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


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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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.



dateOctober 24th, 2012byby


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