By William W. Abbott, Diane Kindermann, Katherine J. Hart, Glen Hansen and Brian Russell

Welcome to Abbott & Kindermann’s 2014 2nd Quarter CEQA update. Our thirst for guidance from the California Supreme Court remains unquenched as the court still has five CEQA cases under review. In terms of other interesting developments during the second quarter, two courts of appeal ground through three of highly detailed cases: California Clean Energy Committee v. City of Woodland, Center for Biological Diversity v. California Department of Fish and Game and Sierra Club v. County of Fresno. Read together, these cases cover much of CEQA’s fine parts. Thinking about impacts and mitigation is not the same as actual CEQA evaluation as the court observes in Lotus v. Department of Transportation. Finally, in terms of other developments the City of San Jose successfully defended its eighth addendum to the 1997 EIR for its airport master plan.

1.               2013 CEQA UPDATE

To read the prior year cumulative CEQA review, click here: 2013

2.               CASES PENDING

Five CEQA cases remain pending at the California Supreme Court. The cases and the Court’s summaries are as follows:

Berkeley Hillside Preservation v. City of Berkeley, S201116. (A131254; 203 Cal.App.4th 656; Alameda County Superior Court; RG10517314.) Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. This case presents the following issue: Did the City of Berkeley properly conclude that a proposed project was exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) under the categorical exemptions set forth in California Code of Regulations, title 14, sections 15303, subdivision (a), and 15332, and that the “Significant Effects Exception” set forth in section 15300.2, subdivision (c), of the regulations did not operate to remove the project from the scope of those categorical exemptions?

California Building Industry Assn. v. Bay Area Air Quality Management Dist., S213478. (A135335, A136212; 218 Cal.App.4th 1171; Alameda County Superior Court; RG10548693.) Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. The court limited review to the following issue: Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?

City of San Diego v. Trustees of the California State University, S199557. (D057446; 201 Cal.App.4th 1134; San Diego County Superior Court; GIC855643, GIC855701, 37-200700083692-CU-WM-CTL, 37-2007-00083773-CU-MC-CTL, 37-2007-00083768-CU-TT-CTL.) Petition for review after the Court of Appeal affirmed in part and reversed in part the judgment in a civil action. This case includes the following issue: Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?

Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist., S214061. (A135892; nonpublished opinion; San Mateo County Superior Court; CIV508656.) Petition for review after the Court of Appeal affirmed the judgment in an action for writ of administrative mandate. This case presents the following issue: When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?

Tuolumne Jobs & Small Business Alliance v. Superior Court, S207173. (F063849; 210

Cal.App.4th 1006; Tuolumne County Superior Court; CV56309.) Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. This case presents the following issues: (1) Must a city comply with the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21000 et seq.) before adopting an ordinance enacting a voter-sponsored initiative pursuant to Elections Code section 9214, subdivision (a)? (2) Is the adoption of an ordinance enacting a voter-sponsored initiative under Elections Code section 9214, subdivision (a), a “ministerial project” exempt from CEQA pursuant to Public Resources Code section 21080, subdivision (b)(1)?

3.               EXEMPTIONS

Citizens for Environmental Responsibility v. State of California (2014) 224 Cal.App.4th 1542.

The 14th District Agricultural Association operates the Santa Cruz County fairgrounds outside of Watsonville. Built in 1941, this facility hosted agricultural, rodeo and county fairs for many years. In 2009, the county sheriff’s association approached the Association about hosting a three day rodeo as a fundraiser. Using a Class 23 CEQA Exemption (CEQA Guidelines section 15023; normal operations of existing facilities,) the Association approved the use of the fairgrounds for the rodeo, but for other reasons, that particular rodeo event was cancelled. Around the same time, the Regional Water Quality Control Board took interest in the site due to downstream stream contamination, potentially as a result of runoff from the horse and cattle facilities. The Association began gathering water quality samples, determining that the water entering the fairgrounds site from upstream was of lower quality than the water leaving the site. Unrelated to the water quality investigation, during its many years of operation, the Association had evolved its manure management plan, shifting from one of storing wastes on site to daily removal during events. The Association approved a written Manure Management Plan (“MMP”) about 6 months before the deputy sheriffs proposed its rodeo in 2009.

In January 2011, the deputy sheriffs proposed a two day rodeo. Opposition on CEQA and animal cruelty grounds developed. In April, the Association’s Board directed its consultant to assess the viability of the Class 23 exemption for approving the deputy sheriff’s request. The consultant affirmed the suitability of a class 23 exemption, and in May, the Board approved the exemption and the sheriff’s request. The rodeo activity contemplated 1500 attendees, 500 horses (maximum of 100 onsite at any time) and 250 cattle/stock (maximum 50 onsite at any time.)

The opponents sued, and the trial court ruled for the Association, finding the Class 23 exemption to be appropriate, and rejecting the arguments concerning unusual circumstances and that the exemption was invalid on the grounds that the agency relied upon mitigation (the MMP) as a basis for utilizing the exemption. Like the trial court, the court of appeal upheld the use of the exemption.

The appellate court observed that the MMP was not a mitigation measure, but was an practice of the Association independent of the sheriff’s rodeo. Accordingly, it was not a measure proposed or necessitated by the project. (The significance of this issue is that a lead agency cannot mitigate its way into an exemption. Salmon Protection & Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098). Turning next to the Class 23 exemption, the appellate court concluded that it was appropriate for the lead agency to evaluate the proposed sheriff’s rodeo against other similar Fairground events, and not as against a broader range of public buildings and grounds. The court then analyzed the opposition’s “unusual circumstances” argument, finding that there was nothing unusual about the facts surrounding water quality, surrounding zoning and land uses or as to the scope of the activity.

In this case, the court’s common sense interpretation and application of CEQA Guidelines section 15203 was just good CEQA horse sense. Ride on!

Save the Plastic Bag Coalition v. City and County of San Francisco (2014) 222 Cal.App.4th 209.

The city determined that the ordinance was categorically exempt from CEQA review under Class 7 and 8 exemptions because the ordinance was a regulatory action that would protect natural resources and the environment. The court held that the ordinance was a police-power regulatory action to which the categorical exemptions applied. The ordinance did not fall within the unusual circumstances exception in Guidelines section 15300.2(c) because global impact studies regarding the life cycle of various types of bags did not constitute substantial evidence supporting a fair argument that the ordinance would have a significant impact on the environment. Moreover, the ordinance was not a retail food safety measure and thus, was not preempted under the California Health & Safety Code because the provisions relating to single-use articles did not demonstrate legislative intent to preempt local regulation of single-use checkout bags.

Comment: The ongoing fight over plastic bags maybe resolved by pending litigation in 2014.

San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012.

Approval of 700 utility boxes to be installed at street level for high speed telecommunications equipment qualified for a Class 3 exemption. In 2007, AT&T originally applied for approval of over 800 utility boxes for high speed equipment. City staff processed the request on the basis of a categorical exemption. On appeal to the Board of Supervisors, and in the face of public concerns, the applicant withdrew the request, and resubmitted a request in 2010. The new request was for a slightly fewer number of smaller units and AT&T made various commitments regarding facility location, including avoiding historical districts and maintaining minimum clearances for pedestrians. The planning commission approved the request, based upon a CEQA exemption (Class 3; limited numbers of new, small facilities or structures, and installation of small new equipment and facilities in small structures. Guidelines section 15303.) Various interest groups filed an appeal to the Board of Supervisors. On appeal, the application provided a memorandum of understanding through which it committed to: “provide notice to neighbors and conduct community meetings for each cabinet site, maintain a public web site with information about the upgrade and contact information for public inquiries; place cabinets in alleys or non-sidewalk public rights-or-way where possible; consider options for screening cabinets; attempt to hire San Francisco residents for the project; and reimburse the city for the cost of graffiti removal.” The opponents filed suit, alleging a violation of CEQA. The trial court denied the petition. The court of appeal affirmed.

