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v. COURT OF APPEAL, SECOND DISTRICT, DIVISION
EIGHT, B175580 NOTE: CERTIFIED FOR PARTIAL PUBLICATION* APPEAL from
a judgment of the Superior Court for the COUNSEL Law Offices
of Babak Naficy and Babak Naficy for Plaintiffs and Appellants Burke,
Williams & Sorensen and Stephen R. Onstot for Defendant and Respondent City
of Morrison
& Foerster and Anne E. Mudge for Real Party in Interest Gate King
Properties. Rossmann
and Moore, Antonio Rossmann, Roger B. Moore and David R. Owen for Amicus Curiae Planning and Conservation
League. __________________________________ BOLAND, J. SUMMARY This appeal
arises under the California Environmental Quality Act, Public Resources Code
section 21000 et seq. (CEQA).[i] The California Oak Foundation and the Santa
Clarita Organization for Planning the Environment (collectively, SCOPE)
petitioned the trial court for a writ of mandate. The petition requested the trial court to
order the City of The trial
court denied SCOPE’s petition, and SCOPE appeals, arguing that: ·
Insufficient
evidence exists to support the EIR’s conclusion that sufficient water supplies
exist for the project. ·
The
City violated its Ridgeline Preservation and Hillside Development Ordinance by
granting the project an exemption from the ordinance as an “innovative
development” alternative. ·
The EIR was defective because it did not
require adequate surveys of the site to determine the presence or absence of
several rare plant species prior to certification of the project, and otherwise
failed to require adequate mitigation measures with respect to these plant
species. We conclude
the trial court erred in approving the EIR because the section of the EIR
discussing water supplies is inadequate.
We find no other defects in the EIR, and further conclude that the City
did not violate its ridgeline preservation ordinance. FACTUAL Gate King
Properties proposed to subdivide the 584-acre project site. Gate King’s original proposal involved the
development of 170.1 acres, accommodating about 4.45 million square feet of
industrial/commercial development, with an additional 64.3 acres consisting of
rights-of-way (including public streets) and water wells. The remaining 349.6 acres were to include a
combination of slopes, trails and areas within the industrial/commercial lots
that would remain undeveloped due to the presence of large oak groves, as well
as 220.6 acres of dedicated open space.[iii] The project called for extensive grading,
affecting the primary and secondary ridgelines traversing the site, with total
earth movement of 7.24 million cubic yards.
The project as proposed also called for the removal of at least 1,709
oak trees, including two heritage oak trees.
After
circulation of a draft EIR for public review, the project was modified. As ultimately approved by the City, the site
size was reduced to 508.2 acres (75.8 acres having been donated to the
City). The buildable area of the project
was reduced to 161 acres, accommodating about 4.2 million square feet of
industrial/commercial development, and 207.6 acres of dedicated open
space. Grading was also reduced, with
earth movement totaling 5.7 million cubic yards, and the number of oak trees to
be removed was reduced by 465 trees. The City
certified the final EIR on DISCUSSION We first
describe the settled principles guiding our review in CEQA cases, and then
address each of the challenges SCOPE interposes to the adequacy of the final
EIR and to the City’s application of the ordinance governing ridgeline
preservation and hillside development. I. CEQA Principles and the Standard of
Review. A
comprehensive discussion of CEQA and the purposes and role of an EIR appears in
Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal.3d 376, 390-393 (Laurel Heights). The Legislature intended CEQA to be
interpreted to afford the fullest possible protection to the environment within
the reasonable scope of the statutory language.
(Id. at p. 390.) CEQA describes the EIR as an informational
document. Its purpose is to provide
public agencies, and the public, with detailed information about the effect a
proposed project is likely to have on the environment; to list ways in which
the significant effects of a project might be minimized; and to indicate alternatives
to a project. (§ 21061.) Before approving a project, the lead agency –
here, the City – must find either that the project’s significant environmental
effects identified in the EIR have been avoided or mitigated, or that
unmitigated effects are outweighed by the project’s benefits. (Laurel
Heights, supra, 47 Cal.3d at p. 391, citing §§ 21002, 21002.1 and
21081.) The EIR has been described as
“the heart of CEQA,” an “environmental alarm bell,” and a “document of
accountability.” (Laurel Heights, supra, 47 Cal.3d at p. 392, internal quotations and
citations omitted.) “If CEQA is
scrupulously followed, the public will know the basis on which its responsible
officials either approve or reject environmentally significant action, and the
public, being duly informed, can respond accordingly to action with which it
disagrees.” (Ibid.) In an
action to set aside an agency’s decision under CEQA, the trial court’s inquiry
extends only to whether a prejudicial abuse of discretion has occurred. Abuse of discretion occurs if the agency has
not proceeded in a manner required by law, or if its decision is not supported
by substantial evidence. The court
passes only upon the EIR’s sufficiency as an informative document, not upon the
correctness of its environmental conclusions.
