Comite Civico Del Valle v. County of Imperial CA4/1

Filed 8/11/26 Comite Civico Del Valle v. County of Imperial CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

COMITE CIVICO DEL VALLE et al., D085747

Plaintiffs and Appellants,

v. (Super. Ct. No. ECU003425)

COUNTY OF IMPERIAL et al.,

Defendants and Respondents;

CONTROLLED THERMAL
RESOURCES (US), INC., et al.,

Real Parties in Interest and
Respondents.

APPEAL from a judgment of the Superior Court of Imperial County,
Jeffrey B. Jones, Judge. Affirmed in part, reversed in part, and remanded
with instructions.
Carstens, Black & Minteer, Douglas P. Carstens, Michelle N. Black,
Sunjana Supekar; Law Office of Jordan R. Sisson and Jordan R. Sisson, for
Plaintiffs and Appellants.
Geoffrey Holbrook, County Counsel, Andrew E. Briseno, Deputy
County Counsel; Remy Moose Manley, Nathan O. George and Chrstina L.
Berglund for Defendants and Respondents.
Environmental Law Group, Varco & Rosenbaum, Suzanne R. Varco
and Grant Olsson for Real Parties in Interest and Respondents.

I. INTRODUCTION
The Imperial Valley: “Its fruitful soil was caressed by the wasting water of

an unregarded river and blossomed in perennial beauty[.]”1

Water from the Colorado River is the sole source of fresh water for the
County of Imperial (County) and in particular, for agriculture in the Imperial
Valley. That water supply is not unlimited, and the available water is critical
in one way or another to everyone who lives or works in the County. Any
project that requires substantial water must be considered with great care to
ensure that the County’s residents, businesses, and environment are not
adversely affected by its planned water use.
This appeal involves the County’s approval of a geothermal power
plant, a lithium extraction facility, and related facilities (together, the
Project) near the Salton Sea as well as the certification of an environmental
impact report (EIR) for the Project under the California Environmental

Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).2 Comite Civico
del Valle and Earthworks (together, Appellants) filed a petition for writ of

1 Farr, The History of Imperial County California (1918).

2 Further section references are to the Public Resources Code unless
noted.

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mandate against the County and the Project’s developers, Controlled
Thermal Resources (US), Inc., Hell’s Kitchen PowerCo 1, LLC, and Hell’s

Kitchen LithiumCo 1, LLC (collectively, CTR).3 The superior court entered a
judgment denying the petition.
On appeal, Appellants challenge the certification and approval of the
Project on various grounds. In particular, they argue insufficient evidence

supports the County’s conclusion that the Imperial Irrigation District (IID)4
can provide adequate water supplies to the Project for the 50-year lifespan of
the Project. They further argue that the EIR contains an inadequate
discussion of water supply mitigation measures under CEQA law. They also
contend the EIR omits necessary cumulative impacts and air impacts
analyses. Finally, they argue that the County failed to engage in timely and
meaningful tribal consultation to identify and mitigate impacts on tribal
cultural resources.
We agree that the administrative record does not contain sufficient
evidence to demonstrate that the IID can supply water to the Project for
50 years. We also agree that the EIR failed to adequately discuss mitigation
measures targeted at possible future mandated water supply reductions from
the Colorado River. Additionally, we conclude that the IID’s concerns about
the impact of the Project’s water use on air quality were not speculative and
therefore the EIR should have addressed that impact. However, we agree
with Respondents that the County’s tribal consultations were adequate.

3 Because the County and CTR filed jointly, we refer to them collectively
as Respondents.

4 The IID delivers Colorado River water via canals to numerous cities
and hundreds of thousands of acres of agricultural lands in the Imperial
Valley. It also operates an extensive lateral drainage system that drains
agricultural runoff. This drainage eventually flows into the Salton Sea.

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II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Project
The Project is located approximately 3.6 miles west of the town of
Niland in Imperial County and is surrounded on three sides by agricultural
or vacant land. The Salton Sea is on the Project’s western border.
CTR applied for approval to build the Project, which consists of (1) a
geothermal power plant that will produce up to 49.9 megawatts of
geothermal green energy (Hell’s Kitchen PowerCo 1 or HKP1), (2) mineral
extraction and processing facilities (Hell’s Kitchen LithiumCo 1 or HKL1),
and (3) facilities for the administration, repair, and shipping needs of the
Project. More specifically, the Project will use wells to bring up hot
geothermal brine lying beneath the Salton Sea. Steam from the brine will be
used to generate geothermal energy at the HKP1 power plant, while the
HKL1 plant will extract lithium hydroxide, silica, polymetallic products, and
possibly boron compounds from the brine. HKL1 will sell the extracts. The
geothermal brine will then be injected back into the geothermal reservoir.
The Project will require approximately 6,500 acre-feet per year (AFY) of
raw water, supplied by IID, to operate.
B. The County’s Review and Approval of the Project
Imperial County Planning and Development Services was the lead
agency on the Project. The County released a notice of preparation (NOP) of
draft EIR (draft EIR or DEIR) in late March 2022. It released the DEIR as
well as a draft water supply assessment (WSA), dated June 2023, for public
review on September 8, 2023, and accepted public comments until November
30, 2023. Appellants, the California State Lands Commission, and IID,
among others, submitted letters raising numerous issues during the public
comment period. The County prepared a revised WSA, which was dated

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November 2023, and issued both a revised DEIR and the final EIR (final EIR

or FEIR) in December 2023.5
On December 13, 2023, the County’s Planning Commission held a
public hearing and then approved the Project. Appellant Comite Civico del
Valle appealed to the County Board of Supervisors.
Meanwhile, IID sent an email to the County’s senior planner on
December 7, 2023, indicating that an attached WSA (dated December 2023)
(final WSA), which incorporated IID’s technical findings, was “acceptable for
incorporation into the Final EIR as part of the CEQA process, pending lead

agency action for SB 610 compliance.”6 The email went on to state that
“[t]hese technical findings are solely related to water supply and do not
represent IID’s opinion of FEIR adequacy, particularly as it relates to
assessment of potential impacts to IID facilities and/or consistency with any
existing contractual requirements.” Unfortunately, although this letter

5 Although the FEIR indicates that it incorporates the revised DEIR, we
refer to these documents separately for clarity. We refer to the certified EIR
as simply the “EIR.”

6 “SB 610” refers to Senate Bill No. 610, which amended Water Code
section 10910 et seq. and focused on “strengthening urban water
management plans as well as the connection between water supply
assessment and the plans (or the equivalent level of analysis if there is no
plan).” (California Water Impact Network v. Newhall County Water Dist.
(2008) 161 Cal.App.4th 1464, 1479–1480 (California Water Impact Network).)
“[SB] 610 was motivated by a concern that certain counties and cities were
either ignoring or inadequately considering water supply issues prior to
approving new developments.” (Id. at p. 1486.) Although “the Legislature
wanted to ensure that lead agencies thoroughly considered water supply
issues and wanted to add transparency to the entire process, the Legislature
committed the final determination on water supply issues to the lead agency,
not the water providers.” (Ibid.)

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predated the planning commission’s public meeting, it appears the planning
commission reviewed and approved the November WSA, not this revised
December version. Notably, in its response to Appellants’ appeal to the board
of supervisors, CTR explained that the final version of the WSA (seemingly
referring to the one dated December 2023) included “minor revisions” from
the November 2023 one initially included in the FEIR, including “a
calculation of the total water demand for the Project to reflect a 30-year
water demand.”
On January 11, 2024, the County requested that the board of
supervisors schedule a public hearing to consider the appeal. It provided to
the board the final WSA and the FEIR. At some point thereafter, the County
submitted a revised mitigation monitoring and reporting program document
with revisions to mitigation measure UTIL-1, which relates to water
availability for the Project. The board of supervisors held a hearing on
January 23, 2024, denied the appeal, and approved the Project. The County
filed a notice of determination on January 24, 2024.
C. Writ of Mandate and Trial Court Proceedings
Appellants filed a petition for writ of mandate on March 13, 2024,
challenging the County’s approval of the Project and certification of the EIR.
The superior court heard oral argument and then asked the parties to file
supplemental briefs identifying the principal controverted issues. Following
the supplemental briefing, the court denied the petition.
III. DISCUSSION
A. Legal Principles
1. General Overview of CEQA
CEQA “and the regulations implementing it (Cal. Code Regs., tit. 14,
§ 15000 et seq.) embody California’s strong public policy of protecting the
environment.” (Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 285–

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286, quoting Cal. Code Regs., tit. 14, § 15002; hereafter Guidelines.7) “CEQA
was enacted to advance four related purposes: to (1) inform the government
and public about a proposed activity’s potential environmental impacts;
(2) identify ways to reduce, or avoid, environmental damage; (3) prevent
environmental damage by requiring project changes via alternatives or
mitigation measures when feasible; and (4) disclose to the public the
rationale for governmental approval of a project that may significantly
impact the environment.” (California Building Industry Assn. v. Bay Area
Air Quality Management Dist. (2015) 62 Cal.4th 369, 382 (Building
Industry).) “CEQA was intended to be interpreted in such a manner as to
afford the fullest possible protection to the environment within the
reasonable scope of the statutory language.” (Guidelines, § 15003, subd. (f).)
“[I]f the agency finds the project ‘may have a significant effect on the
environment,’ it must prepare an EIR before approving the project.”
(Building Industry, supra, 62 Cal.4th at p. 382, citing §§ 21100, subd. (a),
21151, subd. (a), 21080, subd. (d), 21082.2, subd. (d).) An EIR “must include
a description of the proposed project and its environmental setting and
discussions of (1) the possible environmental effects of the project, (2) feasible
measures to mitigate any significant, adverse environmental effects of the
project, (3) the comparative environmental effects of a range of reasonable
alternatives to the proposed project, including a ‘no project’ alternative, and
(4) the cumulative impact of the project’s various environmental effects.”
(County of Butte v. Department of Water Resources (2022) 13 Cal.5th 612, 627
(County of Butte), citing Guidelines, §§ 15124, 15126, 15126.4, 15126.6,

7 We use “Guidelines” to refer to the Guidelines for Implementation of
the California Environmental Quality Act (Cal. Code Regs., tit. 14, § 15000
et seq.).

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15130.) “An EIR may also include a discussion of the economic and social
effects of the project.” (Ibid.) “CEQA does not require technical perfection in
an EIR, but rather adequacy, completeness, and a good-faith effort at full
disclosure.” (Guidelines, § 15003, subd. (i).)
2. Standard of Review in a CEQA Case
The appellate court’s review in a CEQA case is the same as the trial
court’s review. (Protecting Our Water & Environmental Resources v. County
of Stanislaus (2020) 10 Cal.5th 479, 495.) The court’s inquiry in reviewing an
agency’s compliance with CEQA “shall extend only to whether there was a
prejudicial abuse of discretion” by the agency. (§ 21168.5.) Such an abuse 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.”
(Ibid.) “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.” (Vineyard Area Citizens for Responsible
Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435
(Vineyard).) “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.’ ” (Ibid.) Ultimately, “[a] prejudicial abuse of
discretion occurs if the failure to include relevant information precludes
informed decisionmaking and informed public participation, thereby
thwarting the statutory goals of the EIR process.” (Kings County Farm
Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712.)