The appellate court had little difficulty in finding this proposed activity covered by a Class 3 exemption. The court then turned to the limitation on Class 3, that being the potential application of the “unusual circumstances” doctrine. The court held that regardless of which standard of review was applied (substantial evidence or fair argument), the exception limitation of “unusual circumstances” did not apply to these improvements. Given the highly urbanized environment existing in San Francisco and the existing thousands of utility type installations in the public rights of way, the appellate court concluded that the evidence relied upon by appellants did not rise to level of a “fair argument”, much less substantial evidence of a impact. The court also rejected the argument that the lead agency improperly relied upon mitigation measures (an approach rejected in Salmon Protection and Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098.) The appellants made the argument based upon the lead agency’s inclusion in the notice of exemption, language stating a certain city code that the applicant was obligated to comply with when siting the cabinets to the appellate court. It was simply a statement as to relevant regulations. The court also rejected the argument that the MOU offered by the applicant to the Board of Supervisors constituted mitigation, finding that there was insufficient basis to conclude that the Board of Supervisors relied upon the MOU as any form of impact mitigation.

4.               ENVIRONMENTAL IMPACT REPORTS

California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173.

In California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173, the Court of Appeal, Third District, held the City of Woodland’s (City) programmatic environmental impact report (EIR) was invalid on the following three grounds: (1) it failed to provide sufficient mitigation measures for urban decay impacts; (2) it failed to properly assess the feasibility of the mixed-use alternative and support the City’s rejection of the alternative; and (3) the City did not adequately study and disclose transportation, construction and operational energy impacts in the EIR. The appellate court refused to consider plaintiff’s general plan consistency arguments as they were not properly presented to the court.

Background Facts

Real Party in Interest and Respondent, Petrovich Development, LLC, owns 234 acres of agricultural land in Yolo County, on the border of the City of Woodland.  The company also owns, previously entitled and developed the Gateway I project, consisting of roughly 49 acres of former agricultural land just adjacent to the proposed development subject of this CEQA action. The proposed project – Gateway II – was a proposal to annex 154 acres into the City, rezone it from agricultural to general commercial, and develop it into big box retail stores, three 100-room hotels, one sit-down restaurant, three fast food restaurants, an auto mall and office space.

Defendant and Appellant, City of Woodland (City), is a municipal corporation and was the CEQA lead agency which certified an EIR for, and approved the Gateway II project at issue. Notably, the City reduced the project to 61.3 acres and no more than 340,000 square feet of commercial space.

Plaintiff and Appellant, the California Clean Energy Committee (CCEC), is a California non-profit corporation headquartered in Davis which seeks to promote energy conservation, greenhouse gas reduction, and the development of clean-energy resources in California. It actively supports the application of the California Environmental Quality Act (CEQA) to energy conservation and related impacts.

CCEC challenged the City’s certification of the EIR and approval of the project pursuant to a petition for writ of mandate.  The trial court denied the petition.  As discussed in detail below, CCEC appealed on the following four grounds: (1) the trial court erred in holding the Gateway II project was consistent with the City’s general plan; (2) the mitigation measures in the EIR were insufficient to address the urban decay that would be caused by the Gateway II project; (3) the City failed to properly considered feasible project alternatives like the mixed-use alternative; and (4) the EIR did not properly identify and analyze potentially significant energy impacts of the Gateway II project.  The City cross-appealed contending the trial court erroneously granted CCEC’s motion to tax costs, as it should have received its costs for assisting in the preparation of the administrative record. This article does not discuss this latter cost issue as that part of the decision is unpublished.

General Plan Consistency

The petition filed by CCEC did not contain a cause of action under the Planning and Zoning Law. As such, the appellate court held that CCEC failed to preserve the issue of whether the rezoning of the land for Gateway II conflicts with the City’s general plan.

Sufficiency of Mitigation Measures Related to Urban Decay

The draft EIR prepared by the City contained an urban decay impact analysis.  It looked at the potential urban decay impacts of the project on Downtown Woodland, East of Downtown, and East of I-5.  The draft EIR concluded that Gateway II could impact the economic health (e.g., loss of sales) and physical integrity (e.g., more vacancies) of Downtown Woodland in the near term, but that in the long term, Downtown could benefit from the project. The draft EIR proposed the following five mitigation measures to reduce all but one of the impacts to urban decay to a less than significant level: (a) the project applicant must submit a request for a master conditional use permit, which shall indicate the specific project uses shall primarily consist of regional retail uses that do not include entertainment uses and other uses that would compete with retail in downtown Woodland; (b) project applicant shall submit a market study and urban decay analysis for review and approval of the CDD; (c) prior to issuance of building permits, the project applicant shall contribute funds toward the development of a retail strategic plan, which the City would prepare; (d) prior to issuance of building permits, the project applicant would be required to contribute funds toward the preparation of an implementation strategy for the downtown specific plan. To address urban blight, the City adopted mitigation measure 4.11-3(a) to require that the City coordinate with the current owner of the County Fair Mall “to consider a strategic land use plan for the [] Mall to analyze potential viable land uses for the site.” Despite the proposed mitigation measures, Impact 4.11-3 would remain significant and unavoidable according to the draft EIR.

Consideration of Project Alternatives

The draft EIR considered two alternatives: a reduced intensity alternative and a mixed use alternative.  The reduced intensity alternative would have limited the project to 295,000 square feet of retail and two auto dealerships on 93 acres or less.  This alternative was rejected on the grounds of economic infeasibility as the alternative would not capture leakage sales from uses not already served within the community or develop revenue generating land uses to provide jobs.

The mixed use alternative would also limit the development to 93 acres, but would still include the annexation of the entire 154 acres, however.  The alternative would allow for the development of a five-acre site for 100-unit multi-family development (20 units/acre), and would include a local-serving commercial town center with 50 units above the commercial storefronts. The auto mall would be reduced from multiple car dealerships to two. The draft EIR stated that the mixed use alternative would decrease the development of roadways, driveway, and parking areas, as compared to the project, and would reduce the commercial trips generated by the project; however, it would result in increased trips due to the residential component. Thus, the draft EIR assumed the transportation and circulation impacts of the alternative would be similar to the proposed project.  In the end, the City rejected the mixed use alternative as infeasible because it would have greater environmental impacts than the proposed project with respect to services and utilities.

The appellate court held that the EIR contained no evidence that the mixed use alternative would have similar or greater environmental impacts than the proposed project. As approved, the project was significantly reduced in size from 154 acres to 61.3 acres, yet the City failed to explain why the mixed use alternative of 93 acres was deemed economically infeasible when the project as approved would develop only 61.3 acres. This was a fatal flaw under CEQA.

Energy Impacts Analysis

The draft EIR stated that the project would produce a demand for approximately 10,504,000 kWh of electricity annually and 29,896,000 cubic feet of natural gas annually. Further, the draft EIR disclosed that the project would generate 40,051 new vehicle trips per day, 40 percent of which would be regional in nature. The draft EIR explained the project would be constructed pursuant to the newest Building Code standards for energy conservation, and concluded on this basis, that the project would have less than significant impacts on energy resources. The EIR never contemplated transportation energy impacts.

During the EIR process CCEC relayed concerns to the City regarding the potential energy impacts of the project.  Specifically, CCEC noted that the construction and operation of the project would involve the use of diesel fuel and electricity, but no cumulative evaluation of these energy resources was provided in the draft EIR. Further, as the appellate court felt compelled to highlight, the draft EIR contained less than one page of analysis on energy impacts.  While the court noted the high likelihood that a reduction in greenhouse gas emissions would correlate to a reduction in energy impacts, the court also noted that it was not permitted to assume the overlap under CEQA’s study and mitigation requirements. The fact that the EIR failed to consider the energy impacts of the 40,451 new vehicle trips per day, and that compliance with the new Building Code standards would only apply to the new commercial buildings (e.g., not the operational and construction energy impacts) was improper under CEQA.  Finally, the City’s EIR did not identify any investigation into renewable energy options that might apply to the proposed project (e.g., solar panels, wind turbine, etc.). 

Exhaustion

A party cannot maintain an action alleging that the EIR does not comply with the environmental quality division of the Public Resources Code “unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.” (Pub. Resources Code, § 21177, subd. (a).) “ ‘[T]he objections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.’ [Citation.]” (Tracy First v. City of Tracy (2009) 177 Cal. App. 4th 912, 926 citing to Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 909 [holding that Tracy First failed to exhaust its administrative remedies with respect to an argument that the alternatives listed in the EIR were flawed despite two comments that the EIR did not provide a reasonable range of alternatives to the proposed project because no reduced-sized alternative was consider].)