(Laurel Heights, supra, 47
Cal.3d at p. 392.) CEQA Guidelines,
which implement the provisions of CEQA, define “substantial evidence” as
“enough relevant information and reasonable inferences from this information
that a fair argument can be made to support a conclusion, even though other
conclusions might also be reached.”
(Cal. Code Regs., tit. 14, § 15384, subd. (a).) Laurel
Heights cautions that an agency’s approval of an EIR may not be set aside
on the ground that an opposite conclusion would have been equally or more
reasonable. (Laurel Heights, supra, 47 Cal.3d at p. 393.) CEQA’s purpose is to compel government to
make decisions with environmental consequences in mind, but CEQA “‘does not,
indeed cannot, guarantee that these decisions will always be those which favor
environmental considerations.’” (Ibid., quoting Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263,
283.) This
court’s inquiry is the same as that of the trial court. The appellate court reviews the administrative
record independently to determine whether the City complied with CEQA. (Planning
& Conservation League v. Department of Water Resources (2000) 83
Cal.App.4th 892, 912 ( II. The Water Supply Issues. We agree
with SCOPE’s contention that the EIR must be set aside because substantial
evidence does not support the conclusion that sufficient water supplies exist
for the project. SCOPE’s challenge to
the EIR, in which amicus curiae
Planning and Conservation League joins, has two principal components: certain water entitlements relied upon by the
City were “paper” water rather than actual deliverable water; and the EIR did
not in any way attempt to quantify the impact of perchlorate contamination on
the availability of groundwater from the Saugus Formation. Although we are not persuaded the EIR’s
treatment of perchlorate contamination was insufficient, the EIR did not
adequately inform the public about other uncertainties in the water supply. To
understand the matters at issue, we must first describe the sources of water
for the Santa Clarita Valley, as well as several appellate court decisions
relevant to the water supply issues. We
then turn to the contents of the EIR, the comments elicited by the draft EIR,
the City’s responses to those comments, and finally to SCOPE’s specific
contentions. A. Water
sources and legal background. The Santa
Clarita Valley historically obtained its water supply from an underground water
basin or aquifer that is divided into a shallow level (the Alluvial Aquifer)
and a deeper layer of groundwater called the Saugus Formation. Since 1980, however, the water supply has
been supplemented with imported water to meet community water requirements. (Friends
of the The State
Water Project (the Project) was authorized in the 1950s. The Project was designed to become a complex
system of reservoirs, dams, power plants and other facilities for the storage
and delivery of 4.23 million acre-feet of water annually.[iv]
The Department of Water Resources (the
Department) operates the facilities and manages the Project. When the Project began, the Department
entered into individual long-term contracts with water suppliers throughout the
state. These contractors, including
Castaic, received entitlements to an annual amount of water, in return for
which they repay a proportionate share of the financing and maintenance of the
Project facilities. ( The
entitlements Castaic and other contractors received under their contracts with
the Department were predicated on the state’s obligation to build out the
Project so as to deliver 4.23 million acre-feet per year (AFY) to the
contractors. However, the Project has
never been completed, and the state cannot deliver 4.23 million AFY. The court in By the late
1980s and early 1990s, water supplies were severely diminished as a result of a
seven-year drought and other limitations, generating disputes among
agricultural and urban water contractors and the Department about the distribution
of the limited amount of water. ( Under the
Monterey Agreement, Castaic purchased an entitlement to 41,000 AFY of Project
water from the Kern County Water Agency and its member district (hereafter,
“Castaic purchase” or “41,000 AFY entitlement”). However: ·
Because
implementation of the Monterey Agreement would have potential adverse
environmental impacts, an EIR was required.
