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Hydrology/Water Quality Posts


FOURTH APPELLATE DISTRICT REJECTS CHALLENGE TO MITIGATED NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT PROJECT

Monday, November 2nd, 2015

In an unpublished decision, Save Desert Rose v. City of Encinitas, 2015 Cal. App. Unpub. LEXIS 7685, the Fourth Appellate District reversed the judgment of the trial court and held Save Desert Rose (Petitioner) failed to demonstrate that substantial evidence supported a fair argument that a proposed 16 single-family home subdivision project (Project) may have a significant effect on the environment.  As a result, the Court found the Encinitas City Council’s reliance on a mitigated negative declaration (MND), rather than an environmental impact report (EIR), to approve the Project complied with the California Environmental Quality Act (CEQA).

In reaching this decision, the Court conducted an independent review of the record to determine if substantial evidence supported a fair argument with respect to any of the nine claims raised by Petitioners. In doing so, the court clarified that the fair argument standard is a question of law and therefore did not defer to either the lead agency’s or trail court’s determination on the issue. However, the Court noted that the Petitioner bore the burden of proof in demonstrating that a fair argument of a potentially significant impact could be made from substantial evidence on the record.

In conducting its independent review, the court undertook a comprehensive analysis of Petitioner’s nine challenges including alleged potentially significant impacts to raptors, wetland habitat, aesthetics and views, community character, stormwater management, erosion during construction, traffic, vehicular safety hazards, and parking. With respect to each, the Court concluded no substantial evidence in the administrative record supported a fair argument the Project may have a significant effect on the environment within the meaning of CEQA.

Notably, the court determined that a traffic study cited by the challengers did not support a fair argument because it was found to be flawed by the City’s traffic engineering division and other independent experts in the field. Further, the court found no fair argument that impacts on biological resources (including riparian habitat and the possible existence of raptors) within the proposed development site could not be mitigated below significance, relying in part on statements from the California Department of Fish and Wildlife and the U.S. Fish and Wildlife Service in support of the proposed mitigation measures.

Additionally, the court found no fair argument in support of impacts to water quality and drainage because additional permits and conditions for approval were required before the applicant could proceed. Specifically, before issuing a grading permit the City requires compliance with stormwater quality regulations as set forth in its Stormwater Manual and Best Management Practices Manual, as well as preparation of a Stormwater Pollution Prevention Plan as required by the State Water Resources Control Board. Therefore, the court held that no fair argument existed even though precise mitigation details would not be available until the applicant applied for a grading permit.

Two Wins for the Railyards Development in Third District Court of Appeal

Tuesday, October 20th, 2015

This month, the Third District Court of Appeal issued two unpublished opinions on pending CEQA suits challenging the Railyards development in Sacramento. Both opinions affirm the decisions of the trial court and conclude that the City of Sacramento complied with CEQA when it adopted the Railyards Specific Plan and the Railyards Redevelopment Plan.

In Sacramento Citizens Concerned About the Railyards v. City of Sacramento (C065220, Oct. 7, 2015), the Court held that the program EIR for the Railyards Specific Plan adequately described historic and archaeological resources, provided adequate information regarding water quality impacts, appropriately described the project, did not improperly segment review of the project’s cistern, and adequately analyzed traffic and air quality impacts.

In the second case, Castro v. City of Sacramento (C062091, Oct. 9, 2015), the petitioners challenged the City’s decision to amend the 1990 Richards Boulevard Plan to remove 300 acres from its boundaries and rename it the River District Redevelopment Plan. Those 300 acres then became the new Railyards Redevelopment Plan. Petitioners challenged the City’s adoption of the Railyards Redevelopment Plan under CEQA, arguing that the EIR improperly tiered from the Railyards Specific Plan EIR, the environmental review was improperly segmented, and the EIR failed to analyze and mitigate toxic air contaminants. The Court disagreed and affirmed the trial court’s judgment in the City’s favor.