The City argued that CCEC failed to challenge one of the urban decay mitigation measures during the EIR process. The appellate court noted that while CCEC did not raise concerns regarding the specific mitigation measure during the administrative process, at least one City resident commented that the mitigation as to urban decay was inadequate. It further noted that the administrative record contained a letter from CCEC stating that the mitigation proposed for urban decay is vague and unenforceable.  Based on these facts, the appellate court held that the issue as to whether mitigation measure 4.11-2(a) was sufficient had been properly preserved for review. The court further agreed with CCEC that the mitigation measure requiring a future market study impermissibly ceded responsibility to the developer and was impermissibly deferred without identifying performance criteria or standards of measurement for the City.  Similarly, the appellate court agreed that the payment of a fair share fee for a future urban decay study did not obligate the City to undertake any actual mitigation of urban decay. A commitment to pay a fee without any evidence as to what mitigation will actually occur does not suffice for purposes of CEQA.  Finally, with respect to mitigation measure 4.11-3(a) and the requirement that the applicant coordinate with the owner of the County Fair Mall to prepare a strategic land use plan, the court agreed with CCEC that like the urban decay study measure, this measure required nothing more than coordination – it didn’t require an actual study, or any action to mitigate urban decay should urban decay of the County Fair Mall result from the project. The City argued that the programmatic nature of the EIR allowed the City to defer studies into the future – when specific subsequent environmental occurs for finite land use proposals. In rejecting this argument, the appellate court noted that “tiering does not excuse a lead agency from adequately analyzing reasonably foreseeable significant environmental effects of the project and does not justify deferring such analysis to a later tier EIR or negative declaration.”  [225 Cal. App. 4th 173, 200.]

Comment

A lack of any meaningful energy consumption analysis, improperly deferred mitigation for urban decay impacts, and the dearth of an explanation as to why the City was willing to approve a much reduced project but not the mixed-use alternative, were the downfalls in this case.  While we’ve seen a number of cases regarding deferred mitigation and alternatives, this case supplements only a handful of other “energy” cases, and highlights the fact that many agencies are overlooking this important impact area. Whether you’re a lead agency or project developer, CEQA (Appendix F), this case and its few predecessors, direct that a thorough discussion of all energy consumption impacts from construction to operation, including transportation energy impacts, be disclosed and discussed in an EIR.

The requests for an order directing depublication of the opinion in the above-entitled appeal were denied on June 25, 2014.

Sierra Club v. County of Fresno (2014) 226 Cal.App.4th 704.

In Sierra Club v. County of Fresno (2014) 226 Cal.App.4th 704, developer Friant Ranch, LP proposed to develop a master planned retirement community for active adults (age 55 and older) on a 942-acre site in north Fresno County. The County of Fresno (County) conducted CEQA review, certified the EIR, and approved Alternative 3 of the project, including the construction of 2,500 residential units and 250,000 square feet of commercial space on 483 acres (around half of the total site area) and dedication of 460 acres of open space over five phases (around a 10-year build out).  Plaintiffs Sierra Club, League of Women Voters and Revive the San Joaquin (plaintiffs) challenged the County’s approval of the project on the grounds that (1) the project was inconsistent with the land use and traffic policies in the County’s general plan, (2) the CEQA review as to wastewater treatment/disposal was inadequate, (3) the CEQA analysis of the air quality impacts was inadequate, and (4) the air quality mitigation measure was inadequate. 

As discussed below, the Court of Appeal, Fifth Appellate District, held that while the County’s discussion and analysis of the wastewater issues were sufficient for purposes of CEQA, the County failed to properly correlate the significant and unavoidable air quality impacts to human health impacts. Additionally, the court held that most of the mitigation provisions (about 12 contained within a single mitigation measure) were improperly deferred due to a lack of specific performance standards, as well as vague; thus, the air quality mitigation provisions were unenforceable. As a result, the court ordered the superior court to vacate its decision denying the petition for writ of mandate and to enter a new order compelling the County to vacate its approval of the Friant Ranch project and directed the County not to approve the project prior to preparing a revised EIR addressing the identified deficiencies.

General Plan Consistency

Plaintiffs challenged the County’s redesignation and rezoning of the project area from agricultural to commercial, residential, public facility and open space on the grounds such redesignation and rezoning was inconsistent with the County’s Ag Use Policy in its general plan.  The court of appeal found that the land use policy in question was “ambiguous” and thus, indicated it would defer to the County’s interpretation as long as it was reasonable.  The appellate court held that the County interpreted its Ag Use Policy in a reasonable manner when it determined that the policy could be changed by an amendment and that the County could direct growth to an area where an expansion of existing facilities and the development of new facilities was required.

Wastewater Analysis

Plaintiffs argued that the EIR failed to properly analyze wastewater impacts because the EIR failed to identify (1) the amount and location of the wastewater application, and (2) the hydrogeology of the Beck Property, the site upon which the proposed treatment plant and storage pond would be located.

With respect to the amount and disposal location of the tertiary-treated effluent, the EIR indicated that 800,000 gallons per day would be produced at full build out of the development and in the summer it would be used to irrigate landscaping in the project area as well as Lost Lake Park. In the winter months (October through April), the project proposed to discharge the tertiary treated effluent into the San Joaquin River (SJR). As a backup alternative, the project proposed to store and dispose of the treated wastewater on the Beck Property.  However, at least two of the EIR’s appendices referenced two sets of numbers with regard to the amount of treated wastewater that would be produced and the number of acres necessary to store and/or dispose of the equivalent amount of wastewater.  In its initial discussion, the court seemed to believe that a reader of the draft EIR and its appendices would be “confused about the number of acres need for the effluent storage pond because the numbers provided [were] not consistent.”  Ultimately, the planning commission recommended and the board approved the Beck Property be used to site the wastewater treatment plant and storage pond, and further that no NPDES permit be sought to discharge treated wastewater into the SJR. This alternative was referred to as the “irrigate-in-summer-and-store-in-winter” alternative.

While the draft EIR never analyzed whether the Beck Property would be a suitable site for the wastewater treatment plant – instead it looked only at whether the property would be suitable for storage and/or wastewater disposal (i.e., sprayfields) –at the second board of supervisors’ hearing on the project two experts testified that the Beck Property was identified as the environmentally superior site for the treatment plant and effluent and storage and disposal area because the Beck Property, in conjunction with open spaces throughout the Specific Plan area, was a large enough area to use the wastewater without discharging to the SJR.  Specifically, one expert presented a slide show indicating that all effluent from the project would be reused for irrigation.

Ultimately, the court of appeal held that the draft EIR provided sufficient detail as to how the effluent production, storage and disposal could be balanced. The court of appeal also held that the draft EIR sufficiently disclosed the location of the effluent application (e.g., landscape features within the Friant Ranch Specific Plan development and turf at the Lost Lake Park), even though the EIR’s statement about location was general in nature. Finally, while the discrepancy in the EIR with respect to the acreage of the storage ponds on the Beck Property was “confusing”, the appellate court reasoned that “any shortcomings in the draft EIR about storage capacity were addressed in sufficient detail during the environmental review process.” The court also noted that there was substantial evidence in the record to support the final EIR’s statement that the Beck Property would have adequate storage capacity.

Air Impacts Analysis

Unlike the wastewater issues, the appellate court found that the project’s long-term area and operational air emissions and their impacts on public health were not sufficiently discussed in the EIR. Citing to the Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 (Bakersfield Citizens) case and CEQA Guidelines section 15126.2, the appellate court held that the County was required to correlate adverse air quality impacts to resulting adverse human health impacts in the EIR.  By way of example, the court stated that the EIR could have estimated the project’s impacts by providing a chart identifying the specific days of each year that the project would exceeding federal and state air standards to give the decision makers and public an idea of the magnitude of the air pollutant impact on human health. In the end, the court of appeal concluded that, “The simple statement in an EIR that the significant adverse air quality impacts will have an adverse impact on human health fails to comply with the CEQA standards [] discussed in Bakersfield Citizens [citations omitted].” 

Air Quality Mitigation Measure

Plaintiffs’ alleged that the EIR inadequately described the details of Mitigation Measure 3.3.2.  The measure was compiled of about 12 separate provisions that were intended to address non-residential development, energy consumption, bicycle usage, and transportation emissions. Moreover, the Mitigation Measure contained a generalized provision that allowed the County and/or Air District to substitute different air pollution control measures for individual projects within the plan area that would be equally effective or superior to the proposed mitigation measures, as the projects were built out.

