1

Filed 4/8/21 Cal. Coastkeeper Alliance v. Cal. State Lands Commission CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

CALIFORNIA COASTKEEPER ALLIANCE et al.,

Plaintiffs and Respondents,

v.

CALIFORNIA STATE LANDS COMMISSION,

Defendant and Appellant.

POSEIDON RESOURCES (SURFSIDE) LLC,

Real Party in Interest and Respondent.

C088922

(Super. Ct. No. 

34201780002736)

For a number of years, real party in interest Poseidon Resources (Surfside) LLC

(Poseidon) has planned to establish a desalination plant at a site in Huntington Beach. In 

2010, nonparty City of Huntington Beach (Huntington Beach), serving as lead agency 

performing environmental review of the proposed project pursuant to the California 
2

Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), certified a 

subsequent environmental impact report (the 2010 subsequent EIR).

1

 However, the 

project did not move forward. Following changes in circumstances including significant

regulatory changes, Poseidon proposed modifications to the project, which it addressed in 

a proposed lease modification with defendant California State Lands Commission (Lands 

Commission). The Lands Commission determined that it needed to prepare a 

supplemental EIR to supplement Huntington Beach’s 2010 subsequent EIR. In 2017, the 

Lands Commission certified its final supplemental EIR. Plaintiffs filed a petition for a 

writ of mandate asserting, among other things, that the Lands Commission failed to 

comply with the requirements of CEQA. The trial court denied the petition.

The parties sharply dispute the framing of the issues presented on appeal and 

whether the applicable standard of review is de novo review or review for substantial 

evidence. Plaintiffs assert the Lands Commission prejudicially abused its discretion by 

(1) failing to assume the role of CEQA lead agency and perform the attendant

obligations, and (2) unlawfully piecemealing/segmenting its environmental review in 

several respects, matters addressed to whether the Lands Commission failed to proceed in 

a manner authorized by CEQA, subject to de novo review. The Lands Commission and 

Poseidon assert that the true issues on appeal are whether the Lands Commission 

properly proceeded with supplemental review and the results of that review, factual 

matters subject to substantial evidence review. Both standards of review will be

implicated here. 

We conclude that the Lands Commission properly elected to prepare a 

supplemental EIR, did not err in refusing to assume lead agency status, and did not 

unlawfully piecemeal or segment environmental review. 

1

 Further undesignated statutory references are to the Public Resources Code.
3

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Project Site and Lease Amendment

The subject site consists of approximately 11.78 acres including tide and 

submerged lands in the Pacific Ocean offshore of Huntington Beach. In 1957, the Lands 

Commission2 authorized a 49-year lease to Southern California Edison for the 

construction of pipelines for a “once-through” cooling system.

3

 In 1998, the Lands 

Commission approved the assignment of the lease from Southern California Edison to 

AES Huntington Beach, LLC (AES). The Lands Commission subsequently authorized 

the lease with AES to span a 20-year term, expiring on August 7, 2026. 

Project Background

Poseidon has been seeking to establish a desalination plant on the subject site 

since 1999. The purpose of the proposed project is to provide Orange County with a 

“long-term, reliable, high-quality, and local source of potable water.” “Project 

implementation would create a local drought-proof supply of domestic water and could 

reduce Orange County’s dependence on imported water, consistent with the goal of 

integrated water resource management.” 

2

 The Lands Commission “has exclusive jurisdiction over all ungranted tidelands and 

submerged lands owned by the State, and of the beds of navigable rivers, streams, lakes, 

bays, estuaries, inlets, and straits, including tidelands and submerged lands or any interest 

therein, whether within or beyond the boundaries of the State as established by law . . . . 

All jurisdiction and authority remaining in the State as to tidelands and submerged lands 

as to which grants have been or may be made is vested in the commission. [¶] The 

commission shall exclusively administer and control all such lands, and may lease or 

otherwise dispose of such lands, as provided by law, upon such terms and for such 

consideration, if any, as are determined by it.” (§ 6301.)

3

 The once-through cooling system draws seawater from the Pacific Ocean through an 

intake pipeline, circulates the seawater through the upland generating station for cooling 

purposes, and then discharges the seawater back into the ocean. 
4

Poseidon applied to Huntington Beach to obtain land use approvals to construct 

and operate a desalination facility. The proposed desalination plant would have the 

capacity to deliver approximately 50 million gallons per day of reverse osmosis 

desalinated water. The desalinated water would be distributed to Huntington Beach and 

various cities and local water districts for use and consumption by Orange County 

residents and businesses. 

Originally, the desalination plant was to obtain source seawater from the adjacent 

AES Huntington Beach Generating Station (HBGS). According to the 2010 subsequent 

EIR prepared by Huntington Beach as lead agency, the “source water for the proposed 

seawater desalination facility will be taken from the existing HBGS condenser coolingseawater discharge pipeline system after the water has been used by HBGS for cooling. 

However, if in the future HBGS were to cease the use of once-through cooling, or if the 

HBGS were to permanently alter its cooling water system’s historical operations, the 

proposed seawater desalination facility would intake water directly from the Pacific 

Ocean via the existing HBGS intake pipe. In either case, and in order to protect the 

marine environment, 50 [million gallons per day] of concentrated seawater would reenter 

the Pacific Ocean via the existing HBGS discharge pipe after blending with additional 

intake water to be used for dilution.” Thus, according to the 2010 subsequent EIR, “[a] 

key advantage of the selected site is to utilize existing ocean intake/discharge lines of 

sufficient seawater volume to avoid the impact of constructing new ocean 

intake/discharge facilities.” 

In addition to the desalination plant itself, the project as proposed in 2010 “also 

consists of the construction and operations of off-site improvements, including water 

delivery pipeline (new pipeline and/or replacement of portions of existing pipeline)

underground booster pump stations, and modifications to an existing booster pump 

station, all of which will be utilized by [Poseidon] to deliver desalinated seawater to 

Orange County retail water purveyors.” 
5

2005 EIR and 2010 Subsequent EIR

In 2005, Huntington Beach as lead agency certified an EIR. In 2006, Huntington 

Beach granted the project’s conditional use permit and coastal development permit. 

However, the project was not built.

Subsequently, Poseidon submitted a modified application to Huntington Beach, 

and Huntington Beach evaluated co-located, stand-alone operations and onshore facility 

and distribution pipeline revisions. Huntington Beach, as lead agency, prepared a 

subsequent EIR in 2010 as a result of changed circumstances and the development of new 

information. Huntington Beach certified the subsequent EIR in September 2010. 

Thereafter, no legal challenges were made to the 2010 subsequent EIR.

Once again, however, the project did not move forward. And, again, 

circumstances changed, including regulatory changes.

2015 Desalination Amendment

In 2015, the State Water Resources Control Board amended its Water Quality 

Control Plan for the Ocean Waters of California (Ocean Plan).

4

 The Ocean Plan 

addressed implementation provisions for desalination facilities (Desalination 

Amendment). (Cal. Code Regs., tit. 23, § 3009.) Goals of the Desalination Amendment 

were to “Provide a consistent statewide approach for minimizing intake and mortality of 

marine life, protecting water quality, and related beneficial uses of ocean waters.” 

The Ocean Plan required that the regional water quality control board conduct a 

Water Code section 13142.5, subdivision (b), analysis of all new and expanded 

desalination facilities.5In conducting this review, the regional water quality control 

4

 The trial Court granted Poseidon’s request that it take judicial notice of the Ocean Plan. 

5

 Water Code section 13142.5, subdivision (b), provides: “For each new or expanded 

coastal powerplant or other industrial installation using seawater for cooling, heating, or 
6

board “shall first analyze separately as independent considerations a range of feasible 

alternatives for the best available site, the best available design, the best available 

technology, and the best available mitigation measures to minimize intake and mortality 

of all forms of marine life. Then, the regional water board shall consider all four factors 

collectively and determine the best combination of feasible alternatives to minimize 

intake and mortality of all forms of marine life.” Additionally, in performing that review, 

the Desalination Amendment required the regional water quality control board to 

“consult with other state agencies involved in the permitting of that facility, including, 

but not limited to: California Coastal Commission, [the Lands Commission], and 

California Department of Fish and Wildlife. The regional water board shall consider 

project-specific decisions made by other state agencies; however, the regional water 

board is not limited to project-specific requirements set forth by other agencies and may 

include additional requirements in a Water Code section 13142.5(b) determination.” 

The Desalination Amendment provided that the regional water quality control 

board “shall require that the owner or operator evaluate a reasonable range of nearby 

sites, including sites that would likely support subsurface intakes.”6

The regional water quality control board, in consultation with the State Water 

Quality Control Board, “shall require subsurface intakes unless it determines that 

subsurface intakes are not feasible” based on specified considerations. If the regional 

water quality control board determines that subsurface intakes are not feasible and 

surface water intakes are proposed instead, the regional water quality control board must 

industrial processing, the best available site, design, technology, and mitigation measures 

feasible shall be used to minimize the intake and mortality of all forms of marine life.”

6

 The Ocean Plan defined “subsurface intake” as “an intake withdrawing seawater from 

the area beneath the ocean floor or beneath the surface of the earth inland from the 

ocean.” Surface water intakes, by contrast, draw ocean water from the open ocean above 

the ocean floor.
7

analyze potential designs for such intakes to minimize intake and mortality. In the event 

that subsurface intakes are not feasible, the regional water quality control board may 

approve surface water intakes subject to the condition, among others, that the surface 

intakes are screened with a one millimeter or smaller slot size screen or an alternative 

method if it is even more effective in avoiding intake and mortality.

The Desalination Amendment also provided that the preferred method for 

minimizing intake and mortality with regard to brine discharge was to commingle brine

with wastewater, matching the salinity of the receiving water.7 “Multiport diffusers are 

the next best method for disposing of brine when the brine cannot be diluted by 

wastewater and when there are no live organisms in the discharge.” (Asterisks omitted.) 

Multiport diffusers “are linear structures consisting of spaced ports or nozzles that are 

installed on submerged marine outfalls. . . . [M]ultiport diffusers discharge brine waste 

into an ambient receiving water body and enable rapid mixing, dispersal, and dilution of 

brine within a relatively small area.” 

Poseidon’s Proposed Changes to the Project

In 2010, the Lands Commission approved the amendment of the lease to include 

Poseidon as a co-lessee. 

In 2016 and again in 2017, Poseidon, by proposed Lease Modification Project,

sought to amend its lease. Poseidon sought to amend to “[i]nstall four 1-millimeter 

wedgewire screens with a through-screen velocity of 0.5 feet per second or less on the 

offshore end of the seawater intake pipeline about 1,650 feet offshore to reduce 

entrainment and impingement to de minimis levels,”8to “[i]nstall a multiport duckbill 

7

 Brine “is the byproduct of desalinated water having a salinity concentration greater 

than a desalination facility’s intake source water.” 

8

 Impingement occurs when marine organisms are trapped against screens or other 

system components and die. Entrainment occurs when smaller marine organisms, such as 
8

diffuser on the offshore end of the discharge pipeline about 1,500 feet offshore to 

enhance brine mixing with seawater,” and to “[r]educe seawater intake volume . . . to 

106.7 [million gallons per day] (approximately 30 percent less source water than the 152 

[million gallons per day] volume approved by the [Lands] Commission in 2010).” 

In 2017, Poseidon further amended its Lease Modification Project application to 

the Lands Commission, this time to include a three-port brine diffuser rather than the 

previously proposed brine diffuser. Poseidon also proposed to install stainless steel 

wedgewire screens instead of copper nickel alloy screens. 

The 2016 and 2017 amendments did not include proposed changes to the project’s 

distribution system. 

Actions to be Undertaken by Other Agencies

On October 3, 2016, the Lands Commission, the Santa Ana Regional Water 

Quality Control Board (Regional Water Board), and the California Coastal Commission 

entered into an interagency permit sequencing framework agreement. Under the 

agreement, the Lands Commission agreed to consider the project “in connection with the 

proposed amendment first at a properly noticed, public meeting.” “Consistent with the 

requirements of [CEQA], the . . . Lands Commission shall rely on the 2010 . . . 

