Tag: Alternatives

Third District Upholds the Department of Water Resources’ Long-Term Extensions of State Water Project Contracts under CEQA, the Delta Reform Act, and the Public Trust Doctrine

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In Planning and Conservation League v. Department of Water Resources (Cal. Ct. App., Jan. 5, 2024, No. C096304), the Third District Court of Appeal upheld an EIR prepared by the Department of Water Resources (DWR) for DWR’s approval of amendments to long-term water supply contracts with local water agencies receiving State Water Project (SWP) water. These contract amendments extended the terms of the SWP water supply contracts to 2085 and expanded DWR’s ability to use revenue bonds. In a victory for DWR and the SWP water contractors, the court upheld DWR’s EIR against an array of CEQA challenges. The court also rejected the petitioners’ claims that the amendments violated other legal requirements, including the Delta Reform Act, the Public Trust Doctrine, and the Burns-Porter Act.

By way of background, in the 1960s, DWR and 29 local government contractors entered into long-term (75-year) contracts granting the contractors rights to a portion of water from the SWP in exchange for the local agencies’ financial obligations. Each contract includes a table, “Table A,” that specifies the maximum annual water allocation, although full delivery is not guaranteed and often amounts to about half the Table A amount.

The contracts include an “evergreen clause” that allows the contractors to opt for continued service beyond the contract’s expiration by giving advanced notice. Several contractors exercised this option, leading to negotiations for long-term extensions of the contracts. The negotiations aimed to address the “debt compression problem,” where the impending contract termination limited bond maturity to 17 years, increasing the repayment costs. DWR and the contractors reached an agreement in principle to extend the contracts to 2085, which would allow for longer-term bond funding for essential capital upgrades and repairs. They also agreed to a revenue bond amendment that updates the definition of water system facilities to include post-1987 repairs and approved capital projects.

DWR prepared an EIR for the proposed amendments. The EIR concluded that the amendments would not cause environmental impacts because they would not alter the existing authority to build or modify SWP facilities, change water allocations, or create new water management measures.

After certifying the EIR, DWR filed a validation action to validate the amendments. Thereafter, several conservation groups and public agencies brought legal challenges the EIR and the validation action. The trial court ruled in favor of DWR and the petitioners appealed.

CEQA

DWR properly assumed the existence of the current contracts in the EIR’s environmental baseline.

The petitioners argued that the EIR’s impact analysis was based on an improper baseline because the baseline included the current water contracts. The court explained that to determine whether a project’s environmental impacts are significant, the agency must compare the project against existing environmental conditions—the baseline. When a project involves ongoing activities or the extension of past activities, the current levels of use and their physical impacts are part of the baseline.

The court explained that this rule is applicable to renewing permits or approvals for existing facilities, even if those facilities had not been previously assessed under CEQA. Accordingly, the court held that DWR appropriately included the existing contract conditions in the environmental baseline. DWR was not required to use a hypothetical baseline “that imagines a world” without the contracts.

DWR did not improperly piecemeal the Project in excluding a Delta conveyance facility from the project definition.

The petitioners argued that the EIR’s analysis was inadequate because it failed to consider related projects – including a future Delta conveyance facility, such as the previously proposed “California WaterFix” project – as part of the proposal, leading to an overly narrow project description and improper piecemealing.

The court explained that CEQA requires an environmental analysis to consider the whole of an action affecting the environment. An agency may not divide a larger project into smaller segments, which might individually have minimal environmental impacts but could collectively result in significant environmental damage. Further, as held in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 (Laurel Heights I), an EIR must analyze the environmental effects of any future expansions or actions that are a foreseeable consequence of the initial project and might alter its scope or environmental effects.

The petitioners argued that the trial court relied too heavily on the Laurel Heights I criteria, asserting that a broader “related to” test should apply and that actions that are close in time and location must be considered part of a larger project. The court rejected the petitioners’ argument, explaining that later opinions have confined such reasonings to situations in which a project legally necessitates or assumes the completion of another action, a situation that was not present here.

The court next explained that the courts have interpreted Laurel Heights I variously, with some concluding that a project is part of a larger project under CEQA if it is a “crucial element” of a larger project, such as when one project cannot proceed without the other. Other courts have held that there may be piecemealing when the project at issue is a first step or a catalyst toward another project. On the other hand, there is no piecemealing when the projects can be implemented independently.

Here, DWR properly treated the contract amendments as a stand-alone project, distinct from a future Delta conveyance facility. The record demonstrated that the amendments have separate, independent purposes from a Delta conveyance, such as addressing the bond compression issue. While the amendments may possibly aid in financing a conveyance facility, they serve broader purposes and address other challenges. Moreover, the record showed that there is considerable uncertainty as to whether a Delta conveyance facility would ever be approved or constructed. In light of these factors, DWR was not required to treat a potential, uncertain Delta conveyance as part of the same project as the contract amendments.

DWR did not need to assess the direct, indirect, and cumulative effects of projects that would benefit from the amendments’ bond funding.

The petitioners argued that the EIR should have evaluated the direct and indirect impacts of enabling a Delta conveyance project. The court found that this argument suffered from the same flaws as the petitioners’ piecemealing argument: the possibility of a Delta conveyance in the future is too speculative in terms of both its timing and scale. Lead agencies are not required to speculate about potential impacts.

The petitioners also argued that DWR should have evaluated the impacts of other capital projects financed by the amendments, such as the Oroville hydroelectric license project. Petitioners, however, failed to properly present this argument by failing to discuss these other projects or explain why their effects should be considered impacts of the amendments. Moreover, the argument was baseless. The EIR clarified that the amendments would support a variety of long-term capital projects. According to the petitioners’ logic, DWR would be obligated to predict the impacts of all of these projects in the EIR for the amendments, an expectation that is unreasonable. Further, the court noted, projects that are merely governmental funding mechanisms or fiscal activities that do not commit to any specific project that could have environmental effects are not subject to CEQA. Although these capital projects may be part of DWR’s overall plans for the SWP, their connections to the amendments is too tenuous: the amendments do not commit DWR to these projects and do not authorize revenue bonds for any of them (which would require a separate approval).

The EIR’s project description complied with CEQA and was not misleading or inconsistent.

The petitioners asserted – and the court rejected – three arguments regarding the EIR’s project description. First, the petitioners argued that depicting the Delta conveyance facility as a separate project in the EIR conflicted with statements made in earlier environmental review documents. The petitioners cited various documents to support this assertion, but failed to explain how these documents substantiated their position. Moreover, the court’s examination of the cited documents did not reveal any inconsistencies.

Second, the petitioners argued that identifying the 2085 extension date in the EIR was misleading and inaccurate because the EIR did not reveal DWR’s expectation of successive contract extensions under the existing contracts’ evergreen clauses. But petitioners failed to support this argument with any analysis or authority. Furthermore, the record demonstrated that there are clear differences between applying the evergreen clause to individual contracts and achieving a long-term extension for all contractors.