Second District Court of Appeal Upholds EIR for Development Along Santa Clara River

Monday, January 26th, 2015

In an unpublished opinion in Santa Clarita Organization for Planning and the Environment v. City of Santa Clarita, 2014 Cal. App. Unpub. LEXIS 8998, the California Second District Court of Appeal reversed the trial court and denied a petition for a writ of mandate challenging a 185-acre development (the Project) along the Santa Clara River near the City of Santa Clarita (the City). The court also rejected SCOPE’s cross appeals, allowing the mixed use development project to move forward.

The City owns a portion of the dry Santa Clara River corridor running through the Project site and the Project provides that the City will sell four of the acres to the developer for installation of buried bank stabilization. The Project also preserves a corridor of the dry riverbed, and results in dedication of all developer-owned river corridor property to the City.

The court reversed the trial court in two respects. First, the court held the City did not improperly incorporate by reference other documents into the environmental impact report (EIR). The court rejected SCOPE’s argument that the description or summary of the incorporated document must appear at the precise point in the EIR where the document was incorporated, and rejected all of SCOPE’s examples of alleged inadequate discussion of the documents incorporated by reference. Additionally, while the EIR may not have included an adequate description or summary for a few documents incorporated by reference, the court held SCOPE failed to show any prejudicial error.

Second, the court held the EIR adequately analyzed the cumulative biological effects of the Project. SCOPE contended the analysis was too broad because the EIR relied upon an analysis of the entire 1,036,571-acre Santa Clara River Watershed, while the Project was only 185 acres. However, the court noted a preference by the EPA for watershed-wide analyses and held the City did not abuse its discretion in considering the watershed-wide analysis of the Project’s cumulative impacts.

As to the cross appeals, the court held the Project was consistent with the City’s general plan. The court found the general plan amendment’s description of the preserved river corridor was not vague and the City did not abuse its discretion in finding the Project was consistent with the General Plan’s goal of promoting preservation of the river as open space.

The court also declined to question the correctness of the EIR’s environmental conclusions and found substantial evidence supported the City’s finding that the Project would not have a significant water quality impact related to chloride in the river.

Finally, the court held the trial court properly sustained the City’s demurrer to SCOPE’s claims regarding the Santa Monica Mountains Conservancy Act (the Act), focusing primarily on the lack of a private right of enforcement of the Act..

Mining the Administrative Record for Answers: Appellate Court Reverses Trial Court for Ignoring Substantial Evidence and Making Improper De Novo Determinations on Quarry Project

Thursday, June 12th, 2014

In an unpublished decision, Citizens Advocating for Roblar Rural Community v. County of Sonoma, 2014 Cal. App. Unpub. LEXIS 3393, the Court of Appeal for the First District reversed the trial court’s decision granting a petition for writ of mandate that challenged County certification of a final environmental impact report (EIR) and issuance of necessary land use permits for an aggregate quarry.

In December 2010, the County of Sonoma certified an EIR for development of a 65-acre quarry pit for mining and processing of approximately 570,000 cubic yards of aggregate material annually.  Petitioner filed a petition for a writ of mandate challenging the county’s quarry project approvals in January 2011. The trial court granted the petition in part, finding that failure to study potential water quality contamination from a neighboring landfill resulted in factual conclusions unsupported by substantial evidence.  The trial court also found that mitigation measures were inadequate or constituted a prohibited deferral of mitigation, and that the EIR’s analysis of the impact of widening an access road on an adjacent creek was inadequate.

On appeal, the court reversed, finding that the trial court improperly ignored substantial evidence supporting the county’s actions and made improper de novo determinations.  First, with respect to petitioner’s argument that the EIR did not adequately study potential groundwater quality impacts, the EIR acknowledged the risk that contaminants from the landfill could seep into the quarry site as a result of mining operations.  Petitioner contended that the county should have conducted testing to determine the risk posed to regional water quality.  Instead, the county relied on groundwater monitoring well data and subsurface exploration to support its finding that the risk to groundwater quality was less than significant.  The court of appeal found substantial evidence supported the county’s conclusion, which must be upheld even if another conclusion could have been reached.