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B. Adequacy of the Water Supply for the Project
1. Appellants’ Contentions
Appellants challenge the EIR’s assertions that the Project will have an
adequate supply of water on several grounds.
First, they contend the EIR offers conflicting information as to whether
the Project’s anticipated lifespan is 30 or 50 years and that it is
uninformative to the extent it claims sufficient water will be available for a
50-year lifespan. Respondents object that Appellants did not exhaust this

argument by raising it during the County’s administrative process.8 That
may be true, in that Appellants did not exhaust the legal argument that

8 Respondents also contend Appellants waived their argument about
variations in the Project’s lifespan by failing to raise it at trial. While failure
to present an issue to the trial court generally forfeits consideration of that
issue on appeal (see Howitson v. Evans Hotels, LLC (2022) 81 Cal.App.5th
475, 489), Respondents have not persuaded us this principle applies in a
CEQA case. In a CEQA case, “[t]he 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, supra, 40 Cal.4th at p. 427.)
Respondents primarily rely on A Local & Regional Monitor v. City of Los
Angeles (1993) 12 Cal.App.4th 1773 (ALARM), but in that case, the court
determined the appellant was barred from raising a claim for the first time
on appeal because it failed to exhaust its administrative remedies. (Id. at
p. 1804.) Forfeiture was only cited as an additional reason, and the court did
not explain how this principle applied to CEQA review. (Ibid.) The same is
true of the other cases cited by Respondent. (See El Morro Community Assn.
v. California Dept. of Parks & Recreation (2004) 122 Cal.App.4th 1341, 1351
[citing without analysis to ALARM]; Porterville Citizens for Responsible
Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 912
[no analysis within CEQA context when finding forfeiture based on party’s
failure to bring deficiencies or omissions in the tentative decision to the trial
court’s attention]; Old East Davis Neighborhood Assn. v. City of Davis (2021)
73 Cal.App.5th 895, 912–913 [citing Porterville].) Accordingly, we decline to
find Appellants forfeited this or any other arguments asserted on appeal by
failing to raise them before the trial court or to object when the tentative
decision did not address an issue.

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Respondents failed to proceed in a manner required by law by providing
misleading and inconsistent project lifespan information. (See Covington v.
Great Basin Unified Air Pollution Control Dist. (2019) 43 Cal.App.5th 867,
873 (Covington); § 21177, subds. (a) & (b).) But IID did assert below that
Respondents had not provided sufficient evidence of the Project’s water

supply impacts. Thus, this argument was exhausted,9 and the actual Project
lifespan remains highly relevant to our review of the sufficiency of the
evidence in support of the County’s certification of the EIR.
The Project’s lifespan is described inconsistently throughout the record.
For example, although the EIR and its supporting documents repeatedly
refer to the Project as having a 30-year lifespan and a total water usage
based on that duration, they also include references to a 50-year lifespan and
assert a different total water usage amount. Table ES-1 of the FEIR, which
includes a “[s]ummary of [s]ignificant [i]mpacts and [m]itigation [m]easures,”
twice refers to it as a 30-year project; the Findings of Fact mention a 30-year
lifespan three times; and the Mitigation Monitoring and Reporting Program
document references it once. The final WSA states that it examines the
“[e]xpected 30-year water demands of the Project,” and the table projecting
total operational water use, which had originally reflected 50 years of
operations and total raw water usage of 299,960 AF in the June WSA, was

9 A petitioner has exhausted its administrative remedies if any person
presented the alleged grounds for noncompliance with CEQA and the party
filing the CEQA action objected to the project’s approval. (Covington, supra,
43 Cal.App.5th at p. 873; § 21177, subds. (a) & (b).) Here, Appellants
objected to the Project on many grounds at all administrative levels, and IID
specifically addressed the lack of sufficient evidence for the DEIR’s
contention that adequate water was available to support the Project’s 50-year
lifespan. Furthermore, we conclude IID stated its objections with sufficient
specificity to allow the agency to evaluate and respond to them. (See Sierra
Club v. City of Orange (2008) 163 Cal.App.4th 523, 535–536.)

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revised in the final WSA to reflect 30 years of operations and “an estimated
total operational water demand [ ]of 6,500 AFY or 195,000 AF amortized over
a 30 year term.” None of these final documents indicate the Project
proponents expected it to last for 50 years. Further, CTR informed the board
of supervisors that the final WSA included “a calculation of the total water
demand for the Project to reflect a 30-year water demand.”
However, the revised DEIR, which Respondents indicate is part of the
certified EIR, muddles the discussion of the Project’s lifespan. Although the
section of the FEIR entitled “Draft EIR Revisions” does not reflect that the
Project lifespan or anticipated water supply needs had changed, the revised
DEIR contains multiple references to both a 30-year Project life and a 50-year
lifespan, including once mentioning them on the same page.
Given the pervasive references to a 30-year Project lifespan in the
FEIR, Findings of Fact, Mitigation Monitoring and Reporting Program
documents, and final WSA, we cannot agree with Respondents that the 30-
year references were mere “scrivener errors.” (If anything, the references to a
50-year term in the revised DEIR seem to be the more notable outliers.)
We need not struggle to reconcile the 20-year difference in timeframes
scattered throughout the EIR and its drafts. For purposes of our review, we
accept the Respondents’ assertion in their briefing that the Project’s intended
lifespan is, in fact, 50 years. Thus, regardless of whether Appellants failed to
exhaust their first argument on appeal as to the conflicting statements as to
the Project lifespan, our review of Appellants’ other contentions requires us to
work from an understanding that the approved lifespan for the Project is set
at 50 years. As we explain below, evidence in the record that may have
supported a 30-year Project lifespan fails to support the longer timeframe.

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Appellants next argue insufficient evidence supports the County’s
conclusion that IID can provide adequate water supplies to the Project for its
50-year lifespan. They maintain this is particularly so because Colorado
River water allocation laws and persistent drought conditions severely
constrain water availability. They further contend that the EIR cannot rely
on the availability of water designated by the IID for non-agricultural
projects, because the designated Interim Water Supply Policy (IWSP) water
supply is not readily available and must first be conserved, contracted for,

and purchased before any such water would be available.10 As we discuss
below, we agree the administrative record does not support a finding that
50 years’ worth of water is available or likely to become available via
conservation efforts.
2. Additional Facts
California enjoys senior water rights to Colorado River water, and IID
has access to 3.1 million AF of Colorado River water per year. Almost all the
Colorado River water is allocated to agricultural use in the Imperial Valley.
Leading up to this EIR, IID did not have an adopted urban water
management plan in place, and so it adopted the IWSP to address proposed
projects while it developed its Integrated Water Resources Management
Plan.

10 Contrary to Respondents’ assertion, we conclude this argument is
exhausted. Once again, although Appellants did not raise this specific issue,
IID did, explaining “the IWSP does not dedicate or set aside 25,000 AFY of
IID’s annual water supply to serve new projects. Refer to prior comments
regarding ability to ‘conserve’ up to 25,000 acre-feet under the IWSP.” IID
further clarified that the initial draft WSA did not accurately reflect that a
portion of this water supply “ ‘may be contracted for conservation at the
discretion of the IID Board.’ ”

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Although the IWSP allows IID to reserve up to 25,000 AFY of IID’s
Colorado River water supply to serve new non-agricultural projects, “[a]s of
November 2023, a balance of [only] 18,620 AFY remain[ed] available under
the IWSP for new non-agricultural projects.”
But to call the remaining balance “available” omits an important point:
as discussed below, this supply for non-agricultural projects is not a body of
water that merely awaits the IID’s directed allocation; it is a hypothetical
supply.
The DEIR explained that an April 2023 WSA “evaluate[d] water
availability during a normal year, single-dry, and multiple-dry water years
for the required 20-year period, plus an additional 30 years for a total of a 50-
year water demand for the Project.” It estimated the Project would require
299,960 AF of water in total. The DEIR claimed that “[t]he amount of water
available and the stability of the IID water supply along with on-farm and
system efficiency conservation and other measures being undertaken by IID
and its customers ensure that the Project’s water needs will be met for the
next 50 years.”

IID rejected such claims in its November 22, 2023 comment letter,11
including as to the current availability of water and as to the assertion that
sufficient water would be available for 50 years. It began by stating that
“[t]he Water Supply Assessment is incomplete and contains inaccurate data.”
It then explained that “[t]he percentage of project demand to ‘IWSP water
demand’ is not related to an available ‘unallocated supply’ but rather to an
‘unallocated water supply that may be created and set aside for new non-

11 IID’s letter references “Appendix M” to the DEIR, which contains a
WSA from June 2023, but also notes that the DEIR “incorrectly references a
WSA dated April 2023.”

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agricultural projects.’ The project’s water supply needs to be conserved and is
not readily available.” (Italics added.) In other words, sufficient water for
the Project would have to come from as yet unimplemented conservation
efforts. Further, IID admonished that “the analysis must include Best
Management Practices that the project incorporates for water conservation
and must further address what measures the project plans to take if there is
future water supply curtailment of the 6,500 AFY requested.”
As to timing, the IID letter explained that “[t]he water supply
assessment can’t extend beyond 30 years (through 2053) because the Water
Supply Assessment template created by IID and Imperial County does not
extend beyond 2055. Therefore, there is no 50-year water supply assessment
that can be applied to this project. Additionally, the IWSP does not dedicate
or set aside 25,000 AFY of IID’s annual water supply to serve new projects.
Refer to prior comments regarding ability to ‘conserve’ up to 25,000 acre-feet
under the IWSP.” It then stated that an entire paragraph of the DEIR

related to water supply12 “need[ed] to be deleted as the statements are all
inaccurate.” Its reasoning was that “[t]he existing and near-term On-Farm
Efficiency conservation and System Efficiency conservation undertaken by
IID and its customers under the QSA and other near-term agreements do not
ensure that the project’s water needs will be met over the next 50 years.
Hell’s Kitchen, in coordination with IID, will need to implement a

12 That paragraph stated: “Project construction represents 2.1 percent of
the unallocated supply set aside in the IWSP for nonagricultural projects in
the Imperial IRWMP through 2055. Project operations represent 28.2
percent of the unallocated supply set aside in the IWSP for nonagricultural
projects in the Imperial IRWMP through 2055. The amount of water
available and the stability of the IID water supply along with on-farm and
system efficiency conservation and other measures being undertaken by IID
and its customers ensure that the Project’s water needs will be met for the
next 50 years.”

