Filed 9/6/19; Certified for Publication 10/7/19 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                               DIVISION FOUR


 MAACAMA WATERSHED
 ALLIANCE, et al.,
          Plaintiffs and Appellants,                               A155606

 v.                                                                (Sonoma County
 COUNTY OF SONOMA, et al.,                                         Super. Ct. No. SCV261451)
          Defendants and Respondents;

 JAMES BAILEY, KNIGHTS BRIDGE
 VINEYARDS, LLC,
          Real Parties in Interest.


         Maacama Watershed Alliance and Friends of Spencer Lane (collectively,
appellants) appeal a judgment entered after the trial court rejected their challenge to the
decision of defendants County of Sonoma and its Board of Supervisors (collectively, the
County) to adopt a mitigated negative declaration and approve a use permit allowing real
party in interest Knights Bridge Vineyards LLC (Knights Bridge) to construct and
operate a winery (the project). Appellants contend the County should instead have
prepared an environmental impact report (EIR) because there is a fair argument that
construction and operation of the winery will cause a number of significant
environmental effects. We shall affirm the judgment.




                                                          1
                 FACTUAL AND PROCEDURAL BACKGROUND
       The project site is on Spencer Lane in Knights Valley, a rural part of Sonoma
County. The 86-acre parcel lies in an area zoned Land Extensive Agriculture, a
designation that allows wineries and tasting rooms as conditional uses. As approved, the
project includes a two-story, approximately 5,500 square foot winery building with an
adjoining 17,500 square foot wine cave, wastewater treatment and water storage
facilities, fire protection facilities, and mechanical areas, covering an approximately 2.4-
acre area. The project site already contains two residences and 46 acres of vineyards.
The nearby area is primarily made up of vineyards; the only permitted winery in Knights
Valley is 1.4 miles away. The steelhead are federally listed as a threatened species.
       The County’s staff reviewed reports considering effects of the project on geology,
groundwater, wastewater, and biological resources, among other topics. As explained in
more detail below, the staff concluded that, with recommended mitigation, the project
would not have a significant effect on the environment, and recommended that the
County adopt a mitigated negative declaration and approve the project. This the
County’s Board of Zoning Adjustments did on September 17, 2015. Finding there was
no substantial evidence the project would have a significant environmental effect, it
approved the use permit with conditions and adopted a mitigated negative declaration
(the 2015 MND) and mitigation monitoring program.
       Appellants appealed the decision to the Board of Supervisors (the Board). County
staff reviewed issues raised in the appeal and in subsequent comments and prepared a
revised MND (the 2016 MND). After further comments and review, particularly
regarding the potential for impacts on groundwater and water quality, the County
prepared a second revised MND (the 2017 MND or the MND). At a public hearing, the
Board then approved the project subject to conditions and adopted the 2017 MND.
       Appellants brought a petition for writ of mandate, which the trial court denied.




                                              2
                                       DISCUSSION
   I. CEQA and Standard of Review
       The California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.;
CEQA) 1 requires a public agency to prepare an environmental impact report (EIR)
“ ‘ “ ‘whenever it can be fairly argued on the basis of substantial evidence that the project
may have a significant environmental impact.’ ” ’ ” (Porterville Citizens for Responsible
Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 899 (Porterville
Citizens); § 21151, subd. (a).) “ ‘May’ means a reasonable possibility.” (Pocket
Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927 (Pocket Protectors).)
A significant effect on the environment is “a substantial, or potentially substantial,
adverse change in any of the physical conditions within the area affected by the project
including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or
aesthetic significance.” (Guidelines, § 15382; see Pub. Resources Code, § 21060.5,
21151, subd. (b).)
       The test for whether an EIR must be prepared is “whether there is substantial
evidence in the record to support a ‘ “fair argument” ’ that a project may entail significant
environmental effects, even if there is other substantial evidence there will not be such an
impact. . . . ‘Section 21151 creates a low threshold requirement for initial preparation of
an EIR and reflects a preference for resolving doubts in favor of environmental review
when the question is whether any such review is warranted.’ ” (Jensen v. City of Santa
Rosa (2018) 23 Cal.App.5th 877, 884 (Jensen); see §§ 21064, 21080, subd. (c)(1).) But
if the lead agency determines there is no substantial evidence in the record before it that
the project may have a significant effect on the environment, it may issue a negative
declaration. (Jensen, at p. 884.) If the project may have significant effects, but




       1
        All undesignated statutory references are to the Public Resources Code. CEQA
is implemented in the CEQA Guidelines, which are found at title 14 of the California
Code of Regulations, section 15000 et seq. References to the Guidelines are to the
CEQA Guidelines.