Next, the court addressed allegations that the EIR failed to properly analyze traffic mitigation.  The County concluded that roadway improvements on Roblar Road , which were required to mitigate traffic impacts, would have less than significant secondary impacts on the adjacent Americano Creek. The court found that the secondary environmental impacts of offsite mitigation measures, including widening of access roadways, were catalogued and discussed in significant detail in the EIR. Petitioner argued that the road widening was an integral aspect of the project as a whole requiring complete analysis. The court rejected this argument since this would eliminate any distinction between primary and secondary environmental impacts by making all proposed mitigation a “project component.”

Finally, petitioner contended that the EIR was inadequate because mitigation measures to address impacts to protected species did not describe, analyze, or mention the site of a required offsite mitigation preserve, precluding the county from determining if the mitigation was even feasible. The court found that the county did not defer mitigation because it properly identified a specific means of mitigating for the loss of habitat through the creation of habitat or preservation of existing habitat at a ratio consistent with state and federal law. The county could rely on future study to identify the particular details of mitigation measure implementation, including habitat location.

Key Point:

This case highlights the deferential treatment that courts give to lead agencies in reviewing EIR adequacy; despite the potential to arrive to alternate conclusions, the lead agency’s determination will be upheld as long as it is supported by substantial evidence. In addition, this case upholds reliance on later approvals from responsible agencies to mitigate for loss of habitat where the EIR species the impact and requires replacement of lost habitat in a manner consistent with state and federal law.

Court Turns Tide in Favor of Desalination Plant – Holds Ample Substantial Evidence Supports the Project’s EIR

Monday, May 27th, 2013

Almost four years after the Marin Municipal Water District (MMWD) certified an environmental impact report (EIR) and approved a five million gallon a day desalination plant project, the Court of Appeal, First District, in a published opinion (N. Coast Rivers Alliance v. Marin Mun. Water Dist. Bd. of Dirs. (2013) 2013 Cal.App.LEXIS 401), reversed the trial court’s judgment and upheld the adequacy of EIR. At trial, the court determined the EIR violated CEQA in approximately a dozen ways.  Specifically, the trial court concluded the EIR included an inadequate analysis of (1) aesthetic impacts, (2) land use and planning impacts, (3) seismology impacts, (4) water quality impacts caused by shock chlorination, (5) biological impacts caused by entrainment, (6) energy impacts, and (7) greenhouse gas (GHG) emission impacts.  The trial court also concluded that the EIR proposed inadequate mitigation measures for (1) aesthetics, (2) aquatic noise and vibration, and (3) GHG emissions.  Finally, the trial court held that (1) with respect to biological resources the discussion of the existing environmental setting was insufficient, and (2) CEQA required the EIR to be recirculated because a new alternative was included in the Final EIR.  The First District reversed each of the trial court’s holdings.

With respect to aesthetic impacts, the First District stated that “[w]here an EIR contains factual evidence supporting the conclusion that aesthetic impacts will be insignificant, that conclusion must be upheld.”  Because the EIR included such facts and the Petitioners merely disagreed with them, the First District reversed the trial court. The First District also rejected the trial court’s ruling that adopting a landscaping plan as mitigation to soften visual impacts of a structure was inadequate absent a commitment to shield a specific percentage (i.e. 25%, 50%, etc.) of the structure from view.   The First District stated “‘where a public agency has evaluated the potential significant impacts of a project and has identified measures that will mitigate those impacts,’ and has committed to mitigating those impacts, the agency may defer precisely how mitigation will be achieved under the identified measures pending further study.” (Original emphasis.)

Next, the First District reversed the trial court’s holding regarding the adequacy of the land use and planning analysis.  The EIR concluded that, with the exception of one issue that was identified and analyzed in the EIR, the project was consistent with applicable local plans.  The trial court concluded a more detailed discussion of how the project would impact various county general plan policies was required.  The First District first noted that “[d]etermining whether a project is consistent with general plan policies is left to the lead agency; ‘[i]t is emphatically, not the role of the courts to micromanage’ such decisions.” (Original emphasis.)  Next, the First District explained CEQA only requires an EIR to discuss inconsistencies between a project and applicable plans, not all the ways in which a project is consistent with such plans.  “The trial court’s ruling is tantamount to requiring the EIR to provide a detailed discussion of the Project’s consistency with the plan.  CEQA includes no such requirement.”