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conservation program or project to generate the 6,500 AFY of water supply
that it will need for its operations.”
Respondents have not attempted to describe any efforts towards the
implementation of a conservation plan or project. Instead, in response to the
IID comments, Respondents made revisions to the FEIR and final WSA. The
final WSA concluded that IID’s projected water supply was sufficient to
satisfy the Project’s demands “for a 20-year Water Supply Assessment period
and for the 30-year proposed Project life.” It reflects a reduced estimated
total operational water demand of 195,000 AF. It further stated that, “on-
farm efficiency conservation measures . . . combined with the conversion of
some agricultural land uses to non-agricultural land uses (both solar and
municipal), ensure that IID can continue to meet the water delivery demand
of its existing and future agricultural and non-agricultural water users,
including this Project for the next 20 years and for the life of the proposed
Project under a water supply consistent with the district’s full entitlement.”
It acknowledged the Project would be required to mitigate its water demand
via conservation programs or projects to receive future water
apportionments. And the final WSA acknowledged that CTR would be
required to pay a reservation fee and annual water supply development fees
to IID to help fund the development of new water conservation, storage,
and/or augmentation projects. It also noted that reduced water delivery to
IID from the Colorado River was “increasingly likely.”
3. Legal Principles
Because the Project includes a processing plant, it is an industrial
water use project within the meaning of Water Code section 10912 (Wat.
Code, § 10912, subd. (a)(5)). An EIR for an industrial processing plant must
include analysis of water supply and infrastructure necessary to develop and
deliver water to the project. “If the projected water demand associated with

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the proposed project was accounted for in the most recently adopted urban
water management plan, the public water system may incorporate the
requested information from the urban water management plan.” (Wat. Code,
§10910, subd. (c)(2).) If not, “the water supply assessment for the project
shall include a discussion with regard to whether the public water system’s
total projected water supplies available during normal, single dry, and
multiple dry water years during a 20-year projection will meet the projected
water demand associated with the proposed project, in addition to the public
water system’s existing and planned future uses, including agricultural and
manufacturing uses.” (Id., § 10910, subd. (c)(3).) Thus, the WSA was
required to discuss available water, including availability during dry water
years, for a 20-year period.
Beyond the Water Code’s demands, CEQA imposes additional
requirements. Vineyard, supra, 40 Cal.4th 412 summarizes these principles.
“First, CEQA’s informational purposes are not satisfied by an EIR that
simply ignores or assumes a solution to the problem of supplying water to a
proposed land use project. Decision makers must, under the law, be
presented with sufficient facts to ‘evaluate the pros and cons of supplying the
amount of water that the [project] will need.’ ” (Id. at pp. 430–431.) Second,
the analysis of water sources for a large land use project and the impacts of
exploiting those sources cannot be limited to the water supply for the first
few years. (Id. at p. 431.) “Third, the future water supplies identified and
analyzed must bear a likelihood of actually proving available; speculative
sources and unrealistic allocations (‘paper water’) are insufficient bases for
decisionmaking under CEQA.” (Id. at p. 432.) “Finally, where, despite a full
discussion, it is impossible to confidently determine that anticipated future
water sources will be available, CEQA requires some discussion of possible

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replacement sources or alternatives to use of the anticipated water, and of
the environmental consequences of those contingencies.” (Ibid.)
“The ultimate question under CEQA, moreover, is not whether an EIR
establishes a likely source of water, but whether it adequately addresses the
reasonably foreseeable impacts of supplying water to the project.” (Vineyard,
supra, 40 Cal.4th at p. 434.) “If the uncertainties inherent in long-term land
use and water planning make it impossible to confidently identify the future
water sources, an EIR may satisfy CEQA if it acknowledges the degree of
uncertainty involved, discusses the reasonably foreseeable alternatives—
including alternative water sources and the option of curtailing the
development if sufficient water is not available for later phases—and
discloses the significant foreseeable environmental effects of each alternative,
as well as mitigation measures to minimize each adverse impact.” (Ibid.,
citing § 21100, subd. (b).) An EIR need not identify a guaranteed source of
water to be sufficient, however, because “[i]f an EIR were required to identify
a guaranteed source of water, then no EIR would ever be sufficient.”
(Western Placer Citizens for an Agricultural & Rural Environment v. County
of Placer (2006) 144 Cal.App.4th 890, 908–909 (Western Placer Citizens)
[concluding the EIR demonstrated sufficient existing and available sources of
water for the project].)
4. The Record Contains Insufficient Evidence of Adequate
Water Supplies for a 50-Year Project Lifespan
When we begin to assess whether sufficient evidence supports the
conclusion that the Project’s water supply will be adequate, we see the
mischief created by the conflicting lifespan descriptions. As discussed above,
many of the references in the final CEQA documents focus on a 30-year
Project lifespan; yet Respondents claim that the EIR demonstrates an
adequate water supply is available for 50 years. We disagree with this claim.

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Respondents contend that, “[a]lthough IID’s projections only looked out
to 2055, the EIR reasonably concluded that ‘[t]he amount of water available
and the stability of the IID water supply along with on-farm and system
efficiency conservation and other measures being undertaken by IID and its
customers ensure that the Project’s water needs will be met for the next
50 years.’ ” The specific page of the revised DEIR cited for this proposition
references both a 50-year and a 30-year lifespan for the Project. More
importantly, as discussed above, the statements related to a 50-year term
appear to be based on assertions made in the April 2023 WSA which were
disapproved on numerous grounds by IID, not the most recent one approved
by the board of supervisors in December 2023. The FEIR, final WSA, and
Findings of Fact certified by the board of supervisors do not claim a 50-year
lifespan or a total water usage of 299,960 AF. And IID’s statements do not
indicate its own conservation programs funded by the IWSP can provide
50 years of water to the Project. At most, the final WSA can be read as
asserting that IID is confident it can conserve and provide sufficient water to
support the Project for 30 years (with a total water usage of 195,000 AF),

assuming it receives its full river water entitlement.13 Although “[t]he lead
agency may make a finding that adequate water supplies exist (or do not
exist) to meet the project’s anticipated demand, even if that finding is
inconsistent with the conclusions in the public water system’s assessment”
(California Water Impact Network, supra, 161 Cal.App.4th at p. 1487), such

13 Appellants also argue that Respondents could not rely on this
assertion, because IWSP water must be contracted and paid for and
Respondents have not done either and, further, cannot presume IID’s
approval of the contract. But Appellants do not point to authority for the
proposition that Respondents must have already contracted for water for a
project that has not yet obtained County approval to demonstrate it complies
with CEQA.

18
findings must be based on some credible evidence in the record. We find none
here. Thus, the assertion that IID can provide a 50-year water supply lacks
evidentiary support in the record.
Beyond the availability of water from IID, and particularly given the
uncertainties inherent in long-term water supply planning in the Imperial
Valley, Respondents could have satisfied their CEQA burden by analyzing
water sources other than IID that might be reasonably likely to be able to
provide water for an additional 20+ years and by discussing the reasonably
foreseeable impacts of using those water sources. (Vineyard, supra,
40 Cal.4th at pp. 431–432, 434.) We acknowledge that the WSA is only
designed to address IID’s total projected available water supplies during
normal, single dry, and multiple dry water years for a 20-year period. (Wat.
Code, § 10910, subd. (c)(3).) The final WSA’s conclusion can be read as
indicating the County and IID believed it was reasonably likely IID could
provide water for up to 30 years, at least if IID received its full Colorado

River entitlement.14 Beyond that period, Respondents have not directed us
to anywhere in the EIR where they describe other viable water sources to
meet the needs of the remaining Project term. (Vineyard, supra, at p. 432.)
For instance, they do not discuss the possibility of purchasing water from
some source other than IID, nor do they propose feasible independent
conservation or augmentation projects that would help to ensure the
availability of sufficient water. And, as we will discuss more thoroughly
below, although Respondents offered some alternatives as mitigation
measures should the federal government mandate a reduction in IID’s

14 Notably, IID indicates elsewhere in the final WSA that it expects to
exhaust the IWSP water within 20 years and that, to meet the water needs of
other users, it will require CTR to make water conservation and
augmentation commitments.

19
entitlement, they do not assert that these mitigation measures were intended
to address the shortfall in reaching a 50-year Project life. Nor did the EIR
satisfy CEQA’s requirement of discussing “the environmental consequences of
those contingencies.” (Vineyard, at p. 432.)
Ultimately, as in Vineyard, the EIR’s discussion of a source of water
beyond the initial 20 years addressed in the final WSA “leaves too great a
degree of uncertainty regarding the long-term availability of water for this
project.” (Vineyard, supra, 40 Cal.4th at p. 439.) As in Vineyard, “[f]actual
inconsistencies and lack of clarity in the FEIR leave the reader—and the
decision makers—without substantial evidence for concluding that sufficient
water is, in fact, likely to be available.” (Ibid.) Accordingly, we conclude the
EIR does not satisfy CEQA because the claim that the Project has a
sufficient, available source of water for 50 years is not supported by
substantial evidence. (See Western Placer Citizens, supra, 144 Cal.App.4th at
p. 909 [a water source need not be guaranteed, but the EIR should identify
“existing, available, and sufficient sources of water for the project”].) We
further conclude this deficiency constitutes a prejudicial abuse of discretion,
because in an environment like the Imperial County, with such scarce water
resources, it precluded informed decisionmaking and informed public
participation, thereby thwarting statutory goals of the EIR process.
5. Analysis of Mitigation Measure UTIL-1
Beyond the insufficient evidence as to availability of water over the
lifespan of the Project, as discussed in the previous section, the EIR fails to
adequately respond to a very real threat to the IID’s allocation of water to the
Project, even in the short term, in the form of possible future cuts to IID’s
allotment of water from the Colorado River. In the DEIR’s discussion of that
possibility, i.e., the mitigation measure relevant to water supply (UTIL-1), it
merely noted, “[i]f the IID does not receive its annual 3.1 maf water

