Tag: Recirculation

First District Holds Timber Management Plan Does Not Violate CEQA

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The court held that a Nonindustrial Timber Management Plan (NTMP) approved by the California Department of Forestry and Fire Protection (Cal Fire) authorizing logging on 615 privately owned acres in Mendocino County did not violate CEQA. Center for Biological Diversity v. Cal. Dept. of Forestry and Fire Protection (Dec. 30, 2014) ___ Cal.App.4th ___, Case No. A138914.

Timberland use in California is primarily governed by the Forest Practice Act and Forest Practice Rules. An NMTP is a long-term plan for sustained yield timber production utilized by owners of less than 2500 acres of timberland and whose focus is not manufacturing forest products. Though Cal Fire’s approval of timber operations is generally subject to CEQA, the Forest Practice Act’s regulatory scheme is a certified regulatory program. An NTMP functions as the equivalent of an EIR.

In October 2008, the Bower family submitted a proposed NTMP to Cal Fire seeking authorization for timber harvesting activities northeast of Gualala. Petitioners took issue with the fact that Cal Fire approved, and the Department of Fish and Wildlife (DFW) did not object to, logging activity on a 17-acre section that DFW identified as a Late Succession Forest Stand (LSFS). This LSFS was considered a potential functional nesting habitat for a threatened seabird, the marbled murrelet. At the same time, there was no known history of any actual murrelet nesting in the LSFS.

Following a preharvest inspection of the Bowers’ property, a forester asserted the LSFS had only marginal potential for marbled murrelet occupation. A revised NTMP submitted in 2009 required retention of several large-diameter trees to benefit wildlife. Cal Fire issued responses to public comments on the NTMP and approved the document, concluding that large wildlife trees were being preserved, and species largely dependent on late seral habitat features would not be adversely impacted. DFW did not submit a nonconcurrence.

Petitioners filed a petition for a writ, complaint for breach of public trust, and request for injunctive relief. Petitioners contended that Cal Fire, in approving the NTMP, had failed to comply with CEQA and the Forest Practice Rules. They insisted the cumulative impacts of the proposed logging would eliminate enough large trees in the LSFS to render the stand unsuitable for murrelet nesting. Petitioners also argued the NTMP violated the California Endangered Species Act (CESA) by authorizing logging that would be adverse to nesting habitat essential for the survival and recovery of the murrelet.

Reviewing Cal Fire’s approval under the substantial evidence standard, the court denied the petition. It characterized petitioners’ contentions as disagreements over the evidence—parties drawing “dramatically differing conclusions from the same record.” The calculations and comparisons petitioners attempted to make, even if accurate, did not offer a complete description of the resulting environment, the court stated. Furthermore, Cal Fire was entitled to choose between differing expert opinions. Petitioners failed to affirmatively show that there was no substantial evidence in the record to support Cal Fire’s findings. The court also rejected petitioners’ claims that the NTMP did not analyze a reasonable range of alternatives.

Petitioners also claimed the NTMP should have been recirculated based on “significant new information” added prior to certification. They cited to a 2009 one-page memorandum from a Cal Fire biologist recommending additional protective measures for large tree retention. Each of the biologist’s recommendations were addressed in additional mitigation measures. The court found that the memo disclosed no new environmental impacts nor any substantial increase in the severity of an impact. The mitigation measures added in response to the memo were discussed in a second review, in which petitioners participated, and were accepted eight days prior to the close of the public comment period.

Petitioners’ CESA claims failed because Cal Fire found that implementation of the plan, as mitigated, would not result in take, jeopardy, or adverse modification of habitat in violation of the CESA. That finding was supported by substantial evidence.

Petitioners’ claim against DFW also failed. Petitioners cited no authority for the proposition that an NTMP is subject to review through traditional mandamus under CCP section 1085, particularly when the petition is not directed to the agency with authority to approve or reject the project. DFW’s decision not to actively oppose Cal Fire’s decision was merely an exercise of agency discretion.