Huntington Beach certified Subsequent [EIR] as well as prepare any additional 

environmental analysis required by CEQA in connection with its consideration of the 

Poseidon Project. The CEQA environmental analysis will be sufficient to address 

Poseidon’s proposed seawater intake and discharge technology modifications to the 

Project. The . . . Lands Commission will reasonably consider any comments by the 

Coastal Commission and the [Regional Water Board] regarding the CEQA analysis 

conducted by the . . . Lands Commission staff and will seek to obtain from each agency a 

fish larvae, are taken in through the pipeline system and mechanical systems, temperature 

increases, or toxic stress destroy all or most of the organisms. 
9

sufficient description of the CEQA analysis of the proposed seawater intake and 

discharge technology modifications to the Project that these agencies deem necessary for 

them to rely on the . . . Lands Commission’s certified CEQA analysis.” The Regional 

Water Board agreed to then consider Poseidon’s application for a National Pollutant 

Discharge Elimination System (NPDES) permit and perform a Water Code section 

13142, subdivision (b), compliance determination. The agreement further provided, “As 

a CEQA Responsible Agency, the Regional Board shall consult, as necessary, with the 

. . . Lands Commission regarding the areas of CEQA analysis it may require on 

Poseidon’s proposed seawater intake and discharge technology modifications prior to the 

release by the . . . Lands Commission of the CEQA analysis for public comment, and the 

Regional Board agrees that, except as otherwise required by CEQA, in developing its 

draft Tentative Order it can rely on the 2010 . . . Huntington Beach certified Subsequent 

[EIR] in combination with CEQA analysis prepared and approved by the . . . Lands 

Commission in its evaluation of Poseidon’s proposed seawater intake and discharge 

technology modifications for the purposes of complying with CEQA.” Finally, the 

Coastal Commission would consider Poseidon’s coastal development permit application. 

2017 Supplemental EIR

The Lands Commission, as responsible agency, determined that the “proposed 

Lease Modification Project may involve new significant environmental effects or a 

substantial increase in the severity of previously identified significant impacts”; that the 

“2010 [subsequent EIR], which was the subject of several levels of environmental review 

through 2010, retains ‘relevance’ in light of the proposed modifications . . . and continues 

to have ‘informational value’ consistent with the California Supreme Court’s ruling in 

Friends of the College of San Mateo Gardens v. San Mateo Community College District 

(2016) 1 Cal.5th 937 [(San Mateo Gardens)]”; and that only “minor additions or changes

would be necessary to make the previous EIR adequately apply to the project in the 

changed circumstances.” (Italics added.) The Lands Commission therefore determined 
10

that, pursuant to California Code of Regulations, title 14, section 15163, it would prepare 

a supplemental EIR “to evaluate the potential significant impacts associated with the 

Lease Modification Project.” 9

The Lands Commission completed a draft supplemental EIR dated May 2017. A 

public hearing was conducted in June 2017. In October 2017, the Lands Commission 

issued a final supplemental EIR consisting of 2,816 pages. 

The 2017 supplemental EIR stated: “The current ‘project’ or proposed lease 

amendment analyzed in this Supplemental EIR would modify the offshore components of 

a seawater desalination facility that . . . Huntington Beach, as CEQA lead agency, 

approved in September 2010. The [Lands] Commission subsequently approved an 

amendment to [the] lease ... that granted Poseidon a vested right[10]to use existing 

subsea seawater intake and discharge pipelines during desalination operations at the Cityapproved desalination plant through August 7, 2026 [citation]; from the [Land] 

Commission’s perspective, its 2010 action continues to authorize desalination operations 

on the lease premises under the terms of the lease even though [Poseidon] has not, to 

date, received all permits needed to operate. The [Land] Commission’s only 

consideration is the proposed modifications to the approved lease, not the larger 

desalination plant project approved in 2010. Pursuant to . . . CEQA Guidelines section 

15163, subdivision (e), before the [Lands] Commission can act on the new lease 

amendment, the [Lands] Commission must consider the Final Subsequent EIR approved 

9

 Regulatory guidelines for CEQA, promulgated by the state Natural Resources Agency, 

appear at California Code of Regulations, title 14, section 15000 et seq. (hereafter, in 

text, CEQA Guidelines).

10

 The parties refer to, and disagree about the status and significance of, any ongoing 

vested right Poseidon has to construct the project. We reach the same conclusion as did 

the trial court that this discussion has no relevance to the determinations we must make 

here.
11

by . . . Huntington Beach in 2010 ..., as revised by this Supplemental EIR, and must, 

pursuant to . . . CEQA Guidelines section 15091, make a finding for each significant 

effect shown in the previous EIR as revised for the portion of the project within the 

[Lands] Commission’s jurisdiction.” (Italics added.)

With regard to its purpose and scope, the 2017 supplemental EIR stated: “The 

purpose of this Supplemental EIR is to identify the potential significant impacts on the 

environment from the Lease Modification Project, to identify alternatives that would

reduce the significant effects of this project, and to indicate the manner in which those

significant effects could be mitigated or avoided [citation]. This Supplemental EIR is 

intended to provide the [Lands Commission] with information required to exercise its 

jurisdictional responsibilities with respect to the Lease Modification Project . . . . The 

scope of this Supplemental EIR is limited to evaluating the changes to the 2010 lease and 

the incremental effects of those modifications, and should be read in conjunction with the 

2010 [subsequent EIR]. The onshore facilities (which the City approved in 2010) are not 

included in this analysis.” (Italics added.) That section continued: “A fundamental 

consideration in identifying potential significant impacts is establishing the appropriate 

baseline for the Supplemental EIR analysis. Impacts are identified by comparing changes 

to the environment caused by Poseidon’s proposed Lease Modification Project activities 

with the environmental conditions associated with the offshore portions of the intake and 

discharge facilities analyzed in the 2010 [subsequent EIR]. Use of an appropriate 

baseline is also important for establishing alternatives to the proposed activities that can 

be analyzed in the Supplemental EIR. The alternatives need to be capable of reducing or 

avoiding one or more significant impacts of the Lease Modification Project, but do not 

need to address impacts associated with baseline conditions. The [Lands Commission] 

must identify which components of a project are known or reasonably foreseeable; if it 

finds that a particular impact is too speculative for evaluation, the [Lands Commission] 

should note its conclusion and terminate discussion of the impact.” 
12

In the Project Description, the supplemental EIR again stated: “This Supplemental 

EIR addresses only the Lease Modification Project (i.e., the proposed modifications to 

the approved 2010 Project that lie offshore within the [lease] footprint) which includes 

one operational change and two physical modifications offshore intended to address 

Santa Ana [Regional Water Quality Control Board] and [California Coastal Commission]

policies and regulations.” Again, the changes were the reduced intake of seawater, and 

the installation of wedgewire screens and multiport diffusers “if the Santa Ana [Regional 

Water Quality Control Board], pursuant to Water Code section 13142.5, subdivision (b), 

determines subsurface intakes are not feasible, and brine cannot be diluted by wastewater 

and there are no live organisms in the discharge—consistent with 2015 Ocean Plan 

Desalination Amendment.” 

The 2017 supplemental EIR incorporated by reference the 2010 final subsequent 

EIR prepared by Huntington Beach. 

The 2017 supplemental EIR further specified, “In 2013, after certification of the 

2010 [subsequent EIR], two Independent Scientific and Technical Advisory Panels 

(ISTAP[]) conducted a review of the feasibility of subsurface intake options for the 

Huntington Beach Desalination Plant. The ISTAP completed a more detailed analysis of 

an offshore Subsurface Infiltration Gallery, which was eliminated from further 

consideration as an intake alternative in the 2010 [subsequent EIR]. The ISTAP findings 

were considered in determining whether a Subsurface Infiltration Gallery should be 

evaluated in this Supplemental EIR. Ultimately, it was eliminated from 

consideration . . . .” 

Alternatives actually evaluated in the 2017 supplemental EIR included a noproject alternative, a rotating brush-cleaned stainless steel screen alternative, coppernickel alloy stationary wedgewire screens, and a six-port diffuser alternative. The Lands 

Commission concluded that the “lease Modification Project with the Rotating BrushCleaned, Stainless Steel Wedgewire Screens Alternative is the Environmentally 
13

Superior Alternative.” The Lease Modification Project incorporated the modification 

including rotating brush-cleaned stainless steel wedgewire screen manifolds with one 

millimeter spacing at the end of the existing seawater intake pipeline. 

Public Hearing & Statement of Findings and Overriding Considerations

On October 19, 2017, the Lands Commission held a public hearing. Among other 

things, a representative of the Orange County Water District (OCWD) stated at the 

hearing: “At this point in time, the district does not required [sic] changes to the 

distribution system as studied in . . . Huntington Beach’s 2010 supplemental [sic] EIR.[11] 

A final decision on integrating the desalinated water will come after the project has 

received all of its permits, and based on those results, the district concludes the project is 

technically and economically feasible.” 

In a Statement of Findings and Overriding Considerations, the Lands Commission

stated: “The Commission has balanced the benefits of the Recommended Lease 

Modification Project against the significant and unavoidable impacts that will remain 

after selection of the approved project and with implementation of all feasible mitigation 

in the Supplemental EIR that is adopted as enforceable conditions of the Commission’s

approval of the lease amendment. Based on all available information, the Commission

finds that the benefits of the approved Recommended Lease Modification Project

outweigh the significant and unavoidable adverse environmental effects, and considers

such effects acceptable. The Commission adopts and makes this Statement of Overriding 

Considerations with respect to the impacts identified in the Supplemental EIR and these 

Findings that cannot be reduced to a less-than-significant level. Each benefit set forth 

above or described below constitutes an overriding consideration warranting approval of 

the project, independent of the other benefits, despite each and every significant 

11

 The 2010 final EIR prepared by Huntington Beach was a subsequent EIR (Cal. Code 

Regs., tit. 14, § 15162), not a supplemental EIR (Cal. Code Regs., tit. 14, § 15163).
14

unavoidable impact.” The Lands Commission concluded: “The Commission has 

considered the Final Supplemental EIR and all environmental impacts described therein 

including those that cannot be mitigated to a less-than-significant level and those that 

may affect Public Trust uses of State sovereign land. The Commission has considered 

the[] economic, legal, social, environmental, and technological benefits of the 

Recommended Lease Modification Project and has balanced them against the project’s 

significant and unavoidable adverse environmental impacts and, based upon substantial 

evidence in the record, has determined that the project’s benefits outweigh the adverse 

environmental effects. Based on the foregoing and pursuant to . . . section 21081 and . . . 

CEQA Guidelines section 15093, the Commission finds that the remaining significant 

and unavoidable impacts of the Recommended Lease Modification Project are acceptable 

considering the project’s economic, legal, social, environmental, and technical benefits. 

Such benefits outweigh such significant and unavoidable impacts of the Recommended 

Lease Modification Project and provide the substantive and legal basis for this Statement 

of Overriding Considerations. [¶] The Commission finds that to the extent that any 

impacts identified in the Final Supplemental EIR remain unmitigated, mitigation 

measures have been required to the extent feasible, although the impacts could not be 

reduced to a less-than-significant level. [¶] Based on the above discussion, the 

Commission finds that the benefits of the Recommended Lease Modification Project 

outweigh the significant and unavoidable impacts that could remain even after mitigation 

is applied and considers such impacts acceptable.” 

The Lands Commission approved the recommendation to certify the supplemental 

EIR. 

Petition for Writ of Mandate

Plaintiffs filed a petition for a writ of mandate asserting the Lands Commission

failed to comply with the requirements of CEQA in certifying the final 2017
15

supplemental EIR and in approving the lease amendment.12 Plaintiffs asserted that the 

Lands Commission violated CEQA Guidelines, specifically CEQA Guidelines section 

15052, subdivision (a), by failing to assume the role of lead agency in undertaking 

additional CEQA review. They further asserted that the Lands Commission violated 

CEQA Guidelines sections 15162 and 15163 by purportedly “ignoring its requirement to 

conduct a Subsequent EIR rather than a Supplemental EIR.” Plaintiffs asserted that, in 

light of substantial changes proposed for the project, substantial changes to the 

surrounding circumstances, and new information of substantial importance, the Lands 

Commission should have performed a full EIR as lead agency. According to plaintiffs, 

the manner in which the Lands Commission proceeded led to unlawful segmentation of 

the environmental review process in violation of CEQA. They asserted that this 

piecemeal approach is precisely what CEQA seeks to avoid, and it undermines the 

public’s ability to obtain a fully informed evaluation of the project. Plaintiffs maintained 

that the Lands Commission’s failure to satisfy its CEQA obligations constituted a 

prejudicial abuse of discretion. 