20
apportionment according to the QSA obligations of Colorado River water
during the Project’s 30-year lifespan, the Applicant shall work with IID to
ensure any reduction in water availability can be managed by the Project.”
IID responded in its comment letter that Respondents’ “blanket
statement that [they] will work with IID to ensure reductions of water are
managed is not an acceptable mitigation. As per the WSA Template
approved by Imperial County and IID, the project proponent must identify
specific measures of how a proportional percentage of water will be curtailed
if water supply reductions were ordered by an agency having jurisdictional
authority.”
As noted above, Respondents revised UTIL-1 on the eve of the board of
supervisors’ meeting. The existing language remained, and Respondents
then added: “Under an authorized water supply agreement, the Hell’s
Kitchen PowerCo 1 and LithiumCo 1 Project will be required to acknowledge
and accept as a condition of water service that to the extent that IID receives
an order or directive from a governmental authority, having appropriate
jurisdiction, that reduces the total volume of water available to IID from the
Colorado River during all or any part of their water service agreement, IID
may reduce the water service agreement amount, as directed by the IID
Board, as a proportionate reduction of the total volume of water available to
IID. This reduction is separate from and in addition to any allocation
authorized pursuant to the Equitable Distribution Plan.” In other words, if,
for example, the federal government reduced the volume of river water
allotted to IID, IID would proportionately reduce the amount of water
provided for the Project.
The revised version of UTIL-1 expanded on the offer to “work with” IID,
explaining that “[a]dditional operational changes may be implemented by the

21
Project under these unpredictable conditions” such as (1) “produc[ing]
groundwater at property”; (2) “explor[ing] temporary use of recycled drain
water; and/or”; (3) “reduc[ing] production rates in line with water supply
reductions.” Respondents estimated that “[i]ncorporation of these additional
measures” would conserve an estimated 945 AFY of water supply demand or
“approximately 15 percent of overall water supply demand for the Project.”
Appellants highlight numerous ways in which UTIL-1 violates CEQA.
First, they argue that, by issuing the revised UTIL-1 late (after the FEIR was
released to the public and the day before the board of supervisors approved
the project), Respondents violated CEQA’s public disclosure and evaluation
requirements. Second, Appellants contend the revised UTIL-1 lists only what
the Project “may” do if water cutbacks occur, which fails CEQA’s
requirements to make enforceable commitments and set enforceable
performance standards (citing Guidelines, § 15126.4, subd. (a)(1)(B), (D)).
Third, they maintain that CEQA requires analysis of the potential
consequences of the proposed mitigation measure of pumping groundwater
(citing Guidelines, § 15126.4, subd. (a)(1)(D)). Appellants note this is
particularly so since the EIR repeatedly states that groundwater will not be
used at the Project site. They also highlight the State Lands Commission’s
concern that any use of groundwater could “impede groundwater basin
management” and point out there is no evidence that it would be feasible to
turn the brine beneath the Project site, which contains arsenic and heavy
metals, into usable process water for the lithium extraction facility. Fourth,
Appellants contend the mitigation measure of proportionate cutbacks in
production contradicts the alternatives analysis wherein the EIR states that
reducing the Project size is infeasible. Fifth, they note that no analysis was
done on the option to use recycled drain water, including whether it would be

22
feasible to temporarily tap IID’s drains or whether IID would allow such use.
They contend such an analysis must assess the environmental impact of
diverting an unspecified amount of drain water from flowing to the Salton
Sea and address possible mitigation of this impact. On this point, they
highlight that this mitigation also does not square with the EIR’s assertion
that “ ‘the Project would not result in a reduction in drainage flow to the
Salton Sea.’ ”
In response, Respondents assert that “the speculative nature of such
impacts rendered them incapable of meaningful review.” They contend “[t]he
possibility of a government mandated water supply reduction, the amount of
such a reduction, the length of time of such a reduction, etc., are all data
points that do not exist and the potential impacts of addressing such a
hypothetical shortfall cannot be analyzed at this time and would require
future environmental review.”
Because resolution of these issues turns on whether the EIR contained
sufficient discussion of mitigation measures under CEQA law and served its
purpose as an informational document, our review is de novo. (See Sierra
Club v. County of Fresno (2018) 6 Cal.5th 502, 516 (Sierra Club).)
As a threshold matter, we disagree that the impacts of these mitigation
measures were too speculative to review. First, the possibility of a
government mandated water supply reduction is entirely foreseeable; such
foreseeability is precisely why Respondents proposed mitigation measures.
Moreover, IID’s letter explains that the County approved the WSA template
used for all projects and that in each WSA, “the project proponent must
identify specific measures of how a proportional percentage of water will be
curtailed if water supply reductions were ordered by an agency having
jurisdictional authority.”

23
Thus, there is no question the County knew it was required to identify
what specific measures it would take in response to a water shortage and
that a promise to “work with” IID would be insufficient. And the requirement
of identifying how water “will be curtailed” (italics added) implies the
measures must be feasible and appropriate for implementation. The final
WSA itself also indicates reductions in IID’s allocation are likely, as it
explains that “[g]iven the Colorado River conditions, the likelihood that IID
will not receive its annual 3.1 MAF apportionment less QSA/Transfer
Agreement obligations of Colorado River water is no longer low despite the
high priority of the IID entitlement relative to other Colorado River
contractors . . . . Given the prolonged drought conditions and recent
communication from the Department of the Interior, reductions to all basin
contractors, including IID, are increasingly likely.”
Furthermore, although the amount of any such reduction is unknown,
Appellants’ point is that any use of groundwater or drain water could cause a
significant environmental effect, and the EIR does not discuss these impacts
at all. The Guidelines make clear that “[i]f a mitigation measure would cause
one or more significant effects in addition to those that would be caused by
the project as proposed, the effects of the mitigation measure shall be
discussed but in less detail than the significant effects of the project as
proposed.” (Guidelines, § 15126.4, subd. (a)(1)(D).) Here, the DEIR
acknowledges that impacts to groundwater may be significant in that it
considers as a threshold of significance whether the Project will
“[s]ubstantially decrease groundwater supplies or interfere substantially with
groundwater recharge such that the project may impede sustainable
groundwater management of the basin[.]” But the EIR does not explain that
any impacts of the mitigation measure would be less than significant.

24
Rather, the EIR contains no discussion of the impact of using groundwater;
instead, the revised DEIR states that groundwater will not be used in the
Project.
Likewise, IID has stated that diversion of drain water would decrease
inflow to the Salton Sea, and Respondents acknowledge that “[t]he record
shows that the shrinking Salton Sea is the main contributor to poor air
quality because of exposed playa [seabed].” Nonetheless, Respondents did
not address this impact of the drain water mitigation measure.
Because government mandated cutbacks in river water supply were
foreseeable, even if the duration was unknown, CEQA required analysis of
the potentially significant effects caused by these measures. (Guidelines,
§ 15126.4, subd. (a)(1)(D).)
Furthermore, the EIR also must include evidence that the mitigation
measures are “feasible.” (Guidelines, § 15126.4, subd. (a)(1).) It is true, as
both parties acknowledge, that “[t]he specific details of a mitigation
measure . . . may be developed after project approval when it is impractical or
infeasible to include those details during the project’s environmental review.”
(Id., § 15126.4, subd. (a)(1)(B).) But even if such a deferral is justified, which
is not certain in this case, it is only authorized under the Guidelines if the
agency “(1) commits itself to the mitigation, (2) adopts specific performance
standards the mitigation will achieve, and (3) identifies the type(s) of
potential action(s) that can feasibly achieve that performance standard and
that will be considered, analyzed, and potentially incorporated in the
mitigation measure.” (Ibid.) Respondents contend UTIL-1 commits CTR to
implement water reductions proportionate to any government mandated
water reduction imposed on IID and includes a specific performance standard
of such proportionate reductions. They also assert without elaboration that

25
UTIL-1’s options are feasible and were agreed to by the County and IID
(citing the final WSA).
Even if we accept Respondents’ assertions as to the first two prongs, we
are not persuaded substantial evidence in the record supports the conclusion
that these mitigation measures are feasible. “CEQA defines ‘ “[f]easible” ’ as
‘capable of being accomplished in a successful manner within a reasonable
period of time, taking into account economic, environmental, social, and
technological factors.’ ” (Natural Resources Defense Council, Inc. v. City of
Los Angeles (2023) 98 Cal.App.5th 1176, 1202, quoting § 21061.1; Guidelines,
§ 15364.) Portions of the revised DEIR unchanged by the FEIR indicate that
“[g]roundwater underlying the Imperial Valley is generally of poor quality
and unsuitable for domestic or irrigation purposes,” groundwater usage is
regulated (see, e.g., Wat. Code, §§ 10720 et seq. [Sustainable Groundwater
Management Act], 10910, subd. (f)), there are no water-related wells on the
Project property, and IID does not operate water wells or groundwater
recharge areas.
As for drain water, Respondents acknowledge later in their brief that
any actual use of recycled drain water would require a separate water supply
agreement with IID and additional CEQA review. There also is no indication
as to whether CTR could temporarily tap IID’s drains or feasibly use the
contaminated agricultural runoff water they contain. It does not appear the
Project otherwise has access to drain water or creates wastewater that flows
into IID drains. Thus, the record does not disclose that “produc[ing]
groundwater” or using “recycled drain water” are feasible mitigation
measures such that Respondents satisfied their CEQA obligations by simply
listing them without discussion in the final WSA and Findings of Fact. (See
Guidelines, § 15126.4, subd. (a)(1)(B).)

26
As for the third mitigation measure of reducing production rates, as the
EIR once again contains no discussion at all regarding this proposed
mitigation measure, there is no evidence it is logistically or economically
feasible. In particular, given the unresolved logistical hurdles of the first two
proposed mitigation measures, there is no indication that reduced production
alone can make up for a substantial water cutback. The EIR does not discuss
how Respondents calculated their conservation estimate of 945 AFY, which in
referring to “these additional measures” appears to be based on
implementation of all three proposed operational changes, or why the
analysis is based on a 15 percent reduction. As Appellants point out, this
measure also conflicts with the EIR’s alternatives analysis in which it found
a reduced Project size infeasible because “[e]ngineers have not been able to

identify a feasible way to scale the Project down.”15 Thus, the EIR again
falls short of “includ[ing] enough detail ‘to enable those who did not
participate in its preparation to understand and to consider meaningfully the
issues raised by the proposed project.’ ” (Sierra Club, supra, 6 Cal.5th at
p. 516.)

15 To the extent Appellants tangentially challenge the EIR’s analysis of
alternatives to the Project as part of this argument, Appellants have not met
their burden of proving that the EIR is legally inadequate (see State Water
Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 723), and we do not
address it further. Aside from citing to Guidelines section 15126.6,
subdivision (a), which requires the EIR to describe a range of reasonable
alternatives to the project, Appellants provide no analysis or legal argument
supporting their claim. Furthermore, it is mentioned under a heading
challenging mitigation measure UTIL-1, not project alternatives. Court rules
require each argument to be stated under a separate heading (Cal. Rules of
Court, rule 8.204(a)(1)(B)), and we are not required to “consider all of the
loose and disparate arguments that are not clearly set out in a heading and
supported by reasoned legal argument.” (Provost v. Regents of University of
California (2011) 201 Cal.App.4th 1289, 1294.)