In September 2000, the court in ·
In
January 2002, the EIR for Castaic’s purchase of entitlement to 41,000 AFY of
Project water under the Monterey Agreement was also decertified. The EIR was decertified because it was
expressly “tiered” upon – that is, it incorporated and relied upon – the EIR
for the Monterey Agreement, which had been decertified in the ·
Although
the EIR for the Castaic purchase was decertified, the court did not enjoin
implementation of the agreement for Castaic’s purchase of the 41,000 AFY
entitlement. As a result, the 41,000 AFY
entitlement is available to Castaic during the pendency of the litigation over
the Castaic purchase EIR. ·
In
February 2003, several months before the City certified the EIR for this
project, the B. The
EIR information on water supplies. The draft
EIR for the Gate-King project was circulated in January 2002 and included, as
did the final EIR, the following observations about water supplies: ·
Castaic’s
“current total water entitlement” from the State Water Project is 95,200
acre-feet of water per year. This 95,200
AFY entitlement includes the 41,000 AFY entitlement that Castaic purchased
under the Monterey Agreement, as described above. ·
Castaic’s
State Water Project entitlement “can fluctuate from year to year based on a
number of factors, including hydrologic conditions, the status of State Water
Project facilities, construction, environmental requirements, and evolving
policies for the Bay-Delta.”[viii]
·
The
EIR relied upon Castaic’s “Urban Water Management Plan 2000” (UWMP 2000). The UWMP 2000 is a long-range planning tool
prepared for the Castaic service area.
Every urban water supplier is required by statute to prepare and adopt
such a plan as a part of its responsibility for ensuring adequate water supplies. The UWMP’s projected water usage for the
Castaic service area accounted for build-out of the City of ·
The
Castaic service area’s total entitlement, including groundwater wells and
imported water, is approximately 103,200 to 180,900 AFY during an average or
normal rainfall year, and approximately 201,100 to 279,700 AFY during a dry
year.[x] ·
The
UWMP “anticipates a projected normal/average year water usage of 75,100
acre-feet of water per year in the area.
Therefore, the area would maintain a water supply surplus of 28,100
AFY. As demand for water increases in
the future, additional water supplies are expected to be available from
[Castaic].” The 28,100 AFY surplus is
derived by subtracting projected usage of 75,100 AFY from the low-end figure
for total entitlement (imported water and groundwater) of 103,200 in a normal
rainfall year.[xi] ·
The
Gate-King project would generate demand for an estimated 386 AFY, which
represents 1.4% of the area’s current excess supply of 28,100 AFY. The EIR states that according to the Newhall
District, “adequate water supply is available to serve the water demand
generated by the proposed project,” and “impacts to water supplies are not
considered significant.”[xii] While the EIR concludes that the impact of
the project on water supply “would be less than significant without
mitigation,” it also states that “because of ongoing concerns about regional
water supplies, impacts to water supply are considered Class II, significant
but mitigable.” The EIR recommended
various water conservation features to minimize the project’s impact on
regional water supplies.[xiii] C. Comments
on the draft EIR. SCOPE’s
comments on the draft EIR asserted that the draft failed to adequately evaluate
water supply. SCOPE asserted that: ·
The
City did not review or comply with the findings in ·
The
Saugus Formation cannot be relied upon as a water supply resource until it is
remediated. SCOPE attached copies of
expert testimony from other cases and various reports relating to perchlorate
contamination and concern over its spread.
SCOPE also attached a Castaic memo on strategy to address the
contamination. SCOPE observed that
actual remediation would take “several additional years for facilities design
and land acquisition before clean water is actually produced. The Santa Clarita water agencies are
currently only pumping approximately 3000 AF per year from this source although
the water agencies have reported that they can provide 40,000 AF in [their]
Urban Water Management Plan. Again, it
is an abuse of [discretion] to rely on information which the [Planning]
Commission knows to be false.” ·
It
was imperative for the City to “do its own analysis of the water supply for the
Santa Clarita Valley to ensure that this project approval will stand,” because
the UWMP 2000 for the Santa Clarita Valley was then being litigated “due to its
over-statement of water supply and understatement of demand.” (See footnote 9, ante.) SCOPE asserted that
reliance on the UWMP 2000 for sufficiency of water supply would result in the
project approval being overturned if the UWMP litigation were successful. D. The
City’s response to SCOPE’s comments. The City’s
response to SCOPE’s comments in the final EIR was as follows: ·
As
required by statute, in January 2002 the City requested that the Newhall
District provide a water supply assessment for the proposed project. On ·
The
Newhall District assessment “indicates that water supplies available to the
District could potentially be limited by three ongoing legal challenges”
described in the assessment. The
assessment in turn stated that the Newhall District’s sources of supply were
“subject to possible limitation as a result of the following pending
litigation . . . .”