Third District publishes opinion in South County Citizens for Smart Growth v. County of Nevada

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On November 13, 2013, the Third District Court of Appeal published its decision in South County Citizens for Smart Growth v. County of Nevada (Case No. C067764). We discussed this opinion previously, when it was issued in October.  The opinion is now citable precedent.

The opinion provides very helpful guidance on when a new “potentially feasible” alternative, proposed after the draft EIR has been circulated for public review, triggers the need for recirculation.  This decision is important because it carefully explains the burden of proof and the elements of proof for a challenge brought under CEQA Guidelines section 15088.5, subdivision (a)(3).  In essence, the petitioner has the burden to demonstrate that no substantial evidence supported the agency’s decision not to recirculate the EIR.  To demonstrate an abuse of discretion, a petitioner must show that no substantial evidence supports any of the following express or implied “negative findings” by a CEQA lead agency: the alternative was not actually feasible; the alternative was not “considerably different from” alternatives already analyzed in the EIR; and the alternative would not “clearly lessen the significant environmental impacts” of the project as approved. (Whether the project proponent has declined to adopt the alternative – another relevant element under subdivision (a)(3) – should be a comparatively more straightforward factual issue.)

 

 

First District Court of Appeal Upholds EIR for Marin Desalination Plant

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On May 21, 2013, the First District Court of Appeal issued its decision in North Coast Rivers Alliance v. Marin Municipal Water District (2013) __ Cal.App.4th __ (Case No. A133821, A135626). The case involved a challenge to an EIR prepared for a desalination plant in Marin County.  The trial court had found that the analysis in the EIR was inadequate in several areas and that new information added to the EIR required recirculation.  The Court of Appeal reversed.

Background

In August 2003, the District proposed building a desalination plant in San Rafael. The District circulated a draft EIR for the project in November 2007 and released the final EIR in December 2008.  The final EIR included a new Alternative 8, which discussed water conservation and diverting water from the Russian River as an alternative to desalination. The District certified the final EIR in February 2009 and approved the project in August 2009.  In September 2011, the trial court ruled the EIR was inadequate in various respects, and adequate in others.  The District appealed.

Aesthetic Impacts

The court began with a discussion of the EIR’s analysis of aesthetic impacts caused by three proposed water tanks—one on Tiburon Ridge (“Ridgecrest A tank”) and two on San Quentin Ridge. The EIR concluded that the intervening topography and existing vegetation would prevent the Ridgecrest A tank from having a significant effect on scenic vistas. The EIR included a detailed discussion of potential aesthetic impacts of development of the Ridgecrest A tank, including the size and shape of the tank, satellite image analysis from several directions, visual simulation and impacts on vistas from homes, hiking trails and the highway.  The court held that the analysis constituted substantial evidence to support the conclusion that the tank’s impact would be less than significant.  The court noted that distinguishing between substantial and insubstantial adverse environmental impacts was a policy decision that must be made by the lead agency based, in part, on the setting.  The Alliance’s disagreement with the EIR’s conclusions did not mean those conclusions were deficient.

The EIR further concluded that, unlike the Ridgecrest A tank, the two San Quentin Ridge water tanks would have a significant aesthetic impact and proposed a mitigation measure that required the District to work with a landscape architect and the nearby cities of San Rafael and Larkspur to create a landscaping plan to “soften” the view of the water tank. The landscaping plan “would identify success metrics such as survival and growth rates for the plantings.” The Alliance argued, and the trial court had agreed, that the mitigation measure was improperly deferred and indefinite. The Court of Appeal disagreed.  It held that the mitigation measure was acceptable in this situation because the mitigation was known to be feasible and practical considerations prevented the District from establishing more specific standards early in the process.   The measure was sufficient because it committed the District to mitigation and set out a standard for the landscaping plan to follow:  to reduce and soften the visual intrusion of the tanks.  Although the specific details of how mitigation would be achieved under the plan were deferred until the construction phase, the EIR gave adequate assurance that visual impacts would be mitigated by the selection and location of appropriate plantings.