Third, the petitioners argued that the EIR incorrectly stated that the amendments would not change the authority under the current contracts to construct new or modify existing facilities. They argued that the amendments would remove limitations on revenue bond eligibility for new facilities, potentially financing new or expanded facilities. The court rejected this argument as inconsistent with the EIR’s project description, which made these facts plain by explaining that the amendments would offer enhanced funding mechanism that could fund new or expanded facilities.

The petitioners failed to show that the EIR’s range of alternatives was unreasonable.

CEQA requires an EIR to identify and evaluate a reasonable range of alternatives that could achieve most of the project’s basic objectives while avoiding or significantly reducing its adverse environmental effects. DWR’s objectives for the amendments included financing the SWP past 2035, maintaining funding reserves, simplifying the billing process, and improving financial coordination between DWR and the contractors. In addition to a no-project alternative, the EIR analyzed seven alternatives, including different contract extension lengths with or without financial amendments, bond sales extending beyond the current contract expiration, and a scenario where not all contractors agreed to the amendments. Two additional alternatives were considered, but rejected from further consideration in the EIR: reducing the “Table A” amounts and implementing new water conservation provisions.

The petitioners argued that DWR’s selection of alternatives violated CEQA in three ways. First, in a single-sentence argument, the petitioners asserted that the alternatives were not sufficiently different to constitute a reasonable range. The court summarily rejected this argument because the petitioners failed to provide any authority or analysis to support it. It was incumbent on the petitioners to show that the range of alternatives were manifestly unreasonable or identify evidence of a least one potentially feasible alternative that would meet most of the basic objectives while reducing the project’s impacts. The petitioners’ one-sentence statement did not satisfy this burden.

Second, the petitioners argued that the revenue bond amendment creates financial risk and that the EIR should have analyzed an alternative that excludes that amendment. The court rejected this argument, explaining that CEQA is not a statute for economic protection, and economic impacts alone do not qualify as significant environmental impacts. Moreover, the no-project and the extension-only alternative evaluated in the EIR sufficiently covered the exclusion of the revenue bond amendment.

Third, the petitioners challenged DWR’s rejection of alternatives to reduce Table A amounts and to implement new water conservation measures, arguing that these alternatives would reduce environmental effects and would align with other state laws and policies. The court rejected this argument, explaining that agencies are not required to analyze alternatives that would solve broader problems or add complex issues that the agencies had chosen not to address. Here, DWR deliberately limited the EIR’s scope to financial issues related to the SWP contracts and made a reasoned decision to exclude Table A amounts from the project’s scope. DWR was not required to analyze alternatives that address bigger issues than the problems DRW is trying to address.

DWR properly defined the no-project alternative as the water contracts proceeding without the amendments, rather than termination of the contracts.

An EIR is required to evaluate a “no project” alternative; the purpose of this requirement is to compare the environmental impacts of not approving the project with those that would occur if the project is approved. Here, the EIR’s no-project alternative assumed that operations and financing of the SWP would continue under existing contracts until December 31, 2035, with contract terms potentially extended beyond this date through the evergreen clause. Under this scenario, water services would continue beyond 2035 in line current financial terms, no bonds would be sold with maturity dates past 2035, and the debt compression issue would worsen. The EIR concluded that this alternative, like the amendments, would not lead to direct physical environmental impacts because it would not introduce new water management measures, change DWR’s authority to build or modify facilities, or alter water allocation in the existing contracts.

The petitioners argued that DWR should have considered, as the no-project alternative, a scenario in which the contracts are allowed to expire. According to the petitioners, relying on the evergreen clause as part of the no-project alternative is inappropriate because: (i) application of the evergreen clause might itself be a project; (ii) the evergreen clause does not guarantee an extension of all contract provisions; and (iii) the evergreen clause does not account for other future changes to the SWP that DWR has acknowledged. The petitioners further asserted that DWR’s analysis blurred the distinction between the no-project scenario and the amendments, thereby failing to provide a clear and factual analysis of maintaining the status quo.

The court rejected these arguments. The court explained that the analysis of the no-project alternative must consider current conditions and what can reasonably be expected in the foreseeable future if the project is not approved. In reviewing a no-project alternative, the court’s focus narrowly on whether the EIR adequately describes existing condition and offers a plausible vision of the foreseeable future. Here, DWR’s no-project met these standards. Given the long history of the SWP and its critical role in supplying water to the state, as well as the long-term investments of the contractors in the SWP, DWR was not required to treat termination of the contracts as the no-project alternative.

Petitioners failed to demonstrate that recirculation of the EIR was required.

CEQA requires a lead agency to recirculate an EIR for further public review and comments when the agency introduces “significant new information” to the EIR before its certification. The court held that petitioners failed to meet that burden by failing to provide any facts or analysis of the information added to the EIR was “significant” within the meaning of CEQA.

The petitioners further claimed that recirculation was required because DWR added additional information regarding the rejected “Table A amount reduction” alternative in the final EIR. The court explained, however, that the added discussion was not “significant” because it did not reveal any new environmental impact or an increase in the severity of an impact, and did not deprive the public of a meaningful opportunity to comment on a substantial adverse effect or a feasible mitigation measure or alternative that the project’s proponents declined to implement. Rather, the additional information added to the final EIR served only to clarify and amplify the conclusions of the draft EIR, and therefore did not trigger recirculation.

Delta Reform Act

Under the Delta Reform Act, any state agency planning to undertake a “covered action” must first certify in writing that the action is consistent with the Delta Plan. This certification, including detailed findings, must be submitted to the Delta Stewardship Council before the covered action is implemented. (Water Code, § 85225.) A “covered action” is defined in Water Code section 85075.5 as a plan, program, or project that meets certain criteria and is not exempt.

Here, DWR determined that the amendments were not a covered action and therefore did not prepare a certification of consistency with the Delta Plan. The petitioners, in contrast, asserted that the amendments constituted a covered action. The court agreed with DWR that the amendments were not a covered action.

The court observed that, viewing the Delta Reform Act holistically, several points stand out. First, the Act primarily targets “future developments,” rather than existing ones. Second, a covered action is defined as an action occurring within the Delta or Suisun Marsh boundaries. Third, such actions must significantly impact California’s water supply reliability or the Delta ecosystem. Fourth, routine maintenance and operation of the SWP are not included as covered actions. While the court did not delve into the exact meaning of “routine maintenance and operation,” it found it fair to say that the existing SWP is generally exempt from being a covered action.

Applying these insights, the court held that the amendments do not qualify as a covered action. The amendments merely extend existing contracts with SWP contractors and enhance DWR’s ability to finance improvements and new facilities for the SWP using revenue bonds, subject to certain approvals. They do not physically take place in the Delta, nor do they modify the developed uses of the SWP. Therefore, the DWR’s decision not to prepare a certification of consistency with the Delta Plan was not erroneous.

