California’s wildfire season now spans nearly the full calendar year. For California Environmental Quality Act (“CEQA”) practitioners, this means the enhanced scrutiny of wildfire and evacuation impact discussions in CEQA documents is an emerging issue that compels more robust CEQA evaluation than has traditionally been afforded to this topic. This new emphasis comes from revisions to the CEQA Guidelines (the “Guidelines”), trial court filings, and appellate court decisions. This article is devoted to identifying useful resource documents that can assist local agency planners and CEQA consultants in addressing project review and impact analysis. This blog reviews the CEQA Guidelines and recent caselaw evaluating wildfire impact analyses, and includes additional planning resources for planners and CEQA practitioners.
These materials are arranged as follows:
I. Wildfire and the CEQA Guidelines
II. CEQA Caselaw and Wildfire Issues
III. Related Statutes and Regulations
IV. CEQA Guidance (California Attorney General)
V. Land Use Planning Guidance (OPR)
VI. Wildfire Resource Links
I. Wildfire and the CEQA Guidelines
The Guidelines address fire risk in two separate Appendix G analyses: sections IX and XX:
Section IX: Hazards and Hazardous Materials, part of the Guidelines for many years, asks the following relevant questions regarding whether a proposal would:
f) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan; or
g) Expose people or structures, either directly or indirectly, to a significant risk of loss, injury or death involving wildland fires.
Section XX: Wildfire, added to the Guidelines in 2018, asks additional wildfire-related questions aimed at proposals located in or near state responsibility areas or lands classified as very high fire hazard severity zones. The section asks whether the project would:
a) Substantially impair an adopted emergency response plan or emergency evacuation plan;
b) Due to slope, prevailing winds, and other factors, exacerbate wildfire risks, and thereby expose project occupants to, pollutant concentrations from a wildfire or the uncontrolled spread of a wildfire;
c) Require the installation or maintenance of associated infrastructure (such as roads, fuel breaks, emergency water sources, power lines, or other utilities) that may exacerbate fire risk or that may result in temporary or ongoing impacts to the environment; or
d) Expose people or structures to significant risks, including downslope or downstream flooding or landslides, as a result of runoff, post-fire slope instability, or drainage changes.
Additionally, the Guidelines indirectly address fire-related risk in the mandatory findings of significance (Guidelines §15065(a)(4)), which provide for a mandatory finding when “(t)he environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.”
II. CEQA Caselaw and Wildfire Issues
Clews Land & Livestock, LLC. v. City of San Diego (2017) 19 Cal.App.5th 161
Clews involved a mitigated negative declaration (“MND”) approved for the construction of a school atop a bluff in San Diego’s Carmel Valley. Clews Land and Livestock, LLC. (“Clews”) owned a horse ranch adjacent to the proposed location of Cal Coast Academy that was approved by the city (together, “Respondents”). The area is within a “very high fire hazard severity zone.” The Clews alleged an environmental impact report (“EIR”) should have been performed under CEQA because the project exacerbated fire hazards, among other concerns. Specifically, Clews argued the proposal interfered with the ability of people and animals at the ranch to evacuate in the event of a wildfire. The Fourth District Court of Appeal disagreed, reasoning that the city’s fire marshal found the project complied with city fire codes, and the project did not introduce any new fire hazards that did not already exist.
Clews’ argument was primarily based on a report prepared by its fire safety hazard expert, who posed several questions about fire safety that the consultant alleged went unanswered in the MND. Among the topics the expert addressed were the school’s evacuation plan, and first responder response times and capabilities. Clews’ expert contended the main roadway would be inadequate to support the safe evacuation of the school in addition to the animals and people at the ranch in the event of a wildfire. The appellate court, however, said the expert’s comments were “conclusory, speculative or otherwise unsupported,” and that Clews generally failed to present a fair argument that the addition of more people in the area would have caused significant environmental impacts.
The appellate court concluded that Clews failed to show a fair argument existed that the project would materially affect evacuation routes in the area. It said the city was not required to prepare an EIR because the fire risk in the area, while high generally, was not increased due to the existence of the new project. In fact, the court pointed out that Respondents, by incorporating a new water line and fire hydrant line, appeared to increase fire safety in the area. It was dissuaded by Clews’ contention that the main road was inadequate to satisfy a successful evacuation of the occupants and animals at both properties. The court pointed out that an alternative fire evacuation route existed along a nearby dirt road. It also relied on the fact that the school intended to only operate part of the year and intended to close on red flag days out of an abundance of caution. Additionally, the court reasoned that the inherent difficulty in evacuating the ranch—comprising 135 horses, 15 cattle, ranch personnel, clients and trailers—existed prior to the school proposal, and thus, would not be significantly affected by the school.