27
Accordingly, we conclude that in omitting the required discussion of
feasible mitigation measures addressing a future water supply shortage, the
EIR failed to serve its purpose as an informational document in violation of

CEQA.16
C. Cumulative Water Supply Impacts
Appellants contend the EIR’s cumulative water impact analysis should
have considered the three geothermal developments proposed by Berkshire
Hathaway Energy Renewables (BHER), the County’s own Lithium Valley
Specific Plan (LV Specific Plan), and CTR’s larger, late-disclosed plans for six
more lithium extraction facilities. Respondents counter that the EIR was not
required to consider these projects because they were not reasonably probable
future projects at the time the County issued the NOP, which Respondents

contend is the appropriate baseline for evaluating cumulative impacts.17
Here we agree with Respondents.

16 To the extent Appellants argue the revised UTIL-1 was released late
(after the final EIR was released to the public and the day before the board of
supervisors approved the project) with no opportunity for public comment,
they have not adequately supported their claim of error with legal analysis.
The opening brief does not state which of “CEQA’s public disclosure and
evaluation requirements” were violated. Nor does it say recirculation was
required under Vineyard. Accordingly, we decline to address this argument
further (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th
142, 153), although we acknowledge it is largely rendered moot by our
analysis.

17 In a request for judicial notice dated October 23, 2025, Respondents ask
this court to take judicial notice of documents related to these three BHER
projects and the LV Specific Plan that were not part of the administrative
record. But as Respondents pointed out in their brief, our high court has
confirmed that “it would never be proper to take judicial notice of evidence
that (1) is absent from the administrative record, and (2) was not before the
agency at the time it made its decision.” (Western States Petroleum Assn. v.
Superior Court (1995) 9 Cal.4th 559, 573, fn. 4.) That is correct and thus this

28
1. Legal Principles
“The cumulative impact from several projects is the change in the
environment which results from the incremental impact of the project when
added to other closely related past, present, and reasonably foreseeable
probable future projects.” (Guidelines, § 15355, subd. (b); Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d
376, 394 (Laurel Heights).) Because the significance of impacts is measured
against baseline physical environmental conditions in the vicinity of the
project, the lead agency generally should use conditions “as they exist at the
time the notice of preparation is published.” (Guidelines, § 15125,
subd. (a)(1); South of Market Community Action Network v. City and County
of San Francisco (2019) 33 Cal.App.5th 321, 337 (South of Market).)
However, “[n]either CEQA nor the CEQA Guidelines mandates a uniform,
inflexible rule for determination of the existing conditions baseline.”
(Communities for a Better Environment v. South Coast Air Quality
Management Dist. (2010) 48 Cal.4th 310, 328 (Communities for a Better
Environment).) Rather, an agency has discretion to decide what time frame
of predicted physical conditions without the project most realistically reflects
baseline conditions. (Id. at pp. 327–328.) “[I]n appropriate circumstances an

information is not relevant. Furthermore, it is Appellants’ burden to show
the status of these projects and that the County was required to consider
them in the EIR. It is not Respondents’ burden to show they were not ripe for
consideration. For these reasons, the request is denied.
We likewise deny Appellants’ December 2, 2025 request for judicial
notice in support of their reply brief and in response to Respondents’ judicial
notice request. It requests that we consider documents for proceedings
related to the BHER and CTR projects that occurred after the judgment
subject to appeal. These documents were not before the board of supervisors
when it made its determination on the Project and are not relevant or helpful
to our determination on appeal.

29
existing conditions analysis may take account of environmental conditions
that will exist when the project begins operations; the agency is not strictly
limited to those prevailing during the period of EIR preparation.” (Neighbors
for Smart Rail v. Exposition Metro Line Construction Authority (2013)
57 Cal.4th 439, 452 (Neighbors for Smart Rail).) Similarly, “[a]n agency may,
where appropriate, adjust its existing conditions baseline to account for a
major change in environmental conditions that is expected to occur before
project implementation.” (Ibid.)
We review the agency’s decision as to how to measure the existing
physical conditions for substantial evidence. (Communities for a Better
Environment, supra, 48 Cal.4th at p. 328.)
2. Analysis
As set forth above, the date of publication of the NOP is the default
cutoff in determining which existing and probable future projects must be
considered in conducting a cumulative impacts analysis. (Guidelines,
§ 15125, subd. (a)(1); South of Market, supra, 33 Cal.App.5th at p. 337.)
Here, the County elected to use the NOP date of March 2022 as the cutoff for
other projects, although it had discretion to adjust its existing conditions
baseline so long as the date provided a realistic picture of existing conditions.
(See Neighbors for Smart Rail, supra, 57 Cal.4th at p. 452.) Thus, we
consider two related questions: first, whether substantial evidence supports
the County’s conclusion that using the NOP date provided a realistic picture
of existing conditions; and second, whether the specified projects were
“reasonably foreseeable probable future projects.” (See id., at pp. 462–463.)
A “probable future project” has been interpreted as one that is under
environmental review and is sufficiently quantified. (San Franciscans for
Reasonable Growth v. City and County of San Francisco (1984)
151 Cal.App.3d 61, 76–77.) The same court defined “under environmental

30
review” as including “those related projects for which an EIR has been
required and also those related projects for which a negative declaration
(current Guidelines, §§ 15070–15075, 15371), a statutory exemption (current
Guidelines, §§ 15260–15277), or a categorical exemption (current Guidelines,
§§ 15300–15329, 15354) is being considered.” (Id. at p. 74, fn. 13.) It also
clarified that an agency must consider projects “ ‘outside the control of the
agency,’ ” and “where feasible . . . use reasonable efforts to discover, disclose,
and discuss related projects which are under the administrative jurisdictions
of other city, state, and federal agencies.” (Ibid.)
Even within the context of evaluating the environmental effects of
probable future activities within the project subject to the EIR and within the
lead agency’s own control, our Supreme Court has only required a discussion
of those impacts where the agency “can provide meaningful, reliable data.”
(Laurel Heights, supra, 47 Cal.3d at p. 398.) As one court phrased it, “any
future project where the applicant has devoted significant time and financial
resources to prepare for any regulatory review should be considered as
probable future projects for the purposes of cumulative impact.” (Gray v.
County of Madera (2008) 167 Cal.App.4th 1099, 1127–1128 [but finding
substantial evidence supporting the exclusion of any planned expansions
where “the County could not locate any project where an applicant has filed
for review with the county planning department”].) “[M]ere awareness of
proposed expansion plans or other proposed development does not necessarily
require the inclusion of those proposed projects in the EIR.” (Id. at p. 1127.)
And no discussion of impacts is required for specific “future action ‘that is
merely contemplated or a gleam in a planner’s eye.’ ” (Ibid.; City of Maywood
v. Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 362, 397.)

31
Appellants’ argument does not seem to be so much that any of the other
projects were probable future projects on the NOP date or that Respondents
were required to consider them because they were known at that time to be
projects that “will exist when the project begins operations.” (See Neighbors
for Smart Rail, supra, 57 Cal.4th at p. 452.) Rather, their contention seems
to be that if projects become “probable future projects” at any time prior to
the EIR’s certification, the EIR proponent must revise its cumulative impacts
analysis to consider them.
Appellants have not persuaded us that this is required. An EIR is, in
essence, a good faith prediction of (1) the impacts a project will have on the
existing environment when it is implemented, if it is approved, and
(2) whether existing conditions will have changed appreciably by the time the
project begins operations. (Neighbors for Smart Rail, supra, 57 Cal.4th at
p. 452.) An argument could be made that an agency should consider
significant and reasonably definite changes in baseline conditions that
become known prior to issuance of the EIR or possibly during the public
comment period such that they could be incorporated into the final EIR. But
to avoid the EIR process going on forever, there has to be some cutoff for
when the applicant must make their prediction. Requiring applicants to go
back after issuance of the final EIR and consider newly arisen cumulative
impacts that were not reasonably predictable at or soon after the NOP date
may well result in an agency having to reopen the comment period and
engage in endless review and revision. Appellants have not demonstrated
this is required by CEQA.
As we discuss below, even if we were to conclude that the EIR should
not have relied on the March 2022 NOP date, none of the specified projects

32
were sufficiently developed to constitute a “probable future project” by the
time of the issuance of the FEIR.
a. BHER Projects
Appellants contend three BHER projects— Morton Bay Geothermal,
Black Rock Geothermal, and Elmore North Geothermal—were “under
review” by April 2023 when they were submitted to the California Energy
Commission (CEC) and therefore Respondents were required to consider
these projects. We disagree.
As an initial matter, the portion of the administrative record
Appellants cite does not confirm that the review before the CEC was a
“CEQA-equivalent review process” as Appellants claim. None of the April
2023 “Application[s] for Certification” to the CEC provide any evidence of the
anticipated water use by any of the facilities or even evidence that
anticipated water use must normally be disclosed during this certification
process. Moreover, the cited portion of IID’s comment letter suggests an
environmental review had not begun as it referred to these projects as
“ ‘currently under the permitting process.’ ” Large projects require multiple
permits in addition to certification of CEQA compliance, but IID’s letter does
not indicate the type of permit being sought or whether any water use
assessment was prepared or provided as part of that process. If IID was
responsible for providing this water allocation, it should have been aware of
the amount had a specific request been made. Yet Appellants do not cite to
such a figure from IID’s letter. Thus, Appellants have not demonstrated the
BHER projects were undergoing environmental review and were sufficiently
quantified by the NOP publication date such that Respondents were required
to consider them as probable future projects in their cumulative impacts
analysis.

33
Nor have Appellants shown that the BHER projects’ water usage was
sufficiently quantified or that the projects began environmental review soon
after the NOP date or by any other date prior to issuance of the FEIR on this
Project such that Respondents abused their discretion in not considering
them. Appellants point to their own expert’s October 2023 letter stating, “we
now know as a result of the August CEC public hearing for BHE’s new
proposed geothermal projects that . . . BHE Renewables has now requested
13,165 AFY for its three new proposed geothermal plants (not even including
plans for lithium extraction).” But the letter does not attach a report or
transcript as evidence supporting this figure for the proposed BHER project’s
water request. A November 2023 report prepared by Appellants indicates
that as of June 2023, when the DEIR was issued on the instant Project, the
estimated AFY of freshwater consumption for the BHER plants was
“unknown” and that “BHER has not yet estimated water consumption in
environmental planning documents.” In other words, Appellants have not
demonstrated the proposed BHER projects became sufficiently quantified
probable future projects before the EIR issued or even before the public
comment period for the instant Project closed in November 2023. This
evidence, therefore, does not undermine Respondents’ use of the NOP date.
As for Appellants’ objection that the EIR inappropriately did not
address the BHER projects because they were more than one mile away, this

response focuses on impacts to air and hazardous materials, not water.18

18 It read, “While the cumulative impact analysis did not specifically
address the three BHE Renewables Projects raised in the appeal: Morton
Bay Geothermal; Black Rock Geothermal; and Elmore North Geothermal,
these geothermal projects are located more than 1 mile away from the
Project. The DEIR discusses that the air impacts and hazard and hazardous
materials impacts would generally not combine with the Project due to the
distance between the Project and these other geothermal projects.”