Public Trust Doctrine

The petitioners argued that, under the California Supreme Court’s decision in National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 (National Audubon), DWR had an affirmative duty to take the public trust into account in approving the amendments. The court disagreed, reasoning that a closer reading of National Audubon indicates that the high court was specifically concerned about the approval of water diversions. This distinction is significant because DWR does not approve water diversions—that task is performed by the State Water Resources Control Board.

Furthermore, the court found that the record supported DWR’s conclusion that the amendments do not impact a public trust resource. The water rights at issue were granted by the State Water Board in 1967 and have been amended by that board several times. The contracts giving the contractors interest in those water rights “were executed in the 1960s and allow the contractors to extend their interests indefinitely.” Under this framework, it was reasonable for DWR to conclude that extending the terms of the contracts to 2085 would not have impacts on resources held in the public trust.

The court also rejected the petitioners’ argument that, under National Audubon, DWR has a “‘continuing duty to supervise’” the taking and use of the appropriated water. The court explained that petitioners took the statements in National Audubon out of context in that, in National Audubon, no agency had ever considered the public trust in relation to the challenged water diversions and their harm to Mono Lake. The court in the present case declined to translate the “continuing duty of supervision” described in National Audubon as imposing a continued duty on DWR to supervise the water rights with which it operates the SWP. In this context, DWR’s duty under the public trust doctrine is only triggered when DWR is taking an action with an impact on public trust uses. Since there is no such impact here, the duties to weigh the public trust interests or consider additional protections do not apply.

Remaining Arguments Against Validation of the Amendments

Finally, the court rejected several other arguments raised by the petitioners challenging the amendments’ validation.

The Validation Action Was Not Premature

The petitioners argued that DWR’s validation action was premature. The Court of Appeal rejected this contention, explaining that the 60-day limitation period for bringing a validation action and the public policy of a speedy determination of a public agency’s action undermined the petitioners’ claim of prematurity. Furthermore, the petitioners failed to cite any authority to support the position that prematurity is a valid defense against a validation action.

The Amendments Are Consistent with the Burns-Porter Act

Under the Burns-Porter Act, any income from the sale, delivery, or use of SWP water or power must be placed into a special fund. This fund is then used for various purposes, following a strict order of priority established by the Act. The highest priority is for funding the annual maintenance and operation costs of the SWP, including replacing any parts of the SWP as needed. The petitioners argued that the amendments – specifically the extension amendment and the revenue bond amendment – were inconsistent with this first priority requirement. The court disagreed, finding that nothing in the amendments disrupts or contravenes the established priority order for the use of funds as set forth in the Burns-Porter Act.

DWR Complied with Water Code Section 147.5

Water Code section 147.5 outlines the procedures DWR must follow when renewing or extending long-term water supply contracts. Specifically, that statute requires DWR to present details of the contract terms at an informational hearing before the Legislature at least 60 days before final approval of the contract.

The petitioners claimed that DWR failed to meet these requirements because it submitted only draft amendments, not the final version, to the Legislature. The court rejected this argument, finding that Water Code 147.5 only mandates a presentation to the Legislature 60 days before contract approval and does not specify that the contract must be in its final form at this stage. The informational hearing could lead to further amendments, and the statute not require another hearing for such changes. Moreover, the purpose of Water Code Section 147.5 is to ensure high-level oversight of the renewal or extension of SWP long-term contracts, not to involve the Legislature in overseeing the details of finalizing these contracts.

The Petitioners failed to support their argument that the amendments are unconscionable.

The petitioners argued that it was unconscionable for DWR to reauthorize the terms of the existing contracts regarding water delivery amounts because those terms are impossible or impractical to fulfill. The Court of Appeal, like the trial court before it,  declined to consider this argument because the petitioners failed to offer any legal authority to support it.

DWR acted within its authority in approving the amendments.

Lastly, the petitioners argued that validating the amendments is improper because, according to the petitioners, the amendments provide DWR “absolute power” to enter into “unbounded” contracts. The petitioners, however, failed to demonstrate how validating the amendments would give DWR absolute and unrestricted contracting authority, particularly given that the validation action is limited to contracts tied to or directly related to DWR bonds. Validating the amendments does not give DWR a “free pass” to base its decisionmaking on “paper water.”

Conclusions and Implications

At bottom, the petitioners’ CEQA arguments in this case rested on two mistaken assumptions: first, that the amendment would transform the SWP, possibly leading to expanded SWP operations and a Delta conveyance project; and second, that without the amendments, the existing SWP contracts would terminate. The court rejected these assumptions. Although future capital improvement projects within the SWP may benefit from bond funding under the amendments, such future projects are speculative and not a reasonably foreseeable consequence of the amendments. Furthermore, the court found that it is reasonable for DWR to assume that the terms of the existing contracts will continue, regardless of these particular amendments. The contracts’ evergreen provision authorizes the contractors to request the same amount of continued water service indefinitely and several contractors had already exercised that option. Furthermore, California’s residents and farms depend on continued delivery of SWP water, and the contractors have invested enormous sums in the SWP. The court agreed with DWR’s pragmatic view that it is more plausible to anticipate contract extensions than their termination.

Having rejected the underlying premises of the petitioners’ claims, the court applied straightforward analyses to the petitioners’ CEQA claims. Case law firmly establishes that when a project proposes the continuation of existing activities, the baseline includes those activities. Therefore, DWR properly included the current contracts, including current operation of the SWP, as part of the baseline. Impacts caused by the current operation of the SWP are not impacts of the proposed amendments.

The law is also clear that projects with independent utility need not be treated as part of a larger project under CEQA. Here, the amendments have utility independent of future improvements to the SWP, including a potential Delta conveyance project. Moreover, such future projects are not a consequence of the amendments, since such projects could proceed with or without the amendments. In addition, CEQA does not requires agencies to speculate about the consequences of future, uncertain activities.

– Laura M. Harris

First District Holds Petitioner Exhausted Its Remedies by Raising General Objections That the Project Site Should Be Preserved as Open Space, Finds “No Project” Alternative Analysis Defective

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In the published portions of Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, the First District Court of Appeal held that Petitioner Save the Hill’s failure to specifically reference the recirculated EIR or the no-project alternative in its comments to the City Council did not bar its CEQA claims regarding preservation of the Project site.

Background

This case involves the City of Livermore’s approval of a development application for a housing development in the Garaventa Hills. The Project underwent multiple revisions, and the Project at issue is a scaled-down version of the original 76-unit residential development. The final Project is a 44-unit development with pedestrian across Altamont creek that also serves as a secondary emergency vehicle access road. The City published a Recirculated Final EIR (RFEIR) for this final revised Project.

Save the Hill filed a petition for writ of mandate challenging the City’s approval of the Project and certification of the RFEIR for failure to consider significant environmental impacts, adequately investigate and evaluate the no-project alternative, and mitigate significant environmental impacts. The trial court denied the petition, determining that Save the Hill failed to exhaust its administrative remedies in challenging the RFEIR. Save the Hill appealed.