                                              3
mitigation measures will make the effects insignificant, the agency may adopt a mitigated
negative declaration. (§ 21080, subd. (c)(2).)
       We review an agency’s decision to issue a negative declaration for “ ‘prejudicial
abuse of discretion,’ which ‘is established if the agency has not proceeded in a manner
required by law or if the determination or decision is not supported by substantial
evidence.’ ” (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52
Cal.4th 155, 171; § 21168.5.) “ ‘ “Judicial review of these two types of error differs
significantly: While we determine de novo whether the agency has employed the correct
procedures, scrupulously enforcing all legislatively mandated CEQA requirements, we
accord greater deference to the agency’s substantive factual conclusions. [Citation.] In
CEQA cases, as in other mandamus cases, we independently review the administrative
record under the same standard of review that governs the trial court.” ’ ” (Jensen, supra,
23 Cal.App.5th at p. 886.) The agency’s “decision to rely on an MND under CEQA is
reviewed for abuse of discretion under the ‘fair argument’ standard.” (Wollmer v. City of
Berkeley (2009) 179 Cal.App.4th 933, 939.) In carrying out this review, although we do
not defer to the lead agency’s determination, we give it the benefit of the doubt “ ‘ “on
any legitimate, disputed issues of credibility.” ’ ” (Pocket Protectors, supra, 124
Cal.App.4th at p. 928.) The question is whether there is substantial evidence in light of
the record as a whole that it cannot be fairly argued that the project may cause a
significant environmental impact. (City of Livermore v. Local Agency Formation Com.
(1986) 184 Cal.App.3d 531, 540-541.)
       “The petitioner bears the burden of proof to demonstrate by citation to the record
the existence of substantial evidence supporting a fair argument of significant
environmental impact.” (Jensen, supra, 23 Cal.App.5th at p. 886, citing Porterville
Citizens, supra, 157 Cal.App.4th at p. 899; accord Gentry v. City of Murietta (1995)
36 Cal.App.4th 1359, 1379.) Personal observations of local residents may qualify as
substantial evidence supporting a fair argument. (Pocket Protectors, supra, 124
Cal.App.4th at p. 928.) However, “mere argument, speculation, and unsubstantiated
opinion, even expert opinion, is not substantial evidence for a fair argument. [Citations.]


                                             4
‘The existence of public controversy over the environmental effects of a project shall not
require preparation of an environmental impact report if there is no substantial evidence
in light of the whole record before the lead agency that the project may have a significant
effect on the environment.’ [Citations.] Neither is the mere possibility of adverse impact
on a few people, as opposed to the environment in general.” (Id. at pp. 928-929.) The
standard for the agency “is not whether any argument can be made that a project might
have a significant environmental impact, but rather whether such an argument can fairly
be made.” (Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1003.)
       With these principles in mind, we consider appellants’ contentions.
   II. Geology and Erosion
       A. Background
       Consideration of the project’s potential for geologic impacts took place over the
course of several years. In 2013, Bauer Associates (Bauer) completed a geotechnical
investigation of the project (the Bauer report), which included review of published
literature and Bauer’s previous work at and near the site; field geologic mapping; deep
core borings and trenches; study of boring cores and trench walls; monitoring of
groundwater levels in borings and trenches; characterization of landslide conditions; and
analysis of slope stability. Bauer found that a portion of the Knights Bridge property was
underlain by a large, inactive landslide that could exceed 30,000 years in age, and that
two additional landslides had ensued, up to 14,000 years ago, with possible subsequent
“localized slope adjustments.” The planned winery and cave were outside the boundaries
of the landslide. Bauer concluded that slope stability on the project site was acceptable
and that the project would not cause significant impacts for purposes of CEQA if
designed in accordance with Bauer’s recommendations and current building codes. The
recommendations included planting graded slopes with quick growing vegetation or
protecting the slopes from erosion by other means; limiting the grade of slopes; and
diverting seepage and surface water runoff from the slope surfaces.
       The Bauer report was subject to two peer reviews. The first was an “internal peer
review” by Michael J. Dwyer of Consulting Engineering Geologic Services, who had


                                             5
acted as an outside consultant as Bauer carried out its investigation. Dwyer concluded
the Bauer report had properly identified and characterized the geologic conditions at the
project site and had confirmed the absence of, or adequately mitigated through its
recommendations, the geological and seismic hazards. Dwyer opined that the project did
not have potentially significant geologic impacts that could not be mitigated through the
recommendations.
       The County retained an independent contractor, Cotton, Shires and Associates
(Cotton Shires) to conduct a second peer review. Although Cotton Shires disagreed with
some of the Bauer report’s conclusions about the nature of some of the deposits on the
project site, its review concluded that the project was feasible from a geotechnical
standpoint, and that Bauer’s recommendations would adequately mitigate concerns about
slope stability.
       Kjeldsen Biological Consulting carried out a biological assessment. It concluded
the project would not affect special status species on or off site if best management
practices were implemented, particularly silt and erosion control measures during and
after construction.
       Appellants’ geological expert, Raymond Waldbaum, reviewed the Bauer report.
He contended the Bauer report’s interpretation of landslide risk and slope stability was
not supported by the data in the report. He also stated that the Bauer report lacked
adequate geologic maps and cross-section data.
       Cotton Shires responded to Waldbaum’s critique. It concluded, “Though we have
disagreed with Bauer Associates regarding some aspects of the site geology, they agreed
to use geologic models and strength parameters for their slope stability analysis that we
found to be generally acceptable. Though it appears unlikely that we will ever agree
about the origin of the matrix-supported deposits that are found near the surface at the
eastern portion of the winery building site, Bauer Associates has agreed to incorporate
mitigation measures designed to address the potential debris flow hazard in this area.”
       In a second letter, Waldbaum noted, inter alia, that the cave excavations would
generate a significant volume of material, or “cave spoils.” He argued that disposing of


