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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts from March, 2014


Second Appellate District Upholds EIR and Wildlife Permits for Large Southern California Development

Monday, March 24th, 2014

In a partially published opinion, the Second District reversed the ruling of the Los Angeles County Superior Court, and affirmed the adequacy of the EIR certified by the California Department of Fish and Wildlife (CDFW, formerly the California Deptartment of Fish and Game) in 2010, as well as related permits issued to development company Newhall Land and Farming (Newhall Land).  CDFW relied on the EIR to evaluate the potential environmental effects of issuing incidental take permits and a streambed alteration agreement to Newhall Land for an almost 12,000-acre Specific Plan area approved by Los Angeles County in 2003.The area studied in the  EIR is located in northwestern Los Angeles County, between the City of Santa Clarita and the Los Angeles/Ventura County line, in a portion of the Santa Clara River Valley.  The appellate court took up six issues, and published its opinion on five of the issues, as summarized below.

Mitigation Measures Designed to Conserve a Fully Protected Species do not Constitute an Unlawful Take of the Species.

The unarmored threespine stickleback , a fully protected fish species under California law, is  present in the project reach of the Santa Clara River.  The EIR contained mitigation measures to exclude stickleback from any construction areas in the River, and to relocate any stranded fish.  Petitioners argued that project activities, including the relocation measures, constituted an unlawful “take” of stickleback under state law.  The court concluded there was “substantial evidence no death will occur given the extraordinary measures taken by [CDFW] to ensure the sticklebacks’ safety” in the form of extensive mitigation and the expertise of one of the leading authorities on stickleback preservation.  The court conducted a thorough review of pertinent sections of the Fish and Game Code, along with their legislative histories, to conclude that CDFW’s imposition of mitigation measures for relocation are consistent with CDFW’s conservation mandates found in Fish and Game Code Section 2055 for fully protected species and Fish and Game Code Section 2061,which allows live trapping and transplantation for conservation purposes.  Therefore, the court concluded the relocation measures did not constitute unlawful take or possession of stickleback.

Petitioners Failed to Exhaust Administrative Remedies Relating to its Cultural Resource Challenges and, in any event, Substantial Evidence Supports the Analysis in the EIR.

Petitioners alleged that the project area is the ancestral homes of the Tataviam and Chumash peoples and that it is rich with historical and cultural resources.  Petitioners argued that the cultural resource impacts analysis and the mitigation measures proposed to address those impacts failed to comply with the requirements of CEQA.  The Court held that Petitioners forfeited the cultural resource arguments.  =No commenter raised concerns regarding the adequacy of the cultural resource analysis during the public comment period.  As a result, the Court held Petitioners failed to exhaust administrative remedies and CDFW had no obligation to respond to untimely comments.

Moreover, the Court found the cultural resource analysis was supported by substantial evidence.    The cultural resource analysis was prepared by CDFW based on evidence prepared by a cultural resource consultant.  The consultant conducted extensive archival research, walked the project area, and undertook excavations in areas known to have the potential to contain cultural resources.  Although human remains were found near the project area, the Court held such offsite discoveries did not compel CDFW to dig random test pits on site to corroborate its expert’s conclusions or to undertake any further surveys.  Finally, the Court held cultural resource mitigation measures set forth in the EIR were adequate and fully complied with CEQA Guidelines section 15126.4(b)(3)(A).

Substantial Evidence Supports CDFW’s Determinations Regarding the Infeasibility of Alternatives

Petitioners argued the range of alternatives included in the EIR was not reasonable and CDFW’s determination regarding the feasibility of alternatives was not supported by substantial evidence.  The Court disagreed stating, “the assessment of alternatives in an environmental impact report must proceed in a fashion consistent with a specific plan.”  In consideration of the objectives of the specific plan, the range of alternatives was adequate and substantial evidence supported CDFW’s determination regarding the feasibility of the project alternatives.

Substantial Evidence Supports CDFW’s Conclusions Regarding Steelhead Smolt

Petitioners claimed the EIR failed to analyze sub-lethal impacts of the project’s dissolved copper discharges on steelhead smolt downstream of the project area.  The court concluded Petitioners’ arguments on this point were again forfeited because they were not raised during the public comment period.  The court went on to conclude that, in any event, substantial evidence supported CDFW’s determination that the project’s impacts on steelhead smolt would be less than significant.