The Court of Appeal’s Decision

Exhaustion

The Court of Appeal held that Save the Hill did not fail to exhaust its administrative remedies before challenging the City’s failure to evaluate the no-project alternative. While Save the Hill did not mention the environmental documents or the lack of a no-project alternative specifically, it did express its desire to preserve the Project site as open space. The Court emphasized that CEQA does not require public interest groups such as Save the Hill—which are often unrepresented by counsel at administrative hearings—to do more than “fairly apprise” the agency of their complaints to preserve them for appeal.

Several Save the Hill representatives voiced support for preserving the Project site as open space in perpetuity at the City Council hearing for the RFEIR’s certification. These comments sparked questions from city councilmembers regarding the possibility of preserving the Project site and a discussion of available funding to purchase Garaventa Hills for conservation. This option was shut down by the City Attorney, who advised the City Council that its evaluation should be limited to the Project as set before them, and that if it were to change the zoning to permanent open space on the property, the City would likely face a takings lawsuit.

The Court determined that these comments and the ensuing discussion reflected the City Council’s consideration of a no-project alternative as a result of Save the Hill’s objections. It concluded that Save the Hill’s failure to specifically refer to the RFEIR’s Project alternatives evaluation was immaterial to the fact that it fairly appraised the City of its position. The court further explained that even if Save the Hill framed its arguments in the context of the RFEIR’s no-project alternative, “the evidence is overwhelmingly that, had it done so, the result would have been the same: [t]he City would have rejected the group’s proposal and certified the RFEIR” because it was improperly instructed to limit its focus to the presented Project.

Accordingly, the Court held that an exception to the exhaustion requirement applied because the aggrieved party—Save the Hill—could “positively state” what the lead agency’s decision would be in its particular case.

No Project Alternative Analysis

On the merits of Save the Hill’s alternative analysis claim, the Court held that the RFEIR failed to disclose and analyze information regarding the availability of funding sources that could have been used to purchase and permanently conserve the Project site. The Court explained that zoning changes are within the City’s police power, and the RFEIR accordingly should have discussed the feasibility of rezoning the site as permanent open space.

Mitigation Measures Adequacy

Save the Hill asserted that the mitigation measures for impacts to vernal pool fairy shrimp were inadequate because they would only be implemented if the fairy shrimp were detected at the site. The Court explained that CEQA allows deferred mitigation where the agency commits to achieving specific performance standards, which it did here, and that the mitigation measures were adequate because the RFEIR assumed that the fairy shrimp were present.

The Court also held that the preservation of an 85-acre compensatory mitigation site was adequate, despite Save the Hill’s contention that the City’s General Plan required the location to be preserved as open space. The Court concluded that the General Plan is “merely aspirational,” while the RFEIR’s mitigation measure created a “perpetual legal restraint on development” at the site, including requiring funding for upkeep and enforcement. Moreover, distinguishing this case from King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814 (“King”), the Court explained that this Project involved the loss of only 32 acres—as opposed to the loss of 6,450 acres in King—and CEQA does not require mitigation measures to “completely eliminate the environmental impacts of a project.”

Hydrological Impacts Adequacy

The Court held that the City’s finding of no significant hydrological impacts was supported by substantial evidence because Save the Hill failed to refute the City’s points in its reply brief. The Court refused to afford any weight to Save the Hill’s argument that the Project would degrade downstream water quality because a larger development project (which originally included this Project) would have a significant downstream water quality impact. The Court determined that impacts from a project almost 200 acres larger than this Project were not relevant.

Settlement Agreement Obligation Claims

Lastly, the Court held that that Save the Hill forfeited its claim that the City violated CEQA by failing to preserve the Project site to satisfy its obligations under two settlement agreements by failing to raise the issue prior to appeal. Moreover, Save the Hill was not a party to either settlement agreement and thus lacked standing to enforce those obligations.

THIRD DISTRICT UPHOLDS EIR FOR EL DORADO IRRIGATION DISTRICT’S “UPPER MAIN DITCH” WATER TRANSMISSION PIPELINE PROJECT

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In a February 16, 2022 decision, the Third District Court of Appeal in Save the El Dorado Canal v. El Dorado Irrigation District (2022) 75 Cal.App.5th 239, upheld the District’s approval of the Blair Road Alternative for the Upper Main Ditch piping project by finding that substantial evidence supported the District’s determination that the project and alternative would have less-than-significant impacts, and rejected petitioner challenges to the EIR’s project description, hydrological, biological, and wildfire impact analyses.

Background

The El Dorado Irrigation District operates a primarily surface-water system in El Dorado County, with more than 1,250 miles of pipe and 27 miles of earthen ditches that connect the system’s facilities and treatment plants. The Upper Main Ditch (UMD) is the system’s main conveyance feature consisting of a three-mile open and unlined ditch that connects the system’s Forebay Reservoir to its Reservoir 1 Water Treatment Plant (WTP). In June 2015, the District proposed to convert the UMD to a buried 42-inch pipeline that spanned the length of the existing ditch. The upstream end of the new pipeline would connect to the Reservoir and the downstream end would connect to a new metering and inlet structure at the WTP. The District would backfill around the pipe and reshape the ditch to allow for the passage of stormwater flows up to the current 10-year storm event capacity. Ultimately, the project would conserve more water by reducing seepage and evaporation, and improve water quality by reducing contaminant infiltration.

The District considered three alternatives, and ultimately approved the Blair Road Alternative, which would also convert the UMD into a buried pipeline but would instead place the pipe across District-owned property from the Reservoir to Blair Road, where it would continue until it reached the UMD crossing, then travel across private property to the WTP. The Blair Road Alternative would involve less construction activity near residents that the project and require the removal of fewer trees. It would also reduce the number of easements across private property.

In June 2018, the District circulated the draft EIR, which described the location of the UMD and the Blair Road Alternative’s setting and noted that, should it be adopted, the District would no longer use the existing ditch—instead reverting the land back to private landowners. After an extended public comment period, the District issued the final EIR in January 2019. After which, in April 2019, the Board of Directors certified the final EIR and approved the Blair Road Alternative. The Boar determined that, although the original project would achieve the desired objectives, it would have greater potential impacts to residents along the ditch from the resulting construction and eminent domain proceedings than the Alternative.

Thereafter, Save the El Dorado Canal filed a petition for writ of mandate alleging the approval and certification violated CEQA. The trial court denied each of Petitioner’s ten contentions. Petitioner timely appealed.

The Court of Appeal’s Decision

On appeal, Petitioner re-alleged that the action violated CEQA because the EIR contained an inaccurate project description and failed to adequately analyze potential impacts to hydrology, biological resources, and wildfire hazards. Under an abuse of discretion standard, the Third District Court of Appeal rejected each claim, finding that substantial evidence supported the District’s determination and Petitioner failed to demonstrate otherwise.