                                             6
the cave spoils could create slope instability or excessive erosion, and that mitigation of
the hazards of cave soil disposal should not be deferred. He also contended that there
was insufficient information about stormwater drainage and the potential for
inappropriate discharge locations to cause slope instability.
       On behalf of appellants, Kamman Hydrology & Engineering, Inc. (Kamman) and
Dr. Stacy K. Li of Aquatic Systems Research expressed concern that there was
insufficient information about where the cave spoils would be placed, in order to mitigate
impacts to Bidwell Creek, and that no spoils management plan was available for public
review. Appellants also submitted a letter to the County arguing that sediment from
increased use of roads could be carried to Bidwell Creek and adversely affect its habitat.
       Summit Engineering, Inc. (Summit), which had earlier prepared a hydrology
report, submitted a stormwater management plan and fill placement drawings in 2017.
The measures shown in the stormwater management plan include erosion barriers, such
as fiber rolls and dams, and a stabilized construction entrance. At the County’s request,
O’Connor Environmental, Inc. (O’Connor) performed a peer review assessing, inter alia,
the effects of cave spoils placement on water quality. In response to the concerns raised
by Kamman, O’Connor explained on May 15, 2017, that erosion control measures
included in Summit’s site grading plan and best management practices would be
implemented; cave spoils would be placed in specified areas where ground slopes were
gentle (two percent or less), would be covered with straw mulch, would be isolated by
erosion control barriers and would be placed at least 100 feet from Bidwell Creek, twice
the distance required by the County’s grading plan standards; and there would be a series
of gravel check dams to control potential erosion from the spoils. These measures,
according to O’Connor, “are expected to prevent significant erosion of cave spoils that
could degrade water quality in Bidwell Creek.”
       Before the 2017 MND was adopted, another geologist, Dr. Jane E. Nielson,
provided comments critical of it. She stated that the project site adjoined one large and
two small landslides, that the wine cave tunnels would be dug into the same volcanic rock
sequence that produced the largest of the landslides, and that any debris released from


                                              7
tunneling or a collapse due to tunnel construction could alter the flow of the creek
ecosystem and add sediment and other pollutants. She argued the MND was inadequate
because it lacked a map showing precise locations of all elements of the project, detailed
geologic maps, and cross-sections of the project area; because the experts had expressed
different opinions on the soil and rock materials at the project site; because it did not fully
describe the bedrock or provide test data to prove the tunneling was feasible; and because
neither the MND nor the supporting studies included a plan for creating the tunnels. Dr.
Nielson also suggested the placement of cave spoils, 2.3 feet deep across 6.2 acres, could
lead to erosion into Bidwell Creek, and that the MND did not assess the stability of the
natural soils upon which the cave spoils would be placed or consider the potential for
increased erosion.
       The 2017 MND concluded the project, as mitigated, would have no significant
effects on biological resources, geology, or water quality.
       Soil Erosion. The MND explained that if the project were to cause substantial
erosion and transport of sediment into the creek, it could affect steelhead or coho habitat,
but the project’s conditions required best management practices during construction to
minimize erosion. The project would generate approximately 21,000 cubic yard of cave
spoils, which would be used as fill in specified areas of the vineyard and would meet a
100-foot setback from Bidwell Creek in compliance with the site’s zoning and with the
creek’s designation under the Franz Valley Area Plan as a minor riparian corridor.
Surface runoff would be routed through vegetated swales and vegetated buffer areas for
treatment to mitigate pollutant loads in accordance with County requirements.
       The MND explained that the County’s grading ordinance requirements and the
best management practices it had adopted were specifically designed to maintain
potential water quality impacts at a less than significant level. It also noted that Knights
Bridge had submitted a stormwater management plan and fill placement drawings
showing the type and location of the best management practices that would be
implemented. Based on the implementation of these practices, the small footprint of the
project, and the distance to Bidwell creek, the MND concluded that “impacts to special