Turning to the adequacy of the seismology analysis, the First District noted that only generic concerns regarding earthquakes were expressed during the administrative process.  The EIR’s analysis of potential seismology related impacts more than adequately responded to those comments.

The Fist District next rejected the trial court’s conclusion that the EIR’s discussion of potential water quality impacts caused by process used to clean the pipeline (known as shock-chlorination) was inadequate.  The First District began its analysis by stating that “[u]nder the substantial evidence standard, the ‘question is whether [MMWD] reasonably and in good faith discussed [shock-chlorination] in detail sufficient for the public to discern from the []EIR the ‘analytical route … agency traveled from evidence to action.’’” The First District concluded the EIR did.  The First District also rejected the Petitioners argument that it was improper for MMWD to rely on evidence outside of the EIR to support the less than significant impact conclusion reached by the EIR; “when an EIR contains a brief statement of reasons for concluding an impact is less than significant, then the petitioner has the burden of demonstrating ‘the conclusion was not supported by substantial evidence in the administrative record.’” (Original emphasis.)

At trial, the court was particularly critical of the EIR’s conclusions that biological resources impacts caused by entrainment were less than significant. The First District once again disagreed.  The EIR discussed a variety of field sampling techniques employed to evaluate potential entrainment impacts.  The First District stated that “[f]ield sampling is often the sole evidence relied on by lead agencies in evaluating a project’s biological impacts.”  Therefore, “[u]nder the substantial evidence standard of review, the District’s initial sampling effort was more than adequate.”  Nevertheless, MMWD even went further and conducted a year-long pilot-scale desalination program.  NOAA Fisheries and CDFG expressed concerns with one aspect of data collected during the year-long pilot program.  Petitioners argued that MMWD’s decision not to follow the recommendations made by NOAA Fisheries and CDFG rendered the analysis inadequate.  The trial court agreed; however, the First District explained that “[t]his ruling ignores the substantial evidence standard of review.”  Based on the substantial evidence standard, “[t]he issue is not whether other methods might have been used, but whether the agency relied on evidence that a ‘reasonable mind might accept as sufficient to support the conclusion reached’ in the EIR.” MMWD did.  Therefore, notwithstanding the disagreement with NOAA Fisheries and CDFG, the analysis was adequate for the purposes of CEQA.  Additionally, in part because the environmental setting relied on the same biological resource data that the First District found sufficient, it held  “the EIR’s description of the environmental setting was more than adequate.”

The First District also concluded the mitigation measure proposed to address the project’s potentially significant aquatic noise and vibration impact was adequate.  The trial court found that the measure was not sufficiently specific.  The First District disagreed.  The Court explained that “the commitment to undertake consultation with NOAA Fisheries does not impermissibly defer to the future the identification measures.  Consultation with NOAA Fisheries must occur, both as part of the federal permitting process under the CWA and ESA, and under the express terms of the mitigation measure.  Such mitigation is adequate under CEQA.” (Original emphasis.)

Next, the First District rejected the trial court’s conclusion that the EIR should have included a green energy alternative.  The Court explained that “alternatives shall be limited to ones that would avoid or substantially lessen any of the significant effects of the project.” (Original emphasis.)  The EIR concluded the project’s energy impacts were less than significant and the trial court held that conclusion was supported by substantial evidence. Therefore, “the EIR did not need to discuss further green energy credits as an alternative mitigation measure for the energy impacts of the Project.”

With respect to the GHG analysis, the First District reversed the trial court. Based on Assembly Bill No. 32 and MMWD’s own more aggressive goal to reduce GHG emissions, the threshold used in the EIR was whether the project would interfere with Marin County’s goal of reducing GHG emissions to 15 percent below 1990 levels by 2020.  The EIR concluded the project would not interfere with achieving that goal and, as a result, the project’s cumulative contribution was less than significant.  Additionally, in approving the project, the MMWD Board adopted a policy requiring all project-related GHG emissions be offset and the evidence demonstrated this policy commitment was feasible.  The Court also concluded the analysis and policy commitment were supported by substantial evidence.  Therefore, Petitioners’ challenge constituted nothing more than a disagreement with the conclusion reached in the EIR.  Such disagreement does not render an EIR inadequate.