Petitioner first alleged the EIR failed to adequately describe the project by omitting the “crucial fact” that the ditch that would soon be abandoned was the “only drainage system” for the watershed. Notwithstanding Petitioner’s “problematic” briefing errors, the court rejected this argument and found instead that the EIR provided a detailed description of the UMD’s size, history, and location, and explained how the UMD passively intercepts stormwater runoff that would otherwise naturally flow down slope. For the Blair Road Alternative, the EIR explained that the ditch would continue to passively receive and convey stormwater flows during storm events, even after the District abandoned its maintenance easement over it. The court concluded this was an adequate, complete, and good faith effort at full disclosure about the ditch and its relationship to the watershed’s drainage system, as well as the District’s intent to abandon the ditch should it adopt the Blair Road Alternative.

Petitioner then claimed the EIR inappropriately concluded that the Blair Road Alternative would not significantly impact watershed drainage because abandonment would permit “the underlying property owners to do with [the ditch] as they please.” Citing a comment letter submitted by the County, Petitioner claimed the EIR failed to mitigate foreseeable impacts to watershed drainage that would result from vegetation and debris clogging the abandoned ditch. The court disagreed. It found that the final EIR’s response explained that private action or inaction will ensure the abandoned ditch retains its current capacity to convey stormwater across private property thereby reducing any risk of significant flooding. Moreover, unlike the District, the County can regulate private fill activities via administrative and civil penalties to ensure such activities do not yield significant environmental effects. Thus, it would be too speculative to predict landowners’ particular actions or inactions and the ensuing potential effects to the ditch’s stormwater conveyance capacity.

Petitioner next alleged the EIR failed to mitigate impacts to riparian habitats and sensitive natural communities and conflicted with local resource protection ordinances. The court noted that the Blair Road Alternative would yield fewer potential impacts to biological resources because the pipeline would be laid in an existing road corridor that is devoid of natural riparian habitat. Because the affected waterbody is not naturally occurring, plant and wildlife species are not dependent on water in the current ditch. Nevertheless, any impacts to vegetation communities—including those resulting from tree removal—would be mitigated to less than significant levels through permit compliance. The Alternative would therefore be consistent with the General Plan’s biological resources management plan, the County’s tree mortality removal plan, and CALFIRE’s tree removal procedures.

The court was also unpersuaded by Petitioner’s claim that the EIR failed to adequately analyze and mitigate impacts to tree mortality. Relying on facts and expert opinion, the EIR explained that trees surrounding the project site are not native riparian species, and thus, not dependent on water conveyed through the ditch. To the contrary, most of the adjacent tree species are stress-tolerant and can withstand climatic variation and changes in water seepage. The court also found that because both the project and Alternative were specifically designed to avoid Waters of the U.S. (WOTUS), and that, in any event, mitigation would alleviate any impacts, regulatory requirements associated with WOTUS were met.

Lastly, the court rejected Petitioner’s contention that the EIR failed to adequately consider the project’s fire risks by only considering construction-related impacts. Petitioner asserted the project would have potentially significant impacts by removing a water source that could be used as a firefighting tool. The court disagreed by noting that the EIR specifically debunked Petitioner’s claim—the ditch supplies potable drinking water only, and water from the ditch has never been used to fight fires. Indeed, CAL FIRE’s Strategic Fire Plan did not identify the UMD as a potential firefighting resource.

– Bridget McDonald[/vc_column_text][/vc_column][/vc_row]

Second District Court of Appeal Holds That Reduced Parking at National Monument is not a Direct Environmental Impact and Upholds Alternatives Analysis with Only a “No Project” Alternative.

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In Save Our Access—San Gabriel Mountains v. Watershed Conservation Authority (2021) 68 Cal.App.5th 8, the Second District Court of Appeal held that the plaintiff failed to show that reduced parking within the San Gabriel Mountains National Monument would cause any adverse physical changes in the environment, that the lead agency did not abuse its discretion in setting the baseline for parking based on aerial photography that was not included in the record, and that, based on the project’s purpose, analyzing only a “no project” alternative was a reasonable range of alternatives.

FACTUAL AND PROCEDURAL BACKGROUND

The San Gabriel Mountains National Monument was designated in 2014. The project site includes 198 acres along two and a half miles of the East fork of the San Gabriel River, including public roads, recreational facilities, and the riverbed itself. The site is significantly degraded due to heavy public use and a lack of adequate facilities. The project was proposed to improve and better manage recreation facilities along with ecological restoration and reducing environmental impacts associated with recreational use at the site.

The EIR discussed existing issues associated with parking, including the small number of designated parking spaces and the widespread practice of parking in undesignated areas, which created public safety and traffic issues throughout the site. In total, the EIR estimated that there was a total of 417 parking spaces throughout the site, of which only 48 were designated parking spaces. The estimates were based on aerial photography that was included in the EIR. The EIR also included survey data that found that average weekend use at the site from Memorial Day to Labor Day was 273 vehicles per weekend day. To address the parking and related issues, the project proposed to create a total of 270 designated car spaces and three bus spaces, and to reduce undesignated parking with a combination of signage and physical barriers.

The EIR analyzed the project’s potential impacts to recreation and concluded, based on survey data, that impacts would be less than significant because many users of the site would choose to recreate in other nearby areas if parking or other facilities were unavailable, and, given the number and variety of recreation opportunities in proximity to the site, the impacts of those users going elsewhere would be disbursed and would not be cumulatively considerable. The EIR concluded that all impacts associated with the project would be less than significant with mitigation. The alternatives analysis compared the proposed project to a “no project” alternative but did not analyze any other alternatives.

The plaintiff filed a petition for writ of mandate challenging the Watershed Conservation Authority’s certification of the EIR and approval of the project. The trial court granted the petition, in part, based on the court’s conclusion that (1) the parking baseline lacked substantial evidence support because the aerial photography the baseline relied on was not in the record; (2) the agency failed to disclose the exact number of parking spaces available in each area of the site; (3) the parking survey was unsupported by substantial evidence because of the time of day when the surveys took place; and (4) without an accurate parking baseline, the EIR failed as an informational documents because the proposed parking reduction could be significant and require mitigation.

THE COURT OF APPEAL’S DECISION

Reversing the trail court’s decision, the Court of Appeal determined that the EIR adequately discussed the project’s proposed reduction in total parking spaces and that the alleged discrepancy in total parking spaces (plaintiff alleged that there were 473 available spaces, rather than 417) was immaterial because plaintiff failed to identify any adverse physical impacts on the environment resulting from the reduced parking. The court noted that, in fact, the purpose of reducing and formalizing parking at the site was to protect and restore the environment.

