Environmental

11/9/06)

(Nicholson, J.)

The Court of Appeal, Third District, reversed a determination that a county's environmental impact report (EIR) violated the California En-vironmental Quality Act (Pub. Resources Code, ' 21000 et. seq. (CEQA)) because although the county failed to include in the final EIR a slightly revised project description submitted by the applicant after the Final EIR (FEIR) was prepared, the changes did not have to go into the EIR before the county could legitimately determine that the changes were insignificant and, therefore, did not require recirculation of the EIR for public comment.

Over the course of seven years, Teichert Inc. sought permission to operate a sand, gravel and stone mine. In 1999, the defendant County of Placer released a draft EIR, publicly circulated it for 100 days, and received numerous comments. In response, the county revised 11 chapters of the draft EIR and six technical appendices, then recirculated the revisions for another 60 days, receiving additional comments thereon.

Portions of the land proposed to be mined were covered by California Land Conservation Act (Williamson Act) contracts that would prohibit mining. During 2000 and 2001, Teichert met with county staff and proposed to implement the plan as revised, except it would change the proposed order in which portions of the land would be mined, so that mining would not occur on lands affected by the Williamson Act contracts until the contracts expired. (Using the former phase designations, mining would begin in former phase 4, proceed northeast to former phase 5, go back to former phase 3, etc.) The county released the final EIR in January 2002. It mentioned the project could avoid conflicts with the Williamson Act by delaying mining on those lands affected by Williamson Act contracts but did not include a revised description of the project reflecting Teichert's altered mining order, nor did it analyze whether the change in phasing created additional impacts. Over plaintiff's objection, the Planning Commission certified the final EIR and unanimously approved the project in November 2002.

After unsuccessful appeal to the Board of Supervisors, plaintiff filed a petition for writ of mandate. The trial court concluded the final EIR violated CEQA by not describing the revised plan, stating, 'In their arguments, the parties treat the new phasing as raising a single question: Was the new phasing 'significant new information' as defined in Guideline 15088.5(a), requiring that it be added to the [revised plan] and that the [revised plan] be recirculated before certification of the FEIR. But it really raises two questions: 1) Was the new phasing 'new information' that was required to be added to the [revised plan]? and 2) If so, was it 'significant' new information, requiring that the [revised plan] be recirculated before certification of the [final] EIR?' The trial court did not answer the second of these questions because it found that under Guideline 15088.5, the question of whether to recirculate a published EIR does not arise until the new information is added to the EIR. The question of any substantial new impacts must be identified, address-ed, assessed, and resolved in the EIR itself, and only after this has occurred can the test in Guideline 15088.5(a) concerning significance be applied and the decision whether to recirculate be made. The County was therefore ordered to set aside its approval of the project and certification of the final EIR and to refrain from granting further approvals pending certification of a revised final EIR.

The Third District appellate court reversed. It noted that the statute and Guidelines explain what to do when significant information is added to an EIR, but they do not address whether an agency must add all information to an EIR before determining whether the information is significant, thus triggering a requirement to recirculate. Referring to the teachings of Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4^th 1134 (implying not all new information must be added to the EIR) and Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553 (holding county may explain reasons for rejecting alternative site proposals by means of administrative findings rather than another EIR when opponents' letter submitted well after public comment period expired), the appellate court found that all new information occurring after release of the final EIR but prior to certification and project adoption need not be included in the final EIR before the agency determines whether the new information is significant enough to trigger a requirement for revision and recirculation. The court concluded that '[c]ontrary to CEQA, the trial court in the case before us imposed a procedural requirement beyond that expressly stated in the statute or the Guidelines.'

The court went on to answer the trial court's second question and found no error in the Board's determination that the changes were insignificant and so did not trigger a need to recirculate the final EIR.

It also found the trial court erred when it determined no substantial evidence supported the County's finding there would be sufficient water to supply the project's needs. Teichert had several sources available to it, including a well on the property and precipitation collection. Teichert could also contract for a certain amount of water from the Nevada Irrigation District (NID), and had the opportunity to purchase excess water not consumed by other NID users with first rights to it. Although NID could guarantee neither the contracted-for nor excess supplies, the appellate court concluded: 'If an EIR were required to identify a guaranteed source of water, then no EIR would ever be sufficient. The EIR identifies existing, available, and sufficient sources of water for the project and in that respect is sufficient.'