                                              8
status species from project-generated sediment entering the creek would be less than
significant.” It also concluded the project would not alter the existing drainage pattern of
the site in a manner that would result in substantial erosion.
       Slope Stability. The MND’s discussion of slope stability noted the presence of a
large, ancient, and inactive landslide on the project site, and explained that it had been
determined that the proposed winery and caves were outside the limits of the landslide.
The potential for large-scale remobilization of the landslide was very low and acceptable
from a geotechnical engineering viewpoint. Localized, smaller landslides and shallow
sloughing could occur, perhaps including steeper areas upslope of the winery. Mitigation
measures, as recommended in the Bauer report, included construction of
diversion/catchment walls to contain 150 cubic yards of material; level buffer areas
upslope of structures; adhering to all grading and surface/groundwater control
recommendations; development and implementation of an erosion control and
revegetation plan; monitoring of excavations by a geotechnical engineer or engineering
geologist; and implementation of any additional measures deemed necessary based on
geologic conditions observed during excavations.
       B. Analysis
       As we have explained, appellants have the burden to point to substantial evidence
in the record supporting a fair argument that the project (as mitigated) may have
significant environmental effects. (See Jensen, supra, 23 Cal.App.5th at p. 886; San
Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th
382, 390.)
       Appellants contend there is evidence to support a fair argument that the project’s
earthmoving and erosion may have a significant impact on the habitat provided by
Bidwell Creek. They argue first that the MND does not provide sufficient information to
evaluate these effects. In particular, they contend the MND does not include a geologic
map or geologic cross sections. On the contrary, reports prepared by Richard C. Slade &
Associates LLC (Slade), consulting groundwater geologists, and referred to in the
mitigated negative declaration, contain geologic maps and cross-sections.


                                              9
       Appellants also point out that Bauer and Cotton Shires differed on certain geologic
conclusions—that is, about the origin of certain deposits on the property. Despite this
difference of opinion, Bauer and Cotton Shires agreed that, with the mitigation measures
contemplated by Bauer, the project would be geotechnically feasible.
       Appellants contend that Waldbaum and Nielson’s criticism of the data, findings,
and conclusions of the County’s consultants is sufficient to support a fair argument that
digging the caves will adversely affect slope stability. We are unpersuaded. The Bauer
report contained an extensive discussion of the geology of the project area. In response
to Waldbaum’s criticism of the Bauer report, Cotton Shires submitted a detailed
memorandum discussing the potential for slope instability and explaining that Bauer had
incorporated mitigation measures designed to address the potential debris flow hazards in
an acceptable manner. Although Nielson argued that reports upon which the MND relied
did not fully describe the geology of the area and the MND was inadequate, she does not
provide evidence that the project is reasonably likely to cause landslides or otherwise
generate environmentally harmful releases of debris. (See Pocket Protectors, supra, 124
Cal.App.4th at pp. 928-929 [speculation and unsubstantiated expert opinion not
substantial evidence for fair argument].)
       We similarly reject appellants’ contention that there is substantial evidence to
support a fair argument that erosion from the project, particularly runoff from the cave
spoils, will cause significant effects on Bidwell Creek and degrade the habitat the creek
provides for salmonids. Nothing in the record indicates there is a fair argument that
placement of the spoils on a two percent grade, at least 100 feet from the creek, covered
with straw mulch, and isolated by erosion control measures, will significantly affect
water quality in the creek. Nor is there evidence that compliance with the County’s
grading ordinance, its adopted best management practices, and the erosion control
measures specified by Summit for use before and after construction will be insufficient to
achieve that goal.
       Appellants also suggest that, because the geology of the site was not adequately
investigated, the County improperly deferred mitigation of environmental impacts by


                                            10
relying on best management practices and the standards of the County’s grading
ordinance to mitigate unknown future effects. We disagree. “Deferral of the specifics of
mitigation is permissible where the local agency commits itself to mitigation and lists the
alternatives to be considered, analyzed and possibly incorporated into the mitigation
plan.” (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1275.) That
standard is met here. The record shows a detailed geological investigation, and the
conditions of approval require Knights Bridge to conform to Bauer’s recommendations
for slope stability, including “construction of diversion/catchment walls to adequately
retain 150 cubic yards of material, the provision of level buffer areas upslope of
structures, adhering to all grading and surface/groundwater control recommendations,
and development/implementation of an erosion control and revegetation plan.” Bauer
had recommended that graded slopes be planted with quick growing, dense vegetation or
protected from erosion by other methods when grading was complete. In addition, a
geological engineer or engineering geologist must monitor excavations during
construction to confirm that the observed conditions conform to what was anticipated and
implement any necessary additional measures based on observed conditions. This is not
a case of mitigation that will be formulated after a mitigated negative declaration is
approved. (See Gentry v. City of Murietta, supra, 36 Cal.App.4th at pp. 1396-1397
[where there was substantial evidence to support fair argument project would affect
kangaroo rat, proposed mitigation could not be left for future formulation]; Oro Fino
Gold Mining Corp. v. County of El Dorado (1990) 225 Cal.App.3d 872, 884.) We see
nothing improper in adopting measures that reduce the project’s expected environmental
effects to a level of insignificance, but require monitoring and adjustments in the event of
unanticipated conditions.
   III.    Groundwater Supply
       Appellants contend there is substantial evidence to support a fair argument the
project’s groundwater use will significantly affect salmonids in Bidwell Creek,
groundwater supply in neighboring wells, and fire suppression.



