By William Abbott, Diane Kindermann, Katherine Hart, Glen Hansen, and Brian Russell
Welcome to Abbott & Kindermann’s 2014 1st Quarter CEQA update. It has been a quiet first quarter. One decision, Lotus v. Department of Transportation includes an interesting analysis on the use of construction commitments as part of the project description or as mitigation measures.
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)?
Citizens for Environmental Responsibility v State of California (March 26, 2014, C070836) ___ Cal.App.4th ___.
The 14th District Agricultural Association operates the Santa Cruz County fairgrounds outside of Watsonville. [link http://www.santacruzcountyfair.com/fairgrounds-history ] 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.
4. ENVIRONMENTAL IMPACT REPORTS
Center for Biological Diversity v. California Department of Fish and Game, et al. (March 20, 2014, BS131347) ___ Cal.App.4th ___. 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) ___ Cal.App.4th ___, 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 including 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
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.
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.
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).
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.
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.
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
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.
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.
 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.”