Finally, Petitioners argued and the trial court agreed that the inclusion of a new alternative in the Final EIR required the EIR to be recirculated before certification.  The First District again disagreed.  The Court noted that “recirculation is ‘an exception rather than the general rule.’”  Therefore, “[a]n agency’s decision not to recirculate the draft EIR is entitled to substantial deference.”  The Court found that substantial evidence demonstrated that the new alternative was neither considerably different from other alternatives included in the Draft EIR nor feasible.  The alternative also failed to meet one of the project’s basic objectives.  As substantial evidence supported the finding that the alternative was not feasible, the First District concluded its inclusion in the Final EIR did not trigger recirculation.

The First District, therefore, reversed the trial court’s judgment against MMWD in its entirety.

Key Point:

Due to the substantial number of issues raised in this appeal, this decision is extremely helpful for lead agencies and project proponents. The decision helps to clarify the meaning and application of the substantial evidence standard of review in CEQA litigation. The decision also demonstrates that disagreements between a lead agency and other responsible and/or trustee agencies do not render an EIR inadequate. The decision further emphasizes that an EIR’s analysis of less than significant impacts need only be brief and a conclusion of less than significant may properly be supported by evidence outside the EIR and contained elsewhere in the administrative record. Finally, the decision supports the conclusion that 15% below 1990 GHG emissions by 2020 is an adequate significance threshold for analyzing GHG impacts.

Written By: Tina Thomas and Christopher Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Sixth District Thirsty for a More Robust Alternatives Analysis

Wednesday, February 27th, 2013

In Habitat v. City of Santa Cruz (Feb. 19, 2013) 2013 Cal.App.LEXIS 128, the Sixth District Court of Appeal reversed the trial court decision and ordered the City of Santa Cruz (City) to vacate its certification of the final EIR and approval of a project because the EIR failed to discuss any feasible project alternatives that could avoid or lessen the significant environmental impact of the project on the City’s water supply.

The City certified an environmental impact report (EIR) for an amendment of the City’s sphere of influence (SOI) in order to include an undeveloped portion of the University of California, Santa Cruz (UCSC) campus known as “North Campus” so as to permit the City to provide extraterritorial water and sewer services to proposed new development in North Campus.

Habitat and Watershed Caretakers (Habitat) filed suit alleging the EIR failed to comply with the California Environmental Quality Act (CEQA) because the EIR (1) did not adequately discuss and analyze the impacts of the project on water supply, watershed resources, biological resources, and indirect growth, (2) misdescribed the project’s objectives, (3) failed to provide adequate mitigation measures, (4) failed to make sufficient findings,  (5) failed to provide an adequate statement of overriding considerations, and (6) failed to consider and analyze a reasonable range of alternatives.

The court held the EIR’s analysis of water supply impacts was adequate.  The EIR disclosed the City’s inadequate water supplies and projected that this imbalance could be dealt with through conservation and curtailment, and, hopefully, the future development of a desalination facility. The court concluded the analysis satisfied CEQA and separately considered the sufficiency of the proposed water supply mitigation measures.

Habitat argued the EIR failed to provide “specific, certain and enforceable mitigation measures for the Project’s significant and allegedly unavoidable impacts on water supply.”  In Habitat’s view, the sole mitigation proposed in the EIR was the potential construction of a desalination facility which would not solve the City’s water issues.  The court disagreed finding the EIR contained numerous mitigation measures, including using water from existing supply wells, feasibility studies on measures for utilization of reclaimed water, water conservation strategies, and water audits to identify feasible measures that could be implemented.  The court held that these mitigation measures were adequate, explaining an EIR did not have to present mitigation measures to solve the City’s longstanding water supply deficit, it only had to address the impact of the project being analyzed.