Trial Court’s Judgment Denying Writ Petition

The trial court denied the writ petition in its entirety. We need not go into detail 

concerning the trial court’s determinations. “An appellate court’s review of the 

administrative record for legal error and substantial evidence in a CEQA case, as in other 

mandamus cases, is the same as the trial court’s: The appellate court reviews the 

agency’s action, not the trial court’s decision; in that sense appellate judicial review 

under CEQA is de novo.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City 

of Rancho Cordova (2007) 40 Cal. 4th 412, 427 (Vineyard Area Citizens).) 

12

 Plaintiffs also raised claims addressed to the Public Trust Doctrine. Because those 

claims are not at issue on this appeal, we do not discuss them here.
16

DISCUSSION

I. CEQA Framework and Standard of Review

Through CEQA, “ ‘the Legislature sought to protect the environment by the 

establishment of administrative procedures drafted to “[e]nsure that the long-term 

protection of the environment shall be the guiding criterion in public decisions.” ’

[Citation.] At the ‘heart of CEQA’ [citation] is the requirement that public agencies 

prepare an EIR for any ‘project’ that ‘may have a significant effect on the environment.’ 

[Citations.] The purpose of the EIR is ‘to provide public agencies and the public in 

general with detailed information about the effect which a proposed project is likely to 

have on the environment; to list ways in which the significant effects of such a project 

might be minimized; and to indicate alternatives to such a project.’ [Citation.] The EIR 

thus works to ‘inform the public and its responsible officials of the environmental 

consequences of their decisions before they are made,’ thereby protecting ‘ “not only the 

environment but also informed self-government.” ’ ” (San Mateo Gardens, supra, 1 

Cal.5th at p. 944.)

“To ensure that governmental agencies and the public are adequately informed 

about the environmental impact of public decisions, [CEQA] [citation] requires a lead 

agency [citation] to prepare an [EIR] before approving a new project that ‘may have a 

significant effect on the environment.’ ” (San Mateo Gardens, supra, 1 Cal.5th at 

p. 943.) “ ‘Lead agency’ means the public agency which has the principal responsibility 

for carrying out or approving a project. The lead agency will decide whether an EIR or 

negative declaration will be required for the project and will cause the document to be 

prepared.” (Cal. Code Regs., tit. 14, § 15367; accord, § 21067.)

“ ‘Responsible agency’ means a public agency which proposes to carry out or 

approve a project, for which a lead agency is preparing or has prepared an EIR or 

negative declaration. For the purposes of CEQA, the term ‘responsible agency’ includes 

all public agencies other than the lead agency which have discretionary approval power 
17

over the project.” (Cal. Code Regs., tit. 14, § 15381; accord, § 21069.) “Alternatively 

stated, ‘[r]esponsible agencies are agencies, other than the lead agency, that have some 

discretionary authority for carrying out or approving a project. [Citation.] Responsible 

agencies generally rely on the information in the CEQA document prepared by the lead 

agency [e.g., an EIR] and ordinarily are not allowed to prepare a separate EIR or negative 

declaration. [Citations.] Further, while the lead agency is responsible for considering all 

environmental impacts of the project before approving it, a responsible agency has a 

more specific charge: to consider only those aspects of a project that are subject to the 

responsible agency’s jurisdiction.’ ” (RiverWatch v. Olivenhain Municipal Water Dist.

(2009) 170 Cal.App.4th 1186, 1201.)

We review an agency’s CEQA determination for prejudicial abuse of discretion. 

(Vineyard Area Citizens, supra, 40 Cal.4th at p. 426; § 21168.5.) “ ‘[A]n agency may 

abuse its discretion under CEQA either by failing to proceed in the manner CEQA 

provides or by reaching factual conclusions unsupported by substantial evidence. 

[Citation.] Judicial review of these two types of error differs significantly: While we 

determine de novo whether the agency has employed the correct procedures, 

“scrupulously enforc[ing] all legislatively mandated CEQA requirements” [citation], we 

accord greater deference to the agency’s substantive factual conclusions. In reviewing 

for substantial evidence, the reviewing court “may not set aside an agency’s approval of 

an EIR on the ground that an opposite conclusion would have been equally or more 

reasonable,” for, on factual questions, our task “is not to weigh conflicting evidence and 

determine who has the better argument.” ’ ” (Banning Ranch Conservancy v. City of 

Newport Beach (2017) 2 Cal.5th 918, 935 (Banning Ranch).)

II. Substantial Evidence Supporting the Decision to Prepare a Supplemental EIR

A. Parties’ Contentions

The Lands Commission asserts that plaintiffs are attempting to reframe the

relevant issues in order to invoke a more favorable standard of review. The Lands 
18

Commission asserts that the issue is not whether it should have stepped into the role of 

lead agency or whether the environmental review was improperly piecemealed. Rather, 

according to the Lands Commission, the issue is whether substantial evidence supported 

its determination to proceed by supplemental EIR. The Lands Commission and Poseidon

assert that substantial evidence supports the Land Commission’s analysis of the lease 

modification using its supplemental EIR coupled with Huntington Beach’s 2010 

subsequent EIR. The Lands Commission asserts that it determined: (1) the 2010 

subsequent EIR retained informational value, and (2) it was appropriate to rely on a 

supplemental EIR to analyze the changes to the project and approve the proposed 

modifications. The Lands Commission further asserts that its determinations were 

supported by substantial evidence, and that plaintiffs failed to show any prejudice 

resulting from its actions. 

In order to address plaintiffs’ contentions as to whether the Lands Commission 

was required to assume the role of lead agency, as well as to provide necessary context 

for a discussion of piecemealing, it is necessary to consider the various types of 

subsequent environmental review under CEQA and whether the Lands Commission 

properly proceeded via supplemental EIR instead of a subsequent EIR.

B. CEQA Subsequent and Supplemental Review

1. Subsequent Review Generally and “Subsequent” EIRs

“When an [EIR] has been prepared for a project pursuant to [CEQA], no 

subsequent or supplemental [EIR] shall be required by the lead agency or by any 

responsible agency, unless one or more of the following events occurs: [¶] (a) 

Substantial changes are proposed in the project which will require major revisions of the 

[EIR]. [¶] (b) Substantial changes occur with respect to the circumstances under which 

the project is being undertaken which will require major revisions in the [EIR]. [¶] (c) 

New information, which was not known and could not have been known at the time the 
19

[EIR] was certified as complete, becomes available.” (§ 21166, italics added; accord,

San Mateo Gardens, supra, 1 Cal.5th at p. 943.)

CEQA Guidelines section 15162, subdivision (a), applicable specifically to 

subsequent EIRs, provides: “When an EIR has been certified or a negative declaration 

adopted for a project, no subsequent EIR shall be prepared for that project unless the lead 

agency determines, on the basis of substantial evidence in the light of the whole record, 

one or more of the following: [¶] (1) Substantial changes are proposed in the project 

which will require major revisions of the previous EIR or negative declaration due to the 

involvement of new significant environmental effects or a substantial increase in the 

severity of previously identified significant effects; [¶] (2) Substantial changes occur 

with respect to the circumstances under which the project is undertaken which will 

require major revisions of the previous EIR or negative declaration due to the 

involvement of new significant, environmental effects or a substantial increase in the 

severity of previously identified significant effects; or [¶] (3) New information of 

substantial importance, which was not known and could not have been known with the 

exercise of reasonable diligence at the time the previous EIR was certified as complete or 

the negative declaration was adopted, shows any of the following: [¶] (A) The project 

will have one or more significant effects not discussed in the previous EIR or negative 

declaration; [¶] (B) Significant effects previously examined will be substantially more 

severe than shown in the previous EIR; [¶] (C) Mitigation measures or alternatives 

previously found not to be feasible would in fact be feasible and would substantially 

reduce one or more significant effects of the project, but the project proponents decline to 

adopt the mitigation measure or alternative; or [¶] (D) Mitigation measures or 

alternatives which are considerably different from those analyzed in the previous EIR 

would substantially reduce one or more significant effects on the environment, but the 

project proponents decline to adopt the mitigation measure or alternative.” 
20

Subdivision (c) of CEQA Guidelines section 15162 provides: “Once a project has 

been approved, the lead agency’s role in project approval is completed, unless further 

discretionary approval on that project is required. Information appearing after an 

approval does not require reopening of that approval. If after the project is approved, any 

of the conditions described in subdivision (a) occurs, a subsequent EIR or negative 

declaration shall only be prepared by the public agency which grants the next 

discretionary approval for the project, if any. In this situation no other responsible 

agency shall grant an approval for the project until the subsequent EIR has been certified 

or subsequent negative declaration adopted.”

Our high court examined the subsequent review process in depth in San Mateo 

Gardens, supra, 1 Cal.5th 937. The court explained: “when an agency proposes changes 

to a previously approved project, CEQA Guidelines section 15162 generally prohibits the 

agency from requiring a subsequent or supplemental EIR unless the agency determines, 

‘on the basis of substantial evidence in the light of the whole record,’ that ‘[s]ubstantial 

changes . . . will require major revisions of the previous EIR or negative declaration due 

to the involvement of new significant environmental effects or a substantial increase in 

the severity of previously identified significant effects.’ ” (Id. at p. 957, quoting Cal. 

Code Regs., tit. 14, § 15162, subd. (a).) “[T]he substantial evidence test referred to in the 

Guidelines does not . . . refer to substantial evidence that the project, as modified, will 

necessarily have significant environmental effects. It instead refers to substantial 

evidence that the proposed modifications will involve ‘[s]ubstantial changes’ that ‘require 

major revisions of the previous EIR or negative declaration due to the involvement’ of 

new or significantly more severe environmental effects.” (San Mateo Gardens, at p. 957, 

quoting Cal. Code Regs., tit. 14, § 15162, subd. (a).)

Our high court further noted the limitations in section 21166 and CEQA 

Guidelines section 15162 concerning the limited circumstances under which subsequent 

review must be prepared “are designed to balance CEQA’s central purpose of promoting 
21

consideration of the environmental consequences of public decisions with interests in 

finality and efficiency.” (San Mateo Gardens, supra, 1 Cal.5th at p. 949.) “ ‘The 

purpose behind the requirement of a subsequent or supplemental EIR . . . is to explore 

environmental impacts not considered in the original environmental document . . . . The 

event of a change in a project is not an occasion to revisit environmental concerns laid to 

rest in the original analysis. Only changed circumstances . . . are at issue.’ ” (Ibid.) “ ‘In 

a case in which an initial EIR has been certified, section 21166 comes into play precisely 

because in-depth review of the project has already occurred, the time for challenging the 

sufficiency of the original CEQA document has long since expired, and the question 

before the agency is whether circumstances have changed enough to justify repeating a 

substantial portion of the process.’ ” (San Mateo Gardens, at p. 956.)

The San Mateo Gardens court further explained: “The subsequent review 

provisions . . . are . . . designed to ensure that an agency that proposes changes to a 

previously approved project ‘explore[s] environmental impacts not considered in the 

original environmental document.’ ” (San Mateo Gardens, supra, 1 Cal.5th at p. 951.) 

“This assumes that at least some of the environmental impacts of the modified project 

were considered in the original environmental document, such that the original document 

retains some relevance to the ongoing decisionmaking process. A decision to proceed 

under CEQA’s subsequent review provisions must thus necessarily rest on a 

determination—whether implicit or explicit—that the original environmental document 

retains some informational value. If the proposed changes render the previous 

environmental document wholly irrelevant to the decisionmaking process, then it is only 

logical that the agency start from the beginning under section 21151 by conducting an 

initial study to determine whether the project may have substantial effects on the 

environment.” (San Mateo Gardens, at p. 951.) 

