99 Cal.Rptr.2d 378, 00 Cal. Daily Op. Serv. 7008, 2000 Daily Journal D.A.R. 9231

CADIZ LAND COMPANY, INC., Plaintiff and Appellant,

 

v.

 

RAIL CYCLE, L.P., et al., Defendants and Respondents.

CADIZ LAND COMPANY, INC., Plaintiff and Respondent,

 

v.

 

COUNTY OF SAN BERNARDIONO et al., Defendants and Appellants.

 

No. E024373., No. E024532.

Court of Appeal, Fourth District, Division 2, California.

 

Aug. 18, 2000.

 

SUMMARY

An agricultural company filed an action challenging, under the California Environmental Quality Act (Pub. Resources Code, 21000 et seq.) (CEQA), a county's certification of an environmental impact report (EIR) and related approvals of a landfill project located in a desert area within the vicinity of plaintiff's agricultural operations, alleging that the landfill would have adverse impacts on those operations and would contaminate the groundwater. Plaintiff used the groundwater in an aquifer underlying the landfill and its own land for its agricultural operations, and plaintiff also intended to extract the groundwater and sell it to a water agency. The trial court entered judgment in favor of the county and the proposed operator of the landfill. (Superior Court of San Bernardino County, No. BCV02340, Carl E. Davis, Judge. [FN*] )

FN* Retired judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

The Court of Appeal reversed, with directions to issue a writ of mandate setting aside the county's decision to certify the EIR and related trial court decisions that were contingent upon the certification of the EIR. The court held that the EIR was not in compliance with CEQA. Although it mentioned that an aquifer containing potable water underlay the landfill site, it did not discuss the volume of water contained in the aquifer or its size, which was a valuable and relatively scarce resource in the desert region. Although the EIR discussed factors such as groundwater recharge, groundwater downgradient, groundwater flow, change to slope of the water table due to pumping, risk of contamination, overdraft, projected drawdown, groundwater velocity, and cone of depression location, the failure to discuss the volume of groundwater in the aquifer constituted prejudicial error and invalidated the *75 certification of the EIR. The EIR did not provide a sufficient description of the environmental setting or adequate information for the public and governmental agencies to evaluate whether the landfill presented a significant adverse impact on the groundwater contained in the aquifer. In order to weigh and evaluate the risk of groundwater contamination, the volume of water subject to contamination was required. The court held that the other portions of the EIR were adequate, and disagreement among experts concerning certain conclusions did not constitute grounds for overturning the EIR. (Opinion by Gaut, J., with McKinster, Acting P. J., and Ward, J., concurring.)

COUNSEL

Jeffer, Mangels, Butler & Marmaro, Benjamin M. Reznik, John M. Bowman, John E. Mackel, and Lynne Todd Edgerton for Plaintiff and Appellant and for Plaintiff and Respondent Cadiz Land Company, Inc.

LeBoeuf, Lamb, Greene & MacRae, Richard R. Terzian, Stephen P. Pfahler, and Robert J. Tyson for Defendants and Appellants County of San Bernardino et al.

Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, Nabil L. Abu-Assal, Tonie M. Franzese, David J. Altman, and Clare Bronowski for Defendants and Respondents Rail Cycle L.P. et al.

GAUT, J.

Appellant Cadiz Land Company, Inc. (Cadiz) [FN1] challenges under the California Environmental Quality Act (CEQA) [FN2] the County of San Bernardino's certification of an environmental impact report and related *81 approval of Rail Cycle, L.P.'s proposed landfill project (landfill). [FN3] The proposed landfill site is located in the Mojave Desert region of San Bernardino County (County). Cadiz owns agricultural land within the near vicinity of the proposed landfill site, and asserts that the landfill will have significant adverse impacts on its agricultural operations and will contaminate the groundwater.

FN1 Cadiz previously used the name of Pacific Agriculture Holdings, Inc. (Pacific Agriculture).

FN2 Public Resources Code section 21000 et seq.

FN3 Jerry Smith, a resident of Twentynine Palms and member of the Desert Environmental Response Team, also brought an action challenging the County of San Bernardino's approval of the landfill project. The trial court consolidated Smith's action with the County of San Bernardino's action. Smith is not a party to this appeal.

We conclude the failure to discuss in the EIR (environmental impact report) the volume of groundwater subject to contamination renders the EIR inadequate under CEQA. Because the EIR is deficient, a revised and recirculated EIR is necessary.

With regard to Cadiz's other contentions, we conclude they are either without merit or moot. The County's consolidated appeal of the trial court's ruling denying the County's motion for attorneys' fees is also moot. [FN4]

FN4 On this court's own motion, Cadiz's and the County's appeals (case Nos. E024373 and E024532) were consolidated solely for the purpose of appeal.

I.                     Statement of Facts and Procedural Background

 

We reserve a detailed account of the facts for the discussion portion of this opinion. A basic outline of the facts is nevertheless provided to frame the issues. Also provided are maps, attached as appendices A and B, which show the landfill site in relation to Cadiz's property and the approximate area of the underlying aquifer.

The landfill site, which is the subject of this matter, consists of approximately 4,870 acres of land located in an area known as Bolo Station, adjacent to Bristol Dry Lake and a rail line between the towns of Amboy and Cadiz, in the southeastern Mojave Desert region of the County. The site is three miles across, east to west, and four miles across, north to south, at its greatest dimensions, and is relatively flat. On this site, Rail Cycle, L.P. (Rail) [FN5] proposes to build a class III nonhazardous municipal solid waste disposal facility, with a service life of 60 to 100 years. Twenty-one hundred acres of the landfill site are to be allocated to the landfill, with 300 acres for support facilities, and the remaining 2,470 acres to be a buffer area. When fully operating, the landfill will receive up to 21,000 tons of garbage per *82 day, contained in closed containers and transported primarily by train from Southern California counties. At completion, the landfill will rise an estimated 370 to 380 feet above the original ground level.