Newtown Preservation Society v. County of El Dorado (2021) 65 Cal.App.5th 771
Newtown Preservation Society involved a bridge replacement project in El Dorado County. The County of El Dorado (“County”) approved an MND stating that the project’s impacts would be less than significant. A local community group, Newtown Preservation Society (“Newtown”), sued the County, contending an EIR should have been prepared instead. Newtown alleged substantial evidence existed that pointed toward significant environmental impacts related to resident safety and emergency evacuations in the event of a wildfire.
The MND acknowledged that bridge construction would force the closure of a main road, forcing traffic to detour onto another road, which was a longer route out of the area. The MND provided mitigation measures including the creation of a temporary evacuation route downstream from the new bridge by acquiring a temporary easement over a property near the bridge. The MND concluded that the completed project, as mitigated, would not expose people or structures to new or increased significant risk of loss, injury, or death involving wildland fires.
Newtown purported to offer substantial evidence, which comprised of residents’ comments. One of the statements came from a retired CalFire aerial firefighter who contended that the proposal would block one of the primary escape routes from the canyon for up to two fire seasons. The Third District Court of Appeal found Newtown failed to provide any facts related to how the firefighter was an expert in ground evacuation routes. It cited Joshua Tree Downtown Business Alliance v. County of San Bernardino, 1 Cal.App.5th 677, 690-691 (2016), which concluded a lay person’s opinion based on technical information that requires expertise does not qualify as substantial evidence.
The appellate court concluded residents’ statements regarding existing threats of wildfire and individual sentiments related to experiences with past wildfire were insufficient to constitute substantial evidence needed to require an EIR under CEQA. While expert opinion substantiated by fact will normally satisfy as substantial evidence, the court concluded the residents’ comments lacked factual foundation and failed to show how the alternative evacuation plan included in the MND would fail to sufficiently mitigate impacts on safety.
Save the El Dorado Ditch v. El Dorado Irrigation Dist. (2022) 75 Cal.App.5th 239
Save the El Dorado Ditch (“Appellant”) challenged the approval of an EIR by the El Dorado Irrigation District (“EID”) for a water pipeline project. Among Appellants’ allegations was a contention that EID failed to adequately analyze the impacts of the project on firefighting water supplies, thereby increasing the risks associated with wildfire. The Third District Court of Appeal, however, concluded the EIR was sufficient, as Appellants failed to present substantial evidence to the contrary.
EID sought to replace approximately three miles of an unlined earthen ditch system with a buried water transmission pipeline proposed to be located either beneath the ditch itself or beneath a berm located alongside the ditch. However, EID instead approved an alternative to the project, which essentially abandoned EID’s use of the ditch altogether in favor of most of the pipeline being placed under a nearby roadway.
Appellants sued, alleging EID’s approval of the alternative project violated CEQA because, by abandoning the ditch, EID would also be abandoning a water source for firefighters to utilize in the event of wildfire. Appellants contended the EIR was deficient because it discussed only construction-related firefighting risks and disregarded contentions regarding the loss of the ditch water for firefighting purposes.
The draft EIR noted the alternative project would have similar impacts to wildland fire risk as the initial proposal. The analysis concluded fire hazards in the project area would be unaffected because the proposal did not create a fire hazard. The draft EIR stated that the ditch’s water supply is not part of the local CalFire unit’s strategic plan for fighting wildfire in the area.
Several public comments were submitted during the comment period concerned with the alleged removal of a water source used as a firefighting tool. The final EIR directed at least one commenter to a wildfire protection-related master response that stated that the ditch is not a firefighting resource, and thus, there were no significant impacts to be mitigated. The appellate court concluded EID’s response to the comments in the final EIR was sufficient.