The appellate court held that: (1) the mitigation measure provisions were vague as to who was required to carry them out and as to how they would be enforceable; (2) a mitigation measure cannot – without substantial evidence in the record and some discussion – conclude that it will “substantially reduce” the impacts with which it is associated; and (3) the general, overarching reference to the County’s ability to revise the proposed mitigation measures in the future (based upon equally effective or superior measures) constituted improper deferral as most of the mitigation measure provisions failed to contain specific performance standards by which to ascertain what new and revised mitigation might be more effective in reducing air quality impacts. The appellate court agreed with plaintiffs that the air quality mitigation measure was vague as to matters essential to enforceability; thus, it violated CEQA. The court also agreed that there was no evidence in the record to support the County’s conclusion that the mitigation measure would “substantially reduce” the air quality impacts associated with the project. Finally, on the deferral issue, the court agreed with plaintiffs that “many” of the specific provisions of the air quality mitigation measure lacked performance standards, thus, violating CEQA. In particular, the appellate court said the provision relating to the use of trees in nonresidential development failed to contain any performance standard as to the trees to be selected and located to protect buildings from energy consuming environmental conditions.  Additionally, the second provision outlining a specific HVAC system was inadequate according to the court because if such system was not “reasonably available” or “economically feasible” there was no standard by which to measure what replacement system would be sufficient. Likewise, the eighth and ninth provisions of the air quality mitigation measure were improperly deferred because the EIR provided no basis for evaluating the emission reductions achieved by providing bike lockers or bike racks and storage spaces and thus, it would be impossible to provide a substitute measure. Finally, the tenth through twelfth provisions were held unenforceable due to vagueness and the lack of specific performance criteria necessary to evaluate one or more substitute measures.

Comment

The Fifth Appellate District concluded that the County failed to adequately assess and mitigate the air quality impacts of the project because the County failed to correlate the significant and unavoidable long-term operational air impacts due to the project to human health impacts. The court’s decision could prove problematic for lead agencies because it is unclear what correlation information the County should or even could provide in these types of cases.  How exactly would the air quality experts analyze or correlate the air impacts to human health impacts? The significant and unavoidable air impacts were due to long-term, operational impacts caused by NOx, ROGs and PM10 resulting from vehicular traffic.  The court suggests that one way to correlate these impacts would have been to identify the specific days of the year that the project would cause the air quality to exceed federal and state air standards. But how that would give decision makers and/or the public an idea of the magnitude of the impact on human health?  Unfortunately, the court’s decision on the air quality analysis appears to conjure up more questions than it answers.

With respect to mitigation measures, it bears repeating that ALL mitigation measures must indicate who is responsible for carrying out the mitigation measure, what specific action the mitigation measure calls for, when that action is called for, and finally, must be fully enforceable through permit conditions, agreements or other measures.

Finally, phrases like “where feasible and appropriate” will not serve as a CEQA backstop where no specific performance measures are provided; such references are vague and ambiguous and thus, do nothing to provide a reader with relevant information as to how to assess what mitigation might be feasible or appropriate. And, as this case – and many before it – illustrate, a vague mitigation measure is an unenforceable mitigation measure, and thus, an invalid mitigation measure.

Center for Biological Diversity v. California Department of Fish and Game, et al. (March 20, 2014, B245131) 224 Cal.App.4th 1105. Appellate court applies deferential standard of review to Newhall Ranch EIR. The decision includes a detailed review of deferred mitigation, endangered species, cultural resources, and defective alternatives claims.

In a lengthy and unanimous reversal of the trial court on ESA and CEQA issues in Center for Biological Diversity v. California Department of Fish and Game, et al. (March 20, 2014, BS131347) 224 Cal.App.4th 1105, the second appellate district, Division Five, roundly upheld the Department of Fish and Wildlife’s (“department”) certification of an environmental impact report (“EIR”) assessing the effects of a resource management plan, conservation plan, streambed alteration agreement and two incidental take permits, in tandem with approval of each plan and issuance of the associated incidental take permits. The EIR related to general planning and conservation steps resulting from Los Angeles County’s prior approval of a 12,000 acre specific plan and neighboring 1500 acre conservation area in Ventura County. In its textured opinion, the appellate court relied heavily on facts in the trial court record to perforate all arguments raised by the Plaintiffs and Respondents Center for Biological Diversity, Friends of the Santa Clara River, Santa Clarita Organization for Planning and the Environment, California Native Plant Society, and Wishtoyo Foundation/Ventura Coastkeeper.

One novel issue raised in the case involved a challenge to a mitigation measure that recommended the herding and transportation of a fully protected species, the stickleback fish, and a claim that such mitigation constituted a prohibited take of the species under the California Endangered Species Act (“CESA”). The appellate court deftly resolved potentially conflicting language in a trio of CESA code sections to conclude that conservation mitigation measures which include herding and transporting live species, did not constitute a take of the species.

The opinion is partially published, omitting from publication the discussion regarding the appropriate baseline for greenhouse gas issues to assess cumulative impacts of greenhouse gas emissions and the related significance analysis.

This summary addresses key CEQA issues in the published portion of the decision in the order as presented in the opinion:

A.              Underlying Land Use Approvals and Subsequent Actions

B.              Complaint Allegations and Trial Court Ruling

C.              Standard of Review

D.              CESA and Stickleback Take Issues: Forfeiture and CEQA Exhaustion Exemption

E.               Cultural Resources Analyses: Forfeiture and Adequacy

F.               Specific Plan and Alternative 6

G.              EIR’s Steelhead Smolt and Water Quality Analysis: Forfeiture and Adequacy

H.              EIR Spineflower Mitigation Based on Substantial Evidence

A.              Underlying Land Use Approvals and Subsequent Actions.

Newhall Ranch Specific Plan (the specific plan)

On May 27, 2003, the County of Los Angeles approved the Newhall Ranch “specific plan” that includes a broad range of residential, mixed-use and non-residential land uses within five villages, allowing for up to 21,308 dwelling units (including 423 second units), 629 acres of mixed-use development, 67 acres of commercial uses, 249 acres of business park land uses, 37 acres of visitor-serving uses, 1,014 acres of open space, including 181 acres of community parks and 833 acres in other open spaces, 5,157 acres in special management areas, 55 acres in 10 neighborhood 4 parks, 15-acre lake, public trail system, an 18-hole golf course, two fire stations, a public library, an electrical station, reservation of five elementary school sites, one junior high school site and one high school site, a 6.8 million gallon per day water reclamation plant and other associated community facilities. The build-out of the Specific Plan was projected to occur over approximately 25 to 30 years, depending upon economic and market conditions. It would eventually result in an on-site resident population of 57,903 persons.” The specific plan contemplated the need for future federal, state and other governmental agency environmental review, permits, agreements and authorizations.

Department’s Environmental Review

The Department of Fish and Game’s (now the Department of Fish and Wildlife) (“department”) EIR at issue in the case relates to the general planning and conservation steps resulting from the County’s specific plan. For EIR purposes, there are two components to the project. The first component is the environmental assessment of the Resource Management Plan. The resource management plan included a streambed alteration agreement and resulted in the required issuance of two incidental take permits. One permit was for the San Fernando spineflower, and the other permit was a multispecies permit for the western yellow-billed cuckoo, the southwestern willow flycatcher and the least Bell’s vireo, combined. The boundary of the resource management plan includes the 11,999 acre specific plan site, and the 1,517-acre Salt Creek conservation area in Ventura County which adjoins the specific plan area to the southeast.

The second component of the project is the environmental assessment of the spineflower conservation plan whose boundary encompasses two other planning areas located to the east and northeast of the specific development area respectively. Thus, the environmental planning and certification process extended beyond the development and specific plan areas.

California Department of Fish and Wildlife Approvals

On December 3, 2010 the department certified a revised final environmental impact statement and impact report; approved the Newhall Ranch Resource Management and Development Plan (resource management plan); the adoption of the Spineflower Conservation Plan (conservation plan) and Master Streambed Alteration Agreement (streambed alteration agreement); and issuance of two incidental take permits.

The department and the U.S. Army Corps of Engineers (USACE) jointly prepared the 5,828-page project level EIR, defining the project as a project-level EIR for the proposed resource management plan and conservation plan project components. The department determined that certification of the EIR was required before it issued the requested streambed alteration agreement and incidental take permits for the proposed project activities. Both federal and state environmental review were necessitated for the project, however the appellate court only reviewed the relevant state law issues.