FN5 Rail Cycle is a limited partnership between Atchison, Topeka, and Santa Fe Railway Company, Inc., and Waste Management, Inc. In May 1993, Waste Management of North American, Inc. (WMNA) became known as Waste Management, Inc. (WMI). WMNA owns WMNA Rail-Cycle Sub, Inc., which is the general partner of defendant Rail Cycle, a limited partnership. WMNA Rail- Cycle Sub, Inc., is owned by WMX Technologies, Inc., formerly WMI.

Atchison, Topeka, and Santa Fe Railway Company, Inc., owns the majority of the landfill site land. The federal government owns, and the United States Bureau of Land Management (BLM) manages, 1,600 acres of the landfill site property. The project thus requires a land exchange, an amendment to the California Desert Conservation Area Plan, and both county and federal government approval.

Nearby, approximately one mile east of the landfill site, Cadiz owns 26,000 acres of agricultural land. Of this land, 1,440 acres contains vineyards and citrus orchards, which are approximately four to five miles east of the landfill site. In 1993, the County certified an EIR and approved a general plan amendment reclassifying 9,600 acres of Cadiz's land as agricultural land, thus allowing for expansion of Cadiz's existing agricultural operations. The newly designated agricultural land is approximately two miles east of the proposed landfill site.

Cadiz uses the groundwater in an aquifer underlying the landfill and Cadiz's land for its agricultural operations, and also intends to extract the groundwater and sell it to the Mojave Water Agency (MWA). In January 1994, Cadiz and MWA entered into a memorandum of understanding in which Cadiz and MWA agreed that Cadiz "is willing to sell a portion of such surplus water to MWA on a long-term basis, provided mutually satisfactory terms and conditions for a sale can be reached ...." Cadiz and MWA further agreed "to work together in good faith and without delay during the next six months to engage in preliminary planning studies for a proposed contract for the purchase by MWA from [Cadiz] of a minimum of 30,000 acre-feet per year of water" at a price to be agreed upon, and that a final contract would be entered into following compliance with CEQA.

Meanwhile, in 1991 Rail applied for a conditional use permit and related amendments to the County's general plan for the purpose of constructing the landfill. An EIR and environmental impact statement (EIS) were prepared [FN6] pursuant to CEQA and the National Environmental Policy Act. [FN7] The County was designated the lead agency in preparing the EIR/EIS. In August 1991, *83 the County Planning Department issued a notice of preparation of a joint EIR/EIS. [FN8]

FN6 The EIR and EIS were prepared by Environmental Solutions, Inc, an independent environmental consultant under the supervision of the County and the BLM.

FN7 42 United States Code section 4321 et seq.

FN8 Also, in August 1991, the BLM issued a notice of intent to prepare an EIS.

In November 1992, the draft EIR/EIS (DEIR) was circulated to the public and governmental agencies for review and comment. During the 90-day review and comment period, BLM held three public hearings. The County and BLM decided to prepare a supplement to the DEIR (SEIR) responding to issues not fully addressed in the DEIR. In December 1993, the County distributed to the public and governmental agencies the SEIR for review and commentary. Rail submitted various technical reports considered in preparation of the SEIR. A final EIR/EIS (FEIR) was circulated in July 1994. It included the DEIR, SEIR, and responses to public comments on the DEIR and SEIR. A mitigation monitoring and compliance program was also prepared. After a series of public hearings, the County Planning Commission (CPC), on November 21, 1994, recommended board approval of Rail's landfill project and certification of the EIR. [FN9]

FN9 We refer to the certified FEIR as the "EIR."

Cadiz appealed the CPC's decision to the County Board of Supervisors (Board), and in May 1995 the Board held public hearings on Rail's landfill applications and Cadiz's appeal. Additional technical reports were submitted to the Board and expert testimony was provided during the Board's hearings on Cadiz's appeal.

On November 21, 1995, the Board denied Cadiz's appeal and certified the EIR. On November 28, 1995, the Board approved, by a three-to-two vote, Rail's application for a conditional use permit (CUP) to build the landfill; approved general plan amendments to designate a portion of the dump site as "resource conservation" land and to identify the site as a landfill on the infrastructure overlay map of the general plan; and approved a County "business agreement" with Rail, whereby Rail agreed to pay a "business license tax" to the County, subject to voter approval of the tax. The tax was estimated to generate $24 to $30 million annually in County revenues.

In December 1995, Cadiz filed a petition for writ of mandate and a complaint against Rail, the County, the Board, Board supervisors Marsha Turoci, Barbara Riordan, and Jerry Eaves, and County employee, Philip Smith (County defendants), for declaratory relief, taking of property without just compensation, and deprivation of civil rights under title 42 United States Code section 1983. The first, second, third and fourth causes of action sought mandamus relief to reverse the Board's action approving the landfill. The trial court severed these causes of actions from the remaining damages claims, and set a hearing on the writ claims. *84

Following a four-day hearing on Cadiz's writ of mandamus claims, the trial court issued a detailed statement of decision and supplemental statement of findings, denying Cadiz's petition for writ of mandamus relief.

The County defendants and Rail then brought summary judgment motions as to the remaining damages claims. The trial court granted the motions, and entered judgment in favor of Rail and the County defendants. The court found that Cadiz's procedural due process claims were not ripe because Cadiz had not suffered any immediate, concrete injury since there had not been voter approval of the business license tax. An election for voter approval of the business license tax was held in March 1996. The voters rejected the tax, and as of the date of the trial court's ruling on the County and Rail's summary judgment motions, the business license tax had not been approved. [FN10] The trial court denied County's request for attorneys' fees.

FN10 Despite EIR certification and County approval of the landfill project, the landfill project will remain in abeyance until there is voter approval of the business license tax. To date, there have been two unsuccessful attempts to win voter approval.