The assessment then stated that: ·
The
District relies on imported water deliveries from Castaic, which has contract
entitlements of State Water Project water totaling 95,200 AFY. Projections of water supply availability
under those entitlements “are estimated to be the delivery of 50% of the
entitlement 80% of the time.” ·
A
portion of Castaic’s State Water Project entitlements are derived from
contracts entered into under the authority of the Monterey Agreement, and: “[The Monterey Agreement] has been
challenged by the Planning and Conservation League and as a result of that
litigation further environmental assessment is going to be undertaken by the
Department of Water Resources. The
Friends of the As for SCOPE’s comments on perchlorate contamination, the
City acknowledged that: “perchlorate has been a concern
associated with groundwater quality since it was detected in four wells in the
eastern part of the Saugus Formation in 1997.
Operation of the four wells has been suspended and purveyors are
continuing to test for perchlorate in all active Alluvial and E. Appendix K. No changes were made in the draft
EIR’s analysis of water supplies, although SCOPE’s comments and the City’s
responses are a part of the final EIR.
The final EIR was circulated in October 2002, and was republished in June
2003, contemporaneously with the City’s certification of the EIR. When it was republished, it included several
additional appendices, including Appendix K, entitled “Additional Water Supply
Information.” Appendix K is a memorandum
dated ·
Referring
to Castaic’s State Water Project entitlements, Appendix K states: “In addition, the availability of the
41,000 AFY obtained from the Kern County Water
Agency . . . is not absolutely established because the EIR
prepared for its transfer was recently invalidated and decertified” by Friends I, supra, 95 Cal.App.4th 1373. ·
“In
recognition of the fact that the entire 95,200 AFY entitlement may not be
available in all years, the water supply projections contained in the 2000
UWMP . . . are based on a reduced delivery.” The estimate assumes that 59.7% of the total
entitlement (or 56,000 AFY) would be available in average-normal years, and
39.8% of the entitlement (or 37,900 AFY) would be available in dry years. ·
“[P]erchlorate
has been a concern with respect to groundwater quality since it was detected in
four wells in the eastern part of the Saugus
Formation . . . in 1997.
Operation of the four wells has been suspended and purveyors are
continuing to test for perchlorate in all active Alluvial and ·
“Several
treatment technologies for the removal of perchlorate from water are currently
available. The DHS has issued a domestic
water supply permit to deliver treated drinking water from contaminated wells
to customers in the ·
In
2001, total water demand in the Santa Clarita Valley was 76,769 AF, essentially
unchanged from demand in 2000. The year
2001 demand was met by a combination of 41,413 AF of local groundwater and
35,356 AF of State Water Project water.
The UMWP 2000 projects water demand in the average/normal year to
increase to about 102,500 AF by 2020. ·
The
386 AFY water demand associated with the Gate-King project represents about
0.5% of the total current demand in the Santa Clarita Valley. ·
The
primary uncertainty with respect to local water supply is the availability of
Castaic’s State Water Project entitlement.
If the 41,000 AFY entitlement purchased from ·
“However,
even without the additional 41,000 AFY, [Castaic] retains an entitlement of
54,200. Because this amount exceeds 2001
[Castaic] demand for [State Water Project] water by 18,844 AF [actual Project
water delivered was 35,356 AF], the 386 AFY increase in water demand associated
with the proposed project would be well within the current entitlement.” ·
“Finally,
the UWMP identifies several additional sources of water (water recycling,
purchase of additional [State Water Project] supplies, desalination) that are
expected to meet water demand projections over time. Since the proposed industrial park project’s
water demand is within that projected in the 2000 UWMP, would not exceed the
current [State Water Project] entitlement, and would not significantly affect
groundwater resources, water supplies appear to be adequate to serve the
proposed development.” F. The
trial court’s analysis. The trial
court rejected SCOPE’s contention that the EIR improperly relied on Castaic’s
entitlement to the 41,000 AFY and failed to discuss the pending
litigation. The court found the EIR’s
conclusion – that sufficient actual water supply was available to serve the
project and therefore water supply impacts were not significant – was based on
substantial evidence, namely: ·
Newhall
District’s ·
Even
without the 41,000 AFY that is subject to litigation, Castaic “retains reliable
entitlement to 54,200 AFY, which exceeds [Castaic’s] demand for [State Water
Project] water by 18,844 AFY.” [As noted
above, the area’s 2001 demand for water (76,769 AF) was met with local
groundwater plus 35,356 of Project water (65% of its 54,200 entitlement, or 37%
of its 95,200 entitlement).] Thus, the
demand created by the project (386 AFY) “will be well within the current
entitlement even without the 41,000 AFY.”