Furthermore, the court held the EIR’s analysis of cumulative impacts on the City’s water supply caused by indirect growth inducement was adequate because the EIR acknowledge and considered the impacts of off-campus growth and secondary off-campus growth.  The court explained, although there “may be a legitimate basis for disagreement” they must defer to the conclusions found in the EIR because substantial evidence existed in support of the conclusions found.

Additionally, the court held the EIR’s analysis of the project’s impact on watershed resources was adequate.  Habitat alleged the EIR was inadequate because it relied on a Storm Water Management Plan (SWMP) that was not included in the EIR.  The court disagreed.  The Draft EIR adequately analyzed potential impacts on watershed resources and concluded those impacts were less than significant after mitigation.  The Final EIR’s discussion of the SWMP only served to buttress the conclusion reached in the Draft EIR and, therefore, did not render the EIR inadequate.  The court also upheld the City’s decision not to delineate all the wetlands within the project area.  In recognition of the fact that wetlands are dynamic resources, the EIR adopted mitigation that, among other things, required wetland delineations to occur during future project-level environmental review as specific projects are proposed within the North Campus.

Next, the court held the EIR’s discussion of the project’s impact on biological resources was adequate.  Habitat asserted that the EIR was required to disclose and analyze the project’s impact on the San Lorenzo River and the North Coast Streams resulting from its water supply demands.  However, the EIR did not propose relying on increased water consumption from existing water resources.  Instead, it proposed meeting the project’s needs through conservation, curtailment, and the possible construction of a desalination facility.  Thus, substantial evidence demonstrated the project would not impact the existing water resources identified by Habitat.

With respect to Habitat’s challenge to the project objectives, the court agreed the draft EIR originally misstated the project objective as: “implementation of the settlement agreement as related to submission of applications for an SOI amendment and to facilitate the provision of water and sewer service.” The court explained that the purpose of the project was not to fulfill the settlement agreement requirements, since those were satisfied when the applications were filed.  The court held the final EIR described the project objective properly.  The true objective, as disclosed in the Final EIR, was to provide the Regents with the water necessary to develop the North Campus.  The court concluded, “[w]hile the draft EIR did fail to adequately delineate the project’s objectives, the final EIR corrected this problem.”

Additionally, Habitat argued the EIR’s findings and statement of overriding considerations were inadequate. The court held there was no independent merit to Habitat’s challenge to the findings because the argument was essentially a repeat of the challenges to the EIR.  However, the court agreed with Habitat that three of the six reasons stated in the City’s statement of overriding considerations were inadequate.  Nevertheless, the City found that each of the six reasons stated was individually sufficient to outweigh the significant impact on the City’s water supply.  Therefore, “[u]nder the abuse of discretion standard, the City’s decision to favor the identified benefits over the significant environmental impacts of the project must be upheld.”

Finally, Habitat argued the EIR failed to consider and analyze a reasonable range of potentially feasible alternatives. The court rejected Habitat’s argument that the EIR was required to include a reduced-development alternative because “LAFCO lacks the power to impose conditions that would directly restrict the Regents’ development of North Campus…”  However, the court agreed that the EIR should have included a “limited-water” alternative.

The City argued that a limited-water use alternative was properly omitted because (1) it would not “meet the basic Project objective,” (2) it would not avoid the significant impact on water supply because the Regents could develop areas already within the City’s water service area, and (3) “the City has no jurisdiction to limit UCSC’s on-campus development.”  The court rejected these arguments in turn.  First, the court explained an alternative cannot be eliminated from consideration only because it would interfere to some extent with project objectives.  Second, the court concluded the EIR failed to explain how a limited-water alternative would not avoid the significant impact on water supply stating: “to facilitate CEQA’s informational role, the EIR must contain facts and analysis, not just the agency’s bare conclusions or opinions.”  Third, the court found that the limitation on LAFCO’s power to directly regulate land use did not prohibit it from conditioning the provision of water and sewer services for North Campus development on water supply availability by imposing a limited-water condition.  Therefore, the City’s failure to analyze any potentially feasible alternative that could avoid or lessen the significant environmental impact of the project on the City’s water supply rendered the EIR inadequate.