B.              Complaint Allegations and Trial Court Ruling

Complaint

The six causes of action in the complaint bundled together routine CEQA allegations with CESA and other resource law allegations. The first cause of action alleged the EIR failed to comply with statutory and regulatory requirements as to the description of the project and the affected environment; water quality; biological resources; greenhouse gas emissions; cultural resources; air quality; traffic; cumulative impacts; alternatives; and responses to public comments. The second cause of action alleged a failure to recirculate the draft environmental report which required the certification be set aside. The third cause of action alleged that the issuance of the incidental take permits was an abrogation of the department’s affirmative duty to protect public trust resources. The fourth cause of action alleged the department’s findings were not supported by substantial evidence, specifically in connection with significant environmental impacts; the overriding considerations statement; feasible alternatives or mitigation measures; whether environmentally superior alternatives were infeasible due to costs; the damage done to the spineflower species; the continued existence and take of other species including the Southwestern willow flycatcher, and the Least Bell’s vireo and Western yellow-billed cuckoo; and the incidental take permits. The fifth cause of action challenged the issuance of the streambed alteration agreement. The sixth cause of action alleged a violation of Fish and Game Code section 5515 because the projects would result in the prohibited take of the unarmored threespine Stickleback (stickleback). This would result from: the direct destruction of its habitat; localized alterations in streamflow; other hydrological and fluvial geomorphological changes; transporting the species from one location to another and facilitation of hybridization of other stickleback species that could result in the extinction of the native population.

Trial Court Rulings

The trial court ruled that the department abused its discretion in six aspects: First, the EIR failed to adequately discuss the impact of dissolved copper discharged from the project area on steelhead smolt. Second, the department’s analysis of the spineflower mitigation measures was legally impermissible because there was no substantial evidence that the mitigation matters were adequate. Third, the EIR’s section of a baseline for assessing the cumulative impacts of the project’s greenhouse gas emissions was inappropriate. Fourth, the trial court ruled that the EIR’s assessment of the project’s impact on Native-American cultural resources was not supported by substantial evidence. Fifth, the department failed to prevent the taking of the stickleback. Sixth, the trial court ruled the department unduly relied upon the specific plan and failed to conduct an independent review of project impacts. The trial court rejected the plaintiffs’ remaining contentions and a judgment was entered in plaintiffs’ favor.

C.              Standard of Review

The appellate court recognized that its standard of review depended upon the nature of the challenge to the EIR. The court further acknowledged that reviewing courts presume the correctness of an agency’s decisions in the EIR context. (San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1, 11; State Water Resources Control Board Cases (2006) 136 Cal.App.4th 674, 723.)  It deferred to the Supreme Court description of the limited nature of judicial review: “In reviewing agency actions under [the California Environmental Quality Act], . . . section 21168.5 provides that a court’s inquiry ‘shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564; see Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 184, 195.)

A reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts.

The reviewing court ‘“does not pass upon the correctness of the [environmental impact report’s] environmental conclusions, but only upon its sufficiency as an informative document.”’ [Citations.] We may not set aside an agency’s approval of an [environmental impact report] on the ground that an opposite conclusion would have been equally or more reasonable.” (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 564, quoting Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 392 and County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189.) Thus, the court must defer to an agency’s resolution of conflicting opinions and evidence. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 572; accord Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018, 1042.)

While the opponents had differing views on the adequacy of the mitigation they were not able to overcome the deferential “substantial evidence” standard of review. The court noted that it must examine the department’s adherence to the law and environmental conclusions as specified in the record. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at pp. 426-427; Melom v. City of Madera (2010) 183 Cal.App.4th 41, 47-48.)

With one exception (the admissibility of a post-environmental impact statement certification document), the appellate court did not review the trial court’s decision, but instead examined the department’s adherence to the law and its determinations.

D.              CESA and Stickleback Take Issues: Forfeiture and CEQA Exhaustion Exemption

The appellate court addressed a trilogy of ESA inquiries in the shadow of the 20,000 foot CEQA issue, regarding the ability of the department to certify the EIR without an incidental take permit.

Background

The stickleback species at issue is protected as endangered under for the Federal and State Endangered Species Acts. It is also deemed “fully protected” for purposes of Fish and Game Code Section 5515. Development related activities that would affect the stickleback were outlined in the resource management plan and included bridge, road and other construction as a precursor to future development.

Proposed Mitigation

Mandatory mitigation requirements were designed to insure that no stickleback take would occur. The mitigation measures were attached to the department’s factual findings of fact and were discussed in the EIR. Construction within aquatic habitats was addressed in mitigation measure BIO-44 which mandated that construction could only occur when it was determined that juvenile fish were not present. BIO-44 further required that if stickleback were present and spawning has not occurred, they were to be relocated prior to streambed diversion or any crossing of the stream by herding. A [federal wildlife service] staff member or his or her agents “shall” relocate the fish to suitable habitat outside the [project] area (including those areas potentially subject to high turbidity).

The department and the USACE jointly concluded that the implementation of the mitigation measures would avoid take of the stickleback. Nevertheless, the trial court ruled that the very mitigation methods under BIO-44 were an illegal taking under Fish and Game Code Section 86.

Trial Court Ruling That the EIR Could Not Be Certified

The trial court ruled that an EIR could not be certified without the issuance of an incidental take permit because the very ‘mitigation’ methods recommended to be conducted with supervision by a [federal fish and wildlife service] biologist, such as block netting and fish relocation, falls within the meaning of [an] illegal ‘taking’ under the . . . Fish and Game Code. Without the issuance of an [incidental take permit], the mitigation measure cannot be implemented. Therefore, there was no substantial evidence to support the mitigation strategy on which [the department] relies to conclude that the construction processes associated with the [project] will not result in an illegal taking of the [stickleback].”

The Mitigation Measure Does Not Result In a “Take”

ESA provisions however, allow alive trapping and transplantation carried out for purposes of conservation. For this and other reasons based on the CESA statutory language and legislative  intent, the appellate court was able to conclude that an approved conservation action to herd and transplant the stickleback was exempt and not a take of species.

CEQA Exhaustion Exemption and Potential Forfeiture Stickleback Take Issue

The department and the developer argued that plaintiffs failed to exhaust their administrative remedies during the comment period as required by section 21177, subdivisions (a) and (b).[1]

No plaintiff sufficiently directly raised any issue concerning whether a take was expected to occur which violated the endangered species act. However, the take issue was raised in a comment letter. An exception to the exhaustion of administrative remedies rule in the EIR preparation context arises when the issue is presented to the lead agency by a non-litigant. Here the take issue was raised by a Dr. Baskin, a non-litigant, during the comment period. Thus, the appellate court held it could now be asserted by plaintiffs (Gilroy Citizens for Responsible Planning v. City of Gilroy (2006) 140 Cal.App.4th 911, 920; Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1118-1121.) and therefore was not forfeited.

E.              Cultural Resources Analyses Forfeiture and Adequacy

The petition presented a challenge to the cultural resources analysis in the EIR, which plaintiffs claim was flawed in several respects. For example, it alleged the project area contains the Chumash and Tataviam Tribes’ ancestral home and: these tribal areas would be subject to excavation, earthmoving and other disturbance as a result of the project. Moreover, the earthmoving would have “devastating and irreversible impacts” on the historic, cultural and religious resources to the Tataviam and Chumash burial grounds and buried cultural artifacts.

Forfeiture

As with other arguments raised in the petition, the developer and the department asserted that all Native-American cultural resources issues had been forfeited. They reasoned no Native-American cultural resources issues had been raised within the applicable comment periods. The trial court agreed in part with plaintiffs’ contentions. Nevertheless, the trial court ruled the EIR’s assessment of the project’s impact on Native-American cultural resources was not supported by substantial evidence, there were inadequate studies, and the developer’s consultants’ archaeological exhumations were inaccurate, incomplete and partial. The court questioned the reliability of the developer’s consultants’ conclusions and found the cultural impact mitigation measures were insufficient.

The appellate court agreed that all Native American issues were forfeited and not preserved for presentation in the mandate petition. As noted under the stickleback take discussion herein Section 21117, subdivision (a) states, “An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.” The exact issue raised in a mandate petition must have been presented to the lead agency during the comment period. (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 623; Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535-536.) In order for the comments to preserve the right to utilize an EIR, they must be raised during the comment period. The lead agency, although it has the discretion to do so, is not obligated to respond to untimely comments. (§ 21091, subd. (d)(1); Guidelines, § 15088, subd. (a); Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1110.) Court of appeal authority holds a failure to exhaust administrative remedies contention is reviewed de novo. (Sierra Club v. City of Orange, supra, 163 Cal.App.4th at p. 535; Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 873.)