                                             11
       The County found the project would have a less than significant impact on
groundwater supply and recharge. It explained that there were four wells on the project
site, and that one of them, the “Residential Well,” would be designated as the sole supply
well for the project. Two other wells, the upper irrigation well and the Rattle Snake Hill
well, would be used for the existing vineyards, and the fourth well, the lower irrigation
well, would be capped and no longer used.
       The original analysis of groundwater supply and recharge from the proposed
project, completed in December 2013 by Slade, assumed the project would use 2.2 acre-
feet of groundwater per year, less than nine percent of the estimated average annual
groundwater recharge within the boundaries of the project site, and only a small fraction
of the estimated 433 acre-feet of groundwater storage on the site. Taking into account the
adjacent parcels and calculating anticipated future use, Slade concluded available
groundwater would likely be only minimally affected.
       The project was later revised to recycle water, reducing the project’s net
groundwater demand to 0.5 acre-feet per year. Then before the project was approved,
Knights Bridge agreed to ensure no net increase in groundwater use over current
conditions by reducing use elsewhere on the project site by at least 0.5 acre-feet per year.
The County required conditions of approval to ensure conformity with these standards:
designating the residential well as the dedicated supply for the project; requiring the
residential well to be fitted with a groundwater-level measuring system; an easement
allowing the County’s employees and agents to collect water-meter readings and
groundwater-level measurements; monthly monitoring of groundwater elevations and
quantities of groundwater extracted; a water meter to measure all water use associated
with the winery operation with monthly reporting of water use; and no net increase in
groundwater use through measures including converting irrigated vineyards to dry
farming, foregoing the right to replant existing vineyards, or removing existing vines.
       Appellants argue that there is a disagreement among the experts about the
boundaries of the aquifers that supply water for the project and for Bidwell Creek. In
particular, they point to concerns raised by the National Oceanic and Atmospheric


                                             12
Administration’s National Marine Fisheries Service (NMFS) and Kamman. In January
2016, NMFS submitted a comment letter. It noted that Bidwell Creek had been
designated as critical habitat for threatened CCC steelhead, which inhabit the creek
seasonally, and for endangered CCC coho salmon, which are currently extirpated from
the system. NMFS opined that the MND did not adequately assess the project’s potential
effects on Bidwell Creek streamflow and on steelhead and coho salmon. In particular, it
argued that the then-current MND did not analyze the relative elevations of the aquifer
and the stream, which would influence the amount of groundwater accretion to the
streamflow in Knights Valley. Moreover, according to NMFS, examination of well log
data for nearby properties suggested that the Knights Valley aquifer was in a state of
overdraft, that the streamflow was being affected by unsustainable groundwater
extraction, and that the proposed project would likely worsen that condition. Presently,
Bidwell Creek stops flowing for much of the summer. NMFS also suggested the analysis
should have considered a larger geographic area in order to characterize effects on
streamflow, since groundwater pumping across the basin could cumulatively influence
water-table elevation and connection to surface flow. NMFS argued that monitoring
groundwater extraction would not mitigate the project’s potential impacts; “[o]nly actions
that appreciably offset or improve groundwater levels and/or Bidwell Creek streamflow
should be considered mitigation measures for the potential impacts of the Project.”
       Slade responded to NMFS’s comments on July 31, 2016. It stated that the project
property was “completely underlain by the Sonoma Volcanics, and the Project well (the
Residential Well) produces groundwater from the Sonoma Volcanics.” Bidwell Creek
was in the Knights Valley groundwater basin, and the residential well was outside that
basin’s boundaries and did not extract groundwater from it, remove water that is tributary
to it, or contribute groundwater to it. Confirming this view, Slade had performed a
pumping test that showed a lack of connection between the residential well and water
levels in nearby wells and, thus, with aquifers in the Knights Valley groundwater basin.
Slade also explained that, based on anticipated project groundwater demands (before