The court went on to analyze two CEQA cases addressing parking issues. First, the court considered San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, which held that the inconvenience associated with “hunting” for scarce parking was not an environmental impact, but secondary effects, like traffic and air quality are. Accordingly, the court determined that an EIR need only address the adverse secondary effects of limited parking, not the social impact itself. The court also reviewed Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, which rejected the school district’s argument that a parking shortage is “never” a direct physical environmental impact. The court reasoned that each case must be decided on its facts, and that while, in some cases parking deficits may have direct physical impacts on the environment, plaintiff had not shown that the project’s parking reduction would result in direct or secondary physical impacts on the environment.

Turning to the EIR’s analysis of recreation impacts, the court found that the EIR’s analysis of nearby recreational facilities and likely impacts was adequate and that the EIR’s assumptions, based on survey data, were reasonable. The court rejected plaintiff’s speculation that, instead of leaving to recreate elsewhere, visitors to the project site would “circle and idle” until a parking space became available. Thus, the EIR’s conclusion that recreation impacts would be less than significant was supported by substantial evidence.

Regarding alternatives, the court focused on the EIR’s discussion of alternatives that were considered, but not analyzed in the EIR. The EIR explained that, through a series of workshops, three project design concepts were proposed and assessed for their ability to achieve the purposes of the project, but only one (the project), was selected for study in the EIR, along with the required “no project” alternative. The agency also considered an alternative proposed by the California Department of Fish and Wildlife but decided not to analyze it in the EIR either. The plaintiff argued that, as a matter of law, analyzing only one alternative was inadequate. The court rejected plaintiff’s argument, finding that, although CEQA and the Guidelines use the term “alternatives” (i.e., the plural form), the law is clear that the range of alternatives is subject to a rule of reason, and that each case must be evaluated on its facts. The court rejected the plaintiff’s argument that several feasible alternatives were proposed to the agency by a nearby business owner who was concerned that reduced parking at the site would impact his business. The court concluded that plaintiff had failed to show how the proposed alternatives would attain most of the basic project objectives or feasibly avoid or lessen one or more of the project’s significant impacts. The court found, on the facts of this case, that the inclusion of only a “no project” alternative was reasonable, given the purpose of the project and that the project, with mitigation, would not result in any significant impacts.

Lastly, plaintiff argued that the project was inconsistent with the Angeles National Forest Land Management Plan (LMP) and the designation creating the San Gabriel Mountains National Monument. Plaintiff’s argument centered around the reduction in parking and claimed that the corresponding reduction in access to the National Monument created inconsistencies. The court rejected this argument, finding that it elevated public access above all the other objectives and policies in the declaration. The court reasoned that the agency was required, under the proclamation and LMP, to balance public access with other concerns, including protection of the environment, and that the project did so.

– Nathan O. George

First District Court of Appeal Upholds EIR for Mixed-Use Development Project

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In the first published decision to apply the standard of review articulated by the Supreme Court in Sierra Club v. County of Fresno (Friant Ranch), the First District Court of Appeal affirmed the trial court’s decision upholding an EIR for a mixed-use development project in South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321.

The project at issue is a mixed-use development that covers four acres of downtown San Francisco and seeks to provide office, retail, cultural, educational, and open-space uses for the property, to support the region’s technology industry and offer spaces for coworking, media, arts, and small-scale urban manufacturing. The city certified an EIR, which described two options for the project—an “office scheme” and a “residential scheme.” The office scheme had a larger building envelope and higher density than the residential scheme but all other project components were the same and the overall square footage was substantially similar. Several community organizations raised a variety of claims challenging the environmental review. The trial court denied relief and the petitioners appealed.

Applying the three “basic principles” set forth by the Supreme Court in Friant Ranch regarding the standard of review for the adequacy of an EIR, the First District held the EIR was legally adequate.

The court rejected the petitioners’ argument that the project description was inadequate because it presented multiple possible projects. The court found that the EIR described one project—a mixed use development involving retention or demolition of existing buildings and construction of new buildings—with two options for different allocations of residential and office units. The court also rejected petitioners’ argument that the final EIR adopted a “revised” project that was a variant of another alternative identified in the draft EIR—emphasizing that the CEQA reporting process is not designed to freeze the ultimate proposal in the precise mold of the initial project, but to allow consideration of other options that may be less harmful to the environment.

Petitioners alleged that the cumulative impacts analysis was flawed because the EIR used an outdated 2012 project list, developed during the “Great Recession,” which did not reflect a more recent increase in development. The court noted the petitioners did not point to any evidence to establish that the project list was defective or misleading or that the city had ignored foreseeable projects. Accordingly, the court held that the petitioners had not met their burden of proving the EIR’s cumulative impacts analysis was not supported by substantial evidence.

With respect to traffic, the petitioners argued the EIR was inadequate because it failed to (1) include all impacted intersections, (2) consider the impact of the Safer Market Street Plan (SMSP), and (3) adequately evaluate community-proposed mitigation measures and alternatives. The court rejected each argument in turn. First, the court found that the EIR’s explanation for selecting certain intersections and excluding others and the related analysis was supported by substantial evidence. The court further held that the city did not need to include the SMSP in the EIR because it was not reasonably foreseeable when the city initiated the EIR, nor was there evidence that the SMSP would have an adverse impact on traffic and circulation related to the project. Lastly, the court deferred to the city’s selection of alternatives because the petitioners had failed to meet their burden to show the nine alternatives evaluated in the EIR were “manifestly unreasonable.” Similarly, the court found the petitioners had failed to meet their burden to demonstrate their proposed alternatives were feasible and met most of the project objectives.

In addressing wind impacts, an argument petitioners failed to exhaust, the court found such impacts were appropriately addressed in the EIR. The court reasoned an alternative configuration was not required under the city’s comfort criterion for wind speed impacts because the exceedance of the comfort criterion did not establish significant impacts for CEQA purposes.

The court also rejected an argument that the project failed to provide onsite open space because the EIR explained that the project provided more space than the city code required and the impact related to demand on existing parks and open spaces would be less than significant.

The court further upheld the EIR’s shade and shadow analysis, finding no evidence in the record to support that sunlight on a park is not a “special and rare resource” warranting “special emphasis” under CEQA Guidelines section 15125.

The court also held that the city had made a good faith effort to discuss inconsistencies with the applicable general plans, noting that CEQA does not “mandate perfection.”

Finally, the petitioners claimed that the statement of overriding considerations was invalid because the city improperly considered the benefits of the project before considering feasible mitigation measures or alternatives. The court disagreed, emphasizing that the project was modified to substantially conform to the identified environmentally superior alternative and stating that the revised project would not have been adopted if there had been no consideration of mitigation measures or alternatives.

First District Court of Appeal upholds EIR for San Francisco’s Housing Element

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On August 22, 2018, the First District issued its decision in San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596. The appellate court upheld an EIR that San Francisco prepared for its 2004 and 2009 Housing Elements, notably rejecting a challenge to the use in the EIR of a future-conditions baseline for the plan’s traffic and water supply impacts.