The Alliance’s third argument regarding the water tanks was that the EIR failed to address whether Ridgecrest A tank was inconsistent with the Countywide Plan. The court found the analysis was supported by substantial evidence. Under CEQA, only inconsistencies with plans require analysis and here, the EIR analyzed the one inconsistency (with the plan’s open space designation) and mitigated it. The court held that the trial court’s ruling, which faulted the District for not mentioning each of the specific elements or policies in the Countywide Plan that could be affected, was tantamount to requiring the EIR to provide a detailed discussion of the Project’s consistency with the plan. The court noted that CEQA includes no such requirement.

Seismology

Turning next the EIR’s seismology analysis, the court held that the EIR adequately analyzed liquefaction and health and safety impacts related to earthquakes.  The EIR’s seismology analysis provided detailed information on geologic conditions in the area, and considered the potential for seismic hazards including ground shaking and liquefaction.  The EIR also considered seven potential impacts associated with seismic risks.  Moreover, the EIR required project features and components to be built to withstand seismic activity and in compliance with applicable standards in the Building Code.  The court therefore, held that the EIR’s analysis of seismic impacts was adequate.

Hydrology and Water Quality Impacts 

The next issue addressed by the court was the hydrology and water quality impacts of the project. The trial court had ruled that the EIR did not contain an adequate discussion of the frequency of shock-chlorination treatments and that it lacked substantial evidence to support the District’s conclusion that untreated chlorinated water would not be discharged into the Bay. The Court of Appeal disagreed here as well and found that the analysis was adequate.  The EIR described the shock-chlorination process, its frequency, and wastewater disposal and evaluated whether wastewater produced by the project could impact water quality.  It further explained that testing conducted for the project supported the conclusion that shock-chlorinating chemicals would not cause water quality impacts in receiving waters.  The court held that this explanation was sufficient.  Because the District had determined that the project impact was insignificant, the EIR did not need to include a more detailed analysis.

Biological Resources 

Holding that the EIR’s analysis of biological impacts was adequate, the court rejected the Alliance’s arguments regarding entrainment, the environmental baseline, and pile driving.  Regarding entrainment, the trial court had concluded that the evaluation methodology used for the EIR’s analysis of entrainment was inadequate because it did not follow the recommendations of the California Department of Fish and Game and the National Oceanic and Atmospheric Administration Fisheries to conduct monthly source water sampling. The District explained in the EIR that, instead of monthly sampling, it chose peak abundance periods to conduct the sampling to overestimate the impacts. The District also responded to NOAA Fisheries and CDFG’s requests for additional data by explaining that further sampling was impractical.  The court held that the mere difference of opinion regarding sampling methods was not enough to invalidate the EIR.

The court held the baseline was appropriate because the District used project specific studies and decades of CDFG data and did not base the description solely on two months of water sampling, as the Alliance had alleged.   The EIR considered the various species of fish that may be affected by the project.  The court found that the description of the environmental setting was more than adequate.

The EIR had also found that there would be a potential significant impact on the environment from the reconstruction of a pier, which would require driving up to 175 concrete piles into the Bay. In order to mitigate this impact, the District adopted a mitigation measure that required the District to consult with NOAA Fisheries to find appropriate measures and to monitor the area during the pile-driving activities. Moreover, the District was required to comply with the Endangered Species Act section 7 consultation requirement. The trial court found that these mitigation measures were not sufficiently specific. Once again, the appellate court disagreed.  Finding that the mitigation was adequate, the court noted that a condition requiring compliance with environmental regulations is a common and reasonable mitigating measure.