                                            13
Knights Bridge undertook to ensure no net increase in groundwater use), the project
would use only two to three percent of the estimated annual recharge at the property.
       Another commenter, Kamman, had argued that the water level in the lower
irrigation well was close to that of Bidwell Creek, which suggested that they were
hydraulically connected and that pumping might affect groundwater flow to the creek.
Slade responded that the lower irrigation well had been capped and was not being used
for vineyard irrigation.
       NMFS followed up on Slade’s response on November 7, 2016. It noted the
evidence that recharge to the Knights Valley aquifer occurs principally as infiltration
from streambeds and from precipitation that falls on the basin floor, but argued that this
fact does not preclude other forms of recharge to the basin, such as recharge from the
Sonoma Volcanics at the project site. Kamman submitted new comments on behalf of
appellants on October 27, 2016, making the same point. Kamman also made the point
that a geologic cross-section showed that “groundwater movement beneath the volcanic
hills underlying the site is towards the Knights Valley Groundwater Basin and must be
providing some contribution of groundwater recharge to the basin.” Kamman opined that
pumping in wells that reduced groundwater storage in the Sonoma Volcanics beneath the
project site would reduce the amount of groundwater available for flow and recharge of
the Knights Valley groundwater basin, and that any reduction in groundwater
contributions to Bidwell Creek could affect its habitat value.
       In its May 15, 2017 peer review, O’Connor recommended further analysis of the
project’s potential effects on Bidwell Creek, and on July 3, 2017, Slade prepared a
response. Slade reiterated that geologic data suggested the volcanic rock aquifer from
which the residential well extracts groundwater is not in direct contact with Bidwell
Creek. But, assuming that some portion of the water from the volcanic rock aquifer
moved to the alluvium that fed into Bidwell Creek’s stream flow, Slade calculated that
the additional pumping of the residential well to meet project demands would reduce
groundwater flow from the Sonoma Volcanics aquifer by 1.5 percent, and that only a
small portion of that water would move into the creek. Moreover, the project’s peak


                                            14
demand month would be September, a month in which the creek is typically dry, and
hence pumping would not reduce streamflow during that month. Slade concluded that
any effects on Bidwell Creek from pumping the residential well for the project would be,
at most, imperceptible.
       Project opponents submitted evidence that neighboring well yields had been
declining. In its July 31, 2016 response to comments, Slade argued that these reports
were “not supported by water level or water use/metering data,” and could possibly be
accounted for by unrelated well performance issues and specific geologic conditions.
       In its peer review, O’Connor pointed out that the “accepted use rate[]” for
residential water demand was one acre-foot per year for primary residences. The total
estimated water use for the winery was projected to be 0.74 acre-feet per year, with
recycling measures reducing net consumption to 0.5 acre-feet per year. Annual
groundwater demand in the “Cumulative Impact Area” composed of the project parcel
and adjacent parcels, including vineyard irrigation and domestic use, would be about 38
percent of annual recharge; the amount attributable to the winery project would be about
0.5 percent of mean annual groundwater recharge in the cumulative impact area. The
NMFS later pointed out that even a very small difference in streamflow elevation can
affect habitat conditions for salmonids.
       The evidence would certainly support a finding that the project will not cause
significant effects on groundwater supplying Bidwell Creek and neighboring wells. The
question before us, however, is whether there is substantial evidence to support a fair
argument the project will have significant effects. We conclude the County properly
found there was not. The project’s water demand will be less than that of a residence,
and a small fraction of mean annual groundwater recharge. The record indicates the
aquifer underlying the project and that underlying Bidwell Creek are not in contact, but
even assuming there is a geologic connection, there is no evidence the project would have
any perceptible effect on the water flowing from one aquifer to the other, and thence to
the creek.



                                            15
       Moreover, the conditions of approval require entirely offsetting the project’s water
use so there is no net increase in water use over the project site. Appellants contend these
conditions are “illusory,” but we disagree: They include monitoring of the well
supplying the project and of groundwater elevations, and requiring Knights Bridge to
reduce water use elsewhere on the property by specified methods with documentation for
any methods it wishes to use in the future to meet the performance standard of “no net
increase.” Appellants argue that Knights Bridge will be free to use any well on the
property to supply the project; however, we interpret the condition that the residential
well is the “dedicated project supply well” to mean that it must be the project’s exclusive
source of water, and neither Knights Bridge nor the County have suggested otherwise.
And if the winery’s net water use exceeds 0.5 acre-feet per year or the project does not
meet the “no net increase” performance standard, the County may bring the matter back
for the Board of Zoning Adjustments to review additional measures to reduce water use.
These facts support the County’s finding that there is no substantial evidence to support a
fair argument that the project will significantly affect groundwater resources.
       Appellants also contend the County’s General Plan required it to conduct a
cumulative groundwater impact study and consult with neighboring well owners before
granting the permit. But appellants are no longer litigating compliance with the General
Plan. The question before us on this appeal is whether appellants have shown evidence to
support a fair argument that the project will have significant environmental effects. On
this record, we conclude they have not.
   IV. Visual Impacts
       Appellants contend the County ignored the visual impacts of the project.
Aesthetic issues are a proper subject of CEQA review. (Protect Niles v. City of Fremont
(2018) 25 Cal.App.5th 1129, 1141.) Under the CEQA Guidelines, an agency should
consider “whether a proposed project would ‘[s]ubstantially degrade the existing visual
character or quality of the site and its surroundings.’ (CEQA Guidelines, appen. G., § I,
subd. (c), . . . [environmental checklist form].) The CEQA Guidelines specifically note
that ‘the significance of an activity may vary with the setting.’)” (Ibid., italics omitted.)