COMMENT

There are several important points to discuss in Western Placer. First, from a practical perspective, there is the fact that proposed plans and development projects are often changed after the EIR has been finalized. These changes often are made in response to comments from or negotiations with neighbors or other stakeholders. If the court here had ruled that such project changes must always be included in the FEIR, that would restrict the ability of project proponents to make desirable changes in projects, and it would substantially complicate and lengthen the CEQA process.

Also, from a CEQA litigation perspective, this case demonstrates how a solid administrative record can answer a claimed procedural violation of CEQA. Petitioners often seek to characterize CEQA claims as procedural issues subject to the court's independent review, rather than factual questions with respect to which the court only evaluates whether the agency's conclusion is supported by substantial evidence. Here, as in many cases, the project opponents argued that the issue of whether the EIR must be recirculated was a procedural violation to be independently reviewed by the court. The court found, however, that the question before it was whether substantial evidence supports a lead agency's decision that the new information is not significant.

Finally, this decision upheld the analysis of water supply for the project, based on evidence cited in the EIR that several sources of water were available. This stands in contrast to a number of decisions which have rejected water supply analyses in EIRs. Most of those cases rejecting water supply analyses have arisen where a project relies on state water project contracts, and the courts have characterized such water contracts as 'paper water' rather than a real source of water. Finally, readers should note that the critical issue of water supply analyses is currently before the California Supreme Court in Vineyard Area Citizens for Responsible Growth v City of Rancho Cordova, Case No. S132972, which was argued on Nov. 7. A decision from the court in that case is expected in January. ” Michael H. Zischke, Morrison & Foerster LLP, San Francisco.

Changes After Final EIR Need Not Be Added When Recirculation Not Required

Western Placer Citizens for an Agr. and Rural Environment v. County of Placer

50 Cal.Rptr.3d 799 (Cal.App. 3 Dist.

11/9/06)

(Nicholson, J.)

The Court of Appeal, Third District, reversed a determination that a county's environmental impact report (EIR) violated the California En-vironmental Quality Act (Pub. Resources Code, ' 21000 et. seq. (CEQA)) because although the county failed to include in the final EIR a slightly revised project description submitted by the applicant after the Final EIR (FEIR) was prepared, the changes did not have to go into the EIR before the county could legitimately determine that the changes were insignificant and, therefore, did not require recirculation of the EIR for public comment.

Over the course of seven years, Teichert Inc. sought permission to operate a sand, gravel and stone mine. In 1999, the defendant County of Placer released a draft EIR, publicly circulated it for 100 days, and received numerous comments. In response, the county revised 11 chapters of the draft EIR and six technical appendices, then recirculated the revisions for another 60 days, receiving additional comments thereon.

Portions of the land proposed to be mined were covered by California Land Conservation Act (Williamson Act) contracts that would prohibit mining. During 2000 and 2001, Teichert met with county staff and proposed to implement the plan as revised, except it would change the proposed order in which portions of the land would be mined, so that mining would not occur on lands affected by the Williamson Act contracts until the contracts expired. (Using the former phase designations, mining would begin in former phase 4, proceed northeast to former phase 5, go back to former phase 3, etc.) The county released the final EIR in January 2002. It mentioned the project could avoid conflicts with the Williamson Act by delaying mining on those lands affected by Williamson Act contracts but did not include a revised description of the project reflecting Teichert's altered mining order, nor did it analyze whether the change in phasing created additional impacts. Over plaintiff's objection, the Planning Commission certified the final EIR and unanimously approved the project in November 2002.