II. EIR Standard of Review

 

Cadiz challenges the adequacy of the EIR under CEQA.  In considering whether the EIR is in compliance with CEQA, we are reminded that " 'The foremost principle under CEQA is that the Legislature intended the act "to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language. " ' [Citations.] [] The EIR has been aptly described as the 'heart of CEQA.' (Guidelines, 15003, subd. (a) ....)" (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 563-564 [276 Cal.Rptr. 410, 801 P.2d 1161], fn. omitted.) CEQA's purpose is to inform the public and its governmental officials of the environmental consequences of their decisions before they are made. (Id. at p. 564.) "Thus, the EIR 'protects not only the environment but also informed self-government.' (Laurel Heights [Improvement Assn. v. Regents of University of California] [(1988)] 47 Cal.3d [376,] 392 [253 Cal.Rptr. 426, 764 P.2d 278].)" (Citizens of Goleta Valley, supra, at p. 564.)

 

"Because the EIR must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees. [Citations.] The EIR process protects not only the environment but also informed self government." (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d 376, 392; Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 564.) *85

 

In reviewing agency actions under CEQA, including findings of adequacy of information contained in the EIR, our inquiry " 'shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.' " Thus, the reviewing court " 'does not pass upon the correctness of the EIR's environmental conclusions, but only upon its sufficiency as an informative document.' " (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 392, quoting County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189 [139 Cal.Rptr. 396].) We 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. "Our limited function is consistent with the principle that 'The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.' " (47 Cal.3d at p. 393, quoting Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283 [118 Cal.Rptr. 249, 529 P.2d 1017].) "We may not, in sum, substitute our judgment for that of the people and their local representatives. We can and must, however, scrupulously enforce all legislatively mandated CEQA requirements." (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 564.)

 

" 'In applying the substantial evidence standard, "the reviewing court must resolve reasonable doubts in favor of the administrative finding and decision. " ' (47 Cal.3d at p. 393.) The appellate court's role 'is precisely the same as the trial court's,' and lower court's findings are not 'conclusive on appeal.' (Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1076 [230 Cal.Rptr. 413].)" (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 722 [32 Cal.Rptr.2d 704].)

 

III. Adequacy of EIR Discussion of Landfill Environmental Setting and Impacts

 

Cadiz contends the EIR should not have been certified because the EIR failed to provide an adequate discussion of the landfill project's environmental setting and potential environmental effects.

An EIR must describe the physical conditions and environmental resources within the project site and in the project vicinity, and evaluate all *86 potential effects on those physical conditions and resources. (See fn. 11.) (CEQA Guidelines, 15125, 15126.2, subd. (a) [FN11] ; County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 952 [91 Cal.Rptr.2d 66].)

FN11 "All references to Guidelines are to the state CEQA Guidelines, which implement the provisions of CEQA. (Cal. Code Regs., tit. 14, 15000 et seq.) The Guidelines state: 'These Guidelines are binding on all public agencies in California.' (Guidelines, 15000.) Although this court has not decided the issue of whether the Guidelines are regulatory mandates or merely aids to interpretation, we have indicated that, '[a]t a minimum, ... courts should afford great weight to the Guidelines except when a provision is clearly unauthorized or erroneous under CEQA.' (Laurel Heights, supra, 47 Cal.3d at p. 391, fn. 2.)" (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d 553, 564, fn. 3.)

The EIR must describe environmental conditions in the vicinity of the project, "as they exist at the time the notice of preparation is published, or if no notice of preparation is published ... from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant. The description of the environmental setting shall be no longer than is necessary to an understanding of the significant effects of the proposed project and its alternatives." (CEQA Guidelines, 15125, subd. (a).)

 

Subdivision (c) of CEQA Guidelines section 15125 notes that "Knowledge of the regional setting is critical to the assessment of environmental impacts.... The EIR must demonstrate that the significant environmental impacts of the proposed project were adequately investigated and discussed and it must permit the significant effects of the project to be considered in the full environmental context."

 

According to CEQA Guidelines section 15126.2, "Direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to both the short-term and long-term effects. The discussion should include relevant specifics of the area, the resources involved, physical changes, alterations to ecological systems, and changes induced in population distribution, population concentration, the human use of the land (including commercial and residential development), health and safety problems caused by the physical changes, and other aspects of the resource base such as water, historical resources, scenic quality, and public services."

 

The standard of adequacy of an EIR is further defined in CEQA Guidelines section 15151 as follows: "An EIR should be prepared with a sufficient *87 degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. Disagreement among experts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among the experts. The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure." (CEQA Guidelines, 15151.)

 

" '[T]he ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decision-makers, and the public, with the information about the project that is required by CEQA.' " (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, supra, 27 Cal.App.4th at pp. 721-722, quoting Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 829 [173 Cal.Rptr. 602].) If the description of the environmental setting of the project site and surrounding area is inaccurate, incomplete or misleading, the EIR does not comply with CEQA. (San Joaquin Raptor, supra, at p. 729.) "Without accurate and complete information pertaining to the setting of the project and surrounding uses, it cannot be found that the FEIR adequately investigated and discussed the environmental impacts of the development project." (Ibid.)

 

A. Adequacy of EIR Discussion of Nearby Agriculture and Related Project Impacts

 

Cadiz complains that the EIR does not adequately discuss Cadiz's existing and approved future agricultural operations other than briefly mentioning them in the DEIR.

The DEIR states in the chapter entitled, "Affected Environment," that "[r]esidential, military, agricultural, and wilderness land uses are located five or more miles away" from the landfill site. The DEIR further states in the same chapter, in a section entitled, "Agriculture," that "The primary agricultural activity in the region is Pacific Agriculture Holdings, Inc. (Pacific Agriculture) [also known as Cadiz [FN12] ], a grape and citrus growing industry with fields situated south of Cadiz between Bolo Station and Cadiz Valley Alternative sites. Pacific Agriculture currently has 1,440 acres of privately held land in crops, including 800 acres in table grapes and 640 acres in citrus. Permanent staff live in trailer homes on the northeastern *88 periphery of Cadiz, while seasonal workers are temporarily housed south of Cadiz. Wells supply water for irrigation and domestic needs. The agribusiness has filed applications with the County for expansion of agricultural development into an additional 3,840 acres of privately held land (six sections) and development of housing and other facilities elsewhere in the vicinity, raising the potential size of the Pacific Agriculture site to 9,600 acres (15 sections of privately held land.)"

