In an opinion filed August 11, and belatedly ordered partially published on September 2, 2026, the Fourth District Court of Appeal (Div. One) partly reversed the trial court’s judgment denying a petition for writ of mandate challenging Imperial County’s (County) approval of a project consisting of a geothermal power plant, lithium extraction facility, and related facilities (project) near the Salton Sea and certification of the related EIR.  The Court held that no substantial evidence supported County’s conclusion that the Imperial Irrigation District (IID) could supply adequate water for the project’s anticipated 50-year lifespan and that the EIR failed as an informational document because it did not adequately discuss mitigation measures for possible future mandated Colorado River supply reductions.  Further, the EIR’s failure to address IID’s non-speculative concerns about the adverse air quality impacts caused by the Salton Sea’s recession due to foreseeable project-related reduction of water inflows to the sea also violated CEQA.  Comite Civico del Valle et al. v. County of Imperial (Controlled Thermal Resources (US), Inc. et al., Real Parties) (2026) ___ Cal.App.5th ___.  (In the unpublished portions of its opinion, which aren’t citable as precedent and won’t be further discussed here, the Court rejected appellants’ arguments that the County (1) failed to include several reasonably foreseeable future projects in its cumulative water supply impacts baseline, and (2) failed to engage in meaningful and timely tribal consultation addressing impacts to tribal cultural resources.)

Brief Factual and Procedural Background

Developers and real parties in interest Controlled Thermal Resources (US), Inc., Hell’s Kitchen PowerCo 1, LLC, and Hell’s Kitchen LithiumCo 1, LLC (collectively, CTR) seek to build the project – which includes a 49.9 megawatt geothermal power plant, mineral extraction and processing facilities, and related facilities for administration, repair and shipping – on vacant land in the town of Niland, Imperial County, bordering on the Salton Sea to the west and surrounded on its other three sides by agricultural or vacant land.  The project would develop wells to bring up hot geothermal brine from beneath the sea, the steam from which would generate energy at the power plant, while another plant would extract lithium hydroxide, silica, polymetallic products, and possibly boron compounds.  The processed brine would then be injected back into the geothermal reservoir.  As most relevant here, the project’s industrial operations would require about 6,500 acre-feet per year (AFY) of raw water to be supplied by IID.

Following a March 2022 notice of preparation (NOP), County released a June 2023 DEIR and draft water supply assessment (WSA) for the project for public review in late 2023.  It received numerous comment letters from the State Lands Commission, IID, and others leading to a revised WSA and DEIR, with the FEIR being issued in December 2023.  The County Planning Commission’s approval of the project was administratively appealed by one of the petitioners/appellants to the Board of Supervisors, which denied the appeal and approved the project on January 23, 2024, filing its notice of determination (NOD) the next day.  On March 13, 2024, appellants filed their writ petition alleging CEQA violations, which was ultimately denied by the trial court, leading to the subject appeal.  (The opinion does not address the apparent fact that the petition was filed outside of CEQA’s 30-day statute of limitations period as measured from the NOD’s filing, so presumably some tolling agreement was entered into by the parties to extend the deadline.)

The Court of Appeal’s Opinion

The EIR’s Defective Water Supply Impacts
and Mitigation Measure Analyses and Discussion

Following its recitation of CEQA’s general principles and standard of review, the Court of Appeal addressed appellants’ contentions relating to adequacy of the project’s water supply.  While not framing the issue as one of an unstable project description in the EIR – probably because “Appellants did not exhaust the legal argument that respondents failed to proceed in a manner required by law by providing misleading and inconsistent project lifespan information” – the Court did address the cognate issue that Respondents failed to provide sufficient evidence of the project’s water supply impacts, an issue which was exhausted by IID’s raising it with sufficient specificity in the County’s administrative proceedings.