Thus, “under CEQA, when there is a change in plans, circumstances, or available 

information after a project has received initial approval, the agency’s environmental 
22

review obligations ‘turn[ ] on the value of the new information to the still pending 

decisionmaking process.’ [Citation.] If the original environmental document retains 

some informational value despite the proposed changes, then the agency proceeds to 

decide under CEQA’s subsequent review provisions whether project changes will require 

major revisions to the original environmental document because of the involvement of 

new, previously unconsidered significant environmental effects.” (San Mateo Gardens, 

supra, 1 Cal.5th at pp. 951-952, fns. omitted.) “[W]hether an initial environmental 

document remains relevant despite changed plans or circumstances—like the question 

whether an initial environmental document requires major revisions due to changed plans 

or circumstances—is a predominantly factual question. It is thus a question for the 

agency to answer in the first instance, drawing on its particular expertise. [Citation.] A 

court’s task on review is then to decide whether the agency’s determination is supported 

by substantial evidence; the court’s job ‘ “ ‘is not to weigh conflicting evidence and 

determine who has the better argument.’ ” ’ ” (Id. at pp. 952-953.) 

As for a reviewing court’s substantial evidence review, the San Mateo Gardens

court cautioned, “[w]e expect occasions when a court finds no substantial evidence to 

support an agency’s decision to proceed under CEQA’s subsequent review provisions 

will be rare, and rightly so; ‘a court should tread with extraordinary care’ before 

reversing an agency’s determination, whether implicit or explicit, that its initial 

environmental document retains some relevance to the decisionmaking process.” (San 

Mateo Gardens, supra, 1 Cal.5th at p. 953, fn. omitted.)

2. “Supplemental” Review Distinguished from “Subsequent” Review

CEQA Guidelines section 15163 provides, in pertinent part: “(a) The lead or 

responsible agency may choose to prepare a supplement to an EIR rather than a 

subsequent EIR if: [¶] (1) Any of the conditions described in Section 15162 would 

require the preparation of a subsequent EIR, and [¶] (2) Only minor additions or 

changes would be necessary to make the previous EIR adequately apply to the project in 
23

the changed situation. [¶] (b) The supplement to the EIR need contain only the 

information necessary to make the previous EIR adequate for the project as revised.” 

(Cal. Code Regs., tit. 14, § 15163, subds. (a), (b); see City of Irvine v. County of Orange

(2015) 238 Cal.App.4th 526, 539 (City of Irvine); City of San Jose v. Great Oaks Water 

Co. (1987) 192 Cal.App.3d 1005, 1016.)

Under CEQA Guidelines section 15163 “if there has been a substantial change, 

which would otherwise require a subsequent EIR under CEQA Guidelines section 15162, 

but ‘[o]nly minor additions or changes would be necessary to make the previous EIR 

adequately apply to the project in the changed situation,’ then the lead agency has the 

discretion (the key phrase is ‘may choose’) [citation] to prepare a supplemental EIR that 

‘need contain only the information necessary to make the previous EIR adequate for the 

project as revised.’ ” (City of Irvine, supra, 238 Cal.App.4th at p. 539.) Thus, CEQA 

Guidelines section 15163 applies when “an EIR can be made adequate by additions or 

changes that respond to a limited set of issues” whereas a subsequent EIR is necessary 

“[w]hen the previous EIR must be rewritten from the ground up to make its 

environmental analysis adequate.” (2 Kostka & Zischke, Practice Under the Cal. 

Environmental Quality Act (Cont.Ed.Bar 2d ed. 2019) § 19.5, p. 19-9.)13 “Regardless, 

the supplemental EIR must still be ‘given the same kind of notice and public review’ as 

an initial draft EIR.” (City of Irvine, at p. 539.)

C. Informational Value of the 2010 Subsequent EIR 

“If no action or proceeding alleging that an [EIR] does not comply with the 

provisions of [CEQA] is commenced during the period prescribed in subdivision (c) of 

13

 A third type of subsequent review, an addendum pursuant to CEQA Guidelines 

section 15164, is appropriate where some changes or additions to a previously certified 

EIR “are necessary but none of the conditions described in Section 15162 calling for 

preparation of a subsequent EIR have occurred.” (Cal. Code Regs., tit. 14, § 15164, 

subd. (a).) Addenda are not at issue here.
24

Section 21167, the [EIR] shall be conclusively presumed to comply with the provisions 

of [CEQA] for purposes of its use by responsible agencies, unless the provisions of 

Section 21166 are applicable.” (§ 21167.2.) Huntington Beach’s 2010 subsequent EIR 

was never challenged, and thus it was conclusively presumed to comply with CEQA for 

purposes of its use by the Lands Commission. (§ 21167.2.)

The Lands Commission determined that Huntington Beach’s “2010 subsequent 

EIR . . . retains ‘relevance’ in light of the proposed modifications to [the lease] and 

continues to have ‘informational value’ consistent with” San Mateo Gardens, supra, 1 

Cal.5th at pages 951 and 952. Based on the changes Poseidon sought to make through 

the Lease Modification Project, the Lands Commission further determined that only 

minor additions or changes would be needed to make the 2010 subsequent EIR 

adequately applicable to the project in the changed circumstances. (Cal. Code Regs., tit. 

14, § 15163, subds. (a)(2), (b).) Consequently, the Lands Commission determined that a 

supplemental EIR pursuant to CEQA Guidelines section 15163 would suffice.

The parties agree, [“no party has ever disputed that most of the certified 2010 EIR 

remains relevant”]; [“everyone agrees that the prior 2010 EIR prepared by . . . 

Huntington Beach retains substantial informational value . . . .”] as do we, that the 2010 

subsequent EIR retained “some informational value.” (San Mateo Gardens, supra, 1 

Cal.5th at pp. 951, 952.) Accordingly, the Lands Commission properly “proceed[ed] to 

decide under CEQA’s subsequent review provisions whether project changes will require 

major revisions to the original environmental document because of the involvement of 

new, previously unconsidered significant environmental effects.” (Id. at p. 952, fn. 

omitted.)

Having determined substantial evidence supports the decision to proceed under 

CEQA’s subsequent review provisions, “the next—and critical—step is to determine 

whether the agency has properly determined how to comply with its obligations under 

those provisions.” (San Mateo Gardens, supra, 1 Cal.5th at p. 953.)
25

D. The Decision to Prepare a Supplemental EIR

CEQA Guidelines section 15163’s “may choose” language provides discretion to 

choose between proceeding by way of supplemental EIR instead of subsequent EIR, and 

that choice is to be evaluated under a reasonableness standard. (City of Irvine, supra, 238 

Cal.App.4th at pp. 539-540.) The question of whether the Lands Commission acted 

reasonably in electing to proceed by way of a supplemental EIR is a fact-based inquiry

into whether its determination was supported by substantial evidence. It does not present 

a question as to whether the Lands Commission failed to proceed in the manner CEQA 

provides. (See generally Banning Ranch, supra, 2 Cal.5th at p. 935 [an “agency may 

abuse its discretion under CEQA either by failing to proceed in the manner CEQA 

provides or by reaching factual conclusions unsupported by substantial evidence”].)

“ ‘[S]ubstantial evidence’ is defined by the CEQA Guidelines to mean ‘enough 

relevant information and reasonable inferences from this information that a fair argument 

can be made to support a conclusion, even though other conclusions might also be 

reached.’ ” (Nelson v. County of Kern (2010) 190 Cal.App.4th 252, 282 (Nelson), 

quoting Cal. Code Regs., tit. 14, § 15384, subd. (a).) “Substantial evidence includes 

‘facts, reasonable assumptions predicated upon facts, and expert opinion supported by 

facts,’ but does not include ‘[a]rgument, speculation, unsubstantiated opinion or 

narrative, [or] evidence which is clearly erroneous or inaccurate.’ ” (Nelson, at p. 282, 

quoting Cal. Code Regs., tit. 14, § 15384, subds. (b), (a).)

The contemplated changes to the project, from the 2010 iteration to the 2017 

version, represented by the Lease Modification Project, were: (1) the installation of onemillimeter stainless steel wedgewire screens, (2) the installation of three-port diffusers to 

diffuse the brine as it reentered the ocean and mixed with seawater, and (3) a reduction in 

the seawater intake volume from 152 million gallons per day to 106.7 million gallons per 

day. These changes were responsive to provisions of the Desalination Amendment.
26

We conclude that substantial evidence supports the Land Commission’s 

determination that the foregoing changes, considered in the context of the project as a 

whole, would necessitate “[o]nly minor additions or changes . . . to make the previous 

EIR adequately apply to the project in the changed situation.” (Cal. Code Regs., tit. 14, 

§ 15163, subd. (a)(2).) Accordingly, we conclude that the Lands Commission did not 

prejudicially abuse its discretion in electing to proceed via supplemental EIR pursuant to 

CEQA Guidelines section 15163 as opposed to the more comprehensive subsequent EIR 

pursuant to CEQA Guidelines section 15162.

In fact, plaintiffs do not argue that it was a prejudicial abuse of discretion to 

proceed by supplemental EIR pursuant to CEQA Guidelines section 15163 instead of 

subsequent EIR pursuant to CEQA Guidelines section 15162, although they do seem to 

largely disregard any distinction between the two, as we discuss post. Rather, plaintiffs’

argument is that this election did not relieve the Lands Commission of its responsibility 

to assume the role of lead agency.

14

III. Assumption of Lead Agency Status

Plaintiffs assert that the Lands Commission erred in refusing to assume the role of

lead agency and perform the attendant obligations. Huntington Beach completed its 

14

 Poseidon repeatedly asserts that plaintiffs’ failure to set out substantial evidence 

supporting the Lands Commission’s determinations forfeits any substantial evidence 

arguments and that such failure is fatal to plaintiffs’ appeal. The Lands Commission 

echoes this contention. “ ‘ “As with all substantial evidence challenges, an appellant 

challenging an EIR for insufficient evidence must lay out the evidence favorable to the 

other side and show why it is lacking. Failure to do so is fatal. A reviewing court will 

not independently review the record to make up for appellant’s failure to carry his 

burden.” ’ ” (Citizens for Positive Growth & Preservation v. City of Sacramento (2019)

43 Cal.App.5th 609, 632 (Citizens for Positive Growth).) The Lands Commission also 

asserts that plaintiffs’ failure to address the substantial evidence question is fatal to their 

claims. In light of the manner in which plaintiffs have couched their claims, we address 

the merits of their contentions.
27

CEQA obligations in 2010. According to plaintiffs, when the original lead agency has 

completed its statutory obligations, but project changes or new information require 

additional environmental review, the next public agency to take discretionary action on 

the project, here the Lands Commission, “shall” step into the role of lead agency.

Plaintiffs argue that “[t]his mandatory shift in lead agency status is critical to ensuring 

that only a single updated EIR for the project is prepared, certified, and available for use 

by all other approving agencies and that the courts have a single updated EIR to review.” 

They further assert that “the lead agency role requires the preparation of a single updated 

EIR that adequately addresses all necessary facets of the project as a whole.” Plaintiffs 

assert that all requirements of CEQA Guidelines section 15052, subdivision (a),

governing assumption of lead agency status, were satisfied, thus requiring the Lands 

Commission to step in as lead agency. Plaintiffs assert that the Lands Commission’s 

refusal to do so was a legal error that resulted in the unlawful segmentation of the 

updated CEQA analysis. 

CEQA Guidelines section 15052, subdivision (a)(2), provides: “Where a 

responsible agency is called on to grant an approval for a project subject to CEQA for 

which another public agency was the appropriate lead agency, the responsible agency 

shall assume the role of the lead agency when any of the following conditions occur: [¶] 

. . . [¶] (2) The lead agency prepared environmental documents for the project, but the 

following conditions occur: [¶] (A) A subsequent EIR is required pursuant to Section 

15162, [¶] (B) The lead agency has granted a final approval for the project, and [¶] (C) 

The statute of limitations for challenging the lead agency’s action under CEQA has 

expired.” (Italics added.)