In an earlier appeal involving San Francisco’s 2004 Housing Element, the First District concluded that the City should have prepared an EIR rather than a negative declaration. By the time the trial court issued an amended writ in April 2009 requiring the preparation of an EIR for the 2004 Housing Element, the City was already in the process of preparing its 2009 Housing Element. Consequently, the City combined the environmental review of the two versions and prepared one EIR for both the 2004 and 2009 Housing Elements. After the City adopted the 2009 Housing Element in June 2011, San Franciscans for Livable Neighborhoods (SFLN) filed a new suit and this appeal followed.

For traffic and water supply impacts, the EIR used a baseline of 2025 conditions based on population projections from the Association of Bay Area Governments (ABAG). The court concluded that the City was “within its discretion to adopt a baseline calculation forecasting traffic and water impacts in 2025” rather than “comparing the existing conditions with and without the Housing Element.” Citing POET, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52 (“POET II”), SFLN argued that the City took an improperly narrow view of the Housing Element and “sidestepped review of the reasonably foreseeable indirect physical changes in the environment.” The court was unpersuaded because the Housing Element consisted of growth-accommodating policies but did not induce or lead to population growth. Discussing the rule described in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, the court found that substantial evidence supported the City’s determination that an existing-conditions baseline would be misleading as to traffic and water supply impacts. The court also rejected SFLN’s corollary argument about the baseline for land use and visual resources impacts, noting that the EIR did compare the changes in the Housing Element to the existing environment.

Second, the court tackled SFLN’s challenges to the EIR’s analysis of various impacts. It found that substantial evidence supported the EIR’s analysis, explaining that: (1) the EIR reasonably concluded that the 2009 Housing Element would not result in significant impacts on visual resources or neighborhood character because there would be no changes to allowable land uses or building heights, and residential growth would be directed to areas with existing residential uses; (2) the EIR for the Housing Element was not required to study traffic impacts of specific development projects in the pipeline because those projects were proceeding under their own EIRs or CEQA documents; (3) the EIR for the Housing Element was not required to establish a likely source of water and satisfied CEQA by acknowledging the possibility of a post-2030 water supply shortfall during a multiple-dry-year event and discussing the water rationing plan that would balance supply and demand; and (4) the City did not abuse its discretion in determining that the Housing Element was consistent with ABAG’s Land Use Policy Framework because policies would further the goals of the Framework by placing housing near transit and encouraging infill development.

Third, the court turned to SFLN’s argument that the EIR failed to consider feasible reduced-density alternatives. The EIR analyzed three alternatives, including a No Project Alternative, a 2004 Housing Element Alternative, and an Intensified 2009 Housing Element Alternative. The 2004 Housing Element Alternative was identified as the environmentally superior alternative because it would reduce the sole significant and unavoidable impact (cumulative impact on transit) even though it would not reduce the impact to a less than significant level. The court concluded that this was a reasonable range of alternatives. In particular, the court approved of the City’s explanation in responses to comments that the reduced density alternatives suggested by SFLN would not add any meaningful analysis to the EIR because they would not reduce the project’s potential cumulative transit impacts. The court also found that substantial evidence supported the EIR’s conclusion that the SFLN-proposed alternative dubbed the No Additional Rezoning Alternative was infeasible because increasing the density of two major projects within existing neighborhoods as suggested would require rezoning.

Finally, the court rejected SFLN’s argument that the City should have considered additional mitigation measures to reduce transit impacts. The EIR explained that the only way to eliminate the significant transit impacts would be to increase the number of transit vehicles or reduce transit travel time. Since funding for these measures is uncertain and cannot be guaranteed, the EIR deemed them infeasible. Although SFLN suggested two mitigation measures, one was simply a permutation of the No Project Alternative and the other was infeasible because it involved imposing transit impact fees that the City had already decided would be infeasible because they cannot be guaranteed.

Elizabeth Sarine

Second District Finds for Respondents on All Counts, Upholding EIR for “Iconic Gateway” Project in West Hollywood

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In Los Angeles Conservancy v. City of West Hollywood (2017) ­18 Cal.App.5th 1031, the Second Appellate District upheld the trial court’s denial of a petition for writ of mandate, finding that the EIR’s treatment of alternatives was sufficient and that the city adequately responded to comments.

In 2014, the city certified an EIR for a mixed–use development in the Melrose Triangle section of West Hollywood. The project was the product of city incentives to redevelop the area in order to create a unified site design with open space, pedestrian access, and an iconic “gateway” building to welcome visitors and promote economic development. The EIR concluded that a significant and unavoidable impact would result from the demolition of a building eligible for listing as a California historic resource.

One alternative would have preserved the building in its entirety, by reducing and redesigning the project. The preservation alternative was ultimately rejected as infeasible because it was inconsistent with project objectives, and would eliminate or disrupt the project’s critical design elements.

After circulating the draft EIR, the project’s architects developed a site design which incorporated the building’s façade and mandated this design as a condition of approval. Furthermore, a subsequent fire destroyed 25 percent of the building, but left the façade intact. The final EIR and conditions were approved in 2014. Petitioners immediately filed suit.

In the court below, petitioner argued that the EIR’s analysis of the preservation alternative was inadequate, the city did not respond to public comments, and that the city’s finding that the alternative was infeasible was not supported by substantial evidence. The respondents prevailed on all claims and petitioner appealed.

Finding for respondents, the court reiterated the Laurel Heights standard that an analysis of alternatives does not require perfection, only that the EIR provide sufficient information to support a reasonable range of alternatives. The court rejected petitioner’s contention that the EIR was required to include a conceptual drawing of the preservation alternative. Furthermore, the EIR’s statement that preservation of the building would preclude construction of other parts of the project was self-explanatory and did not require additional analysis. The EIR’s use of estimates to calculate how the preservation alternative would reduce the project’s footprint did not create ambiguities that would confuse the public. Such imprecision is simply inherent in the use of estimates.

The court also found that the city’s responses to the three comments cited by the petitioner were made in good faith and demonstrated reasoned analysis.  The court reiterated that a response is not insufficient when it cross-references relevant sections of the draft EIR, and that the level of detail required in a response can vary. Here, the West Hollywood Preservation Alliance and the President of the Art Deco Society of Los Angeles opined in comments that the building could be preserved while achieving the project’s objectives. The city adequately responded to these comments by referencing, and expanding upon, the EIR’s analysis of the preservation alternative, where this option was considered. The last comment was of a general nature, so the city’s brief, general response was appropriate.

Finally, the court found sufficient evidence to support the city’s finding that the preservation alternative was infeasible. An alternative is infeasible when it cannot meet project objectives or when policy considerations render it impractical or undesirable. An agency’s determination of infeasibility is presumed correct and entitled to deference, if supported by substantial evidence in the record. The court found that the city’s conclusion that the alternative is infeasible was supported by substantial evidence in the record. Development plans, photographs, and testimony from senior planning staff support the city’s conclusion that retaining the building and reducing the project would not fulfill the project objectives of creating a unified site design, promoting pedestrian uses, and encouraging regional economic development.  That another conclusion could have be reached did not render the city’s decision flawed.