                                              16
       The 2017 MND stated that the site was not designated as a scenic resource by the
Sonoma County General Plan, and that the winery would be centrally located in an 86-
acre parcel and not visible from public roads. The MND concluded the project would
cause no visual impacts.
       Project opponents submitted evidence that an existing ten-bedroom residence on
the property was visible from Highway 128, and it appears that both Highway 128 and
Frantz Valley Road are scenic corridors. At the hearing on the appeal, a member of
County staff told the supervisors that the upper level of the winery might be visible from
some areas on Franz Valley Road or Highway 128, depending on the vegetation. She
also said that the winery would be set into the hillside, rather than on top of the ridgetop;
there would be trees behind the winery; and the winery would be required to have a dark-
colored exterior, a nonreflective rooftop, and landscaping. The project’s conditions of
approval reflected these limitations: they specified that before a building permit was
issued, the project would be subject to review and approval by the Design Review
Committee, that the design would be evaluated “on the basis of harmony with site
characteristics in regard to height, texture, color and roof characteristics,” that exterior
finishes would be dark, earthy colors and the roof dark and non-reflective, and exterior
lighting would be low mounted, downward casting and fully shielded to prevent glare.
Also, existing trees would be preserved in accordance with an arborist’s report that had
been prepared, and trees would be planted to screen the structure from public roads.
       An errata sheet amended the MND to omit the statements that the winery would
not be visible from public roads. It stated, “The upper level of the building may be
visible from public roadways.”
       Appellants have not met their burden to show there is substantial evidence
supporting a fair argument that the project will cause significant aesthetic impacts. They
point primarily to evidence that an existing residence on the property is visible from
Highway 128, but they described this residence as “at the very top of the property,” and
“on the ridge above the winery site.” Pictures of the residence show that the building is
light-colored and largely unshielded by vegetation. These things are not true of the


                                              17
winery: County staff testified that although the upper portion of the winery might be
visible from local roads, vegetation could block that view, and in any event, it would not
be on a ridgetop where an “architectural hard line” would be visible, but set into the
hillside. The conditions of approval require dark colors on the exterior and landscaping
to provide screening. So the unsightliness of the existing residence is not substantial
evidence that the winery building, in an area zoned for wineries and tasting rooms, will
create a significant aesthetic impact.
       In reaching this conclusion, we recognize that lay public commentary may
constitute substantial evidence supporting a fair argument of significant aesthetic effects.
(See, e.g., Georgetown Preservation Society v. County of El Dorado (2018) 30
Cal.App.5th 358, 375-376 [a large number of people testified that project in historical
center of Georgetown was too big, boxy, or monolithic to blend in; sufficient evidence
that project might impair “central district’s unique and treasured Gold Rush character”];
Pocket Protectors, supra, 124 Cal.App.4th at p. 937 [opinions of area residents based on
direct observation may be relevant to aesthetic impact of long double rows of houses on
narrow street and insufficient landscaping].) For the reasons we have explained,
however, in this case the opinions of local residents, based largely on the views of a
different structure, do not constitute substantial evidence that the winery will have a
significant aesthetic impact.
       Appellants contend that the County failed to assess the project’s visual impacts
and improperly relied on future design review as a substitute for CEQA analysis. They
also argue that the County ignored its own zoning ordinance, which provides that “No
permit shall be issued for any project requiring design review approval unless and until
drawings and plans have been approved by the design review committee. . . . ” (Sonoma
County Code, § 26-82-050(a)), and that this violation provides substantial evidence of a
CEQA violation. In the circumstances of this case, these contentions do not persuade us
that the County abused its discretion in concluding there was no fair argument that the
project’s aesthetic impacts would be significant. The conditions of approval themselves
require vegetation and a dark, nonreflective exterior, rather than merely relying on a later


                                             18
determination of these matters. They do not improperly defer mitigation, since they set
standards to guide the County in reviewing the project’s design. (See Endangered
Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 794.)
   V. Fire Hazards
       A. Judicial Notice
       Appellants have asked us to take judicial notice of a June 11, 2018 agenda item for
the County’s Board of Supervisors entitled “ ‘Emergency Operations Center After Action
Report, Community Alert & Warning Program Assessment and Emergency Management
Program Assessment,’ ” which discusses the wildfires of October 2017, including the
Tubbs and the Nuns fires. We deny the request for judicial notice. The agenda was not
part of the administrative record, and it was created—and considered events that
occurred—after the County approved the project. (See Jefferson Street Ventures, LLC v.
City of Indio (2015) 236 Cal.App.4th 1175, 1192 [denying request for judicial notice of
report that was not part of administrative record]; Western States Petroleum Assn. v.
Superior Court (1995) 9 Cal.4th 559, 578-579 [extra-record evidence that could not have
been produced at administrative level in exercise of reasonable diligence admissible in
traditional mandamus proceedings only if it existed before agency made decision];
Guidelines, § 15162(c) [“Information appearing after an approval does not require
reopening of that approval”].)
       B. The Merits
       Appellants contend an EIR is necessary to examine the project’s fire hazards. The
Board found: “The project is consistent with the Public Safety Element of the General
Plan related to fire hazard . . . because it includes fire protection features, including a fire
engine turnaround, access road of adequate width, and water storage. Water storage for
fire suppression, including both fire-fighting and water feed for sprinklers in the winery
structure and wine caves, will be located on a concrete pad behind the winery structure
and at a sufficient height that allows for effective gravity feed. The County Fire
Marshal’s Fire Safe Standards require that fire sprinklers be installed in new structures to
contain or prevent fires from spreading from structures to wildlands fires. . . .


