an enclosed composting facility rather than an open-aired facility was not supported by substantial evidence because it did not show that it was technologically and economically infeasible. The court also found that the composting facility was a “project” under the Water Code and that the proponent had failed to comply with the requirement to perform a WSA.
In the case, Nursery Products LLC proposed to develop and operate an open-aired human waste composting facility in an unincorporated area of San Bernardino County in the Mojave Desert. Nursery Products contended that an alternative enclosed facility was economically and technologically infeasible. The court, however, found there was no meaningful comparative data pertaining to a range of costs in the FEIR because the FEIR only provided the cost of one other enclosed facility. The FEIR ignored other similar facilities despite evidence that there were facilities in Los Angeles and Riverside Counties, and it was known that such enclosed facilities were becoming more common in urban areas. The court also found that Nursery Products’ expert’s opinion related to the economic infeasibility of the alternative was not support by facts. Further, the FEIR contained no information on the technological infeasibility of the alternative. The FEIR showed electricity was not present at the site, but it did not discuss how it was infeasible to establish an electricity supply to the project site. Therefore, the court concluded that the rejection of the enclosed facility alternative as infeasible was not supported by substantial evidence.
Related to water supply, the FEIR did not include a WSA and did not indicate if a well had been drilled or other sources had been evaluated to determine the actual availability of water to the site. Nursery Products argued that a WSA was not necessary because the facility was not a “project” under the Water Code. The court found that the facility was a “project” because it was considered a “processing plant” that was conducted on more than 40 acres of land, pursuant to the definition in Water Code section 10912, subdivision (a)(5). The court found that the definition was not constrained by water usage and expanded the court’s holding in Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1131, that a WSA is required only if a public water system is impacted. Unlike Gray, here, the court analyzed several provisions in the Water Code and clarified that preparing a WSA was required even if the water source was not a public water system.