Contrary to plaintiffs’ contentions, CEQA Guidelines section 15052 did not 

mandate that the Lands Commission assume lead agency status under the circumstances 

presented here. As we have concluded, substantial evidence supported the Lands 

Commission’s election to prepare a supplemental EIR instead of a subsequent EIR
28

because the changes to the project would only necessitate “minor additions or changes

. . . to make the previous EIR adequately apply to the project in the changed situation.” 

(Cal. Code Regs., tit. 14, § 15163, subd. (a).) Because, under these circumstances, the 

Lands Commission could properly elect to proceed via supplemental EIR and forego 

preparing a subsequent EIR, one of the requirements of CEQA Guidelines section 15052, 

subdivision (a)(2), was not satisfied: that “[a] subsequent EIR is required pursuant to 

Section 15162.” (Cal. Code Regs., tit. 14, § 15052, subd. (a)(2)(A), italics added.) And 

because this requirement was not satisfied, the obligation imposed by CEQA Guidelines 

section 15052, subdivision (a)(2), that a former responsible agency step in as lead agency,

was inapplicable.

In their briefing, plaintiffs avoid the import of the regulatory language by 

paraphrasing critical segments rather than quoting it. Plaintiffs assert, for example, that 

CEQA Guidelines section 15052, subdivision (a), “command[s] that the next public 

agency to make a discretionary decision ‘shall assume the role of the Lead Agency’ when 

(i) additional CEQA review is necessary, (ii) the original lead agency has issued its final 

approval, and (iii) the statute of limitations for the original EIR has expired.” (Italics 

added.) Plaintiffs elsewhere assert that CEQA Guidelines sections 15162, subdivision 

(c), and 15052, subdivision (a)(2), establish that “when the original lead agency has 

completed its statutory duties, but project changes or new information require additional 

environmental review, the next public agency to take discretionary action on the project 

shall step into the role of the ‘lead agency.’ ” (Italics added.) However, in these

characterizations, plaintiffs omit the specific regulatory language concerning the 

requirement of a “subsequent EIR” (Cal. Code Regs., tit. 14, § 15052, subd. (a)(2)), a 

requirement we consider controlling here. Thus, plaintiffs’ assertion that “[a]ll three of 

the[] conditions” in CEQA Guidelines section 15052, subdivision (a)(2), are satisfied 

here is wrong. If the provision requiring a responsible agency to step in as lead agency 

was to apply to circumstances where only a supplemental EIR was required pursuant to 
29

CEQA Guidelines section 15163, CEQA Guidelines section 15052, subdivision (a)(2), 

would have so specified. 

Curiously, plaintiffs’ main argument on this point was relegated to a footnote. 

According to plaintiffs, “there is no dispute that the first condition listed in section 

15052(a) – ‘[a] subsequent EIR is required pursuant to Section 15162’ – is satisfied here. 

CEQA section 21166 identifies those circumstances that trigger the requirement for a 

‘subsequent or supplemental’ EIR.” The footnote continued: “An agency’s election to 

prepare a supplemental rather than a subsequent EIR, once the subsequent EIR 

requirement is triggered, does not abrogate its obligation to assume lead agency status 

for the whole project under section 15052(a). The substitute lead agency obligation 

applies whenever a subsequent EIR is required, and a subsequent EIR is always required 

before an agency elects to prepare a more limited supplemental EIR, as the Lands 

Commission did here. Thus, whether the next agency taking discretionary action labels 

its CEQA document a subsequent or supplemental EIR, it must assume lead agency status 

under section 15052(a) and complete a single, legally adequate analysis for the whole 

project.” (Italics added.)

We understand plaintiffs’ footnoted argument, but conclude it is wrong. Where 

the circumstances permit an agency to prepare a supplemental EIR rather than a 

subsequent EIR because, among other things, “[o]nly minor additions or changes would 

be necessary to make the previous EIR adequately apply to the project in the changed 

situation,” then a subsequent EIR necessarily is not required. Therefore, the predicate to 

CEQA Guidelines section 15052 that “[a] subsequent EIR is required pursuant to Section 

15162,” is not satisfied. (Cal. Code Regs., tit. 14, § 15052, subd. (a)(2)(A), italics 

added.) We do not read these regulations to mean, in effect, that a project with a changed 

situation that qualifies for treatment by a supplemental EIR also retains the quality of 

requiring a subsequent EIR because CEQA Guidelines section 15163, subdivision (a)(1),

conditions that subdivision’s applicability to circumstances where “[a]ny of the 
30

conditions described in Section 15162 would require the preparation of a subsequent 

EIR.” In other words, we do not agree with plaintiffs that, where a supplemental EIR is 

appropriate pursuant to CEQA Guidelines section 15163, a subsequent EIR is also 

required. Instead, we view the option to proceed by a supplement to the EIR where the 

required circumstances are present as an exception to the requirement for a subsequent 

EIR.

Our reading of CEQA Guidelines section 15052, subdivision (a), is buttressed by 

statutory and regulatory language indicating a supplemental EIR may be prepared by a

responsible agency. As we have noted, section 21166 provides in pertinent part: “When 

an [EIR] has been prepared for a project . . . , no subsequent or supplemental [EIR] shall 

be required by the lead or by any responsible agency” unless one of several triggering 

conditions occur. Thus, as the italicized language makes clear, a supplemental EIR can 

be prepared by a responsible agency. Consistent with the statutory language, subdivision 

(a) of CEQA Guidelines section 15163 expressly provides in pertinent part: “The lead or 

responsible agency may choose to prepare a supplement to an EIR rather than a 

subsequent EIR . . . .” (Italics added.) CEQA Guidelines section 15096(f), addressing 

the duties of a responsible agency, provides that a responsible agency can prepare a 

supplemental EIR as provided in section 15163. Thus, the statutory and regulatory 

language clearly contemplates that responsible agencies can prepare supplemental EIRs 

under the appropriate circumstances and need not assume the lead agency status to do so. 

Consequently, we disagree with plaintiffs’ assertion that “[a]n agency’s election to 

prepare a supplemental rather than a subsequent EIR, once the subsequent EIR 

requirement is triggered, does not abrogate its obligation to assume lead agency status for 

the whole project under section 15052(a).” Instead, we conclude that the regulations do 

exactly that. Where the election to prepare a supplemental EIR is proper, we conclude 

that the determination to do so does indeed remove the subsequent review from the scope 

of the CEQA Guidelines section 15052 requirement to step in as lead agency. We read 
31

CEQA Guidelines section 15052, subdivision (a)(2), to mean what it says, limiting its 

application to cases where, among other things, “[a] subsequent EIR is required pursuant 

to Section 15162.” (Cal. Code Regs., tit. 14, § 15052, subd. (a)(2)(A).) That is not the

case here. And we read subdivision (a) of CEQA Guidelines section 15163 allowing a 

responsible agency to proceed by a supplemental EIR to also mean what it says, thus, the 

Lands Commission did not violate CEQA by preparing the supplemental EIR without 

assuming lead agency status.

Plaintiffs assert that, notwithstanding its refusal to assume lead agency status, the 

Lands Commission nonetheless acted like a lead agency. Plaintiffs assert: “the 

Commission behaved like a CEQA lead agency in all other respects: It circulated a 

Notice of Preparation and held an initial CEQA scoping meeting [citation], issued a 

2,163-page Draft EIR for public review [citation], filed a Notice of Completion for the 

Draft EIR with the Office of Planning and Research [citation], accepted and responded to 

public and other agency comments [citation], produced a 2,181-page Final EIR [citation], 

issued a Notice of Availability and Intent to Consider Certification of the Final EIR 

[citation], held a final approval hearing where it made extensive CEQA Findings, 

certified the Final EIR, and adopted a Statement of Overriding Considerations for the 

Project’s significant and unavoidable impacts [citation], and filed a final Notice of 

Determination with the State Clearinghouse.” Contrary to plaintiffs’ argument, we 

conclude the Lands Commission acted like a responsible agency preparing a supplement 

to the EIR under CEQA Guidelines section 15163, subdivision (a). As a responsible 

agency, the Lands Commission’s actions fulfilled the requirement that “the supplemental 

EIR . . . be ‘given the same kind of notice and public review’ as an initial draft EIR.” 

(City of Irvine, supra, 238 Cal.App.4th at p. 539, fn. omitted, quoting Cal. Code Regs.,

tit. 14, § 15163, subd. (c).)

We conclude that the Lands Commission did not fail to proceed in the manner 

CEQA provides by declining to assume the role of lead agency.
32

IV. Unlawful Piecemealing/Segmentation Review

A. Asserted Improper Piecemealing

1. Plaintiffs’ Contentions

Plaintiffs assert that, in “cleaving off the ‘Lease Modification Project’ as a 

separate, discrete CEQA activity subject to a narrowly-drawn EIR, the Lands 

Commission acted contrary to decades of case law interpreting the statute and 

regulations.” Plaintiffs invoke the rule that CEQA forbids piecemeal review of 

significant environmental impacts of a project, and that the EIR must consider the 

individual and collective effects of all activities associated with a project. Plaintiffs 

further assert that an agency drafting an EIR cannot defer parts of the review to other 

agencies. According to plaintiffs, the Lands Commission’s failure to undertake EIR 

review beyond the limited scope actually performed, and the omission of analyses of, 

among other things, feasible alternatives, violated CEQA. We disagree.

2. Piecemealing Defined

“ ‘CEQA mandates that environmental considerations [do] not become submerged 

by chopping a large project into many little ones, each with a potential impact on the 

environment, which cumulatively may have disastrous consequences. [Citation.] CEQA 

attempts to avoid this result by defining the term “project” broadly. [Citation.] A project 

under CEQA is the whole of an action which has a potential for resulting in a physical 

change in the environment, directly or ultimately, and includes the activity which is being 

approved and which may be subject to several discretionary approvals by governmental 

agencies.’ ” (East Sacramento Partnerships for a Livable City v. City of Sacramento

(2016) 5 Cal.App.5th 281, 293 (East Sacramento).)

“The process of attempting to avoid a full environmental review by splitting a 

project into several smaller projects, which appear more innocuous than the total planned 

project, is referred to as ‘piecemealing.’ [Citation.] Our Supreme Court set forth the 

relevant standard: ‘We hold that an EIR must include an analysis of the environmental 
33

effects of future expansion or other action if: (1) it is a reasonably foreseeable 

consequence of the initial project; and (2) the future expansion or action will be 

significant in that it will likely change the scope or nature of the initial project or its 

environmental effects. Absent these two circumstances, the future expansion need not be 

considered in the EIR for the proposed project.’ ” (East Sacramento, supra, 5

Cal.App.5th at p. 293, quoting Laurel Heights Improvement Assn. v. Regents of 

University of California (1988) 47 Cal.3d 376, 396, italics added.)

“Improper piecemealing occurs ‘when the purpose of the reviewed project is to be 

the first step toward future development’ or ‘when the reviewed project legally compels 

or practically presumes completion of another action.’ [Citation.] By contrast, an EIR 

need not analyze ‘specific future action that is merely contemplated or a gleam in a 

planner’s eye. To do so would be inconsistent with the rule that mere feasibility and 

planning studies do not require an EIR.’ ” (East Sacramento, supra, 5 Cal.App.5th at 

p. 293.)

3. Analysis

a. Piecemealing 

Here, the Lands Commission determined that only a supplemental EIR pursuant to 

CEQA Guidelines section 15163 was required, a determination supported by substantial 

evidence as we concluded, ante. “A supplement to an EIR ‘need contain only the 

information necessary to make the previous EIR adequate for the . . . project as revised’

and ‘may be circulated by itself without recirculating the previous draft or final EIR.’ ”

(Melom v. City of Madera (2010) 183 Cal.App.4th 41, 57 (Melom), quoting Cal. Code 

Regs., tit. 14, § 15163, subds. (b) & (d); accord, City of Irvine, supra, 238 Cal.App.4th at 

p. 539.) The supplemental EIR here satisfied that requirement.

As we noted ante, the 2010 subsequent EIR prepared by Huntington Beach, which 

was never legally challenged, is conclusively presumed to comply with CEQA for 

purposes of its use by the Lands Commission. (§ 21167.2; accord, Laurel Heights 
34

Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1130; 

Save Berkeley’s Neighborhoods v. Regents of the University of California (2020) 51 

Cal.App.5th 226, 236.) That EIR analyzed the project in its entirety as of 2010. The 

2017 supplemental EIR incorporated by reference the 2010 subsequent EIR.