                                               19
Compliance with the Fire Safe Standards will ensure that the exposure of people and
property to fire hazards would be reduced to a degree that the risk of injury or damage is
less than significant.” The MND also concluded the project’s wildland fire risk was less
than significant.
       Appellants argue that a fair argument exists the project will significantly increase
the risk of fire hazards, including wildfires. As they point out, a project may have a
significant environmental effect by increasing the risk of fire hazards. (See Clews Land
& Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 193.) They argue that
the project is in a very high fire hazard severity zone (see Gov. Code, § 51178), that it has
limited groundwater capacity, and that the County failed to consider the severity of fire
hazards in violation of its General Plan. (See Sundstrom v. County of Mendocino (1988)
202 Cal.App.3d 296, 311 [“The agency should not be allowed to hide behind its own
failure to gather relevant data”].) And they contend the County failed to address the risks
posed by a facility with an extensive electrical system and the logistics and limitations
faced by the local volunteer fire department.
       We are unpersuaded. The project is subject to the County’s permit requirements,
and it includes fire suppression measures, such as sprinklers in the winery and wine caves
and an emergency water supply in compliance with County standards, as well as adequate
emergency access for firefighters. There is no indication that the activities at the winery
will cause an elevated risk of fire. Knights Bridge will be required to maintain vegetative
fuels in compliance with fire regulations. And to the extent appellants are arguing that
fire protection services are already stretched thin, “[t]he need for additional fire
protection services is not an environmental impact that CEQA requires a project
proponent to mitigate.” (City of Hayward v. Trustees of California State University
(2015) 242 Cal.App.4th 833, 843.) Appellants have not pointed to substantial evidence
for a fair argument that there is a reasonable possibility the project, as conditioned, will
significantly increase the risk of wildfires.
       Appellants also contend the County failed to consider whether the project’s
groundwater use will contribute to lower groundwater levels and affect the availability of


                                                20
water during fire season. We have already concluded that the County properly found
there is no fair argument the project as approved will significantly affect groundwater
supplies.


             * * * * * * * * * * * * * * * * * * * *


       Although appellants do not here obtain the relief they have sought, we note that a
persistent explanation for this outcome is the success appellants already achieved in
getting modifications to the project and the analysis of its environmental effects. In
response to early concerns raised by appellants and others, Knights Bridge and its
consultants made important concessions, for instance by reducing the project’s water
demand, agreeing not to increase net groundwater use on the project site, and developing
a plan for the cave spoils. The record lacks substantial evidence to support a fair
argument that, as now mitigated, the project is reasonably likely to cause significant
environmental effects. The County properly adopted the mitigated negative declaration.
                                     DISPOSITION
       Appellants’ March 21, 2019 request for judicial notice is denied. The judgment is
affirmed. Appellants are to pay costs on appeal.




                                            21
                                                                _________________________
                                                                TUCHER, J.


WE CONCUR:


_________________________
POLLAK, P. J.


_________________________
BROWN, J.




Maacama Watershed Alliance v. County of Sonoma (A155606)




                                                           22
Filed 10/7/19

                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                       DIVISION FOUR


 MAACAMA WATERSHED ALLIANCE
 et al.,
          Plaintiffs and Appellants,              A155606

 v.                                               (Sonoma County
 COUNTY OF SONOMA et al.,                         Super. Ct. No. SCV261451)
          Defendants and Respondents;

 JAMES BAILEY and KNIGHTS                         ORDER CERTIFYING OPINION
 BRIDGE VINEYARDS, LLC,                           FOR PUBLICATION

          Real Parties in Interest.


THE COURT:


        The opinion in the above-entitled matter filed on September 6, 2019, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published in the Official Reports pursuant to rule 8.1105(b) of the
California Rules of Court, and it is so ordered.




Date: _____________________                __________________________________ P. J.
                                           POLLAK, P. J.




                                             1
Trial Court:                                               Sonoma County Superior Court

Trial Judge:                                               Hon. Rene Auguste Chouteau

Counsel for Appellant:                                     Law Office of Edward E. Yates, Edward E.
                                                           Yates

Counsel for Respondent:                                    Bruce Goldstein, Sonoma County Counsel;
                                                           Holly E. Ricket, Deputy County Counsel

Counsel for Real Parties in Interest:                      Perkins Coie LLP, Brien F. McMahon,
                                                           Michelle W. Chan, and Jacob E. Aronson




Maacama Watershed Alliance v. County of Sonoma (A155606)




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