34
Thus, this response was not relevant to Respondents’ decision not to include
these projects in their analysis of cumulative water supply impacts.
Finally, we are not persuaded that Respondents were required to
consider the BHER plans as plants that were expected to exist by the time
the Project began operations. (See Neighbors for Smart Rail, supra,
57 Cal.4th at p. 452.) The final WSA indicates IID subtracts water from the
25,000 AFY allotted to the IWSP after it allocates it to a project and expects
to exhaust its ability to meet demand in less than 20 years. Under this
scenario, whether projects that have not already requested or contracted for
water would obtain water before the IWSP is exhausted and be able to
proceed is entirely speculative. Likewise, as the County has ultimate
authority to determine whether sufficient water exists for a project and to
provide CEQA certification, projects that are not yet under environmental
review cannot reasonably be categorized as “probable future projects.”
Appellants have not made clear why the EIR must consider projects that are
not as far along in the development and approval process. Moreover, given
this sequential process for allocating water from one source and the
speculative nature of the proposed BHER projects, Appellants also have not
shown Respondents were required to respond to comment letters requesting
consideration of projects that were not yet under environmental review.
Accordingly, we find no error as to the analysis of cumulative impacts related
to water supply as to the proposed BHER projects.
b. LV Specific Plan
Appellants likewise fail to persuade us the EIR was required to
consider the LV Specific Plan, which is being developed by the Imperial
County Planning & Development Services Department. As evidence cited by
Appellants demonstrates, it was not under review by the NOP date or even
by the time this Project’s FEIR issued.

35
In November 2023, the director sent a letter to the board of supervisors
providing land use alternatives for the proposed project. Within this letter,
he explained that “[a] Programmatic Environmental Impact Report (PEIR)
will be prepared as soon as a preferred Land Use Alternative is selected,”
which “will disclose all foreseeable environmental impacts if the Lithium
Valley Specific Plan were to be implemented.” The record also contains a
NOP of draft programmatic EIR indicating a public scoping meeting for the
proposed programmatic EIR would be held on December 14, 2023. (See
Guidelines, §§ 15082, 15083 [a scoping meeting provides an opportunity for
early consultation between the lead agency and “responsible and trustee
agenc[ies]” to determine “the scope and content of the environmental
information that the responsible or trustee agency may require” in the draft
EIR].)
Thus, whether the project would occur at all and, if so, where, was still
up in the air in November 2023, when the comment period for the instant
Project was closing, and no draft programmatic EIR for the LV Specific Plan
had been submitted for public comment by the December 13, 2023 Planning
Commission hearing on the instant Project’s EIR. As Respondents highlight,
Appellants also do not point to any evidence in the administrative record
regarding the LV Specific Plan’s purported water use. In other words, there
is no evidence this project’s water usage was sufficiently quantified by the
NOP date or at any time soon thereafter that might support using a later
date to reflect realistic baseline cumulative impacts to water.
We also disagree that the County was required to consider this project
because the County itself had developed it and devoted time and resources to
the plan. Even though it was within the lead agency’s control, the EIR was
only required to discuss it if the agency “[could] provide meaningful, reliable

36
data” (Laurel Heights, supra, 47 Cal.3d at p. 398) to be included in the EIR,
which Appellants have not shown was the case here.
Furthermore, this situation is distinguishable from City of Antioch v.
City Council (1986) 187 Cal.App.3d 1325, 1337–1338, relied on by Appellants,
because there the only purpose for the road to nowhere and accompanying
sewer project was to spur further development in the immediate area.
Accordingly, the court concluded the city must “assume the general form,
location and amount of such development that now seems reasonable to
anticipate, as the developer has doubtless already done, and evaluate that
development by means of the EIR process.” (Id. at p. 1338.) Here, the
projects are unrelated, and the instant Project could proceed and function

independently regardless of whether the LV Specific Plan is ever approved.19
c. CTR’s Expanded Project
Appellants argue the EIR also should have considered CTR’s plans to
create a 190-acre, seven-stage campus, which it announced shortly after the
Planning Commission approved the instant Project on December 13, 2023.

19 Appellants request that we take judicial notice of a board agenda fact
sheet, and the attached documents regarding the LV Specific Plan, submitted
to the Imperial County Board of Supervisors on November 7, 2023
(Exhibit A). Also attached to Exhibit A are various emails and comment
letters directed to the board of supervisors prior to its hearing on the instant
Project. Even if these documents are appropriate subjects for judicial notice,
which we do not determine, we need not take judicial notice of the board
agenda documents as they do not differ from the information in the
administrative record as to whether the LV Specific Plan was under
environmental review during the relevant time period. Likewise, the letters
reflect similar concerns as those already contained in the administrative
record (and notably are contained on pages 220-224 of Respondents’
Appendix). Thus, the September 11, 2025 request for judicial notice is denied
as to Exhibit A.

37
Here again, the expanded project was not under review, and its water
usage was not quantified, by the NOP release date. By Appellants’ own
admission, even as late as after this Project’s initial approval, CTR’s proposed
expansion was only at the “concept” stage. There was no indication it would
ever be approved. And Appellants have not demonstrated that the instant
Project cannot function independently if the expanded project is not
approved. Therefore, the County did not fail to provide an accurate picture of
the Project’s realistic baseline when it omitted CTR’s expanded project from
the EIR’s cumulative water supply impacts analysis.
D. Air Impacts Analysis
The parties agree that the main contributor to poor air quality in the
communities near the Salton Sea is the reduction of inflows to the sea, which
exposes more of the playa. Because pesticides and fertilizer from
surrounding agricultural land have flowed into the Salton Sea for years,
harmful chemical deposits are present in the playa and become airborne
when the sea recedes. Yet, according to Appellants, the EIR provides no
discussion of how the Project’s raw water use would impact water flow into
the Salton Sea and the resulting impact on air quality. In their view, this
violates CEQA. We agree.
We review de novo Appellants’ allegations that the EIR entirely omits
required information and analysis and fails to respond to comments, and we
review any factual determinations for substantial evidence. (See Vineyard,
supra, 40 Cal.4th at 435.)
Respondents acknowledge the record shows that the shrinking Salton
Sea is the main contributor to poor air quality because of exposed playa.
They further acknowledge the public comment letters stating that the
Project’s water use would reduce the flow of drain water to the sea. However,
they contend “[t]he Project will obtain its annual 6,500 acre-feet of freshwater

38
from IID’s annual allocation of 25,000 acre-feet for non-agricultural projects,
consistent with IID’s adopted [IWSP]. [Citation.] Therefore, the Project does
not use water allocated for agriculture.” Accordingly, they claim reduction in
water flow and poor air quality impacts are hypothetical and speculative
impacts. They contend that this court must defer to the agency’s conclusion

that the impact was speculative.20
Deference is required if the factual conclusion is supported by
substantial evidence. (Santa Rita Union School Dist. v. City of Salinas
(2023) 94 Cal.App.5th 298, 349, citing Tiburon Open Space Committee v.
County of Marin (2022) 78 Cal.App.5th 700, 728.) Here, we find a lack of
substantial evidence to support a determination that the identified impacts
are hypothetical and speculative. Furthermore, Respondents did not proceed
as required by CEQA by failing to respond to the portion of IID’s timely
comment letter asserting that the Project will result in adverse air impacts.
Absent an adequate response and a discussion of the potentially significant
impacts to air quality, the EIR fails to serve its purpose as an informational
document. (Sierra Club, supra, 6 Cal.5th at p. 516.)
As noted above, the vast majority of the water that IID receives from
the Colorado River—97 to 98 percent—is allocated to agricultural uses, and
runoff from agricultural uses drains into the Salton Sea. The EIR and final
WSA both indicate the IWSP is a mechanism that allows a water supply that

20 Respondents also point to their response to IID’s comment letter
wherein they make the vague assertion that “Project Proponent will work
with IID to establish best management practices and protocols to ensure the
Project does not result in impacts to inflow to the Salton Sea and is in
compliance with the Salton Sea Conservancy for Operations and
Maintenance. No impact has been established and impacts are theoretical;
however, the Project Proponent will work with IID to ensure the Project is in
compliance with all regulations and requirements regarding drainage flow
into the Salton Sea.”

39
would otherwise be used for agriculture and other uses to be conserved and
redirected for use by new non-agricultural projects. Therefore, it follows that
any effective conservation would be achieved by conserving water otherwise
used at least in part for agriculture.
If water that would otherwise be used for agriculture is instead devoted
to non-agricultural uses, the drainage into the Salton Sea would necessarily
be reduced. Water used by the Project would not flow to the Salton Sea
because the Project recycles water instead of releasing it into drains. Both
parties acknowledge that any reduced drainage into the sea will lead to an
expansion of the playa and a resulting increase in poor air quality.
Therefore, it is reasonable to conclude that when IID redirects conserved
water to the Project, it likely will adversely impact air quality.
IID’s November 22, 2023 letter supports this understanding, stating
that “the proposed project will result in a net annual reduction of drainage
flow to the Salton Sea.” (Italics added.) IID maintains that “[t]he discussion
should determine the net anticipated reduction in drainage flow after taking
into consideration that none of the project’s 6,500 AFY of water supply will be
discharged into the drains that support the Salton Sea.” (Italics added.) Lest
there be a question as to whether the reduction would impact air quality, IID
explained: “In general, IID’s comments under hydrology and utility systems
(as it relates to water supply) are both directly and indirectly tied to air
quality. A reduction of drainage flow into IID drains and the Salton Sea may
affect the level of drainage vegetation and exposed playa which in turn could
result in increased dust emissions without proper mitigation. A full
assessment of the project and/or cumulative impacts to the Salton Sea is
essential including the consideration of mitigation measures on how this