Key Point:

Feasibility of alternatives must be considered at two phases in the EIR process.  At the outset, the lead agency must identify and analyze potentially feasible alternatives within the EIR.  Then, in certifying an EIR and adopting a project, the lead agency must determine whether the potentially feasible alternatives that will reduce or avoid a project’s significant and unavoidable impacts are actually feasible.  Here, the court faulted the City for improperly rejecting potentially feasible alternatives during the first step in the CEQA process for analyzing alternatives.

Written By: Tina Thomas and Christopher Butcher
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Finds CEQA Challenge Not Worth its Weight in Sand

Wednesday, February 20th, 2013

In  Save Cuyama Valley v. County of Santa Barbara (Jan. 10, 2013) 2013 Cal.App.LEXIS 212, the Sixth District Court of Appeal issued a decision upholding the trial court’s denial of Save Cuyama Valley’s (Save Cuyama) petition for a writ of mandate against the County of Santa Barbara (County).  Save Cuyama contended that the Environmental Impact Report (EIR) prepared for a sand and gravel mining project violated the California Environmental Quality Act (CEQA) in several ways.

First, Save Cuyama challenged the EIR’s analysis of the project’s hydrological impacts, claiming that: (1) the County violated CEQA in defining its threshold of significance for hydrological impacts; (2) substantial evidence did not support the EIR’s finding that the project’s hydrological impacts were minor yet significant and unavoidable; and (3) the mitigation measure proposed for hydrological impacts was too nebulous to satisfy CEQA.  The court rejected each argument.  “CEQA grants agencies discretion to develop their own thresholds of significance.” (CEQA Guidelines, § 15064, subd. (d)).  In addition, the court found that the EIR’s assessment of the project’s hydrological impacts was supported by substantial evidence because it sufficiently explained why a sediment deficiency did not inevitably translate into adverse hydrological impacts.  Lastly, the court found that the mitigation measure proposed to address the project’s hydrological impacts did not constitute improperly deferred mitigation.

Second, Save Cuyama claimed that the water supply analysis was deficient because the EIR used the same threshold of significance to assess the project’s individual and cumulative impacts.  In addition, they argued that the standard that was used, which was from 1992, was outdated.  The court explained that a noncumulative examination of the project’s impact on water usage was unnecessary because the EIR already found that the project had no significant cumulative impact, which is under an “undoubtedly more stringent cumulative-impact threshold.”  The court also found that substantial evidence demonstrated the water supply threshold relied on in the EIR, although established in 1992, was still valid.

Finally, Save Cuyama challenged the EIR’s finding that the project would not have a significant water quality impact without mitigation.  The court agreed that no substantial evidence supported the conclusion that the water quality impact was less than significant without mitigation.  However, the court concluded Save Cuyama failed to establish the error was prejudicial.  The court explained that Save Cuyama did not dispute that a water quality condition required by the County when it approved the project would be wholly effective in negating the mine’s adverse impact on water quality.  Therefore, whether or not the impact was labeled significant, Save Cuyama failed to establish that the project as approved had the potential to result in a significant water quality impact.

Key Point:

CEQA grants agencies considerable discretion in their determination of thresholds and their assessment of environmental impacts, requiring only that the agency support any conclusions with sufficient evidence.

If the threshold for cumulative impacts is more stringent than that for noncumulative impacts, it is unnecessary to do an examination of the latter impacts when it has already been established that the former fell below the threshold.

When challenging an EIR’s finding that an impact will be less than significant, the opposing party must establish that the project, if approved would result in a significant impact on the environment.  Claiming that substantial evidence in support of the conclusion is lacking is not enough to show prejudicial error.