The record showed that the correspondence referred to by plaintiffs regarding the issues, was not provided until a year after the comment period closed. Consequently, none of the Native-American cultural resources issues which served as the basis for the writ of mandate was preserved during the comment period.  Moreover, the appellate court concluded that there was no merit to plaintiffs’ argument that otherwise generalized criticisms regarding the draft EIR were sufficient to preserve the issues relied upon by the trial court.

Merits of Plaintiffs’ Claims

Nevertheless, the appellate court chose to examine and rule on the merits of the plaintiffs’ cultural resources claims. Even on the merits, however, none of plaintiffs’ contentions served as a basis for disapproving the EIR because of its alleged failure to adequately address issues relating to Native-American cultural resources. The appellate court’s rationale follows.

First, the department’s cultural impact analysis was supported by substantial evidence. The extensive intensive onsite survey was consistent with that recommended by the United States Department of the Interior. (48 Fed. Reg. 44716, 44722 (Sep. 29, 1983).) There was no requirement additional research be conducted before certifying the EIR. (see Association of Irritated Residents v. County of Madera (2003) 167 Cal.App.4th 1383, 1396; Gray v. County of Madera, supra, 167 Cal.App.4th at p. 1125.) Second, there was insufficient evidence to support the allegation that the surveys failed to uncover burial grounds. Third, during the extended comment period provided for by federal law, documentation was provided concerning past Native-American occupancy of the project site. Fifth, the mitigation measures discussed in the EIR comply with Guidelines section 15126.4, subdivision (b)(3)(A). Guidelines section 15126.4, subdivision (b)(3) states in part: “Public agencies should, whenever feasible, seek to avoid damaging effects on any historical resource of an archaeological nature. The following factors shall be considered and discussed in an [environmental impact] report for a project involving such an archaeological site: [¶] (A) Preservation in place is the preferred manner of mitigating impacts to archaeological sites. Preservation in place maintains the relationship between artifacts and the archaeological context. Preservation may also avoid conflict with religious or cultural values of groups associated with the site. [¶] (B) Preservation in place may be accomplished by, but is not limited to, the following: [¶] 1. Planning construction to avoid archaeological sites; [¶] 2. Incorporation of sites within parks, greenspace, or other open space; [¶] 3. Covering the archaeological sites with a layer of chemically stable soil before building tennis courts, parking lots, or similar facilities on the site; [¶] 4. Deeding the site into a permanent conservation easement.” (See California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 279-280.) The court unequivocally concluded that the EIR provided for appropriate mitigation under these standards. For example, the mitigation plan bars development and preserves existing archaeological sites and adds 00-foot buffers around protected sites. Proposed road construction activities are to avoid the protected sites and the buffer area. Finally, the EIR and the specific plan provided contingency strategies if construction unexpectedly intruded on protected site or the buffer zone and required consultation with the Tataviam community; in the event of the discovery of any cultural resources or the discovery of any human remains.

Plaintiffs also faulted a 1994 consultants’ report because it erroneously states that the Tataviam Tribe was extinct. This error was based on a scholarly source, and not the consultant’s findings and it was corrected. The error in the article was attributable not to the consultants, but to the article’s authors. Therefore, the court held that nothing in the citation to a scholarly article as occurred could serve as a basis for disapproving an EIR.

Once again the appellate court mined the administrative record which contained ample factual bases for the EIR findings on cultural resources. The trial court was reversed as there were no grounds to set aside the EIR certification.

F.               The Specific Plan and Alternative 6

The mandate petition alleges: the EIR utilizes an impermissibly narrow set of alternatives; the EIR contains no substantial evidence “regarding the infeasibility of alternatives”; the EIR fails to evaluate “a genuine environmentally superior alternative that combines elements of Alternative 7 with a [conservation plan] and the absence of “a true environmentally superior alternative” prevents a meaningful consideration of project alternatives. The trial court agreed and also determined that the department unduly relied upon the county’s specific plan and failed to conduct an independent review of project impacts.

The department analyzed eight alternatives.  Alternative 1 was the no-project alternative and the seven additional alternatives permitted development in the project area. In its findings and overriding considerations statement, the department found that Alternative 6 was infeasible because it did not meet the project objectives and the costs rendered it infeasible.

Proper Reliance on Specific Plan

One key issue was whether there was improper reliance upon the specific plan. The appellate court explained that department was authorized by Guidelines section 15126.6, subdivision (f)(1) to consider an extant specific plan in assessing infeasibility. More to the point, all development, including the assessment of alternatives in an EIR, must proceed in a fashion consistent with the specific plan. (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at pp. 570-573; see A Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal.App.4th 630, 644-645.) Further an EIR must identify and assess whether a proposed alternative is infeasible. (The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603, 620-621; Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1353.) Among the factors an agency must consider is the economic feasibility of a project alternative and consistency with a specific plan. (Guidelines, § 15126.6, subd. (f)(1); The Flanders Foundation v. City of Carmel-by-the-Sea, supra, 202 Cal.App.4th at p. 622-623.) Therefore, contrary to the trial court’s conclusion, the appellate court opined that reliance on the specific plan was consistent with the law.

Infeasibility Finding on Alternative 6

An EIR must describe alternatives to the proposed project. (§ 21100, subd. (b)(4); Guidelines, § 15126.6, subds. (a)-(d). Additionally, the EIR must identify and assess whether a proposed alternative is infeasible. (The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603, 620-621; Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1353.) Among the factors an agency must consider is the economic feasibility.  In assessing economic infeasibility, an agency must determine the following, “[W]hether the marginal costs of the alternative as compared to the cost of the proposed project are so great that a reasonably prudent property owner would not proceed with the rehabilitation.” (Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 600.

The court reviewed the infeasibility finding for substantial evidence and once again reversed the trial court, concluding that substantial evidence supported the department’s economic infeasibility finding as to Alternative 6. The court noted that the department determined in assessing the costs of the project to use a standard industry metric such as cost per developable acre. Like the cost metrics endorsed by the courts in Friends of the Earth [v. Hintz (9th Cir. 1986) 800 F.2d 822, 831-834] and Sierra Club v. Flowers [(S.D. Fla. 2006) 423 F.Supp.2d 1273, 1333], cost per developable acre is an objective measure that is not tied to any subjective or unique characteristic of the applicant. . . . Cost per net developable acre is based on verifiable information that is neither proprietary nor applicant-specific. In addition, it allows a direct and meaningful comparison of the relative costs associated with alternatives of different sizes or different amounts of development potential, in a way that the total project cost does not. Therefore, this was an appropriate metric.

The record included detailed calculations concluding that there would be a 15% cost increase per net developable acre, which was deemed a high cost for the proposed project. Therefore, the court concluded that the department quite reasonably could reject Alternative 6 as economically infeasible because of its substantially increased costs.

Additionally, the court confirmed that substantial evidence supported the department’s finding that Alternative 6 was infeasible because it did not meet the project’s objectives. The department identified the project’s basic objectives, based upon the specific plan. These objectives included commercial development in a specified area that would have been eliminated under Alternative 6, leading to a loss of 3.4 million square feet of commercial use. Moreover, Alternative 6 would only allow for “partial buildout” of the specific plan area. The material reduction in development between Alternatives 2 and 6 increased per residence costs and reduced tax base. Finally, loss of the Commerce Center Drive bridge by itself caused Alternative 6 to fail to meet the specific plan objective of creating interrelated villages. In sum, the record supported the findings of infeasibility. The court ultimately concluded that nothing that occurred during the department’s evaluation of project alternatives warranted a setting aside of the EIR.

G.             The EIR’s Steelhead Smolt and Water Quality Analysis: Forfeiture and Adequacy

The mandate petition asserted that the EIR was deficient in analyzing the impacts of runoff from the Santa Clara River because it failed to consider whether the dissolved copper discharged from the project area would adversely affect restored habitat for endangered steelhead smolt, and it failed to provide measures to mitigate those impacts to a less than significant effect.

Forfeiture

The entire sub-lethal copper discharge/steelhead smolt issue was forfeited because it was not raised during the comment period for the EIR. Section 21177, subdivision (a) bars consideration of that issue unless it raised it during the public comment period or prior to the close of the public hearing on the project. As previously discussed, the exact issue raised in a mandate petition must have been presented to the lead agency during the comment period. (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors, supra, 216 Cal.App.4th at p. 623; Sierra Club v. City of Orange, supra, 163 Cal.App.4th at pp. 535-536.) The issue concerning the steelhead smolt was not raised until almost one year after the comment period closed and the court concluded that it was forfeited.