FN12 The SEIR notes that Pacific Agriculture's name changed to Cadiz Land Company, Inc., which is appellant Cadiz.

Rail argues that these DEIR references, as well as various other references to agriculture in the SEIR and FEIR, adequately discuss nearby agricultural uses and impacts in accordance with CEQA. We agree.

In addition to the DEIR references noted above, the DEIR also mentions that Cadiz has two water wells for irrigation 6.5 miles east of the landfill site; Cadiz's "farm near [the town of] Cadiz represents the only sensitive vegetation receptor"; and the proposed action is not likely to result in unacceptable health risks or have significant impacts upon sensitive vegetation. The DEIR also mentions, in discussing cumulative impacts, that Cadiz had a pending application for a proposed project which would increase the area of its agricultural operation from 1,440 to 9,600 acres, "including: [] - Additional agricultural lands. []-Permanent staff and seasonal workers housing facilities. []-Pre-cooler/processing, maintenance shop, and containers facilities. [] Approximately 2,560 acres will be planted with citrus and the remaining with table grapes. The project is expected to be phased over a fiveto ten-year period." [FN13]

FN13 At the time of publication the landfill DEIR, Cadiz's DEIR for expansion of its agricultural operation had not yet been published. Cadiz's DEIR was published in June 1993, after publication of the landfill DEIR in November 1992.

During the DEIR 90-day circulation period (December 4, 1992, to March 3, 1993), Cadiz complained at BLM public hearings (February 8, 10, and 11, 1993) and submitted written comments asserting that the DEIR failed to address adequately significant environmental impacts on Cadiz's agricultural and groundwater interests.

The SEIR included responses to these comments. It acknowledged that Cadiz was proposing to expand its 1,440-acre vineyard and citrus orchard to 9,600 acres over 10 to 15 years, and that this would result in the use of increased groundwater for irrigation, which might result in overdraft of the basin. The SEIR further noted that the landfill's use of groundwater would add to this unavoidable significant adverse impact, and that the landfill's use of 4,870 acres, along with Cadiz's 9,600 agricultural expansion, would result in a cumulative impact of removing approximately 14,500 acres from existing land use as open space. *89

In response to the SEIR, Cadiz submitted additional written comments by letter dated February 17, 1994. Cadiz complained that the landfill project was incompatible with Cadiz's agricultural operations and that the EIR failed to evaluate Cadiz's County-approved agricultural expansion project. Cadiz also complained that the DEIR/SEIR failed to provide any evidence supporting its conclusion that the project would have no significant impacts on public health and safety. Cadiz noted its concerns regarding potential contamination of its grapes and citrus, impacts on Cadiz's workers, and potential contamination of the groundwater underlying its land. Cadiz claimed its agricultural site is free of traditional agricultural pests, resulting in minimal use of pesticides but the landfill will detrimentally impact the marketability of Cadiz's produce because of the landfill introducing pests and disease which would necessitate increased use of pesticides. Cadiz further complained that proposed mitigation measures were inadequate.

Following receipt of Cadiz's comments to the SEIR, an agricultural impact report was prepared by Edwin A. Barnes III, Ph.D. in response to Cadiz's complaint that the landfill would introduce agricultural pests and disease which had been nonexistent in the area. Barnes concluded in his report that the proposed landfill would "have minimal, if any, impact on existing or proposed agriculture in the area."

The FEIR summarized issues raised in Barnes's report and noted that "The report addressed the potential for insect/nuisance vectors to be introduced into agricultural zones ...." The FEIR also contained related mitigation measures, and concluded that, based on Barnes's report, findings and mitigation measures, the marketability of Cadiz produce was not expected to be affected by the landfill.

In addition to the DEIR, SEIR and FEIR addressing impacts on Cadiz's agricultural operations, the EIR also discusses in general terms the potential environmental impacts of the landfill increasing the presence of insects, rodents and other pests. [FN14] Related mitigation measures are also included in the EIR.

FN14 Cadiz complains that its land is located downwind from the landfill and this will subject Cadiz's agriculture to insects, spores, and litter carried by the prevailing winds to Cadiz's crops.

We conclude the EIR adequately discusses the existing agricultural setting and potential significant environmental effects of the landfill project on Cadiz's agricultural operations. (CEQA Guidelines, 15125, subd. (a).) Although the information contained in the DEIR regarding Cadiz's agricultural operations is sparse, the SEIR sufficiently supplements the DEIR with additional information regarding Cadiz's agricultural operations. *90

Cadiz argues, in reliance on Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109 [71 Cal.Rptr.2d 1], that the landfill EIR's discussion of Cadiz's agricultural land is inadequate because additional information contained in the FEIR cannot be considered in determining the adequacy of the DEIR description of the environmental setting under CEQA Guidelines section 15120, subdivision (c). [FN15] Cadiz's reliance on Galante is misplaced. In Galante the Monterey Peninsula Water Management District prepared and published a DEIR, supplemental draft EIR, and FEIR in furtherance of building a dam and reservoir on the Carmel River. In response to the FEIR, individuals submitted written comments and complained at a public hearing that the FEIR did not adequately address the environmental impacts on the local vineyards. Nevertheless, the water district's board of directors certified the FEIR, and later received two addendums to the EIR which were certified and included as part of the EIR.

FN15 CEQA Guidelines section 15120, subdivision (c) provides: "Draft EIRs shall contain the information required by Sections 15122 through 15131. Final EIRs shall contain the same information and the subjects described in Section 15132." CEQA Guidelines section 15125 requires the DEIR to include a description of the environmental setting.