Subsequent changed circumstances since the 2010 subsequent EIR included the 

unforeseeable enactment of the Desalination Amendment. The resulting proposed 

changes to the project were: (1) the installation of one-millimeter stainless steel 

wedgewire screens, (2) the installation of three-port diffusers, and (3) a reduction in the 

seawater intake volume from 152 million gallons per day to 106.7 million gallons per 

day. The Lands Commission in its 2017 supplemental EIR was only required to analyze 

these changes to the project. The purpose behind a supplemental EIR is to explore 

environmental impacts not considered in the original environmental document. (San 

Mateo Gardens, supra, 1 Cal.5th at p. 949, quoting Save Our Neighborhood v. Lishman

(2006) 140 Cal.App.4th 1288, 1296) “The event of a change in a project is not an 

occasion to revisit environmental concerns laid to rest in the original analysis. Only 

changed circumstances . . . are at issue.’ ” (Ibid.) As stated in the EIR, the Lands 

Commission, “in its continuing role as responsible agency and consistent with . . . CEQA 

Guidelines section 15163, is evaluating the incremental differences between the approved 

2010 Project and the proposed Lease Modification Project when evaluating whether such 

modifications would result in any significant environmental impacts.” 

The Lands Commission’s 2017 supplemental EIR analyzed the potential 

significant environmental impacts of the three proposed changes effected through the 

Lease Modification Project. It identified environmental issues analyzed in the 2010 

subsequent EIR, issues analyzed in the 2017 supplemental EIR, and issues “found not to 

be substantially affected by the Lease Modification Project.” Issues identified as 

addressed in the 2017 supplemental EIR included, “Ocean Water Quality and Marine 

Biological Resources,” “Aesthetics/Light & Glare,” “Air Quality,” “Cultural Resources,” 
35

“Cultural Resources – Tribal,” “Greenhouse Gas Emissions,” “Hazards and Hazardous 

Materials,” “Noise and Vibration,” “Recreation,” and “Transportation (Marine).” For 

each of these issues, the 2017 supplemental EIR discusses the environmental setting, the 

regulatory setting, and significance criteria, and then proceeds to analyze the 

environmental impact and mitigation related to the construction phase, operation, and the 

cumulative impacts. ([ocean water quality and marine biological resources], 

[aesthetics/light and glare], [air quality], [cultural resources], [cultural resources – tribal], 

[greenhouse gas emissions], [hazards and hazardous materials], [noise and vibration], 

[recreation], [transportation (marine)].) These discussions addressed the three changes 

encompassed in the Lease Modification Project at length.

We need not go into further detail of the foregoing environmental analysis here. 

As plaintiffs acknowledge, they have “not challenge[d] the adequacy of the actual 

analysis that the Lands Commission chose to include in the [supplemental] EIR.” Based 

on our review of the administrative record, substantial evidence supports the Lands 

Commission’s approval and certification of the 2017 supplemental EIR. (See generally 

Banning Ranch, supra, 2 Cal.5th at p. 935 [“ ‘In reviewing for substantial evidence, the 

reviewing court “may not set aside an agency’s approval of an EIR on the ground that an 

opposite conclusion would have been equally or more reasonable,” for, on factual 

questions, our task “is not to weigh conflicting evidence and determine who has the better 

argument.” ’ ”]; Vineyard Area Citizens, supra, 40 Cal. 4th at p. 427 [“We . . . resolve the 

substantive CEQA issues . . . by independently determining whether the administrative 

record demonstrates any legal error . . . and whether it contains substantial evidence to 

support the [agency’s] factual determinations”].) The Lands Commission prepared its 

supplemental EIR, including information “ ‘necessary to make the previous EIR’ ” 

prepared by Huntington Beach in 2010 “ ‘adequate for the . . . project as revised.’ ” (Cal. 

Code Regs., tit. 14, § 15163, subd. (b); City of Irvine, supra, 238 Cal.App.4th at p. 539; 

Melom, supra, 183 Cal.App.4th at p. 57.) The Lands Commission did not “attempt[] to 
36

avoid a full environmental review by splitting a project into several smaller projects . . . 

appear[ing] more innocuous than the total planned project . . . .” (East Sacramento, 

supra, 5 Cal.App.5th at p. 293.) Rather, the Lands Commission undertook the 

procedures expressly authorized by statute (§ 21166) and the CEQA Guidelines (Cal. 

Code Regs., tit. 14, § 15163) that were appropriate under the circumstances. The impetus 

for the changes was the 2015 Desalination Amendment, and the provisions thereof were 

not foreseeable in 2010. The Lands Commission did not commit improper piecemealing 

or segmenting of the project.

Plaintiffs, in their reply brief, assert that “there is no such thing as a supplemental 

EIR for only part of a project.” This may be a correct statement, but it is an incomplete 

one. The supplemental EIR “ ‘need contain only the information necessary to make the 

previous EIR adequate for the . . . project as revised’ . . . .” (Melom, supra, 183 

Cal.App.4th at p. 57, quoting Cal. Code Regs., tit. 14, § 15163, subd. (b); accord, City of 

Irvine, supra, 238 Cal.App.4th at p. 539.) The supplemental EIR supplements the 

previous EIR, and the two are considered as a comprehensive whole.

All of the cases on which plaintiffs rely for the premise that CEQA forbids 

piecemeal review are inapposite. We need not delve into the circumstances of those 

cases, other than to note that none of the cases on which plaintiffs primarily rely involve 

supplemental EIRs prepared pursuant to section 21166 and CEQA Guidelines section 

15163. Nor need we apply their enshrined rule: “There is no dispute that CEQA forbids 

‘piecemeal’ review of the significant environmental impacts of a project.” (Berkeley 

Keep Jets Over the Bay Com. v. Board of Port Comrs. of the City of Oakland (2001) 91 

Cal.App.4th 1344, 1358.) As we have concluded ante, piecemeal CEQA review did not 

occur here.

b. Deferral of Environmental Analysis

Relying heavily on Banning Ranch, supra, 2 Cal.5th 918, plaintiffs assert that our 

high court “reiterated that the agency drafting an EIR cannot defer parts of the requisite 
37

environmental impacts and alternatives analysis to other agencies with discretion over 

those parts of the project.” However, Banning Ranch involved a full EIR (§§ 21100, 

21151) performed by a lead agency, not a supplement to an EIR performed by a 

responsible agency pursuant to section 21166 and CEQA Guidelines section 15163.15

What was required of the Lands Commission here was that it conduct sufficient 

environmental review so as to supplement Huntington Beach’s 2010 subsequent EIR,

adding information “necessary to make the previous EIR adequate for the project as 

revised.” (Cal. Code Regs., tit. 14, § 15163, subd. (b); accord, City of Irvine, supra, 238 

Cal.App.4th at p. 539; Melom, supra, 183 Cal.App.4th at p. 57.) Thus, as Poseidon 

asserts, the Lands Commission was “required to analyze the impacts associated with the 

proposed Project Enhancements designed to ensure compliance with the newly-enacted 

Desalination Amendment, in combination with the previously-analyzed Project impacts.” 

(Fn. omitted, italics added.) We have determined ante the Lands Commission adequately 

did so. Thus, as Poseidon further asserts, the 2010 subsequent EIR prepared by 

Huntington Beach combined with the Lands Commission’s 2017 supplemental EIR 

“analyze[d] the Project in its entirety, including all proposed Project enhancements.” 

Banning Ranch, like the other piecemealing cases on which plaintiffs rely, is inapposite.

c. Reevaluation of Project Alternatives

Under their piecemealing/segmentation heading, plaintiffs assert that the Lands 

Commission in its environmental review “declined to review the feasibility of several 

potential alternatives to the proposed open-ocean intake system . . . .” Indeed, they argue 

whether the Lands Commission’s failure “to step forward as the next CEQA lead agency 

would have been of little practical consequence had its ‘Supplemental EIR’ updated the 

15

 We discuss Banning Ranch in further detail in our discussion of whether the Lands 

Commission improperly deferred determinations to the Regional Water Board in part 

IV.B of the Discussion, post.
38

impacts and alternatives for the entire seawater desalination Project,” but instead the 

Land Commission “hid behind the ‘responsible agency’ label to avoid preparation of a 

comprehensive EIR.” 

“Whether an EIR has omitted essential information is a procedural question 

subject to de novo review.” (Banning Ranch, supra, 2 Cal.5th at p. 935.) Plaintiffs’ 

argument that the Land Commission failed to evaluate alternatives is not supported by the 

record.

The 2017 supplemental EIR, discussing alternatives, stated that, “The 2010 

[subsequent EIR] evaluated alternatives to the 2010 Project. The [Lands Commission] is 

preparing this Supplemental [EIR] to assess the changes in environmental impact 

resulting from Poseidon’s proposed modifications to [Lands Commission lease].” 

Among the alternatives considered in the 2017 supplemental EIR were an intake pipeline 

extension and a two-port diffuser. The 2017 supplemental EIR further stated: “[t]he 

alternatives considered but eliminated from further consideration in the 2010 [subsequent 

EIR] were reconsidered as alternatives to the proposed Lease Modification Project, but 

were eliminated from consideration in this Supplemental EIR because they were 1) 

outside of the scope of this Supplemental EIR, or 2) for the same reasons as in the 2010 

[subsequent EIR].” Alternatives in the former category included an alternative site, 

alternative ownership and operation, and alternative facility configuration. Alternatives 

in the latter category included a beach well intake design and subsurface infiltration 

gallery intake, both of which are subsurface intake designs, as well as alternative 

discharge location, alternative discharge design, and reduced facility size. The 2010 

subsequent EIR did indeed consider and reject a “no project” alternative, alternative sites, 

alternative ownership and operation, alternative intake and discharge designs, alternative 

facility configuration, and reduced facility size. The 2017 supplemental EIR, considered 

in conjunction with the 2010 subsequent EIR (see generally Cal. Code Regs., tit. 14,

§ 15163, subd. (b); City of Irvine, supra, 238 Cal.App.4th at p. 539; Melom, supra, 183 
39

Cal.App.4th at p. 57), analyzed alternatives to the proposed project as contemplated by 

CEQA Regulations section 15126.6.

Plaintiffs also assert that, in light of regulatory changes effected by the 

Desalination Amendment and potential changes in demand, the Lands Commission was 

required to reevaluate those alternatives considered and rejected by Huntington Beach in 

its 2010 subsequent EIR. They do not cite authority for this contention beyond asserting 

that the Lands Commission violated CEQA. Moreover, the contention is contrary to the 

premise that the “supplement to an EIR ‘need contain only the information necessary to 

make the previous EIR adequate for the . . . project as revised . . . .’ ” (Melom, supra,

183 Cal.App.4th at p. 57, quoting Cal. Code Regs., tit. 14, § 15163, subd. (b); accord, 

City of Irvine, supra, 238 Cal.App.4th at p. 539.) The 2010 subsequent EIR, 

supplemented by the 2017 supplemental EIR, considered a number of project 

alternatives.

B. Asserted Improper Deferral to the Regional Water Board

Plaintiffs assert that the Lands Commission unlawfully deferred environmental 

impacts review and alternatives analysis to the Regional Water Board. Plaintiffs contend 

this asserted fragmented presentation of project impacts and alternatives is a form of 

piecemealing and does not comply with CEQA. According to plaintiffs, the Lands 

Commission “deflected responsibility for evaluating critical environmental impacts, 

issues, and alternatives for the proposed intake system - the very concerns that drove 

adoption of the Desalination Regulations and the need for Project modifications - with 

the dismissive statement that ‘[the Regional Water Board], not the Commission, is 

responsible for determining feasibility of subsurface intakes and compliance with Water 

Code section 13142.5, subdivision (b).’ ” Plaintiffs assert that, like in Banning Ranch, 

the “limited marine effects analysis included in the 2017 [supplemental] EIR did not and 

could not replace the CEQA requirement to evaluate impacts and feasible alternatives to 

comply with the new Desalination Regulations, which are targeted directly at eliminating 
40

or reducing the consequences of open-ocean intake.” Plaintiffs rely on Banning Ranch

for the proposition that the Lands Commission’s “fragmented presentation” did not 

comply with CEQA, which requires “a good faith attempt to analyze project alternatives 

and mitigation measures in light of applicable [Desalination Amendment] requirements.” 