Merits of Plaintiffs’ Claims

Not wanting to punt a potential environmental concern however, the court dutifully examined the issue. The court concluded, even if the issue had been preserved, there was substantial evidence that the project’s impacts on the steelhead smolt would be less than significant for two related reasons. First, the EIR describes the Santa Clara River and the so-called “dry gap”, an area where the river goes underground. It explained that all of the steelhead smolt’s habitat was below the dry gap, an area that would not be affected by potential copper runoff issues. Second, in the water quality discussion in the EIR, department scientists analyzed copper runoff in light of the California Toxics Rule criteria and concluded: “With the implementation of regulatory requirements, Mitigation Measures SP-4.2-7 and WQ-1, comprehensive [project design features], including site design, source control [best management practices], treatment [best management practices], and the comparison with instream water quality monitoring data and benchmark water quality criteria, Specific Plan build-out would not have significant water quality impacts resulting from trace metals under Significance Criteria 1 through 3.”

Buttoning up the allegation, the court held that the location of the species’ habitat, coupled with the discussion concerning water quality and conclusions that copper levels would be below the California Toxics Rule threshold, supports the department’s finding that project build out would not produce significant environmental impacts. In sum, there was substantial evidence that project impacts on steelhead smolt would be less than significant.

H.              EIR’s Spineflower Incidental Take and Mitigation- Supported by Substantial Evidence

Background Facts

The San Fernando Spineflower (spineflower) is listed as an endangered species under the CESA. The department’s approved conservation plan permanently expanded the existing spineflower preserve system. The spineflower is also identified as a candidate species under the federal Endangered Species Act of 1973. (16 U.S.C. § 1531 et seq.; Pub. L. No. 93-205 (Dec. 28, 1973) 87 Stat. 884.) The preserve system in the conservation plan was designed to maximize long-term persistence of the spineflower. In rendering its opinion, the court referred to the detailed discussion of the spineflower conservation plan in the EIR plus the department’s findings of fact and overriding considerations statement; the 290-page spineflower mitigation and monitoring plan; and the 300-page final conservation plan itself. The EIR explained that the spineflower was believed to be extinct until it was rediscovered in 1999 on property in Ventura County. Moreover, there are only two known locations where the spineflower can be found. One is nearby in Ventura County and the other in the project area, with each population approximately 17 miles apart.

The spineflower incidental take permit is a scientific opus consisting of 59 pages of analyses, charts, conditions and data. The permit sets forth milestones which are conditions of issuance and maintenance of the permit. The appellate court noted that the conservation plan is replete with descriptions of the biological goals and objectives of establishing the preserve areas; a species description; an analyses of 7 years of surveys, environmental setting and existing land use descriptions, methodology used to design the spineflower preserves, buffers, management activities designed to minimize or eliminate risk factors from development, adaptive management program and monitoring program to name a few. The scientific studies used as references in the preparation of the document were included in six technical appendices.

The Petition and the Ruling Based on Substantial Evidence Standard

The petition alleged that the EIR’s spineflower evaluation was defective, detailing scores of reasons. For example, the petitioners alleged that the evaluation underestimated the project’s impacts on the spineflower, and failed to evaluate the effect of permanently removing most of the spineflower’s seed bank from the project area on the viability of the proposed reserves; relied on unproven and ineffective mitigation measures, violated the endangered species act, failed to insure that the impacts of the spineflower incidental take permit were fully mitigated; failed to insure there was adequate funding to implement the conservation plan; the incidental take permit did not minimize or fully mitigate damage to other and department violated its duty to protect public trust resources. Finally, the petitioner argued that no substantial evidence supports the department’s findings that the impacts resulting from the take of spineflowers would be minimized and fully mitigated; the spineflower conservation measures were capable of successful implementation; and the issuance of the incidental take permit would not jeopardize the continued existence of “the covered species.” The trial court essentially agreed on most points.

However, the appellant court concluded to the contrary, once again employing the record to prove that there is substantial evidence that supports the department’s conclusion. The court noted that the conservation plan was the result of years’ long extensive, collaborative and scientific analysis by credentialed independent scientists and an array of department scientists. In addition, the developer’s consultant utilized 43 biologists in conducting surveys and scientific analyses and 21 surveys of the project area were conducted in order to identify the spineflower habitat. The conservation plan provided additional information concerning spineflower populations and the like, described varying factors which affect spineflower propagation including the absence of competing species depending on the direction the plot faces. One study relied on by the department was co-authored by 10 scientists with the California State University, Fullerton. “[T]here is every reason to believe that this plant can be restored in historic localities, and successfully managed onsite by a combination of methods that incorporate a knowledge of its biology.” To sum up, a plethora of studies consistently agreed that the conservation plan dramatically expanded the area for potential growth of the spineflower. The appellate court held that the foregoing constituted substantial evidence which supported the department’s scientific strategies and mitigation findings.

Other Allegations Regarding Spineflower (No Mitigation Deferred)

Plaintiffs’ other arguments and the court’s ruling fell into five general areas. First, plaintiffs argued the department admitted it had little knowledge of the spineflower. The appellate court found however, that the department acted with candor in evaluating the difficulties of protecting an endangered species. This is particularly true in that only one other place in the world, in Ventura County, is there a viable spineflower population. The department’s conclusions in this regard were buttressed by extensive scientific and academic research. Second, plaintiffs relied on views expressed by Ms. Myers, a department scientist, concerning earlier versions of the conservation plan. Third, most of plaintiffs’ analysis required the appellate court to reweigh conflicting conclusions offered by Ms. Myers and others rather than engage in deferential substantial evidence review. Fourth, contrary to plaintiffs’ allegations the department’s comprehensive monitoring plan did not amount to deferring appropriate environmental actions. A conservation plan that adapts to changing scientific knowledge does not necessarily violate the endangered species act. Under these circumstances, the requirement that future research be conducted concerning the spineflower was not viewed by the appellate court as deferring an environmental decision–it is sound ecological management. Fifth, there was no requirement that a separate habitat conservation plan be prepared.

The court acknowledged that an extraordinary amount of scientific inquiry preceded the issuance of the EIR and incidental take permit. Under these circumstances, no obligation to prepare a separate habitat analysis existed under either the CESA or CEQA. The legal issue before the court was again, whether substantial evidence supported the department’s conclusions, and the appellate court succinctly concluded that there was such evidence.

Lotus v. Department of Transportation (2014) 223 Cal. App.4th 645.

As we previously observed in our blog, no good deed goes unpunished. In theory, best practices would suggest that factoring environmental considerations into a project in order to minimize or avoid impacts would promote CEQA’s objective of making for better projects. Additionally, conscious CEQA thinking at the front end (as compared to the back end of the process) should open the door to potential CEQA streamlining or simplification. The most recent case to discuss project-shaping illustrates how, by trying to do the right thing by including impact mitigating concepts into a project, the lead agency ended up doing the wrong thing according to the court of appeal.

The lead agency was California’s Department of Transportation (“DOT”), and the proposed project was a straightening of State Route 101 as it passes through the Richardson Grove State Park. The existing roadway improvements were off limits to certain sized trucks as that portion of 101 did not meet the standards of the federal Surface Transportation Assistance Act of 1982. DOT’s proposed project would eliminate the restriction, but at the same time, potentially impact redwoods located in the required right-of-way or adjacent thereto. The EIR included a discussion of potential impacts to redwoods, including potential physical changes (direct and indirect) to redwood tree roots, compaction of soil on top of roots, cuts and fills. The EIR also identified various construction practices which would be followed by the lead agency (e.g. restorative planting of the former roadbed alignment.) However, these commitments were not noted as mitigation measures. While DOT prepared an EIR, it concluded that the impacts to redwoods would be less than significant. Litigation ensued, and on appeal, the court found two noteworthy faults in the EIR.

First, the EIR lacked a threshold of significance for measure impacts to the redwoods. While the EIR included consideration information about the redwoods and site specific information, the court observed the public lacked any means by which to evaluate the lead agency’s determinations. The EIR lacked a threshold of significance or the application of any methodology to assess potential impacts. The court agreed with the appellants that a publication issued by State Parks included relevant information which could have been used as a threshold of significance. While the appellate court concluded that ultimately it was the lead agency’s call on selecting the appropriate TOS, the failure to identify a TOS left the agency vulnerable to criticism.