40
project can contribute independently or to the Salton Sea Conservancy for
Operation and Maintenance or apply other means of mitigation.”
Respondents did not respond to the portion of IID’s letter pointing out
the Project’s impact on air quality, as required by CEQA. (See § 21091,
subd. (d)(1), (2); Guidelines, § 15088.) The assertions that no impacts to
inflow to the Salton Sea have been established and that any such impacts are
theoretical do not explain or resolve the express discrepancy between
Respondents’ understanding and the assertion by IID (the actual water
provider) that inflows to the Salton Sea would be impacted and likely would
negatively impact air quality. CEQA requires an EIR to discuss “the possible
environmental effects of the project” (County of Butte, supra, 13 Cal.5th at
p. 627), and IID’s letter makes clear adverse air impacts are more than
possible. Furthermore, “[t]he written response shall describe the disposition
of significant environmental issues raised . . . [and] when the lead agency’s
position is at variance with recommendations and objections raised in the
comments [the major environmental issues] must be addressed in detail
giving reasons why specific comments and suggestions were not accepted.
There must be good faith, reasoned analysis in response. Conclusory
statements unsupported by factual information will not suffice.” (Guidelines,
§ 15088, subd. (c).) Respondents’ response to IID’s comment letter in the
FEIR provides just such an unsupported conclusory statement and does not
suffice. Just as with Respondents’ initial mitigation measure regarding
water supply, a commitment to “work with IID” is not sufficient mitigation.
Respondents also argued below and reassert on appeal that the County
was not required to assess the air quality impacts from using IWSP water
because “[a]ny impacts associated with IID’s decision to reallocate
agricultural water to non-agricultural uses, including impacts due to reduced

41
drainage flows to the Salton Sea, have already been evaluated” as part of a
2009 negative declaration. There is only one reference to this negative

declaration in the December 2023 WSA,21 and although the negative
declaration itself is not attached, Respondents complied with the CEQA
Guidelines for incorporating a document by reference by listing “the state

identification number of the incorporated document.”22 (Guidelines, § 15150,

subd. (d).)23
We conclude the negative declaration does not support Respondents’
claim. The 2009 negative declaration explains that it is a programmatic EIR
and that “[t]he only potential environmental effect of the policy at this point
in time is on IID’s water supply.” It clarifies that the IWSP “provides a
mechanism to obtain monies to fund the development of new water supplies

21 It states, “The environmental impacts of conserving up to the 25,000
acre-feet of IWSP water were analyzed in the Imperial Irrigation District
Interim Water Supply Policy for Non-Agricultural Projects Negative
Declaration, State Clearinghouse No. 2009061103 dated June 25, 2009. The
IID Board adopted this Negative Declaration on September 29, 2009.”

22 Appellants contend the County did not comply with the Guidelines,
which require making the document incorporated by reference available in a
public building. However, subdivision (d) of this provision provides that the
agency also may list “the state identification number of the incorporated
document,” which Respondents did here. (Guidelines, § 15150, subd. (d).)

23 Respondents asked the court below to take judicial notice of the
negative declaration, but it does not appear the court ruled on the request.
Because we conclude it was properly incorporated by reference, and thus is
part of the administrative record, we consider it for purposes of evaluating
whether it provided substantial evidence supporting Respondents’ assertion
that it was not required to evaluate any air impacts from use of IWSP water
because environmental impacts due to reduced drainage flows to the Salton
Sea were already evaluated as part of a 2009 negative declaration process.

42
to support the development of new commercial and industrial ventures.”
Whether a new proposed user relies on water supplied from IID as a result of
new water supply projects it created or “elect[s] to provide some or all of the
required water supply by paying for and implementing some other means of
providing water in a manner approved by [IID], such as conservation
projects, water storage projects and/or use of an alternative source of supply,
such as recycled water,” the negative declaration specifies that the
responsibility for addressing environmental compliance for new development
projects lies with the County of Imperial. It makes clear that it “does not
address the potential effects on the environment of specific new water supply,
replacement and or storage projects that may be funded, in whole or in part,
by [IID] through Water Supply Development Fees collected by [IID] pursuant
to the IWSP. CEQA compliance for such projects will be addressed when
such projects are defined and proposed for development.” Thus, by its terms,
the negative declaration does not include any analysis of environmental
impacts other than water supply.
The negative declaration also states that approximately 97 percent of
the water IID delivers is used for agricultural purposes, and “[w]ater
reserved under the IWSP, but not yet utilized, will be available for
agricultural use during ramp up years.” The reasonable inference from these
statements is that at least some of the unallocated water supply the Project
relies on would be diverted from agricultural uses as IID stated and, thus,
that the Project would decrease the amount of runoff to the Salton Sea. The
negative declaration does not include an evaluation of air impacts. And it
repeats multiple times that it did not investigate the environmental effects of
future water use projects and that the County would need to engage in the
full CEQA analysis of any project proposed under the IWSP. Notably, this is

43
reiterated in the IWSP itself, as it states that “[w]hen determining whether
to approve a water supply agreement for any Non-Agricultural Project
pursuant to this IWSP, the District will consider whether potential
environmental and water supply impacts of such proposed projects have been
adequately assessed, appropriate mitigation has been developed and
appropriate conditions have been adopted . . . .” Therefore, the text of the
negative declaration does not support Respondents’ claim that the IWSP’s
environmental effects have already been evaluated.
Ultimately, the EIR inadequately responded to comments and provided
factually unsupported grounds for its assertions that any air quality
assessment related to exposed Salton Sea playa was unnecessary. Thus, the
EIR response does not constitute a good faith effort at full disclosure (see
Guidelines, § 15151), and Respondents have failed to proceed in the manner

required by CEQA by not discussing this probable impact in the EIR.24

24 Appellants also briefly raise three additional issues. First, they
contend the EIR buried the discussion of the health impacts of airborne
particulates created or exacerbated by the Project in Appendix B. To the
extent this analysis requires elaboration or insertion into the body of the EIR
after consideration of the air impacts of diverting water from the Salton Sea,
Respondents should do so then. Second, Appellants object that the FEIR did
not adequately respond to comments and concerns raised by the Imperial
County Air Pollution Control District. But Appellants do not lay out the
EIR’s response to the letter, nor do they explain why no substantial evidence
in the record supports the County’s use of a different emissions model.
Accordingly, Appellants have not met their burden on this claim. Finally,
Appellants challenge the EIR’s failure to respond to a comment letter
submitted by the Leadership Counsel for Justice and Accountability on
October 23, 2022 (attached as an exhibit in the administrative record to a
letter from Appellants’ counsel dated December 22, 2023), but do not explain
why Respondents were required to respond when both letters fell outside of
the public comment period. (See Guidelines, § 15088, subd. (a) [“The lead
agency shall respond to comments raising significant environmental issues

44
E. Tribal Consultation
Appellants contend the County failed to engage in meaningful and
timely tribal consultation to identify and mitigate the Project’s impacts to
tribal cultural resources (TCRs) as required by CEQA. We conclude
Appellants have not established a lack of required consultation.
1. Additional Facts
Appendix E to the revised DEIR contains the results of an archival
search indicating that 17 prior cultural resource investigations had taken
place within a half-mile radius of the Project area. In 2016, during a prior
consultation for the Hell’s Kitchen Exploratory Well Project, and in
connection with that consultation, a cultural resources consultant contacted
the Native American Heritage Commission (NAHC). The NAHC provided
contact information for 36 tribal representatives, each of whom staff
contacted. Two tribes, the Morongo Band of Mission Indians and the Agua
Caliente Band of Cahuilla Indians, responded. The Morongo Band of Mission
Indians expressed concern and requested monitoring by a Cahuilla
representative during construction activities. The Agua Caliente Band of
Cahuilla Indians responded that the Project area was beyond their
traditional use area.
On October 12, 2017, a meeting occurred with representatives of CTR
and the Quechan Tribe. The Quechan Tribe’s representative, Manfred Scott,
expressed concern about the visual impact on the view from Mullett Island of
adding another geothermal plant but did not make clear how the significance
of any TCRs might be adversely impacted by the Project. A second meeting
occurred on November 6, 2017, with representatives of CTR, the Cabazon
Band of Mission Indians, the Torrez Martinez Desert Cahuilla Indians, and

received during the noticed comment period and any extensions and may
respond to late comments.”].)

45
Carmen Lucas of the Kwaaymii Tribe. The Cabazon Band of Mission
Indians’ and Torrez Martinez Desert Cahuilla Indians’ representatives stated
that they had no particular concerns about TCRs in the Project area. Lucas
stated that Obsidian Butte, which is located several miles away from the
HKG site, was a prehistorically important location to local tribes and that a
CEC archaeologist prepared a National Register of Historic Places
nomination for the site 10 years prior but had never submitted it. She
requested that the nomination be submitted in association with the HKG
project. She described birds that once nested on Mullet Island, explained
how they were historically important to local tribes, and asked if they have
been, or could be, provided with a suitable alternative nesting site. Finally,
she asked to be involved in the cultural resource survey of the HKG project
area.
In connection with the Project before us, on April 2021, a consultant for
the current Project requested an updated Sacred Lands File search from the
NAHC. The NAHC provided the search results along with contact
information for 24 tribes, all of which were contacted by the consultant. The
list included the Quechan, Torres-Martinez, Morongo, and Kwaaymii tribes,
with Lucas and Scott specifically listed as contacts for their respective tribes.
On March 21, 2022, Imperial County sent letters to the Quechan and
Torres-Martinez Indian Tribes pursuant to Assembly Bill No. 52. An email
from a County representative indicated letters were sent to “the tribes that
the County consults with.” The letter stated that the Sacred Lands File
search indicated that sacred sites had been identified within a one-mile
radius of the Project and that the California Historical Resources Information
System records search showed four previously recorded cultural resources
located within a half-mile radius of the Project site, but that none were

46
within the Project footprint. The Quechan responded on April 5, 2022,
requesting consultation, and Scott met with County representatives on
May 20, 2022. He expressed surprise that there was no follow up on the field

visit he said that they had requested during the 2017 meeting.25
On September 29, 2022, Lucas sent a letter requesting that her name
and address “be added on the Imperial County SB-18 and SB52 consultation
list” and indicated that her request included a consultation request for “the
Specific Plan & PECR [sic] for lithium recovery.”
The County opened the public comment period on the draft EIR on
September 8, 2023. The draft EIR stated that there were “no known tribal
cultural resources within the Project site” and provided as a mitigation
measure that a tribal monitor could attend the preconstruction briefing and
an archeological specialist would monitor all ground-disturbing work. It also
stated that all consulting Native American tribal groups that requested
notification of any unanticipated discovery of archaeological resources on the
Project shall be notified appropriately of any discoveries during construction.
Lucas submitted a draft EIR comment letter on October 23, 2023, referencing
her letter the year before as well as TCRs including the Southeast Lake
Cahuilla Active Volcanic Cultural District (Lucas clarified at another time
that Lake Cahuilla is the Salton Sea), Mullet Island, and “the (new) mud
pots.” She also noted that the DEIR omitted a requirement of qualified tribal
monitors during project surveys and construction as well as alternatives to
the Project.
The public comment period closed on November 30, 2023. The FEIR
did not alter the tribal cultural resources analysis contained in the DEIR. In