Written By: Tina Thomas, Christopher Butcher and Andrea Lutge (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

EIR Found Deficient With Regard to Water Supply Impacts and Deferred Butterfly Mitigation

Wednesday, October 24th, 2012

In Preserve Wild Santee v. City of Santee (2012) 2012 Cal. App. LEXIS 1091, petitioners challenged the City of Santee’s (City) certification of a final environmental impact report (EIR) for a development project in the City, claiming the project violated the California Environmental Quality Act (CEQA) in several ways.  The trial court found merit in one of petitioners’ claims – the EIR contained insufficient evidence to support its conclusion the project’s fire safety impacts were less than significant.  Petitioners nevertheless appealed, arguing that the EIR was deficient in several other respects.  The Fourth Appellate District agreed with Petitioners in two respects.  First, the court agreed that the EIR improperly deferred mitigation of impacts to the Quino checkerspot butterfly.  Second, the court held the EIR inadequately analyzed the project’s water supply impacts.  The court also affirmed the lower court’s award of attorneys’ fees and costs.

Petitioners raised three claims related to the project’s biological resources impacts.  First, they alleged the EIR’s cumulative biological resources impacts analysis improperly relied on the draft subarea plan.  CEQA requires an EIR to discuss a project’s cumulative impacts when the project, combined with the effects of other development, would cause a significant environmental impact.  In this case, the court upheld the EIR’s conclusion that the project’s cumulative impacts on biological resources were not cumulatively considerable because “potential development surrounding the project was in the early planning stages” and “the project will not interfere with the potential development’s attainment of its share of the goals [of the existing Multiple Species Conservation Program].”  Second, petitioners argued the EIR violated CEQA because a mitigation measure requiring the developer to obtain an offsite mitigation property was infeasible.  The court disagreed.  The court explained that an agency does not generally need to identify the exact location of offsite mitigation for such a measure to be adequate.  The court also found substantial evidence in the record showing the mitigation measure was in fact feasible.  Third, petitioners contended the EIR improperly deferred mitigation measures regarding the active management of the Quino chekerspot butterfly within the preserve.  The court concluded that while the EIR contained measures to mitigate the loss of Quino butterfly habitat, it did not contain performance standards or guidelines for active management of the Quino butterfly within the preserve, which constituted an improper deferral of mitigation under CEQA.

With regard to the project’s water supply impacts, the court determined the ultimate question was whether the EIR adequately addressed the reasonably foreseeable impacts of water supply to the project, not whether it established a likely source of water.  The court explained long-term water supply inherently contains uncertainties however, to satisfy CEQA, an EIR must identify those uncertainties and discuss reasonably foreseeable alternatives.  More specifically, the EIR should have addressed the impacts of likely future water supplies and included circumstances affecting the likelihood of the water’s availability, to provide decision makers with facts to evaluate the project’s water needs.  Since the EIR did not include such a discussion in its water supply analysis, it did not meet CEQA requirements.

Petitioners also argued the trial court should have ordered a complete decertification of the EIR as opposed to a limited writ.  The court first held the trial court had correctly determined it had the authority under CEQA guidelines to issue a limited writ.  Although the court suggests a limited writ may not have been proper in this case, the court did not decide the issue since the trial court had recently ordered the City to decertify the EIR.

The last issue concerned whether petitioners were the prevailing parties and if the award of attorneys’ fees and costs was proper.  City argued the costs and attorney fees should be reversed since petitioners were erroneously determined to be the prevailing parties and the trial court did not explain the basis for the fee award amount.  The court explained the trial court was not required to provide a detailed explanation of how it arrived at the fee award since the City did not file a request for a statement of decision.  The court also concluded the prevailing party in an action is generally entitled to recover its costs as a matter of right.  The court therefore upheld the trial court’s determination and remanded the case to the trial court to determine the award amount for petitioners’ costs and attorneys’ fees on appeal.

Key Point:

The decision reiterates case law addressing three key issues: (1) Mitigation measures requiring development of future mitigation plans must set forth performance standards or guidelines to comply with CEQA.  (2) Where it is impossible to confidently determine the availability of anticipated future water sources an EIR must acknowledge water supply uncertainties and discuss possible alternative water sources. (3) Where a trial court awards attorneys’ fees without setting forth a detailed explanation, the opposing party must request a statement of decision before challenging the merits of the award on appeal.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
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