Substantial Evidence Supported CDFWs Conclusions Regarding Spineflower

Petitioners also alleged flaws in the EIR’s analysis of impacts to the San Fernando Valley spineflower, which is listed as endangered under the California Endangered Species Act (CESA) and is known to occur only in the project area and one other location.  CDFW issued an incidental take permit for spineflower, allowing take of 4.85 acres of occupied spineflower habitat, but requiring creation of 167.56 acres of preserves plus an additional 42.9 acres of expansion areas, millions of dollars of funding for those preserves, a habitat characterization study, and a host of other protective measures including measures to control the invasive Argentine ant, as well as adaptive management programs  The court summarized the extensive evidence in the record documenting years of scientific collaboration by a bevy of scientists who described spineflower habitat requirements, tracked existing occurrences, and evaluated management tools to preserve and expand areas of spineflower growth.  The court concluded this extensive record constituted substantial evidence to support CDFW’s scientific strategies, its conclusions in the EIR, and its findings under the California Endangered Species Act.  The court further concluded Petitioners had improperly relied on views expressed by one CDFW scientist concerning early versions of the spineflower conservation plans, and the substantial evidence standard of review did not allow for reweighing of conflicting views.  The court also found that CDFW’s comprehensive monitoring plan did not  defer environmental decisions, but rather, represented “sound ecological management.”

In an Unpublished Portion of the Decision, the Court Upheld the Adequacy of Greenhouse Gas Analysis.

CDFW determined that the significance threshold for greenhouse gas emissions should be premised on the reduction target established under the California Global Warming Solutions Act (AB 32).   Therefore, the EIR stated greenhouse gas emissions would be significant if the project would impede compliance with achieving a reduction in statewide  greenhouse gas emissions to 1990 levels by 2020.  The Court concluded the threshold was adequate and stated that CDFW was vested with the discretion to select a threshold.  The Court also concluded substantial evidence supports the greenhouse gas emission baseline used by CDFW because the EIR considered the greenhouse gas emissions currently emanating from the project site (i.e. the existing environmental setting).

Citing CEQA Guidelines section 15064.4(b)(1)-(3), the court stated that a greenhouse gas analysis should consider the projects impacts as compared to the existing environmental setting, evaluate whether project emissions exceeds the applicable threshold, and consider whether the project complies with regulatory requirements imposed by other government agencies to mitigate greenhouse gas impacts.  Because the greenhouse gas analysis complied with these requirements and was supported by substantial evidence, the Court found the analysis complied fully with CEQA.

Key Point

The court’s opinion emphasizes application of the substantial evidence standard of review.  Under this standard, the court was required to defer to the technical, scientific expertise of the agency as evidenced in the thorough record of its review of the project.   The opinion notes that “virtually every contention” posited by petitioners contravened this applicable standard, and while the trial court followed petitioners’ lead, application of the correct standard required reversal.

COURT FINDS PROGRAMMATIC EIR FOR RETAIL DEVELOPMENT INCLUDED INADQUATE ANALYSIS OF URBAN DECAY AND ENERGY IMPACTS

Thursday, March 20th, 2014

In an unpublished opinion, California Clean Energy Committee v. City of Woodland, 2014 Cal. App. Unpub. LEXIS 1481, the Third District Court of Appeal reversed the trial court’s denial of a petition for writ of mandate to vacate the City of Woodland’s certification of an EIR for a regional shopping center.

In 2007, a developer applied to annex 154 acres of agricultural land to the City and rezone it to general commercial use in order to build a regional commercial center known as “Gateway II.” After preparing an EIR, the city council approved the project, but reduced its size to 61.3 acres. The California Clean Energy Committee, a nonprofit organization, filed a petition for writ of mandate challenging project approval and certification of the EIR.

The Committee first argued that the City’s actions in approving Gateway II violated the State Planning and Zoning Law because the project was inconsistent with the City’s General Plan policy of revitalizing its downtown.  According to the Committee, Gateway II had the potential to cause urban decay by attracting retail development to the City’s periphery. The court held the Committee had failed to preserve this argument because its complaint had focused on the CEQA implications of urban decay, and had not apprised the City of an alleged violation of the Planning and Zoning Law.

The court next considered the sufficiency of the City’s mitigation measures for urban decay under CEQA. The court upheld a measure requiring primarily “regional retail” uses at Gateway II, upholding the City’s conclusion that the measures would help lessen, although not avoid completely, the potential urban decay impacts. The court, however, agreed with the Committee that a measure requiring the developer to submit a market study and urban decay analysis for future specific projects within Gateway II improperly delegated to the applicant responsibility for studying impacts in violation of CEQA. Further, the court agreed with the Committee’s contention that the market study measure provided no performance standards for evaluating whether additional mitigation should be required, in violation of CEQA.

Additional measures the court deemed inadequate required the developer to contribute fifty percent toward the cost of a retail strategic plan and an implementation strategy for the City’s Downtown Specific Plan. The court noted that these measures committed the developer to pay fees, but the fees were not tied to any planned action that would obligate the City to undertake actual mitigation of urban decay.

The court then addressed whether the City had given sufficient consideration to a mixed use alternative to the project.  The draft EIR concluded that the alternative was infeasible due to economic considerations; however, the city council findings rejected the alternative as environmentally inferior to the project.  The court explained that there was no support for the council’s determination, since the EIR concluded that environmental impacts of the alternative would be similar to the project impacts.