League to Save Lake Tahoe Mountain v. County of Placer (2022) 75 Cal.App.5th 63
In October 2016, the Placer County Board of Supervisors certified an EIR and approved a specific plan for a project involving lands in a “very high fire hazard severity zone,” as classified by CalFire. The specific plan provided for development of up 1,360 dwelling units and up to 6.6 acres of commercial use. Within this area, the County of Placer (“County”) maintained an evacuation plan, the Placer Operational Area East Side Emergency Evacuation Plan. The project opponents (“League”) filed suit, challenging the less-than-significant impact analysis conclusion in the EIR as it pertained to interference with an evacuation plan, among other issues. The trial court determined that the fire/evacuation analysis did not comply with CEQA. The developer appealed on this issue (other issues were appealed by the developer, as well as the project opponents), and the Third District Court of Appeal reversed the trial court’s decision, concluding that the hazards analysis, and the conclusion of a less-than-significant impact, complied with CEQA.
To put this appellate court decision into context, the Guidelines, as it pertains to wildfire, were amended in 2018, so the decision relied upon the prior version of the Guidelines. The EIR considered the Guidelines as they existed pre-2018, using the following threshold of significance: the project’s impact would be significant if the project would “impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan.” The draft EIR concluded that the impact would be less than significant, based on several factors:
- The project included emergency access;
- The project’s incremental traffic increase would be insufficient to interfere with the use of the main highway under the County’s evacuation plan or otherwise modify any existing evacuation routes;
- The project included an emergency preparedness and evacuation plan, coordinated with the County’s plan and the closest fire district. The plan included a requirement for later project EIRs to require the homeowner’s association (“HOA”)(prior to a specified development threshold) to construct a shelter-in-place amenity; and
- The cumulative effects of this project and others were not cumulatively considerable.
In response to public comments on the draft, the County expanded the discussion of this issue. The master response in the final EIR discussed the emergency plan in greater detail focusing on the implementation of existing regulations, including defensible space, fuel maintenance, structural and infrastructure requirements and building code requirements. The plan would also impose requirements on water supply and flow, emergency access, evacuation signage, public education and communication, forestry management, strategies to address onsite hazards and development restrictions. The final EIR also reviewed a study performed by a traffic consultant, evaluating how long evacuation would take assuming maximum occupancy, during the summer months, a peak time for traffic. The study concluded that project evacuation (existing plus project) would be 1.3 hours, and 1.5 hours under cumulative conditions. The final EIR noted that any project would add evacuation time, but that this did not necessarily generate a safety risk. Emergency personnel take into consideration the time necessary for evacuation when determining when and where to issue evacuation orders.
The master response also addressed the comment complaining of a lack of modeled traffic events during an emergency event. The final EIR noted the significant number of different hypothetical fire events influenced by humidity levels, wind direction, and fuel loading. The EIR noted that any one model would be speculative and not representative of actual conditions on the ground. Given those constraints, an evaluation, such as the one performed, which looked at total time to exit, was a reasonable metric to apply.
The appellate court concluded that the record included substantial evidence to support the less-than-significant conclusion, noting the following:
- Nothing in the project or cumulative conditions would prevent or interfere with the County evacuation plan;
- The project would include two additional evacuation access routes for a total of three;
- The project included internal access roads so that every parcel had two routes for ingress and egress;
- In reviewing the traffic consultant’s study, the County implicitly found that 1.3 and 1.5 hours for evacuation were reasonable;
- The project would not significantly increase response times from the nearby fire district.
- Between impact fees and financial contributions through the development Agreement (“DA”), the project would contribute to help fund two additional firefighter positions;
- The final EIR provided a reasonable response and explanation regarding the traffic model. EIRs are not required to engage in speculation;
- The County was not required to use its standard significance thresholds for traffic (note: this EIR evolved prior to the CEQA change to vehicle miles traveled (VMT) analysis), and the EIR adequately disclosed the basis for the different metric applied by the County; and
- Although the project’s emergency plan contained many measures unrelated to evacuation, these measures (e.g. vegetation control) would reduce the risk of fire or the spread of fire which would otherwise lead to an evacuation event.
Based upon these considerations, the appellate court concluded that substantial evidence supported the conclusion that the project’s impacts to an adopted evacuation plan were less than significant.