25 The minutes from the 2017 meeting do not reflect a request for a field
visit.

47
response to Lucas’s October 2023 comment letter, the County responded that
it contacted all tribes that had requested consultation and that her
September 2022 letter requested consultation for a different project—the
LV Specific Plan.
On December 8, 2023, Lucas submitted another letter in response to
the FEIR and provided a confidential map of the Southeast Lake Cahuilla
Active Volcanic Cultural District. She also spoke during the December 2023
Planning Commission hearing and the board of supervisors meeting in
January 2024.
2. Legal Principles
Assembly Bill No. 52 modified CEQA in 2015 to specify that “[a] project
with an effect that may cause a substantial adverse change in the
significance of a tribal cultural resource is a project that may have a
significant effect on the environment.” (§ 21084.2.) CEQA now requires that
“[p]rior to the release of a negative declaration, mitigated negative
declaration, or environmental impact report for a project, the lead agency
shall begin consultation with a California Native American tribe that is
traditionally and culturally affiliated with the geographic area of the
proposed project if: (1) the California Native American tribe requested to the
lead agency, in writing, to be informed by the lead agency through formal
notification of proposed projects in the geographic area that is traditionally
and culturally affiliated with the tribe, and (2) the California Native
American tribe responds, in writing, within 30 days of receipt of the formal
notification, and requests the consultation.” (§ 21080.3.1, subd. (b).)
“The lead agency may consult directly with: (1) Any person who has
special expertise with respect to any environmental impact involved, [or]
(2) Any member of the public who has filed a written request for notice with

48
the lead agency or the clerk of the governing body. . . .” (Guidelines, § 15086,
subd. (b), italics added.)
3. Analysis
Appellants assert that “Ms. Lucas of the Kwaaymii Laguna Band in
September 2022 had specifically stated ‘I am also specifically requesting
Consultation’ on ‘the specific plan’ and ‘[Program] EIR for lithium recovery’
for other lithium projects. [Citation.] Because the CTR Project site is within
the boundaries of the LV Specific Plan area [citation], the County should
have known this request included a request for consultation about the Project
site.”
The September 2022 letter did not mandate consultation under
Assembly Bill No. 52. First, the FEIR contains evidence that letters were
sent to all 24 tribes identified by the Native American Contact Program in
April 2021, but there is no indication in the record that Lucas responded to
this letter at any time prior to the consultation period or requested in writing

to be provided with formal notification of proposed projects in the area.26
(See § 21080.3.1, subd. (b).) As a result, the County was not required to send
her an Assembly Bill No. 52 letter on March 21, 2022. Further, she did not
provide a written request for consultation within 30 days of that date, as
required by the statute. (See § 21080.3.1, subd. (b).) Although the County

26 Additionally, her 2017 request to be involved in the cultural resource
survey of the HKG project area appears to have been made orally and thus,
even if it could be construed as a request for notification, technically it did not
satisfy CEQA’s requirement that the request for notification be made in
writing. (See § 21080.3.1, subd. (b).) Although adhering to the letter of such
requirements may seem unduly stringent, given the vast amount of data a
party preparing an EIR must harness and the many requirements it must
comply with, asking an applicant to keep track of oral requests made years
before and letters received outside of the mandated submission period is not a
trivial request.

49
could consult with those, like Lucas, who subsequently sent written requests
for consultation, it was not required to do so. (Guidelines, § 15086, subd. (b).)
Accordingly, the County did not fail to proceed as required by CEQA by not
consulting with Lucas.
Appellants next point out that “Ms. Lucas submitted a Draft EIR
comment letter (AR 2537-38) and a Final EIR comment letter (AR 16378-
16384)” and “personally appeared during the December 2023 Planning
Commission hearing (AR 11387-91) as well as the Board of Supervisors
meeting in January 2024 (AR 11469-71).” There is no limitation on a tribe’s
ability “to submit information to the lead agency regarding the significance of
the tribal cultural resources, the significance of the project’s impact on tribal
cultural resources, or any appropriate measures to mitigate the impact,” but
the agency is not required to incorporate changes or additions to the project
as a result. (§ 21080.3.2, subd. (c)(1), (2).)
There is no question that, just as with other areas of concern, the
agency shall consider comments received on a draft EIR within the public
review period and “shall prepare a written response” describing “the
disposition of each significant environmental issue that is raised by
commenters.” (§ 21091, subd. (d)(1), (2); Guidelines § 15088.) But although
Appellants and Lucas identified potential TCRs, they did not clarify the
“substantial adverse change in the significance of a tribal cultural resource”
(§ 21084.2), if any, the Project will have on these resources or propose any
mitigation measures. In other words, they did not raise significant
environmental issues.
For example, Lucas listed the Southeast Lake Cahuilla Active Volcanic
Cultural District and said it overlaps portions of the proposed project area,

50
but she did not explain what that District is, how it is used, or how its
significance would be adversely affected.
She also stated that the Project would “have effects” on Mullet Island
and “the (new) mud pots,” which she describes as “important areas to tribes
for medicine and training” but did not say what effects. Neither Mullett
Island nor the mud pots appear to actually be within the Project area,
although they are nearby. And again, absent an explanation of the adverse
effects, CTR could not know how to mitigate them, even if it was required to
do so.
Although Lucas’s comment letter mentions the DEIR’s lack of tribal
monitors and involvement of tribes in evaluating resources, she did not
specifically request these things on behalf of her tribe. Notably, the only
overt request for monitors was made roughly seven years earlier by the
Morongo Band of Mission Indians, but they requested monitoring by a
Cahuilla representative during construction activities for the Exploratory
Well project, and the Cahuilla then stated that the project area for the well
was beyond their traditional use area. Accordingly, the County did not fail to
proceed in a manner required by CEQA by not including responses to these
comments.
Appellants also do not challenge the threshold of significance used for
measuring the Project’s impact. The FEIR views an impact as significant if,
among other things, it “[c]ause[s] a substantial adverse change in the
significance of a tribal cultural resource, defined in Public Resources Code
Section 21074 as either a site, feature, place, cultural landscape that is
geographically defined in terms of the size and scope of the landscape, sacred
place or object with cultural value to a California Native American tribe . . . .”
To the extent Lucas identified tribal cultural resources, neither she nor

51
Appellants in their briefing explain how the Project would cause a
substantial adverse change to their significance. Absent such a showing,
they did not reach the threshold of significance. And if the impacts were not
significant (or even described), the EIR did not need to include mitigation
measures or alternatives.
Appellants’ final contention is that the County did not engage in
meaningful consultation with the Quechan, the Torres-Martinez Desert
Cahuilla Tribe, and the Morongo Band of Mission Indians. As only the
Quechan requested formal consultation, we limit our review to that tribe. In
their opening brief, Appellants identify only the testimony of Quechan tribe
member, Scott, at the board of supervisors’ hearing. At that hearing, Scott
did not identify any particular TCRs and did not request mitigation measures
or any proposed alternatives. Rather, he expressed concern generally that
the consultation was inadequate and that “significant tribal cultural resource
concerns have gone unaddressed.” Appellants belatedly argue in their reply
brief that the project discussed in the 2021–2022 Cultural Resources Survey
was smaller than later depictions in the EIR and that Scott identified the
visual impact the Project would have on the view from Mullet Island. But
again, they do not identify a substantial adverse change in the significance of
a tribal cultural resource. It is not clear why Mullet Island is culturally
significant, whether the view from it is in any way related to that
significance, and whether the Project’s adverse impact, if any, would be
substantial.
The minutes from the May 2022 consultation indicate the meeting
ended with the historic preservation officer for the tribe requesting “copies of
the prior meeting notes and the cultural resources report so that the Quechan
[could] discuss the Project internally, and bring their concerns and opinions

52
to the County after they ha[d] deliberated.” An email from five days later
indicates the 2017 and 2022 meeting notes were sent along with project maps
and the PowerPoint presentation used during the May 2022 meeting. The
email indicates the final cultural resources report would be sent once it was
completed. Appellants do not point to any follow up by the Quechan
highlighting concerns or proposing mitigation measures, and we have found
none. Although Appellants object in their briefing that the mitigation
measures do not include tribal monitors during all construction and earth-
moving activities, they do not direct the court to where the Quechan
requested such monitors.
On this record, we need not evaluate whether we agree with the court’s
conclusion in Koi Nation of Northern California v. City of Clearlake (2025)
109 Cal.App.5th 815 (Koi Nation), that “consultation means the ‘meaningful
and timely process of seeking, discussing, and considering carefully the views
of others, in a manner that is cognizant of all parties’ cultural values and,
where feasible, seeking agreement.’ ” (Id. at p. 840, citing Gov. Code,
§ 65352.4, italics added.) In Koi, the tribe requested two specific mitigation
measures, and the record did not reflect that the city discussed its reasons for
rejecting them with the tribe. (Ibid.) Here, by contrast, the County met with
the Quechan, provided requested materials, and afforded them an
opportunity to raise additional concerns. That the tribe seemingly did not do

so does not make the consultation inadequate.27

27 Appellants request that we take judicial notice of the California
Attorney General’s amicus curiae brief in support of Koi Nation. Putting
aside whether this document is an appropriate subject for judicial notice, we
need not consider it as we do not have grounds here to evaluate whether the
consultation was sufficiently meaningful. Thus, the September 11, 2025
request for judicial notice is denied as to Exhibit B.

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A consultation may be considered concluded when “[t]he parties agree
to measures to mitigate or avoid a significant effect, if a significant effect
exists, on a tribal cultural resource.” (§ 21080.3.2, subd. (b)(1).) As the
record does not disclose that the Quechan responded and identified any
significant effects, the County could reasonably conclude the consultation had
concluded.
F. Cumulative Project Impacts to Water Supplies, Air Quality, and
TCRs
Appellants’ heading for its final contention suggests that the EIR fell
short by failing to consider the cumulative impact of the Project on water
supplies, air quality, and TCRs. In fact, the argument simply reiterates its
prior claim that the EIR failed to consider the impacts of the BHER projects,
the LV Specific Plan, and the future phases of CTR’s plan for Hell’s Kitchen.
To the extent Appellants sought to assert the EIR was required to include the
cumulative impact of these projects in addition to the Project’s impacts on air
quality and TCRs, as opposed to just water supply, they do not support their
contentions with any additional facts. Therefore, we conclude they have not
met their burden to demonstrate reversal is warranted.
IV. DISPOSITION
We reverse the order in part and remand to the superior court with
directions to vacate its denial of the petition for writ of mandate and to enter
a new order granting in part the petition for writ of mandate consistent with
the views expressed in this opinion. Such order shall include only those
mandates necessary to achieve compliance with CEQA in accord with this
opinion. (§ 21168.9, subd. (b).)

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In all other respects the judgment is affirmed. Parties to bear their
own costs.

KELETY, J.

WE CONCUR:

O’ROURKE, Acting P. J.

DO, J.

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