A consistent theme underlying the court’s decision was the city’s clear goal of revitalizing the entire site, in order to create a functional and attractive gateway for West Hollywood. Critical to the project’s success was removing the specific building that the petitioner sought to preserve. The court appeared reluctant to overcome such a strong mandate by flyspecking the EIR’s analysis of this acknowledged significant impact.

On Remand, Fourth District Determines that Case Challenging SANDAG’s RTP Is Not Mooted by Later EIR and Resolves CEQA Issues on the Merits

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On November 11, 2017, the Fourth District, Division One in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413 (Cleveland II), resolved the remaining issues on remand from California Supreme Court’s decision earlier this year.

SANDAG certified a programmatic EIR for its 2050 Regional Transportation Plan/Sustainable Communities Strategy in 2011. Petitioners challenged that EIR, alleging multiple deficiencies under CEQA, including the EIR’s analysis of greenhouse gas (GHG) impacts, mitigation measures, alternatives, and impacts to air quality and agricultural land. The Court of Appeal held that the EIR failed to comply with CEQA in all identified respects.  The Supreme Court granted review on the sole issue of whether SANDAG was required to use the GHG emission reduction goals in Governor Schwarzenegger’s Executive Order S-3-05 as a threshold of significance. Finding for SANDAG, the Court left all other issues to be resolved on remand.

First, the Court of Appeal ruled that the case was not moot, although the 2011 EIR had been superseded by a new EIR certified in 2015, because the 2011 version had never been decertified and thus could be relied upon. The court also found that petitioners did not forfeit arguments from their original cross-appeal by not seeking a ruling on them. And, even if failing to raise the arguments was a basis for forfeiture, the rule is not automatic, and the court has discretion to resolve important legal issues, including compliance with CEQA.

Second, the court reiterated the Supreme Court’s holding, that SANDAG’s choice of GHG thresholds of significance was adequate for this EIR, but may not be sufficient going forward. Turning to SANDAG’s selection of GHG mitigation measures, the court found that SANDAG’s analysis was not supported by substantial evidence, because the measures selected were either ineffective (“assuring little to no concrete steps toward emissions reductions”) or infeasible and thus “illusory.”

Third, also under the substantial evidence standard of review, the court determined that the EIR failed to describe a reasonable range of alternatives that would plan for the region’s transportation needs, while lessening the plan’s impacts to climate change. The EIR was deficient because none of the alternatives would have reduced regional vehicles miles traveled (VMT). This deficiency was particularly inexplicable given that SANDAG’s Climate Action Strategy expressly calls for VMT reduction. The measures, policies, and strategies in the Climate Action Strategy could have formed an acceptable basis for identifying project alternatives in this EIR.

Fourth, the EIR’s description of the environmental baseline, description of adverse health impacts, and analysis of mitigation measures for air quality, improperly deferred analysis from the programmatic EIR to later environmental review, and were not based on substantial evidence.  Despite acknowledging potential impacts from particulate matter and toxic air contaminants on sensitive receptors (children, the elderly, and certain communities), the EIR did not provide a “reasoned estimate” of pollutant levels or the location and population of sensitive receptors. The EIR’s discussion of the project’s adverse health impacts was impermissibly generalized. The court explained that a programmatic EIR improperly defers mitigation measures when it does not formulate them or fails to specify the performance criteria to be met in the later environmental review. Because this issue was at least partially moot given the court’s conclusions regarding defects in the EIR’s air quality analysis, the court simply concurred with the petitioners’ contention that all but one of EIR’s mitigation measures had been improperly deferred.

The court made two rulings regarding impacts to agricultural land. In finding for the petitioners, the court held that SANDAG impermissibly relied on a methodology with “known data gaps” to describe the agricultural baseline, as the database did not contain records of agricultural parcels of less than 10 acres nor was there any record of agricultural land that was taken out of production in the last twenty years.  This resulted in unreliable estimates of both the baseline and impacts. However, under de novo review, the court found that the petitioners had failed to exhaust their remedies as to impacts on small farms and the EIR’s assumption that land converted to rural residential zoning would remain farmland. While the petitioners’ comment letter generally discussed impacts to agriculture, it was not sufficiently specific so as to “fairly apprise” SANDAG of their concerns.

Justice Benke made a detailed dissent. Under Benke’s view, the superseded 2011 EIR is “most likely moot” and in any event, that determination should have been left to the trial court on remand. This conclusion is strengthened, when, as here, the remaining issues concern factual contentions. As a court of review, their record is insufficient to resolve those issues.

In a Case of First Impression, First District Court of Appeal Holds That Presentation of Five Alternatives in EIR, Without Designation of One as the ‘Project,’ Does Not Satisfy CEQA’s Requirement for a Stable Project Description

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In Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277, the First District Court of Appeal upheld the trial court’s decision directing the Department of Parks and Recreation and the State Park and Recreation Commission to set aside project approvals where the draft EIR analyzed five alternative projects in detail, but did not identify one preferred alternative.

In 1984, the Department of Parks and Recreation acquired 777 acres of land in the Lake Tahoe Basin—608 acres of the property were designated as Washoe Meadows State Park and the remainder contained an existing golf course. Studies conducted in the early 2000s indicated that the layout of the golf course was contributing to sediment running into Lake Tahoe, which contributed to deterioration of habitat and water quality in the lake.

In 2010, the Department circulated a draft EIR to address the concerns about the golf course. The draft EIR analyzed five alternatives in equal detail, with the stated purpose of “improv[ing] geomorphic processes, ecological functions, and habitat values of the Upper Truckee River within the study area, helping to reduce the river’s discharge of nutrients and sediment that diminish Lake Tahoe’s clarity while providing access to public recreation opportunities ….” The draft EIR did not identify one preferred alternative. In the final EIR, the Department identified the preferred alternative as a refined version of the original alternative 2, which provided for river restoration and reconfiguration of the golf course. In 2012, the Department certified the EIR and approved the preferred alternative.

Framing the issue as a question of law, the court found that the draft EIR did not “provide the public with an accurate, stable and finite description of the project,” because it did not identify a preferred alternative. The court found that by describing a range of possible projects, the Department had presented the public with “a moving target,” which required the public to comment on all of the alternatives rather than just one project. The court determined that this presented an undue burden on the public.

The court compared the draft EIR to County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, where the court found an EIR insufficient because the project description described a much smaller project than was analyzed in other sections of the EIR. The court in Washoe Meadows found that rather than providing inconsistent descriptions like in County of Inyo, the draft EIR had not described a project at all. Thus, the court directed the Department to set aside the project approvals.

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