III. Related Statutes and Regulations
A. The Subdivision Map Act requires certain findings for subdivisions located in state responsibility areas or very high fire hazard severity zones. Government code 66474.02 provides as follows:
- (a) Before approving a tentative map, or a parcel map for which a tentative map was not required, for an area located in a state responsibility area or a very high fire hazard severity zone, as both are defined in Section 51177, a legislative body of a county shall, except as provided in subdivision (b), make the following findings:
- (1) A finding supported by substantial evidence in the record that the subdivision is consistent with regulations adopted by the State Board of Forestry and Fire Protection pursuant to Sections 4290 and 4291 of the Public Resources Code or consistent with local ordinances certified by the State Board of Forestry and Fire Protection as meeting or exceeding the state regulations.
- (2) A finding supported by substantial evidence in the record that structural fire protection and suppression services will be available for the subdivision through any of the following entities:
- (A) A county, city, special district, political subdivision of the state, or another entity organized solely to provide fire protection services that is monitored and funded by a county or other public entity
- (B) The Department of Forestry and Fire Protection by contract entered into pursuant to Section 4133, 4142, or 4144 of the Public Resources Code.
- (b) Upon approving a tentative map, or a parcel map for which a tentative map was not required, for an area located in a state responsibility area or a very high fire hazard severity zone, as both are defined in Section 51177, a legislative body of a county shall transmit a copy of the findings required in subdivision (a) and accompanying maps to the State Board of Forestry and Fire Protection.
- (c) (1) Subdivision (a) does not apply to the approval of a tentative map, or a parcel map for which a tentative map was not required, that would subdivide land identified in the open space element of the general plan for the managed production of resources, including, but not limited to, forest land, rangeland, agricultural land, and areas of economic importance for the production of food or fiber, if the subdivision is consistent with the open space purpose and if, for the subdivision of land that would result in parcels that are 40 acres or smaller in size, those parcels are subject to a binding and recorded restriction prohibiting the development of a habitable, industrial, or commercial building or structure. All other structures shall comply with defensible space requirements described in Section 51182 of this code or Sections 4290 and 4291 of the Public Resources Code.
- (2) Any later approval to remove a binding restriction placed as a condition of a tentative map, or a parcel map for which a tentative map was not required, that would allow the development of a building or structure for a parcel that has previously been exempted from the requirements of subdivision (a) pursuant to paragraph (1) of this subdivision shall be subject to the requirements of subdivision (a).
- (d) This section does not supersede regulations established by the State Board of Forestry and Fire Protection or local ordinances that provide equivalent or more stringent minimum requirements than those contained within this section.
B. Cal Fire’ s authority to adopt regulations for land development and construction: Public Resources Code section 4290 , Public Resources Code section 4291
C. Cal Fire regulations for reviewing safety elements as part of local general plans.
D. Cal Fire SRA Fire Safe regulations.
E. Preliminary Applications
The right to file a Preliminary Application (Housing Crisis Act of 2019) cannot be utilized in areas which qualify as very high fire hazard severity zones. Government Code Section 66300(f)(4).
Applicants filing preliminary applications (Government Code Section 66300(f)(4)) are required to determine if any portion of the site is located within a high fire hazard severity zone, as determined by the Department of Forestry and Fire Protection pursuant to Section 51178 Govt. Code 65941.1.
F. Housing Crisis Act of 2019 limitations on downzoning or adopting moratoria by “affected” cities or counties does not apply to a housing development project located in a very high fire hazard severity zone. Govt. Code Section 66300(f)(4).
IV. CEQA Guidance
Best Practices for Analyzing and Mitigating Wildfire Impacts of Development Projects Under CEQA
In 2022, the California Attorney General became active in local land use issues concerning rural development and wildfire risk. The focus was the sufficiency of the CEQA documentation for projects which were located in higher fire risk areas. The Attorney General also took the unusual step in October 2022 to issue a CEQA “best practices” memorandum. This Memorandum provided detailed background and recommendations for how local governments should be evaluating risk and mitigation – no small undertaking. This Memorandum sets the bar extremely high. It is inescapable that the Memorandum will be used as a metric for evaluating the legal sufficiency of CEQA documents. This can only increase the cost of CEQA documentation and increase the legal risk for potential projects in areas at risk from wildfires. This Memorandum and the expanded CEQA consciousness that comes with it addresses only a part of the problem. CEQA does not address existing rural land use patterns, nor does it solve the serviceability of existing roadway systems or sufficiency of local fire departments and Cal-Fire resources. These issues will need to be addressed by the Governor and the Legislature.