·
The trial court also observed that perchlorate contamination
was “discussed extensively in the EIR” (citing the evidence submitted by SCOPE,
plus the City’s one-paragraph response), and that Newhall District’s water
supply assessment acknowledged the concern about perchlorate, but nonetheless
did not conclude that supplies would be insufficient. G. Analysis
and conclusion: The EIR did not
adequately inform the public
about uncertainties in the water supply. SCOPE
asserts that the trial court’s finding that the EIR’s water supply analysis was
adequate is based on several legal errors.
We agree in part, and treat SCOPE’s claims in turn. 1. The
EIR’s treatment of Castaic’s 41,000 AFY entitlement
was inadequate. SCOPE’s
primary challenge to the adequacy of the EIR’s analysis of the water supply is
that the City, without analysis or discussion, relied on Castaic’s 41,000 AFY
entitlement to State Water Project water – 43% of its total Project entitlement
– despite the fact that the EIR for Castaic’s purchase of the entitlement was
decertified in Friends I, supra, 95
Cal.App.4th 1373. Gate King, on the
other hand, contends the EIR’s discussion of water supply was legally adequate,
including its discussion of the uncertainties related to the 41,000 AFY
transfer. According to Gate King, the
EIR “directly addresses” this issue, acknowledges the uncertainty, “but
concludes that it is likely that the 41,000 AFY will continue to be
available.” We are
compelled to agree with SCOPE. Contrary
to Gate King’s assertion, the EIR does not “directly address” the issue, which
arose when Friends I was decided in
January 2002, contemporaneously with circulation of the draft EIR. The final EIR contains an inadequate
discussion – in fact, no discussion at all – of the uncertainty surrounding the
transfer of the 41,000 AFY entitlement.
The text of the EIR does not mention the decertification of the EIR for
the Castaic purchase, and does not discuss the fact that entitlements are not
really entitlements, but only “paper” water.
( We cannot
agree that the City’s response “directly addresses” the uncertainty created by
the decertification of the EIR for the Castaic purchase. It also does not conclude, as Gate King contends,
that “it is likely that the 41,000 AFY will continue to be available.” The City’s response to SCOPE’s comments is
completely devoid of any direct discussion of the 41,000 AFY, as is the Newhall
District’s water supply assessment on which the City relies. The adequacy of supply absent the 41,000 AFY
entitlement is not discussed, and the means of meeting the demand for water in
the absence of the 41,000 AFY entitlement is not analyzed. We can only assume the City “conclude[d] that
it is likely that the 41,000 AFY will continue to be available,” because the
point is not discussed. Such an
assumption, however, is impermissible, as it is antithetical to the purpose of
an EIR, which is to reveal to the public “the basis on which its responsible
officials either approve or reject environmentally significant action,” so that
the public, “being duly informed, can respond accordingly to action with which
it disagrees.” (Laurel Heights, supra, 47 Cal.3d at p. 392.) As another court observed, “[t]o be adequate,
the EIR must include sufficient detail to enable those who did not participate
in its preparation to understand and ‘meaningfully’ consider the issues raised
by the proposed project.” (SCOPE, supra, 106 Cal.App.4th at p. 721;
see also Concerned Citizens of Costa
Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935 (Concerned Citizens) [“[t]o facilitate
CEQA’s informational role, the EIR must contain facts and analysis, not just
the agency’s bare conclusions or opinions”].)
This standard is not met in the absence of a forthright discussion of a
significant factor that could affect water supplies. The EIR is devoid of any such
discussion. Gate King
points out that while the EIR for Castaic’s purchase of the 41,000 AFY
entitlement was invalidated, the Friends
I court did not set aside the contract or otherwise affect Castaic’s actual
use of the disputed 41,000 AFY entitlement, pending preparation of a new
EIR. The reality of the water supply
situation in the Santa Clarita Valley, Gate King says, is that the 41,000 AFY
has been transferred, is available for use, and is being used, despite the
decertification of the EIR. Gate King is
correct on the facts, but is mistaken as to their import. While the “reality” is that water under the entitlement
is being used,[xv] the
question is whether the entitlement should be used for purposes of planning
future development, since its prospective availability is legally
uncertain. Although this decision must
be made by the City, the EIR is intended to serve as an informative document to
make government action transparent.