Energy and Greenhouse Gas Emissions

The trial court had ruled that the EIR’s discussion of energy impacts was inadequate because it did not discuss a particular alternative­­—the use of green energy credits to mitigate energy impacts. The appellate court held, however, that because the EIR had found that the energy impacts would be insignificant, there was no requirement to discuss mitigation measures. The court also upheld the EIR’s greenhouse gas emissions analysis, which concluded that “the Project would not interfere with achieving a 15 percent reduction in GHG emissions,” satisfying Marin’s Cities for Climate Protection campaign. Additionally, the District voluntarily committed to purchase only renewable energy for the project. The Alliance argued that this was a vague and unenforceable policy.  But the court held that no mitigation was required for GHG emissions because there was no finding of significant impact. Even so, the court went on to find that the EIR contained substantial evidence showing the feasibility of adhering to this commitment.

Recirculation 

The final argument discussed by the court was whether the EIR needed to be recirculated when Alternative 8 was added to the final EIR. The trial court had found that Alternative 8 represented a significant new feasible solution to the project objectives, and therefore, recirculation was required. The appellate court, however, found that Alternative 8 was neither feasible nor significantly “new” enough to warrant recirculation. Alternative 8 was infeasible because it would not provide reliable potable water in a drought year – one of the project objectives.  That was because the alternative relied in part on increased imports from the Russian River, and there was substantial uncertainty regarding whether such increases would ever be allowed.  The alternative was not sufficiently new because there was an alternative in the draft EIR that discussed conservation as an alternative to the project. Given these facts, the District had substantial evidence to support its decision not to recirculate the EIR. Recirculation, the court emphasized, is an exception rather than the general rule.

Whit Manley of Remy Moose Manley, LLP, Chris Butcher of the Thomas Law Group, and District General Counsel Mary Casey represented MMWD.

 

Second District Orders Publication of Additional Sections of Opinion in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552

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On May 9, 2012, the Second District published parts 5-8 of its opinion in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552. These sections featured Petitioner’s claims of inadequate CEQA analysis for cumulative impacts, mitigation measures, alternatives, and recirculation. In each case, the court found in favor of Respondent Metro. Parts 3 and 4 of the opinion remain unpublished.

Cumulative impacts

Petitioner argued that the cumulative traffic analysis in Metro’s Environmental Impact Report (EIR) was inadequate because it failed to consider traffic impacts of related projects. Under CEQA, an EIR must discuss cumulative impacts of a project if the project’s incremental effects are cumulatively significant, that is, if the project’s effects are significant when considered together with related effects of past, current, and probable future projects. Metro’s EIR did not separately assess cumulative traffic impacts since the discussion of the traffic impacts of the project itself was already cumulative, in that it was based on a combination of existing and future conditions with and without the project.

The court held that in analyzing cumulative impacts, the agency’s discussion should note the severity of the impacts and likelihood of their occurrence, but need not provide the same level of detail as is provided for the effect of the main project. Thus, for example, Metro’s “summary of [project] projections” did not need to include analyses specific intersections that were not under environmental review when the draft EIR was circulated.

Mitigation

Petitioner also argued that Metro failed to provide adequate mitigation measures and improperly deferred mitigation for parking, noise, safety, and construction.  The court found that the EIR’s mitigation measures were not uncertain, speculative, or infeasible, and found no evidence that the measures would be ineffective, unfunded, or not implemented.

To address spillover parking, Metro adopted a measure to monitor parking activity and work with local jurisdictions to create permit parking programs where necessary. The EIR noted that Metro would reimburse local jurisdictions for these programs. The agency included alternative mitigation options such as metered parking where a permit program would not suffice. Petitioner argued that Metro could not assure formation or effectiveness of the permit program, and that such a program would be inadequate unless it retained residents’ current ability to park in their neighborhoods. The court disagreed. The court distinguished this case from Gray v. County of Madera (2008) 167 Cal.App.4th 1099, where a mitigation measure proposing to provide bottled water to compensate for a decline in water levels “defie[d] common sense” and was not substantially similar to residents’ pre-project conditions. In contrast, residents here would still have street parking, making their situation substantially similar to pre-project conditions. Additionally, the court refused to assume that simply because Metro could not require local jurisdictions to adopt the permit program, the mitigation measure was inadequate. The mitigation set for the a specific performance standard in the form of monitoring parking activity to determine if the light rail activity would increase parking utilization to 100 percent and, if so, requiring Metro to work with local jurisdictions regarding permit parking programs. Citing the second prong of Section 21081(a), which allows an agency to make a finding regarding a significant effect that changes lie within another agency’s jurisdiction, the court noted that the feact that Metro could not require a local jurisdiction to adopt a permit program, did not make the mitigation measure inadequate.