For more information see:
- Best Practices for Analyzing and Mitigating Wildfire Impacts of Development Projects Under the California Environmental Quality Act (at https://oag.ca.gov/system/files/attachments/press-docs/Wildfire%20guidance%20final%20%283%29.pdf).
- Fire Hazard Planning Technical Advisory, 2020 Update (Aug. 2022, available at https://opr.ca.gov/docs/20220817-Fire_Hazard_Planning_TA.pdf; and
- Wildfire-Urban Interface Planning Guide: Examples and Best Practices for California Communities (Aug. 2022), available at https://opr.ca.gov/docs/20220817-Complete_WUI_Planning_Guide.pdf.
The California Environmental Quality Act requires local jurisdictions considering development projects to prepare an environmental impact report or a mitigated negative declaration if the project may have a significant impact on the environment and is not otherwise exempt from CEQA. The “environmental checklist form” in Appendix G of the CEQA Guidelines, Section XX, directs lead agencies to assess whether projects located in or near state responsibility areas of lands classified as very high fire hazard severity zones, would:
- Substantially impair an adopted emergency response plan emergency evacuation plan.
- Due to slope, prevailing winds, and other factors, exacerbate wildfire risks, and thereby expose project occupants to pollutant concentrations from a wildfire or the uncontrolled spread of a wildfire.
- Require the installation or maintenance of associated infrastructure (such as roads, fuel breaks, emergency water sources, power lines or other utilities) that may exacerbate fire risk or that may result in temporary or ongoing impacts to the environment; or
- Expose people or structures to significant risks, including downslope or downstream flooding or landslides, as a result of runoff, post-fire slope instability, or drainage changes.
In addition, Section IX (g) of the checklist broadly directs lead agencies to consider whether a project will “expose people or structures, either directly or indirectly, to a significant risk of loss, injury or death involving wildland fires.” Lead agencies must consider both on- and off-site impacts.
Several variables should be considered in analyzing a project’s impact on wildfire risk, including:
Project density influences how likely a fire is to start or spread, and how likely it is that the development and its occupants will be in danger when a fire starts. Fire spread and structure loss is more likely to occur in low-to-intermediate-density development. This is because there are more present to ignite a fire (as compared to undeveloped land), and the development is not concentrated enough (as compared to high-density developments) to disrupt fire spread by removing or substantially fragmenting wildland vegetation. The conflict here is that the very reason many people move to the foothills and mountains is to live in a low-density development.
Project Location in the Landscape
Project placement in the landscape relative to fire history, topography, and wind patterns.
Water Supply and Infrastructure
Analyze the adequacy of water supplies and infrastructure to address firefighting within the project site. The analysis should consider the potential loss of water pressure during a fire, which may decrease the available water supply and the potential loss of power, which may eliminate the supply.
Lead agencies are encouraged to develop thresholds of significance that either identity an increase in wildfire risk as a significant impact or determine, based on substantial evidence, that some increase in the risk of wildfires is not considered a significant impact.
Lead agencies must consider the wildfire risks, landscape, and development for new development. This includes the density of housing, topography, and water supply as well as evacuation routes.
V. Land Use Planning Guidance
Land Use Planning Guidance
The Governor’s Office of Planning and Research “(OPR)” periodically publishes independent planning analysis documents. On August 2022, OPR updated it’s Fire Hazard Technical Assistance Memorandum; Fire Hazard Planning Technical Advisory.
This advisory discusses the regulatory and policy background along with sample planning policies. OPR’s advisories are not adopted as reulations through the California Administrative Code.
VI. Wildfire Resource Links
- CalFire publishes Fire Hazard Severity Zone Maps for all regions in California, which can be located here.
- In an unpublished appellate decision, the Fourth District Court of Appeal viewed favorably the lead agency’s evacuation analysis and the corresponding EIR analysis.
- Here are links to the evacuation analysis and EIR analysis that formed the basis for the Court of Appeal to reverse the trial court in League to Save Tahoe Mountain, discussed above.
- The California Building Industry Association submitted a study and comments to Cal Fire for the agency’s consideration when drafting new fire risk regulations for development. This study supports the conclusion that new master plan communities face reduced risk compared to older existing developed areas due to, among other design features, updated fire codes for new construction, inclusion of secondary access, and vegetation management.
William Abbott is Of Counsel and Garrett Bergthold is a law clerk at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.