Per the Court, “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.”  That lifespan was “described inconsistently throughout the record” with the EIR and supporting documents referencing both 30-year and 50-year life spans with vastly differing total water usage amounts.  While County’s FEIR, Findings, final WSA, and MMRP predominantly referred to a 30-year period, respondents’ briefing asserted the project’s intended lifespan was 50 years; the Court took respondents at their word for purposes of its analysis of appellants’ arguments, and held “evidence in the record that may have supported a 30-year Project lifespan fails to support the longer timeframe.”  In short, it held in light of legal and drought constraints on the availability of Colorado River water – the sole source of freshwater for Imperial County and the Imperial Valley’s agriculture – that there was “insufficient evidence” in the record to “support a finding that 50 years’ worth of water is available or likely to become available [to serve the project] via conservation efforts.”

Almost all of IID’s 3.1 million AFY of Colorado River water is allocated to Imperial Valley agricultural use, and under its relevant Interim Water Supply Policy (IWSP), as of November 2023, IID only had a maximum hypothetical amount of 18,620 AFY that could potentially be reserved to supply new non-agricultural projects.  Further, IID’s comments on the project EIR stated that the WSA was incomplete and contained inaccurate data, and rejected the EIR’s claims that IID could satisfy the project’s 50-year water demand totaling 299,960 AF even taking into account its ongoing system efficiency and conservation efforts.  IID explained that the WSA couldn’t extend beyond 30 years and admonished that the EIR must address additional measures to ensure the project’s water supply needs could be met.  While the revised FEIR concluded based on various assumptions that IID could supply the project for 30 years with a reduced 195,000 total AF, it acknowledged the project would also be required to mitigate its demand through conservation programs or projects to receive future apportionments, and that reduced delivery of Colorado River water to IID was “increasingly likely.”

Applying CEQA’s water supply impact analysis principles as set forth in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, the Court noted that while an EIR is not required to identify a guaranteed source of water, it must adequately address the reasonably foreseeable impacts of supplying water to the project; where inherent uncertainties in long-term land use and water planning make it impossible to confidently identify future sources, the EIR must acknowledge the degree of uncertainty, discuss the reasonably foreseeable alternatives (including alternative sources and future curtailment options), and disclose the significant foreseeable environmental effects of each alternative and mitigation measures addressing them.

Respondents’ contention that IID could supply the project with water for a 50-year lifespan was undermined by the DEIR’s “conflicting lifespan descriptions” – primarily referencing a 30-year period – and reliance on an unapproved April 2023 WSA that was rejected by IID, as well as the fact that the Board’s FEIR, final WSA, and findings of fact neither claimed nor supported a 50-year water supply.  Given the uncertainties inherently involved in long-term Imperial Valley water supply planning, the Court found “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.”  (Citing Vineyard, 40 Cal.4th at 431-432, 434.)  But the final WSA’s conclusion could only be read to indicate it was reasonably likely IID could supply project water for up to 30 years if it received its full Colorado River entitlement, and the EIR did not discuss any alternative sources or feasible conservation or augmentation projects that would help ensure a sufficient supply.

The DEIR’s mitigation measure relevant to water supply (UTIL-1) originally merely provided that if IID’s Colorado River allotment were cut, the applicant would “work with” IID to “manage” any resulting reduction in the project’s water supply; while the FEIR’s UTIL-1 was revised and expanded just before the Board meeting on project approval to provide IID would proportionately reduce the project’s supply if the federal government reduced its Colorado River allotment, and that “working with” IID could entail producing groundwater at the property, using recycled drain water, and/or reducing production as needed, none of these last-minute potential “mitigation measures” was sufficiently developed, discussed, or even shown to be feasible.  Apart from not being subjected to public review, the Court held these measures also violated CEQA because they lacked any binding and enforceable commitment or performance standards; failed to analyze the feasibility or impacts of pumping groundwater (which the EIR repeatedly stated would not be used at the site); were inconsistent with the EIR’s alternatives analysis’s statements that reducing the project’s size was infeasible; and lacked any analysis of the feasibility or impacts of using IID’s agricultural drainage water.