After unsuccessful appeal to the Board of Supervisors, plaintiff filed a petition for writ of mandate. The trial court concluded the final EIR violated CEQA by not describing the revised plan, stating, 'In their arguments, the parties treat the new phasing as raising a single question: Was the new phasing 'significant new information' as defined in Guideline 15088.5(a), requiring that it be added to the [revised plan] and that the [revised plan] be recirculated before certification of the FEIR. But it really raises two questions: 1) Was the new phasing 'new information' that was required to be added to the [revised plan]? and 2) If so, was it 'significant' new information, requiring that the [revised plan] be recirculated before certification of the [final] EIR?' The trial court did not answer the second of these questions because it found that under Guideline 15088.5, the question of whether to recirculate a published EIR does not arise until the new information is added to the EIR. The question of any substantial new impacts must be identified, address-ed, assessed, and resolved in the EIR itself, and only after this has occurred can the test in Guideline 15088.5(a) concerning significance be applied and the decision whether to recirculate be made. The County was therefore ordered to set aside its approval of the project and certification of the final EIR and to refrain from granting further approvals pending certification of a revised final EIR.

The Third District appellate court reversed. It noted that the statute and Guidelines explain what to do when significant information is added to an EIR, but they do not address whether an agency must add all information to an EIR before determining whether the information is significant, thus triggering a requirement to recirculate. Referring to the teachings of Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4^th 1134 (implying not all new information must be added to the EIR) and Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553 (holding county may explain reasons for rejecting alternative site proposals by means of administrative findings rather than another EIR when opponents' letter submitted well after public comment period expired), the appellate court found that all new information occurring after release of the final EIR but prior to certification and project adoption need not be included in the final EIR before the agency determines whether the new information is significant enough to trigger a requirement for revision and recirculation. The court concluded that '[c]ontrary to CEQA, the trial court in the case before us imposed a procedural requirement beyond that expressly stated in the statute or the Guidelines.'

The court went on to answer the trial court's second question and found no error in the Board's determination that the changes were insignificant and so did not trigger a need to recirculate the final EIR.

It also found the trial court erred when it determined no substantial evidence supported the County's finding there would be sufficient water to supply the project's needs. Teichert had several sources available to it, including a well on the property and precipitation collection. Teichert could also contract for a certain amount of water from the Nevada Irrigation District (NID), and had the opportunity to purchase excess water not consumed by other NID users with first rights to it. Although NID could guarantee neither the contracted-for nor excess supplies, the appellate court concluded: 'If an EIR were required to identify a guaranteed source of water, then no EIR would ever be sufficient. The EIR identifies existing, available, and sufficient sources of water for the project and in that respect is sufficient.'

COMMENT

There are several important points to discuss in Western Placer. First, from a practical perspective, there is the fact that proposed plans and development projects are often changed after the EIR has been finalized. These changes often are made in response to comments from or negotiations with neighbors or other stakeholders. If the court here had ruled that such project changes must always be included in the FEIR, that would restrict the ability of project proponents to make desirable changes in projects, and it would substantially complicate and lengthen the CEQA process.

Also, from a CEQA litigation perspective, this case demonstrates how a solid administrative record can answer a claimed procedural violation of CEQA. Petitioners often seek to characterize CEQA claims as procedural issues subject to the court's independent review, rather than factual questions with respect to which the court only evaluates whether the agency's conclusion is supported by substantial evidence. Here, as in many cases, the project opponents argued that the issue of whether the EIR must be recirculated was a procedural violation to be independently reviewed by the court. The court found, however, that the question before it was whether substantial evidence supports a lead agency's decision that the new information is not significant.

Finally, this decision upheld the analysis of water supply for the project, based on evidence cited in the EIR that several sources of water were available. This stands in contrast to a number of decisions which have rejected water supply analyses in EIRs. Most of those cases rejecting water supply analyses have arisen where a project relies on state water project contracts, and the courts have characterized such water contracts as 'paper water' rather than a real source of water. Finally, readers should note that the critical issue of water supply analyses is currently before the California Supreme Court in Vineyard Area Citizens for Responsible Growth v City of Rancho Cordova, Case No. S132972, which was argued on Nov. 7. A decision from the court in that case is expected in January. ” Michael H. Zischke, Morrison & Foerster LLP, San Francisco.