The trial court issued a peremptory writ of mandate ordering the water district to set aside certification of the FEIR and approval of the dam and reservoir project, and ordered a focused supplemental EIR on viticultural issues before reconsideration of permit approval for the project. On appeal, the Galante court affirmed the trial court ruling on the grounds the generalized reference to the local vineyards in the EIR [FN16] constituted an inadequate description of the environmental setting for the project, thereby precluding a proper analysis of the project's impacts. (Galante Vineyards v. Monterey Peninsula Water Management Dist., supra, 60 Cal.App.4th at pp. 1122, 1124.)

FN16 The " 'Land Use, Planning and Recreation' " chapter of the FEIR stated that east and west of the project site there was " 'some grazing, agriculture and scattered rural residential use,' " and the FEIR described the area in the " 'Climate and Air Quality' " chapter as " 'sparsely populated, with no industry other than several vineyards in the Cachagua Valley.' " No other references were made in the FEIR to viticulture or wineries. (Galante Vineyards v. Monterey Peninsula Water Management Dist., supra, 60 Cal.App.4th at p. 1122.)

The instant case is distinguishable from Galante. Here, the SEIR discussed in sufficient detail Cadiz's existing and anticipated agricultural operations and related potential impacts. Also, Barnes's investigation report focusing on such issues was prepared, considered, and discussed in the FEIR. Mitigation measures addressing pests and disease vectors were also considered and adopted.

Cadiz complains that the EIR minimizes Cadiz's proximity to the landfill site by stating that the site is miles away from Cadiz's existing agricultural *91 operation. [FN17] But then Cadiz asserts that, regardless of the actual distance between the landfill and Cadiz's land, the distance is immaterial because the potential impacts are regional in scope.

FN17 While the DEIR initially indicated that agricultural land was not within five miles of the landfill site, whereas the eastern border of land used for agriculture by Cadiz is approximately four miles from the landfill, this discrepancy is clarified in the SEIR and FEIR.

We conclude the EIR adequately discloses the actual distance between Cadiz's existing agricultural operation and the landfill site. Various maps included in the EIR and in technical background reports referenced in the EIR show Cadiz's land in relation to the landfill site. The landfill DEIR, SEIR and FEIR disclose that, although at the time of publication of the DEIR, SEIR and FEIR, Cadiz owned land one mile east of the landfill site, that land was not being used for agriculture. The EIR further states that Cadiz's existing agricultural land was four to five miles from the landfill. The SEIR and FEIR also reveal that the agricultural land, which was the subject of Cadiz's proposed agricultural expansion project, was approximately two miles from the landfill site.

 

The EIR adequately discusses Cadiz's agricultural operations and related potential landfill effects. We further conclude the EIR's conclusions regarding potential effects on agricultural uses are supported by substantial evidence.

 

B. Adequacy of EIR Discussion of Groundwater and Related Landfill Effects

 

Cadiz complains that the EIR fails to address the volume of groundwater contained in the aquifer underlying the landfill site, and the potential effects of the landfill on the groundwater. The "summary of environmental setting" does not mention groundwater. Cadiz also complains that the EIR does not mention the potential beneficial future uses of the water, such as future use of the water to supply Southern California counties with surplus water. And, Cadiz claims the EIR erroneously assumes the groundwater "recharge rates" are only 2,200 acre-feet per year and thus the aquifer may be in overdraft. Finally, Cadiz asserts that the EIR erroneously concludes the landfill does not pose a significant adverse impact on the groundwater.

 

1. Need for Discussion of Volume of Water in Aquifer

 

During the writ hearing, the trial court concluded "the exact quantity of the groundwater underlying the proposed site is not necessary for a meaningful environmental analysis, in this case. The EIR sufficiently discusses *92 the most important aspects of the groundwater issues, which are, its presence, quality, drawdown and recharge rate, and protection measures. The record reflects significant discussion of these issues ...." But the court acknowledged: "one of the problems I'm having with this whole thing is that the enormity of the aquifer as an entity was never really identified. That's the troubling part of that. I mean, just the twenty thousand acre-feet size of it, not identifying that would be considered close to not identifying the wetlands in San Joaquin Raptor [sic]."

Although the EIR mentions that an aquifer containing potable water underlies the landfill site, and discusses factors such as groundwater recharge, groundwater down gradient, groundwater flow, change to slope of the water table (hydraulic gradient) due to pumping, risk of contamination, overdraft, projected drawdown, groundwater velocity, and cone of depression location, the EIR does not discuss the volume of water contained in the aquifer or the size of the aquifer. We thus conclude the EIR's discussion of the environmental setting is not in compliance with CEQA Guidelines section 15125.

Subdivision (c) of CEQA Guidelines section 15125 states that "Knowledge of the regional setting is critical to the assessment of environmental impacts. Special emphasis should be placed on environmental resources that are rare or unique to that region and would be affected by the project. The EIR must demonstrate that the significant environmental impacts of the proposed project were adequately investigated and discussed and it must permit the significant effects of the project to be considered in the full environmental context."

Despite the landfill EIR's enormity and the length of time devoted to preparing it, the EIR is not in compliance with subdivision (c) of CEQA Guidelines section 15125 because the EIR does not discuss the volume of the aquifer groundwater, particularly potable water, which is a valuable and relatively scarce resource in the region. [FN18] The EIR does not provide a sufficient description of the environmental setting or adequate information for the public and governmental agencies to evaluate whether the landfill presents a significant adverse impact on the groundwater contained in the aquifer. In order to weigh and evaluate the risk of groundwater contamination, the volume of water subject to contamination is required. Although the *93 CPC and Board conclude the rechargeability of the aquifer water is relatively low and the aquifer is in overdraft, without knowing the volume of water in the aquifer, it cannot be determined how soon depletion will occur. In turn, an informed decision cannot be made as to whether it is worth taking the risk of subjecting a valuable water source to contamination.