(Banning Ranch, supra, 2 Cal.5th at p. 941.) Thus, plaintiffs assert that, to perform the 

required evaluation, the Lands Commission had to evaluate alternative sites, alternative 

sizes, and alternative technologies. Plaintiffs assert that the “2017 [supplemental] EIR 

did none of this analysis,” and instead only evaluated alternatives relevant to the 

proposed minor modifications.

We have, in effect, already rejected this contention, at least in a broader sense. As 

stated ante, the Lands Commission, as a responsible agency completing a supplemental 

EIR pursuant to CEQA Guidelines section 15163, was not required to create a plenary,

stand-alone, all-inclusive EIR. Rather, the Lands Commission was only required to 

supplement the 2010 subsequent EIR such that, the two considered together, provided 

environmental review that was “adequate for the proposed project as revised.” (Cal. 

Code Regs., tit. 14, § 15163, subd. (b); City of Irvine, supra, 238 Cal.App.4th at p. 539; 

Melom, supra, 183 Cal.App.4th at p. 57.) The Lands Commission was not required to do 

more.

The regulatory scheme changed since Huntington Beach prepared the 2010 

subsequent EIR with the implementation of the 2015 Desalination Amendment. As 

plaintiffs note, under the Desalination Amendment, the Regional Water Board shall 

require subsurface intakes unless they are not feasible. 

The 2010 subsequent EIR included a comprehensive consideration of subsurface 

intake alternatives. The EIR considered three types of beach wells: (1) vertical intake 

wells, (2) slant intake wells, and (3) horizontal intake wells. However, the 2010 

subsequent EIR concluded, with elaboration, that “[u]se of beach well intake systems is 

not viable for the site-specific conditions of this project due to the limited transmissivity 
41

of the coastal aquifer near the desalination facility site and the low unit yield capacity of 

the vertical wells.” 

In addition to beach well alternatives, the 2010 subsequent EIR considered 

subsurface infiltration gallery intake system alternatives. This alternative consists “of 

man-made submerged slow sand media filtration beds located at the bottom of the ocean 

in the near-shore surf zone, which are connected to a series of intake wells . . . located on 

the shore . . . .” After a lengthy and detailed discussion of these alternatives, the 2010 

subsequent EIR concluded: “based on overall impacts on the environment, the public 

coastal resources access/use issues associated with the construction and operation of a 

seabed infiltration gallery, this intake alternative would not be considered feasible for 

application to the proposed project.”

In a summary of alternative intake systems, the 2010 subsequent EIR stated: “Any 

one of the site-specific conditions would render subsurface intakes more impactful to the 

environment than the project because it would result in either irreversible damage to the 

Talbert Marsh, Brookhurst Marsh, and the Magnolia Marsh and negate years of 

restoration measures, result in a number of negative environmental impacts and human 

health risks, including the following: (1) detrimental environmental impact of intake well 

operations on the adjacent Talbert Marsh, Brookhurst Marsh, and the Magnolia Marsh 

due to dewatering; (2) poor water quality of the Talbert Aquifer in terms of ammonia, 

bacterial contamination and lack of oxygen; (3) interception of contaminated 

groundwater from nearby Ascon Landfill, which may introduce carcinogenic 

Hydrocarbons in the Source water supply of the desalination facility; (4) interception of 

injection water from Talbert Barrier by the intake and impairment of the function of this 

barrier to protect against seawater intrusion; (5) subsidence of public roads and structures 

due to drawdown of the groundwater table; and (6) impairment if [sic] the aesthetic value 

of the coastal shore by the obtrusive aboveground intake structures. [¶] None of these 

potential environmental impacts are associated with the use of the cooling water system 
42

from the existing HBGS as source water for the project. The proposed intake system 

would not physically alter the HBGS intake or discharge system, and it would provide a 

more than adequate supply of source water and dilution water. None of the proposed 

alternative intake systems would be an acceptable substitute to the proposed use of the 

existing HBGS cooling water system as the supplier of source water for the Seawater 

Desalination Project at Huntington Beach.” 

The 2017 supplemental EIR noted the beach well intake and subsurface infiltration 

gallery intake alternatives were considered and eliminated in the 2010 subsequent EIR. It 

stated the rationale for elimination, and further stated that the rationale from 2010 was 

“also applicable to this Supplemental EIR.” (Bold omitted.) With regard to the beach 

well intake, the reasons for elimination included “[g]reater impacts to benthic and marsh 

habitat, public access, aesthetics, geology and soils, hazards, and product water quality.” 

With regard to subsurface infiltration gallery intake alternative, the reasons for 

elimination included, “[g]reater impacts to benthic habitat, public access, traffic and 

transportation, greenhouse gas (GHG) emissions and waste disposal than the proposed 

Project.” (Fn. omitted.) 

The 2017 supplemental EIR further noted the ISTAP consideration of subsurface 

intake options, discussed ante, and the fact that these options were eliminated from 

consideration in the 2017 supplemental EIR. After a lengthy discussion of the ISTAP 

subsurface alternatives, the 2017 supplemental EIR stated: “The second ISTAP 

concluded that both construction methods are feasible for constructing the [subsurface 

infiltration gallery]. The [subsurface infiltration gallery] options were found not to be 

economically viable at the Huntington Beach location within a reasonable timeframe, due 

to high capital costs.” 

At another point, the 2017 supplemental EIR stated that the Lands Commission 

“considered information from the 2010 [subsequent EIR], 2014-15 ISTAP Reports, and 
43

2015 SED in evaluating alternatives to the Lease Modification Project.”16 According to 

the 2017 supplemental EIR, the “2010 [subsequent EIR] found that subsurface intakes 

were infeasible or more impactful to the environment than the HB Desalination Plant as 

proposed.” The 2017 supplemental EIR stated that, as “part of the CEQA process, the 

Commission independently reviewed and analyzed these differencing opinions and 

concluded that the ISTAP Reports are an appropriate body of expert opinions and 

information that may be used in the supplemental EIR.” 

Contrary to plaintiffs’ contention, the Lands Commission did not improperly defer 

consideration of alternatives, including subsurface intake alternatives, to the Regional 

Water Board. As documented here, the 2010 subsequent EIR, supplemented by the 2017 

supplemental EIR, considered subsurface intake alternatives and found them infeasible.

Further, Water Code section 13142.5, subdivision (b), provides: “For each new or 

expanded coastal powerplant or other industrial installation using seawater for cooling, 

heating, or industrial processing, the best available site, design, technology, and 

mitigation measures feasible shall be used to minimize the intake and mortality of all 

forms of marine life.” In addition to specifically addressing subsurface intake 

alternatives, the 2010 subsequent EIR, supplemented by the 2017 supplemental EIR, 

addressed alternative sites, designs, technology, mitigation measures, and a no-project 

alternative. 

In Banning Ranch, on which plaintiffs rely, the CEQA issue “center[ed] on 

whether an EIR must identify areas that might qualify as environmentally sensitive 

habitat areas (ESHA) under the California Coastal Act of 1976 [citation], and account for 

those areas in its analysis of project alternatives and mitigation measures.” (Banning 

Ranch, supra, 2 Cal.5th at p. 924.) The City of Newport Beach, as lead agency, in its 

16

 “2015 SED” is a reference to a Substitute Environmental Document prepared by the 

State Water Resources Control Board. 
44

final EIR noted the Coastal Commission’s responsibility for ESHA determinations and 

stated that it had taken into consideration the California Coastal Act of 1976. (Banning 

Ranch, at pp. 932-933.) However, it “disavowed any obligation to further consider 

ESHA.” (Id. at p. 932.) Our high court determined that a lead agency must in its EIR 

identify areas that might qualify as ESHAs under the California Coastal Act of 1976 and 

account for those areas in its analysis of project alternatives and mitigation measures. 

(Banning Ranch, at p. 924.) The court determined that the City of Newport Beach’s EIR 

was “inadequate because it omitted any consideration of potential ESHA on the project 

site, as well as ESHA that were already identified.” (Ibid.) This is not the case here. 

Here, the 2010 subsequent EIR, supplemented by the 2017 supplemental EIR, considered 

alternatives, including subsurface intake alternatives, and eliminated them as infeasible. 

Banning Ranch is inapposite.

Plaintiffs assert that the Lands Commission was required to reevaluate all of the 

alternatives considered in the 2010 subsequent EIR in light of the change in the 

regulatory scheme. However, they cite no authority that supports this proposition. More 

importantly, the regulations and case law discussed extensively herein do not support this 

contention.

The 2017 supplemental EIR’s observation that the Regional Water Board had the 

duty to perform a Water Code section 13142.5, subdivision (b), analysis under the 

Desalination Amendment, and Lands Commission members’ statements consistent with 

that premise at the public hearing, did not signal an improper deferral to the Regional 

Water Board.

Plaintiffs assert that changes in demand and the need for the water that would be 

supplied by the project had changed since 2010. Plaintiffs cite to evidence in the 

administrative record that they claim supports their contention that “the demand for 

potable water in Orange County has fallen even as water supply grows,” and that the need 

for a large desalination plant has been “supplant[ed].” Without delving into the extent to 
45

which the evidence on which plaintiffs rely supports their contentions, we note they fail 

to discuss evidence to the contrary, some of which has been highlighted by Poseidon in 

its briefing. As stated ante (see fn. 14), failure lay to out the evidence favorable to the 

opposing party and show why it is lacking is normally fatal. (Citizens for Positive 

Growth, supra, 43 Cal.App.5th at p. 632.)

In any event, we note evidence in the administrative record cited by Poseidon 

supports the premise that there remains need for the project in order to meet Orange 

County’s water demands. In a July 7, 2016, letter to the Executive Officer of the 

Regional Water Board from Robert J. Hunter, General Manager of the Municipal Water 

District of Orange County, Hunter stated that, under normal conditions, and without the 

development of new supplies, water demand was expected to increase to 515,425 acre 

feet by 2040 while Orange County would still be relying on imported water for more than 

200,000 acre feet per year. This assumed both the continued investment in water use 

efficiency and the expansion to 130,000 acre feet per year of OCWD’s Groundwater 

Replenishment System. Hunter identified the project at issue here as “one of a number of 

projects that could help meet future projected demands as well as reduce the County’s 

demand on imported water.” Hunter also emphasized that an Orange County Water 

Reliability Study found that, without any new supply projects, “Orange County would 

have shortages in 8 of 10 years. . . . [A]dditional water supply projects . . . are needed for 

Orange County to be fully reliable out to the year 2040. [¶] In this regard, the proposed 

50 MGD Huntington Beach Desalination Project appears to comply with Chapter 

III.M.2b.(2) of the Desalination Amendment.”17

17

 That provision of the Ocean Plan/Desalination Amendment requires consideration of 

“whether the identified need for desalinated water is consistent with an applicable 

adopted urban water management plan prepared in accordance with Water Code section 

10631, or if no urban water management plan is available, other water planning 
46

At the October 19, 2017, public meeting of the Lands Commission, Dennis 

Bilodeau of the OCWD addressed current and future projected water supplies to meet 

demand in the OCWD service territory. Bilodeau stated that “the facility’s 56,000 acre 

foot per year capacity is the single largest source of new local drinking water supply 

available to the county.” Bilodeau noted the scope and importance of the OCWD’s 

groundwater replenishment system, and that an expansion of that system had been 

approved. He then stated, “[d]esalinization provides the district with a high quality, 

locally controlled, and drought-proof source that reduces the demand on imported water 

sources that are climate driven.” He also noted that, historically, OCWD had “taken 

more than our adjudicated rights to the Santa Ana River, and cannot be certain that water 

will always . . . be there for us.” He stated that the project “provides the district and 

Orange County with a unique opportunity to add a large quality of locally controlled, jobproof [sic] water to our supply portfolio.” Bilodeau on behalf of OCWD requested 

support of the staff recommendation. 