The court then observed that the lead agency’s error was compounded based upon its position that the impacts were less than significant based upon practices built into the “description of the project.” To this author, this is where the opinion is susceptible to different interpretations. Read in the harshest light, this case would suggest that it is improper for a lead agency (or applicant) to pre-mitigate by adding mitigation into the project description. This seemingly, would discourage the applicant/agency from making early environmental commitments, leading to a contrarian result. However, in footnote 8 of the decision the appellate court acknowledged the fine line between elements of the project intended to avoid or reduce impacts such as a physical action or element added to the project (as an example, the proposed use of a light weight special cement base intended to reduce weight and accordingly compaction underneath) and what must be treated as a mitigation measure. The court noted that if that practice was part of the project (description), it would not make sense to add the same requirement as a mitigation measure. But to put that issue in perspective, the court noted that post design actions (e.g. restorative planting and use of an arborist or special equipment) were a form of mitigation, had to be identified as such, and included in the mitigation monitoring and reporting program. Thus, the court seemed to be drawing a distinction with building physical environmentally beneficial concepts into a project design from other environmental commitments which are in response to a project such as those with an operational element or are implemented post project. This interpretation potentially leads to uneven results. An applicant who mitigates to a stated mitigation ratio at the beginning of the project perhaps has no impacts. The applicant who satisfies the same mitigation ratio concurrent with the project or after the fact on the other hand may be required to treat this as formal mitigation. Same result, same benefits, uneven consideration.

In the end, it may be that DOT embraced all of the right strategies and built them into the project, but packaged them in a manner which did not meet the court’s expectations. Then again, no good deed goes unpunished.

5.               SUBSEQUENT ENVIRONMENTAL REVIEW

Citizens Against Airport Pollution v City of San Jose (June 6, 2014, H038781) ___ Cal.App.4th ___.

Last year, we summarized an important CEQA decision illustrating the successful efforts of the City of Napa to rely on its previously certified EIR for its General Plan (certified in 1998) when approving minor general plan amendments. Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192 that decision came from the 1st Appellate District. A similar result occurred in a new decision from the 6th Appellate District involving an airport master plan, based upon an EIR certified in 1997, and updated in 2003.

The facts involved the use of an 8th Addendum to the 1997 San Jose Airport Master Plan EIR (followed by a 2003 SEIR[2]). Between 1997 and 2010, the City had approved and relied upon seven addenda to the 1997 Master Plan EIR. The City, as the lead agency, determined that air passenger projections initially assumed to occur by 2017 would be slower than anticipated (the revised projection was 2017), along with anticipated decreases in previously forecast air cargo and general aviation. The City also anticipated a shift in the general aviation demand, with increases in corporate jet use. As a result, the City, relying upon the 8th addendum to the 1997 EIR, approved an amendment to the Master Plan, including the redevelopment of existing facilities. The addendum concluded that the project would not generate any significant impacts not previously disclosed or result in a substantial increase in the severity of previously identified impacts.

An unincorporated association, Citizens Against Airport Pollution (CAAP) filed a petition for writ of mandamus against the City to set aside the approvals. The trial court ruled for City, and CAAP appealed. In reviewing the challenge to the City’s decision to not prepare a subsequent or supplemental EIR, the appellate court applied the substantial evidence standard. That is, a reviewing court would examine the record to determine if substantial evidence supported the City’s decision to not recirculate.[3] In support of its challenge, CAAP presented five arguments: (1) the 2010 approvals were a new project, (2) noise impacts, (3) greenhouse gas emissions, (4) air quality, and (5) biological (burrowing owl). First, as to “new project” argument, the parties debated whether or not the 1997 EIR was a program EIR (appellant’s argument) or a project EIR (the City’s assertion.) The appellate court ultimately did not resolve this issue, but in assuming that the 1997 EIR was a program EIR, concluded that the record did not support the requisite argument that the a subsequent EIR was required under Public Resources Code section 21166. The court relied upon its earlier decision in May v. City of Milpitas (2013) 217 Cal.App.4th 1307, and distinguished the facts from those in Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156.

The court then turned to the argument concerning noise impacts. The addendum concluded that the reduced level of anticipated operations, coupled with the phase out of older, noisier planes, that the evidence supported the conclusion that anticipated impacts would be less than originally forecasted. Reviewing the challenge based upon greenhouse gas emissions, the court followed the decision in Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515, agreeing that greenhouse gas emissions was not “new information”, and could have been raised in the 1997 or the 2003 SEIR, thereby foreclosing it being raised in a challenge to the 8th addendum. Next, similar to the noise issue, the appellate court concluded that as the project, modified in 2010, would involve fewer operations then already analyzed and accordingly, was not a basis for overturning the addendum. The final issue was the potential impact resulting from a loss of burrowing owl habitat. However, the 1997 EIR included a burrowing owl habitat plan and on that basis, the City had originally concluded that the impacts would be less than significant. As part of the 2010 approval, the City would provide substitute habitat onsite, following the mitigation measures previously approved in 1997. Applying the substantial evidence, the court concluded that there was an insufficient basis to require a subsequent EIR.

6.               LITIGATION

Citizens for a Green San Mateo v. San Mateo County Community College District (June 17, 2014, A137612) ___ Cal.App.4th ___.

Details do matter in CEQA litigation as reflected in the latest decision involving the application of the statute of limitations to bar a CEQA claim. Citizens for a Green San Mateo v. San Mateo County Community College District (June 17, 2014, A137612) ___ Cal.App.4th ___. The facts involve a facilities master plan adopted by the San Mateo County Community College District. The chronology begins in 2001 when the District adopted a master plan. The District updated the master plan in 2006. The 2006 plan called for building demolition and reconstruction, and extensive site redevelopment including modification to existing landscaping. A mitigated negative declaration was approved in conjunction with the updated master plan. From 2008 through 2010, the District developed, approved and awarded site specific construction contracts. To differing degrees, these plans and construction contracts referenced tree removal. In late 2010, the District awarded a contract for tree removal which began on December 29, 2010, continuing on into January. Citizens raised concerns in early January, and filed a petition for writ of mandamus against the District on July 1, 2011.

The District challenged the pleadings, arguing the relevant statute of limitations barred the suit. The trial disagreed, and the District appealed.  The court of appeal reversed, finding that the suit was barred under both the 30 and 180 day CEQA statutes of limitation.

The Citizens’ primary argument was that the tree cutting project was different from the project studied in the earlier master plan and as a result, they were not limited by the prior NOD, but could properly file the claim within 180 days of actual discovery. Not so in the opinion of the appellate court. The court of appeal was satisfied that the initial study adequately described the tree cutting such that the filing of the NOD following approval of the 2006 updated plan effectively triggered CEQA’s thirty day statute of limitations. In finding the lawsuit to be untimely, the court emphasized the prior California Supreme Court decision in Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, which attaches significant importance to the beneficial effects of an NOD in terms of the statute of limitations.

The court then addressed the Citizens’ alternative argument that the relevant statute of limitations ran from discovery, and extended for 180 days. As to this issue, the Court found that the relevant commitment to the tree cutting took place in 2010 with the approval of various bid and construction related documents, which also included information on tree removal.  Contrary to the Citizens’ claim, the relevant triggering period was not to be measured from the award of the tree removal contract.

Comment: The lead agency was able to successfully assert that the later implementation action (tree cutting) was included and part of the project approved as part of the earlier master plan. While the discussion of landscape modification in 2006 was not overly detailed, it included sufficient information in the analysis of the Appellate Court to give full benefits to the 2006 filing of the NOD. Thus, project details disclosed in the initial CEQA do matter in the long run by expanding the scope of coverage protected by the filing of a Notice of Determination.

If you have any questions about these court decisions, contact William Abbott or Katherine Hart. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.



[1] Section 21177, subdivisions (a) and (b) state: “(a) An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination. [¶] (b) A person shall not maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the filing of the notice of determination pursuant to Sections 21108 and 21152.”

[2] The Court mentions the 2003 SEIR several times in the decision. This decision however appears to be primarily based upon the relationship of the later approvals to the 1997 project approvals and EIR.

[3] Although the City raised the issue of CAAP’s failure to exhaust administrative remedies, the appellate court declined to reach the issue as it determined that the City prevailed on the substantive merits.