FN18 According to Williams's report, dated October 2, 1995, entitled, "Technical Memorandum-Modeling Of Ground Water Withdrawal Scenarios- Preliminary Results," portions of the County "are in 'serious and chronic overdraft' regarding their current water supply situation." The memorandum of understanding, dated January 11, 1994, between Mojave Water Agency and Cadiz, also acknowledges that "there is a serious and chronic water shortage in many parts of San Bernardino County, and in particular within the territorial boundaries of the MWA."

The EIR recognizes the possibility of groundwater contamination but concludes it is highly unlikely and, thus, not a significant adverse impact. The EIR states that, in the event of liner leakage, the landfill monitoring and remediation measures would prevent any serious contamination to the groundwater.

During Cadiz's appeal of the CPC's recommendation to approve the EIR, County staff prepared for the Board a report noting the following: Cadiz "has made statements during the EIR process, during the Planning Commission's hearings, and during the Board of Supervisors' hearings regarding the potential for the landfill liner system to fail resulting in the contamination of groundwater. The EIR found that, due to the liner system proposed for Bolo Station, there is only a minimal possibility that groundwater could be contaminated. In the unlikely event of a release through the double liner system, the unsaturated zone monitoring system that would be installed beneath the entire landfill, in conjunction with perimeter monitoring wells, would detect such a release before it could travel offsite. Also, as discussed in the EIR, in the unlikely event of a release, there are known, proven technologies available to mitigate the groundwater impacts that could occur." (Italics added.) County Planning Department staff also acknowledged that they could not guarantee that the liner system would not eventually leak.

According to a groundwater report, dated October 2, 1995, prepared by Dennis E. Williams, Ph.D., of Geosciences Support Services, Inc., the aquifer groundwater flow is subject to change upon increasing the amount of water withdrawn from the aquifer and alteration of the cone of depression. Williams's May 9, 1995, groundwater report states that the cone of depression in the groundwater table will reverse direction of groundwater flow due to Cadiz's expanded agricultural development. The need for increased groundwater extraction will cause the groundwater to flow from the landfill site toward Cadiz's property. Williams predicts that leachate from the landfill could reach Cadiz's wells within five years.

Even assuming, as the EIR does, that the aquifer is in overdraft and will dry up, it is not possible to determine how soon and, hence, whether the existing groundwater is worth protecting, without knowing how much water is in the aquifer. The risk of contamination cannot be weighed against the *94 need to maintain an uncontaminated source of water. For instance, if the water source is depleted within 10 years, then the fact that the liners have only been tested for a 10-year period and might leak thereafter is an insignificant risk. Also, if there is currently little water in the aquifer, the impact of contaminating a relatively small amount of water might be considered not as great a loss as contaminating a voluminous source of drinking water capable of sustaining a large number of people for many years.

An estimate of the volume of groundwater in the aquifer is critical to a well- informed determination of whether the risk of groundwater contamination is worth taking. It would be reasonable to assume that if a large volume of drinking water and or water suitable for other domestic, industrial, and agricultural uses were subject to contamination, the lead agency evaluating the project would be less inclined to approve such a project and the public might vociferously object to the project.

Certainly the public has a right to know whether a large source of water, which may be used for drinking water [FN19] and other domestic uses, is being subjected to potential contamination. "Because the EIR must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees. (People v. County of Kern (1974) 39 Cal.App.3d 830, 842 [115 Cal.Rptr. 67]; Guidelines, 15003, subd. (e).) The EIR process protects not only the environment but also informed self-government." (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 392.)

FN19 The County staff's report to the Board, entitled "Staff Analysis of Critical Issues For the June 13, 1995 Board of Supervisors' Hearing," states while the groundwater has less than 3,000 mg/L of TDS (total dissolved solids) and is thus a potential municipal or domestic supply of water, the water would require treatment before it could meet EPA's (Environmental Protection Agency) and the state's drinking water standards of 500 mg/L of TDS.

Here, the amount of groundwater at stake must be disclosed to the public and governmental agencies. As the years pass, it is anticipated that the public's demand for water will increase and the potable water contained in the aquifer, if any, will increase in value. It must also be recognized that as time passes and the landfill facilities age, the likelihood of leakage and contamination of the underlying groundwater will increase (even after the landfill ceases operation in 60 to 100 years). Hence, knowledge of the amount of groundwater in the aquifer is crucial to determining approximately when the groundwater will be depleted, assuming the CPC and the Board's findings are accurate that the aquifer is in overdraft. *95

Williams's study, report and testimony, as well as Cadiz's EIR's discussion of the aquifer water volume, show that the landfill EIR could have included an estimate of the groundwater volume in the aquifer. Following Williams's testimony and submission of his report, which contained an estimate of the volume of water in the aquifer, the County should have revised the EIR to include such information, along with a discussion of the estimated date of depletion of the aquifer water. While the record indicates that the Board considered Williams's report and nevertheless concluded the information did not change its view that it should certify the EIR, the EIR should have been revised and recirculated for purposes of informing the public and governmental agencies of the volume of groundwater at risk and to allow the public and governmental agencies to respond to such information. [FN20]

FN20 "If, subsequent to the commencement of public review and interagency consultation but prior to final EIR certification, the lead agency adds ' significant new information' to an EIR, the agency must issue new notice and must 'recirculate' the revised EIR, or portions thereof, for additional commentary and consultation. (Pub. Resources Code, 21092.1; CEQA Guidelines, 15088.5; Laurel Heights Improvement Association of San Francisco, Inc. v. Regents of the University of California (1993) 6 Cal.4th 1112 [26 Cal.Rptr.2d 231, 864 P.2d 502] ('Laurel Heights II').)" (Remy et al., Guide to the California Environmental Quality Act (CEQA) (1999 10th ed.) p. 301 (Remy).)