Metro’s EIR addressed removal of street parking with measures that included replacement parking and revised parking designs, such as diagonal parking. Petitioner contended a lack of evidence that such measures were feasible, given high land costs, or would actually be implemented. Unlike in Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, there was no acknowledgement by Metro of any “great uncertainty” as to whether mitigation would ultimately be funded or implemented. The court also noted Petitioner’s failure to challenge the EIR’s financial evaluation of Metro’s ability to build the project, which included allowance for mitigation measures. Since the mitigation explicitly stated that property would have to be acquired for replacement parking, and identified parcels for that purpose, the court found the mitigation measures were not uncertain or speculative and petitioner failed to meet its burden to identify any deficiency.

In anticipation of noise and vibration effects from the project, Metro’s mitigation measures included installation of sound walls alongside the rail line. The agency added that where those walls would not suffice, it would provide for sound insulation of residences to meet the applicable noise threshold. Petitioner again argued that the measure lacked evidence of feasibility, and did not include details on how such improvements would be provided. The Court rejected Petitioner’s arguments, finding that CEQA does not require a lead agency to detail how it will actually carry out the proposed mitigation measure, so long as it commits to satisfying specific performance criteria. Metro was also not required to restore residents to their original position and eliminate noise and vibration completely; the agency merely had to minimize impacts to less-than-significant levels.

Metro included mitigation measures to address safety impacts, such as coordination with affected cities and encouragement of emergency response updates, which had been successfully implemented on other Metro rail lines. Though Petitioner repeated its argument of lack of proof of effectiveness and actual implementation, the Court saw no reason to conclude that cities would fail to update their emergency response procedures as other municipalities had done in the past.

Finally, the EIR identified possible closure of lanes in major streets during project construction, and proposed providing alternative lanes on cross streets in cooperation with the cities, as well as limiting construction to nights and weekends. Petitioner argued that these measures improperly deferred mitigation and did not include performance standards. The Court countered that limiting street closure to weekend and evening hours was an acceptable performance standard. Moreover, Metro’s required compliance with traffic control plans formulated in cooperation with affected jurisdictions and in accordance with specified manuals offered additional performance standards.

Alternatives

Petitioner claimed that Metro’s failure to include a detailed examination of grade separation in a particular segment of the project resulted in an inadequate consideration of project alternatives. The court disagreed, finding the EIR evaluated a reasonable range of alternatives and no inadequacy in the EIR’s failure to include a detailed examination of the suggested alternative. Detailed analysis of the suggested alternative was neither required, since the proposed project on its own would decrease environmental impacts to a less-than-significant level, and the suggested alternative would not have offered substantial environmental advantages over the proposed project.

Recirculation

Finally, Petitioner argued that the Final EIR reflected major changes to the project made after circulation of the draft, requiring recirculation of the EIR for further public comment. Such changes included new information on grade separation at various intersections; signal phasing at one intersection; parking; and noise impacts. CEQA requires recirculation of an EIR when significant new information is added, such that the public is deprived of a meaningful opportunity to comment upon a substantial adverse environmental effect. The court found that the added information did not disclose a new substantial environmental impact or a substantial increase in severity of one of the project’s impacts. The court highlighted the fact that Petitioner did not identify how the new information would undermine Metro’s less-than-significant-impact conclusions. Thus, Metro’s decision not to recirculate was supported by substantial evidence.

 

The summary of the baseline portion of this decision can be read here:

http://rmmenvirolaw.flywheelsites.com/2012/04/second-district-upholds-agency-use-of-projected-future-condition-for-environmental-baseline/

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