State Controller Betty T. Yee asked, “the analysis with respect to these various 

water sources, did that include the expansion of the recycling effort. And I guess what 

I’m looking for is have you fully considered all these alternatives before really looking at 

the water that would be produced by Poseidon, which obviously is going to be the most 

expensive water.” Bilodeau responded: “Yes, we certainly have. Really, the only 

opportunity we have beside Poseidon is the expansion of the groundwater replenishment 

system. And we are all in on that. Our board has already voted to go forward with that 

expansion. It’s in design right now. And now, we’re going through the process of the 

financing component. [¶] Poseidon would be yet another source beyond that. And it 

would offset imported water sources and also contend with -- the Santa Ana River, the 

documents such as a county general plan or integrated regional water management plan.” 

(Asterisk omitted.) 
47

base flow of it, continues to decline because of drought, and also our friends in the Inland 

Empire they are now recycling. And so the Santa Ana river during the summer it’s not 

snowmelt, that’s discharge from sewage treatment plants that’s highly cleaned up. And 

then we take that water put it through wetlands actually, and then we put it into our 

groundwater basin. [¶] But that base flow continues to decline. And that’s something 

that’s somewhat alarming to us. So we need to continue to look for and develop new 

water sources to offset that.” Bilodeau expressed the opinion that water produced by 

Poseidon would not be more water than is needed. 

Additionally, plaintiffs rely on a Municipal Water District of Orange County 

presentation slide from February 6, 2017, which stated that Poseidon’s yield of 56,000 

acre feet per year would supply “more water than needed in most every year.” However, 

as Poseidon notes, in a letter dated June 13, 2017, Hunter, the General Manager of the 

Municipal Water District of Orange County, stated that there was a need for additional 

water supply documented in the adopted Urban Water Management Plan. The Poseidon 

project was one option to meet that need. Hunter stated that the most comprehensive, 

accurate, and current analysis of Orange County water demand and supply projections 

was the Orange County Reliability Study. He stated that the study detailed the “probable 

shortfall or gap between water demand and supply through the year 2040 under various 

assumptions.” 

The Lands Commission’s 2017 final supplemental EIR reflected the foregoing. It 

stated: “[T]he 2015 update of the OCWD’s Groundwater Management Plan identifies 

new potable water produced at the HB Desalination Plant as a planned future water

supply [citation] given a local and regional need based on limited imported water

supplies, declining Santa Ana River flows, and increased demand for water. Similar

information is provided in the City of Huntington Beach 2015 Urban Water Management

Plan (June 2016), which states ‘OCWD’s current Long-Term Facilities Plan . . . identifies

the [HB Desalination Plant] as a priority project and . . . the single largest source of new, 
48

local drinking water available to the region’ [citation]. The HB Desalination Plant water

supply is also identified in the Municipal Water District of Orange County (MWDOC) 

Urban Water Management Plan 2015 Update and Orange County Water Reliability

Study, and the MWDOC has recently stated that the HB Desalination Plant Project is

‘part of our [water management plan] to reduce our demand for imported water, thereby

strengthening our reliability and helping meet our goal of diversifying our water supply

portfolio.’ ” 

Substantial evidence in the record supported the Lands Commission’s conclusion 

that there remained a need for the project to add to Orange County’s water supply. (See 

generally Nelson, supra, 190 Cal.App.4th at p. 282 [defining substantial evidence in the 

CEQA context]; § 15384, subd. (a).) While there may also be evidence supporting 

plaintiffs’ position, our “job ‘ “ ‘is not to weigh conflicting evidence and determine who 

has the better argument.’ ” ’ ” (San Mateo Gardens, supra, 1 Cal.5th at pp. 952-953.) 

“ ‘In reviewing for substantial evidence, the reviewing court “may not set aside an 

agency’s approval of an EIR on the ground that an opposite conclusion would have been 

equally or more reasonable”. . . .’ ” (Banning Ranch, supra, 2 Cal.5th at p. 935.)

C. Refusal to Consider Assertedly Reasonably Foreseeable Future Project Changes

Plaintiffs assert that the Lands Commission improperly refused to consider 

reasonably foreseeable project changes, specifically related to the new water distribution 

option OCWD was actively considering which included the construction of injection 

wells and pipelines. Plaintiffs contend this reasonably foreseeable change was an integral 

part of the project that must be considered in the supplemental EIR and it was unlawful 

project segmentation for the Lands Commission not to consider it. 

Among other things, plaintiffs rely on a July 6, 2016, OCWD “Agenda Item 

Submittal” submitted to the OCWD Board of Directors. The subject of the memorandum 

and accompanying presentation was distribution options for the Poseidon desalination 

plant. The memo stated that staff presented eight options to the Board, five of which 
49

were removed from further consideration. The Board instructed staff to further explore 

one of the options, Option 6, which was actually the combination of other options. 

Plaintiffs characterize this option as “quite probable,” although they do not offer grounds 

specifically supporting this characterization.

Moreover, as we have noted, at the Lands Commission public hearing on October 

19, 2017, a representative of OCWD stated that at that time, OCWD did not require 

changes to the distribution system studied in the 2010 supplemental EIR. This was some 

15 months after the July 6, 2016, OCWD Agenda Item Submittal.

Poseidon points out that OCWD has not in fact proposed a new distribution option 

other than the system analyzed in the 2010 subsequent EIR. Poseidon further asserts that 

it had not proposed a new distribution plan. Poseidon relies on the Lands Commission’s 

and OCWD’s “repeated confirmation that ‘potential modifications contemplated to 

distribute desalinated water by local or regional water agencies is speculative at this 

time.’ ” 

The 2010 subsequent EIR extensively addressed the Orange County water 

distribution system. Plaintiffs do not contend otherwise.

In a section addressing comments about alleged changed circumstances, the Lands 

Commission’s final 2017 supplemental EIR, where it addressed potential changes in the 

distribution system, stated: “Other than Poseidon’s application to implement the Lease 

Modification Project, neither . . . Huntington Beach nor OCWD nor other entity [sic] to 

date has submitted detailed proposed physical changes to the 2010 Project, including to 

the Project’s potable water distribution system. . . . As noted . . . the OCWD recently 

stated that it ‘has not reached any conclusions or made any decisions regarding how 

desalinated [water] could be used by the District and distributed to the local water 

community, so no specific conveyance and utilization option has been formally 

selected.’ ” 
50

The 2017 supplemental EIR relied on a letter from the General Manager of 

OCWD to the Regional Water Board stating: “ [‘]Given the expected timeline for the 

[HB Desalination Plant’s] permitting process, OCWD has also concluded that it would 

not be prudent to begin an extensive environmental analysis related to use of the 

desalinated water in OCWD’s operations and facilities, along with distributing the water 

to other agencies, prior to the approval of the permits for the [Huntington Beach 

Desalination Plant.] Decisions by the Regional Board and the other permitting agencies 

may result in new or different information that could increase the cost of the desalinated 

water and/or modify OCWD’s plans for using and distributing the water.[’] ” 

Based on this information, the 2017 supplemental EIR further stated: “potential 

changes in the distribution of desalinated water onshore by local or regional water 

agencies are speculative at this time and not germane to the offshore Lease Modification 

Project before the Commission. CEQA does not require analysis of speculative impacts, 

and the Commission need not prepare a subsequent EIR to address environmental 

impacts of future actions that are uncertain, such as an onshore desalinated water 

distribution system that may or may not differ from the distribution system already 

evaluated in the 2010 FSEIR.” 

In another section, addressed to comments concerning recharge distribution 

components and distribution pipeline, the supplemental EIR stated: “If OCWD proposes 

to construct and operate a distribution system different from the one analyzed in the 2010 

[subsequent EIR], or Recharge Distribution Components, OCWD would compete [sic] 

environmental review of these systems. This is consistent with the Supplemental EIR’s 

statement . . . : ‘Future CEQA analysis may be needed to construct an onshore 

desalinated drinking water distribution system, for example if a proposed system differs 

from the distribution system previously evaluated.’ ” 

In its summary of other agency roles addressed to Huntington Beach and OCWD, 

the 2017 supplemental EIR noted: “In its 2010 [subsequent EIR], the City analyzed the 
51

distribution of desalinated water, including various options and volumes, into the local 

and regional potable water system. In 2015, the OCWD Board approved a non-binding 

agreement (term sheet) with terms and conditions by which OCWD and Poseidon could 

negotiate contracts for the purchase of desalinated water . . . . After initially proposing 

to prepare an EIR for a potable water distribution or storage system, the OCWD stated 

that it would not finalize its water purchase agreement with Poseidon until after the HB 

Desalination Plant receives all required state approvals.” Here, the 2017 supplemental 

EIR again relied on the passage in the letter from the General Manager of OCWD to the 

Regional Water Board, quoted in italics ante. It then stated: “Based on this information, 

potential modifications contemplated to distribute desalinated water by local or regional 

water agencies is speculative at this time and not germane to the Lease Modification 

Project. Future CEQA analysis may be needed to construct an onshore desalinated 

drinking water distribution system, for example if a proposed system differs from the 

distribution system previously evaluated in the 2010 [subsequent EIR].” 

Additionally, as stated ante, at the October 19, 2017, public hearing, a 

representative of OCWD stated: “At this point in time, the district does not required [sic] 

changes to the distribution system as studied in . . . Huntington Beach’s 2010 

supplemental [sic] EIR. A final decision on integrating the desalinated water will come 

after the project has received all of its permits, and based on those results, the district 

concludes the project is technically and economically feasible.” 

“CEQA analysis is not required, and instead may be postponed to ‘a later planning 

stage [for] the evaluation of those project details that are not reasonably foreseeable when 

the agency first approves the project.’ ” (Citizens for a Sustainable Treasure Island v. 

City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1058 (Treasure Island), 

quoting Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 139; see Cal. Code 

Regs., tit. 14, § 15145 [“If, after thorough investigation, a lead agency finds that a 
52

particular impact is too speculative for evaluation, the agency should note its conclusion 

and terminate discussion of the impact”].)

Based on the record, whether OCWD or another body may elect to employ a 

different water distribution system than what was reviewed in the 2010 subsequent EIR is 

speculative and not reasonably foreseeable. (See generally Treasure Island, supra, 227 

Cal.App.4th at p. 1058.) While the OCWD Board of Directors was presented with a 

number of distribution options to consider in July 2016 and directed staff to further 

explore one of those options, all of the subsequent discussions of distribution in 2017 set 

forth ante establish that OCWD did not require changes to the distribution system 

analyzed by Huntington Beach in 2010. Neither Poseidon nor OCWD submitted 

proposed changes. As of 2017, OCWD affirmatively represented that it had no intention 

of conducting further analysis of distribution options at that time. There is no way to 

know the particulars of any new distribution system to evaluate attendant environmental 

impacts, let alone that one particular option is reasonably foreseeable. “[W]here ‘an EIR 

cannot provide meaningful information about a speculative future project, deferral of an 

environmental assessment does not violate CEQA.’ ” (Id. at pp. 1058-1059, quoting Rio 

Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 373.) That is 

the situation here.

* * * * *
53

DISPOSITION18

The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal. 

Rules of Court, rule 8.278(a)(1) & (2).)

 /s/

MURRAY, J.

We concur:

 /s/

RAYE, P. J.

 /s/

HULL, J.

18

 Plaintiffs filed a motion requesting that we take judicial notice of an information 

request from Hope Smyth, Executive Officer of the Regional Water Board, seeking 

additional information in connection with that body’s NPDES order and Water Code 

section 13142.5, subdivision (b), determination. Ruling on the request was deferred 

pending calendaring and assignment of the panel. We deny plaintiffs’ request for judicial 

notice on the ground that the post-judgment matter addressed in the information request 

is unnecessary to our decision. (City of Grass Valley v. Cohen (2017) 17 Cal.App.5th 

567, 594, fn. 13 [denying requests for judicial notice “ ‘because the proffered material is 

unnecessary to our decision’ ”]; accord, Mangini v. R.J. Reynolds Tobacco Co. (1994) 7

Cal.4th 1057, 1063 [matter to be judicially noticed must be relevant to a material issue].)