The EIR's failure to address the volume of groundwater in the aquifer constitutes prejudicial error. "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." (Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 838 [29 Cal.Rptr.2d 492]; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712 [270 Cal.Rptr. 650]; see also Pub. Resources Code, 21005, subd. (a). [FN21] )

FN21 According to Public Resources Code section 21005, subdivision (a), "noncompliance with the information disclosure provisions of [CEQA] which precludes relevant information from being presented to the public agency, or noncompliance with substantive requirements of [CEQA], may constitute a prejudicial abuse of discretion within the meaning of Sections 21168 and 21168.5, regardless of whether a different outcome would have resulted if the public agency had complied with those provisions."

Here, the EIR fails to include significant information. The lack of information regarding the volume of the water in the aquifer thwarted the goals of the EIR process by not disclosing to the public and government agencies critical information necessary to evaluate the significance of the landfill's impact on a valuable resource, that of potable water in an arid region. Such deficiency in the EIR constitutes prejudicial error, thereby requiring reversal of the trial court's ruling on Cadiz's writ claims and issuance by the trial court of a writ of mandate setting aside the County's certification of the EIR. *96

 

2. Potential Adverse Effect of Liner Leakage on Groundwater

 

Cadiz argues that the EIR incorrectly concludes that groundwater contamination was not a significant adverse impact. Groundwater contamination, according to Cadiz, should have been discussed and identified as an unavoidable risk of the landfill project. Cadiz notes that Williams testified at the May 9, 1995, Board hearing that only four drops of contaminants from the landfill would render the water in an average size swimming pool unfit to drink.

 

Since we conclude that the EIR failed to provide critical information regarding the estimated volume of groundwater at risk, and revision and recirculation of the EIR is thus necessary, determination as to whether there was substantial evidence in the EIR supporting the County's determination that contamination was not a significant adverse impact is premature. The record indicates that it is undisputed that there is a possibility of liner leakage at some point. The EIR identifies groundwater contamination as a potential impact and includes, as a mitigating measure, up to $10 million in indemnification for third-party remediation of any contamination of groundwater. There is also evidence that groundwater contamination is possible, although there is evidence that implementation of EIR mitigating measures greatly diminishes that possibility. Since the degree of significance of the adverse effect of groundwater contamination is impacted by the volume of the groundwater resource at stake, it would be premature for us to decide the issue of whether the EIR's designation of the impact as insignificant constitutes reversible error.

 

3. Change in Groundwater Flow

 

Cadiz argues that the County should have revised and recirculated the EIR after receiving Williams's May 9, 1995, report because the report contained significant new information that the groundwater flow would change and flow towards Cadiz's land and wells as a result of Cadiz's anticipated increased groundwater pumping for its extended agricultural operations. Williams concluded that contaminants could reach Cadiz's wells in less than five years. This conclusion contradicted the FEIR comments response which states that it was " 'physically impossible for any subsurface contamination from the landfill site to affect agricultural properties or any other use of fresh water in the basin. Ground water does not move from the landfill site toward [Cadiz] properties.' "

 

Disclosure of Williams's conclusions regarding water flow in the direction of Cadiz's land after the CPC's decision to approve the EIR did not require *97 EIR revision and recirculation. The change in water flow was considered and addressed in the EIR. Although the EIR concludes the groundwater flow was currently flowing south and or in a southwesterly direction, away from Cadiz's land, there is ample discussion in the EIR of factors impacting the direction of the flow, and recognition that it could change with a change in water pumping.

 

The Mitigation, Monitoring and Compliance Program addresses such possible change in water flow as follows: "An outpost ground water monitoring well shall be installed easterly of the landfill to detect leachate contamination of the underlying ground water and potential offsite migration in the event of a release from the leachate containment system.... Additional monitoring wells shall be installed on the easterly downgradient area at intervals and specific locations to be determined by the County Geologist if and when the natural ground water gradient is altered causing a reversal of natural flow in an easterly direction."

 

Disagreement among experts does not constitute grounds for overturning an EIR. (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 408.) And under CEQA Guidelines section 15126.2, "In assessing the impact of a proposed project on the environment, the lead agency should normally limit its examination to changes in the existing physical conditions in the affected area as they exist at the time the notice of preparation is published."

 

The County was not required to revise and recirculate the EIR based on Williams's conclusion that Cadiz's future expansion of its agricultural operations would change the water flow due to increased water pumping.

 

C. Adequacy of Description of Geologic Setting

 

Cadiz contends the EIR's discussion of the landfill's geologic conditions is inadequate as to (1) fissures, (2) lineament A, (3) potential on-site faults, and (4) the off-site South Bristol Mountains Fault. Cadiz claims these geologic conditions are significant because they may lead to rupture of the landfill liners, which in turn may lead to groundwater contamination.

 

1. Fissures

 

Cadiz asserts that the DEIR completely ignored fissure systems located in close proximity to the landfill site, and although the FEIR mentions them in *98 appendix D, [FN22] their significance is not discussed in any document circulated for public review.

FN22 Appendix D to the EIR contains a report, dated March 31, 1994, entitled "Analysis of Geologic Issues Related to Seismic Risk on the Proposed Rail-Cycle Bolo Station Landfill Near Amboy," by Gary S. Rasmussen & Associates, Inc.

According to a report cited in the DEIR and SEIR, entitled Phase II, Geologic, Hydrogeologic and Geotechnical Site Characterization Study, Bolo Station Facilities, by Jacobs Engineering Group Inc., the presence of fissuring "may be the surface expression of a fault." The DEIR states that "Based on the studies conducted to date (e.g., aerial photo reviews, records and literature search, site reconnaissance, geologic mapping), no active or potentially active faults are known to be within or trending towards the Bolo Station site, and therefore, no impact is expected...." The DEIR further states that to insure against undetected seismic activity at the site, a supplemental site verification study, involving geophysical surveys and geologic mapping will be required, and will include a fracture trace analysis from aerial photographs of the region. The DEIR concludes that the largest potential source of earthquake activity is the Ludlow Fault 15 miles away, and the landfill is designed to withstand seismic activity from this fault.