The Court reviewed the sufficiency of the EIR’s discussion of these mitigation measures de novo under Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 516, my December 28, 2018 post on which can be found here.  It rejected respondents’ assertion that their impacts were too speculative to review, observing that government cuts to IID’s Colorado River entitlement were entirely foreseeable (hence, the need for the mitigation measures in the first place) and that County knew it needed to adopt specific and feasible measures to mitigate the impacts of such reductions in supply.  Any use of groundwater or IID drain water could cause a significant environmental effect – e.g., reducing groundwater recharge and Salton Sea return flows – and the EIR entirely failed to discuss any such impacts as required by CEQA.  (Citing CEQA Guidelines, § 15126.4(a)(1)(D) [requiring EIR to discuss significant effects of mitigation measures though in less detail than project’s significant effects].)  No substantial evidence in the record showed the use of groundwater or drain water was even feasible mitigation, and the same was true of reduced production.  In sum, the EIR’s omission of the required meaningful discussion of feasible mitigation measures addressing a future water supply shortage rendered it legally inadequate to serve its informational purpose under CEQA.

The EIR’s Defective Air Quality Impacts Analysis

The Opinion’s final substantive published portion held, for reasons interrelated with those supporting its water supply analysis, that the EIR’s discussion of air quality impacts was inadequate because it failed to discuss “how the Project’s raw water use would impact water flow into the Salton Sea and the resulting impact on air quality.”  The parties agreed that the prime contributor to poor air quality in communities near the Salton Sea is the reduction of the water inflows from agricultural runoff that sustain the sea, thereby causing it to recede and exposing more of the playa; this in turn causes the harmful chemical deposits present in the exposed soil (from years of pesticide-and fertilizer-laden agricultural flows into the sea) to become airborne pollutants.  Because as noted above, it was a given that the project’s identified mitigation measures would reduce agricultural inflows to the Salton Sea, and any diversion of Colorado River waters under the IWSP to nonagricultural use would also inherently do the same, the EIR’s conclusion that waterflow reduction and air quality impacts were hypothetical and too speculative to be analyzed lacked substantial evidence support.

Further, the EIR violated CEQA by dismissing and failing to respond with good faith, reasoned analysis to IID’s timely comments asserting that the project would cause significant adverse air quality impacts.  (Citing Pub. Resources Code, § 21091(d)(1), (2); CEQA Guidelines, § 15088.)  The Court rejected respondents’ arguments that a prior 2009 IID negative declaration (ND) for its IWSP contained the required analysis, noting that by its own terms the ND did not address any environmental impacts beyond those on IID’s water supply, and did not analyze air quality impacts or any impacts of future projects.  Per the Court, “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” and also violated “CEQA by not discussing this probable impact in the EIR.”

Conclusion and Implications

So, what are the takeaways from this latest addition to the published legal literature on CEQA?  That a controversial clean energy, water-intensive project involving lithium extraction in a uniquely sensitive environmental setting predicably “bit the playa dust” at the hands of CEQA litigation?  That CEQA’s required water supply analysis goes well beyond SB 610’s requirements for industrial projects and remains complex and difficult to satisfy – and, indeed, increasingly so in the face of foreseeable drought and federal cutbacks of Colorado River entitlements?

Perhaps so, but it also seems rather obvious that an EIR and related WSA supporting only a 30-year project water supply under best-case assumptions could not suffice as adequate CEQA review of a project concededly intended to operate that long plus an additional 20-year phase of operations without addressing the necessary water conservation and other mitigation measures needed to supply that substantial additional water.  It should also be obvious that the last-minute addition of patently infeasible and unanalyzed mitigation measures – such as, on the facts here, groundwater extraction, diversion of IID’s agricultural drainage flows to the Salton Sea, and downsizing of the project – that directly contradict the EIR’s project description and alternatives analysis and have not been circulated for public review, is a recipe for CEQA violations.

Ultimately, this case serves as a good reminder that because “water is for fighting over,” and will continue to be in the future, it is imperative that CEQA’s water supply impact analysis principles be scrupulously followed when water intensive projects are at issue.  Further, the potential environmental impacts of proposed mitigation measures in this context (and others) must be analyzed – and, if potentially significant, mitigated – rather than simply ignored or dismissed.

Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than sixty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com