Transparency is impossible without a clear and complete explanation of
the circumstances surrounding the reliability of the water supply.[xvi] This case
bears a number of similarities to SCOPE,
supra, 106 Cal.App.4th 715, which found that the water services portion of
the EIR was inadequate: “Here the draft EIR gives no hint
that [State Water Project] entitlements cannot be taken at face value. It is only in response to comments and
submissions by project opponents such as SCOPE that the EIR obliquely
acknowledges that the entitlements may not be all they seem. Instead of undertaking a serious and detailed
analysis of [State Water Project] supplies, the EIR does little more than dismiss
project opponents’ concerns about water supply.
Water is too important to receive such cursory treatment.” (SCOPE,
supra, 106 Cal.App.4th at p. 723.) The circumstances in this case are strikingly similar to
those in SCOPE, so far as the 41,000
AFY entitlement is concerned. The draft
EIR gave “no hint” that State Water Project entitlements cannot be taken at
face value. When SCOPE pointed this out
in its comments, the City did “little more than dismiss project opponents’
concerns about water supply.” (Ibid.)
The City merely (1) referred to the Newhall District’s water supply
assessment, which said Castaic’s entitlements totaled 95,200 AFY, with
availability of water under the entitlements projected at 50% of the entitlement
80% of the time; and (2) stated that water supplies “could potentially be
limited” by three ongoing legal challenges, which were mentioned but not
discussed. Without a discussion of the
nature of the limitations, in particular the 41,000 AFY, it is impossible to
know the contours of the potential limitation on the water supplies. We
recognize that Appendix K to the final EIR acknowledges that “the availability
of the 41,000 AFY . . . is not absolutely established”
because the EIR prepared for its transfer was invalidated. Further, Appendix K states that the “primary
uncertainty” with respect to the local water supply is the availability of the
41,000 AFY entitlement. Indeed, Appendix
K states that if the 41,000 AFY is not available, “water supplies may be
insufficient to meet the projected increase in demand through 2020.” However, Appendix K is too little and too
late, for multiple reasons. As stated
in SCOPE, information “scattered here
and there in EIR appendices,” or a report “buried in an appendix,” is not a
substitute for “a good faith reasoned analysis in response.” (SCOPE,
supra, 106 Cal.App.4th at pp. 722, 723.)
We are troubled by the fact that the only discussion in the EIR of the
uncertainty created by the decertification of the EIR for the Castaic purchase
appears in an appendix added to the final EIR shortly before
certification. The seriousness of water
supply issues, as reflected in SCOPE’s comments, merits discussion in the text
of the EIR, where it is most readily accessible. At a minimum, the text of the EIR should
refer to the appendices that contain the relevant discussion. Nonetheless, if Appendix K’s discussion were
adequate, we might overlook the fact it is relegated to an appendix that is not
mentioned in the text of the EIR. But
the discussion is not adequate. Appendix K
does little more than acknowledge that, without the 41,000 AFY entitlement,
water supplies may be insufficient.
However, as stated in SCOPE,
“[t]he final EIR’s acknowledgement that there ‘could be a deficit of supply’
does not cure the defect”[xvii]
(SCOPE, supra, 106 Cal.App.4th at p.
723), as no discussion exists from which to judge the likelihood of the deficit
or alternate sources of supply to meet such a deficit. The EIR “must contain facts and analysis, not
just the agency’s bare conclusions or opinions.” (Concerned
Citizens, supra, 42 Cal.3d at p. 935.)
Moreover, the very next sentence of Appendix K contains the misleading
statement that, even without the 41,000 AFY, Castaic retains an entitlement
(54,200) that exceeds Castaic’s 2001 demand for State Project Water by 18,844
AF, so that the project’s demand of 386 AFY “would be well within the current
entitlement.” Appendix K fails to add,
however, that the actual availability of the entitlement is estimated at “50%
of the entitlement 80% of the time,” a condition that would have resulted
in a deficit, not a surplus, of supply in 2001 in the absence of the 41,000 AFY
entitlement. (See discussion in part
II.G.2., post.) In short,
neither the text of the EIR nor its appendices contain a proper analysis of the
impact of the availability vel non of
the 41,000 AFY. As in SCOPE, “[w]ithout such information, the
general public and its responsible officials cannot make an informed decision
on whether to approve the project.” (SCOPE, supra, 106 Cal.App.4th at p.