 

The SEIR also discusses faulting and seismicity in the area, noting that the Mojave Desert is characterized by a series of "northwest trending, right lateral, strike-slip faults," concentrated primarily "in the central to southwest portion of the Mojave Desert and become more diffuse and poorly defined in the eastern portions of the desert" where the landfill is located, and that "Additional research and field exploration conducted to evaluate the potential presence of Holocene faulting and buried gravel channels did not yield any evidence to suggest the presence of these features."

 

Based on two geologic reports, the SEIR concludes there is no evidence of site faulting or surficial evidence of faults in the area. The two reports were prepared for Rail by Jacobs Engineering Group Inc., and are entitled "Phase I, Geologic, Hydrogeologic and Geotechnical Site Characterization Study, Bolo Station Facilities" (Phase I report), dated October 1990, and "Phase II, Geologic, Hydrogeologic and Geotechnical Site Characterization Study, Bolo Station Facilities," dated December 1991 (Phase II report). The reports are referenced in the DEIR and SEIR as background reports relied upon in the DEIR and SEIR, and were made available for review upon request.

 

The Phase II report states: "Lineaments and fissures in the vicinity of the project site were identified as a part of the site geology interpretation and seismic hazard analysis.... Fissures are surface fractures that can be *99 observed in the field. Lineaments and fissures are investigated because of the possibility that they may be the surface expression of a fault. [] With one exception, no lineaments or fissures were identified within the proposed site by this investigation. The fissure that extends into the project area is not considered significant (see southeast corner of Plate 4-1 [regional geologic map]). The characteristics and occurrence of the observed ground fissures and lineaments in the site vicinity are described in the following sections." Various fissures were further discussed in the report.

 

After circulation of the SEIR, an additional study was provided, which was attached as appendix D to the FEIR. It is entitled "Analysis of Geologic Issues Related to Seismic Risk on the Proposed Rail-Cycle Bolo Station Landfill Near Amboy," is dated March 31, 1994, and is by Gary S. Rasmussen & Associates, Inc., a Rail consultant. The report states that its purpose is to provide an independent review of seismic risks associated with the landfill by analyzing the geologic issues, data, and conclusions contained in the DEIR, SEIR, and related reports. The report mentions fissures in the area and notes the possibility of future propagation of fissures in the area. The report concludes that the DEIR/SEIR "seismic analysis, including ground shaking and ground rupture of the site as described in the Draft EIR and Supplement to the Draft EIR, together with information described in this report, are considered to adequately describe the seismic risk to the site." The report suggests that to mitigate the risk of undetected seismic impact on the landfill, additional surveying of the landfill during excavation of the cells could be done, and if active faulting is found at that time, setbacks of the cells 200 feet from any such faults could be implemented without adversely affecting the landfill.

 

Also provided in response to the SEIR, is a report dated February 1994, prepared by Roy Shlemon for Cargill Salt Co., stating that there are surface ground fissures near the southwest and southeast corners of the proposed landfill. The report notes that fissures may have been caused by settlement or ground subsidence from hydrocollapse (groundwater withdrawal) or seismic activity. The report is critical of the investigative trenching conducted in connection with the landfill project. It states: "It thus seems evident that the four, each less than 100-ft long, trenches emplaced across geophysical anomalies inherently did not expose the 'numerous other GPR anomalies,' some of which may well be subsurface fissures. Only deep, extensive and well documented trenching will resolve the potential subsurface fissure issue, investigations that have yet to take place. [] Regardless of their origin, many subsurface fissures may enlarge and ultimately become preferred pathways for possible contaminant flow."

 

We conclude the EIR contains ample discussion and analysis of seismic activity, including faulting and fissures. Extensive geologic studies, *100 mapping, and reports were provided. While some of the aerial photographs may not have been provided prior to certification of the EIR, this is not fatal to the EIR since the EIR adequately addresses the presence of fissures through other mapping, studies, investigation, and reports.

 

2. Lineament A

 

Lineament A is a visible 6,000-foot line of raised land, running north toward the landfill. The northern most end is located approximately one mile south of the southwestern corner of the landfill. The FEIR concludes that "the follow-up investigations verify the findings and conclusions of the Draft EIR/EIS that there are no active or inactive faults within the vicinity of the proposed site or that tend towards the site." Cadiz claims that lineament A may be an active fault and was not properly trenched to determine whether it is an active fault.

 

CEQA Guidelines section 15144 states that, "While foreseeing the unforseeable is not possible, an agency must use its best efforts to find out and disclose all that it reasonably can." "Without accurate and complete information pertaining to the setting of the project and surrounding uses, it cannot be found that the FEIR adequately investigated and discussed the environmental impacts of the development project." (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, supra, 27 Cal.App.4th at p. 729.) But "the lead agency is not required to conduct all suggested testing or experimentation." (Id. at p. 728.)

 

The DEIR identified lineament A as a possible fault trace requiring further investigation. The Phase II report by Jacobs Engineering Group Inc., referenced in the DEIR, states: "It is not clear at this stage whether lineament A is the result of groundwater withdrawal, a sedimentary contact, or a fault in underlying bedrock. [] Unequivocal interpretation of lineament A cannot be provided with current data. Lineament A, if found to be an active fault, could create two geologic hazards: displacement along the fault trace and ground shaking caused by earthquake. Therefore, exploratory trenching in at least two locations along lineament A ... is recommended."

 

Following circulation of the DEIR, additional geologic testing, investigation, and trenching was performed by Jacobs Engineering Group Inc. and by geology expert Thomas Rockwell, Ph.D., to evaluate further lineament A. Agency representatives from the California Regional Water Quality Control Board, State Water Resources Control Board, and the County were present during the reconnaissance of lineament A. A trenching program was developed by Rail and various governmental agencies. In order to determine *101 whether lineament A extended onto the landfill site, lineament A was trenched on the landfill site, directly beyond the