Finally, the court considered the City’s treatment of energy impacts. The court noted that the EIR discussion of energy comprised less than one page; included no assessment of or mitigation for transportation energy impacts; concluded that compliance with the Building Code and CALGreen alone would adequately mitigate construction and operational energy impacts; failed to address the energy impacts of the non-retail uses proposed for the site (including office and hotel); and gave no consideration to renewable energy options. Based on these facts, the court concluded that the analysis was deficient.

KEY POINTS:

Under the court’s ruling, mitigation requiring a developer to undertake future studies of urban decay is inadequate mitigation. Instead, the agency itself must undertake the study, and some performance standard must be included to assess whether additional mitigation is needed at the time site-specific projects are considered.

In addition, an agency should not adopt a rationale different from that included in the EIR for rejecting project alternatives unless the agency’s finding is supported by substantial evidence elsewhere in the record.

Lastly, even in a programmatic EIR, this court found that CEQA’s requirement for consideration of energy impacts requires a comprehensive analysis that addresses all aspects of a project’s potential energy usage and whether renewable energy technologies can play a role in mitigating impacts.

APPELLATE COURT REJECTS MARIN COUNTY EIR AND REQUIRES GREATER MITIGATION TO PROTECT COHO SALMON AND STEELHEAD TROUT

Monday, March 17th, 2014

In an unpublished opinion, Salmon Protection and Watershed Network v. County of Marin, 2014 Cal. App. LEXIS 1578, the Court of Appeal, First District, reversed the trial court and granted an environmental group’s petition for a writ of mandate challenging the sufficiency of the EIR for Marin’s Countywide General Plan (CWP). The Court also overturned an injunction enjoining development along certain creeks in the San Geronimo Valley Watershed.

Recognizing the imminent growth in unincorporated areas of Marin County and the need to protect local creeks as a habitat for threatened species such as coho salmon and steelhead trout, Marin County updated its CWP in 2007. The EIR for the 2007 CWP is a program EIR under section 15168 of the CEQA Guidelines. Salmon Protection and Watershed Network (SPAWN) contended the EIR failed to comply with CEQA because the EIR improperly analyzed the cumulative effects of the CWP and inadequately mitigated the impacts of development.

Although program EIRs require less specificity than project EIRs, a program EIR still requires an analysis of the cumulative impacts of the program. While the EIR in this case did have some data regarding the forecasted development in areas critical to the salmonid population, the EIR failed to estimate the maximum impact or range of impacts of development under the 2007 CWP. Marin County argued the impacts depend on the degree to which resources are protected as part of each individual project, but the Court stated that under this logic, no analysis of the cumulative effects could ever be made because the cumulative effects would not be known until the last project has been proposed. The Court found the EIR did not provide sufficient analysis to assist decision-makers and the public in understanding the consequences of projects in the San Geronimo Valley Watershed under the 2007 CWP. Therefore, the Court required the County to prepare a supplemental EIR properly analyzing the impacts of the 2007 CWP.

The Court also found mitigation proposed for impacts to aquatic habitats to be inadequate. CEQA Guidelines section 15126.4, subdivision (a)(2) requires mitigation measures to be “fully enforceable through permit conditions, agreements, or other legally-binding instruments.” The EIR proposed Marin County “actively participate” and “work cooperatively to implement recommendations” of a coalition of Central Coast counties known as FishNet 4C. FishNet 4C’s mission is to facilitate actions that improve water quality and restore habitat for species such as coho salmon and steelhead trout, but the Court found merely participating in this mission was inadequate. Even though there was data to support FishNet 4C’s successful restoration of riparian habitat, there was nothing legally binding or enforceable regarding Marin County’s participation in FishNet 4C. Additionally, neither the EIR nor FishNet4C defined any specific measures to take regarding the species in San Geronimo Valley Watershed. The Court held that deferring specific mitigation measures in this manner failed to comply with CEQA.

Marin County, however, was successful in overturning the trial court’s injunction that prevented the County from approving any development in stream conservation areas in the San Geronimo Valley Watershed, as defined in the 2007 CWP. The trial court granted the injunction because the EIR stated that Marin County should adopt a new stream conservation area ordinance as mitigation to reduce the impact on these riparian habitats. Because the ordinance was required by the EIR, SPAWN argued – and the trial court agreed – the County should be prohibited from authorizing new development until the ordinance was implemented.

The Court overturned the injunction because the trial court ordered this remedy without giving the County any notice or an opportunity to address its pertinence. The injunction also significantly affected individuals seeking to develop projects in the area without giving them an opportunity to address the matter. The court also found no evidence to support the conclusion that an injunction was necessary. Because of these substantive and procedural flaws, the trial court did not have the authority to order an injunction enjoining development in the stream conservation areas.