724.) Consequently, the final EIR fails
in its function as an informational document on the water issues. Gate King
insists there was substantial evidence of adequate water supplies, pointing to
the Newhall District water supply assessment, and to the fact that the UWMP
2000 projections were based on reduced entitlements, namely 59.7% in
average/normal years and 39.8% in dry years.
This evidence, however, does not address the point in dispute – the use
of the disputed 41,000 AFY as part of the base upon which to calculate reduced
entitlements. Gate King also points to
other documents in the administrative record:
the UWMP 2000, the Newhall District’s 2001 Masterplan, and the 2001 and
2002 Santa Clarita Valley Water Reports.
Of these documents, only the last two documents report the Friends I decision invalidating the EIR
for the 41,000 AFY entitlement.
Moreover, while these documents are contained in the administrative
record, they are not found in the EIR.
(See SCOPE, supra, 106
Cal.App.4th at p. 723 [“[i]t is not enough for the EIR simply to contain
information submitted by the public and experts. Problems raised by the public and responsible
experts require a good faith reasoned analysis in response”; “[t]he requirement
of a detailed analysis in response ensures that stubborn problems or serious
criticism are not ‘swept under the rug’”].) Finally, at
oral argument Gate King observed that, even if the 41,000 AFY entitlement were
discontinued, contingency plans exist for alternative sources of water, such as
short-term water exchanges, desalination, and additional groundwater
pumping. The EIR, however, does not
analyze or quantify these alternative sources in connection with the
uncertainty of the 41,000 AFY entitlement.
In the text of the EIR, these sources are mentioned, in a description of
Castaic’s capital improvement program, as funded activities “to achieve water
supply reliability . . . .” (see footnote 8, ante).
Similarly, Appendix K observes that, to the extent projected water
supplies may be insufficient to meet demand, Castaic’s long-term capital
improvement program includes funding to provide for such activities over
time. Appendix K’s discussion of the
adequacy of the water supply without the 41,000 AFY entitlement, however,
merely observes that “the UWMP identifies several additional sources of water
(water recycling, purchase of additional [State Water Project] supplies,
desalination) that are expected to meet water demand projections over time.” These generalities, without details or
estimates concerning the amount of water the programs might make available, are
not a proper substitute for a discussion which allows “those who did not
participate in [the EIR’s] preparation to understand and ‘meaningfully’
consider” the issue at hand. (SCOPE, supra, 106 Cal.App.4th at p.
721.) In sum, no
analysis was provided of the adequacy of the water supply in light of the
uncertainty flowing from the decertification of the EIR for the Castaic
purchase. This absence of
discussion and analysis undermines the informational function of the EIR for
the Gate-King project and requires its decertification. 2. The record
does not otherwise demonstrate the adequacy of water supplies without the
41,000 AFY entitlement. In a
related argument Gate King contends, and the trial court concluded, that even
without the 41,000 AFY entitlement, the record showed sufficient water
supplies. Gate King reasons that Castaic
retains an entitlement to 54,200 AFY; Castaic used 35,356 acre-feet of State
Water Project water in 2001 to meet the total water demand of 76,769 acre-feet;
and Appendix K states that “[b]ecause this amount [54,200] exceeds 2001
[Castaic] demand for [State Water Project] water by 18,844 AF, the 386 AFY
increase in water demand associated with the proposed project would be well
within the current entitlement.” This
argument is flawed because it relies on paper water, and assumes that the
entitlement to 54,200 AFY is identical to actual delivery of 54,200 AFY. The EIR – in the City’s response to SCOPE’s
comments – states that water supply availability under Castaic’s entitlements
is estimated to be “delivery of 50% of the entitlement 80% of the time.” Accordingly, Castaic cannot count on 54,200
AFY of State Project Water. Without its
41,000 AFY entitlement, Castaic can reliably count on only fifty percent of
54,200, or 27,100 AFY. Since 2001 demand
for State Water Project water was 35,356, there is plainly no surplus upon
which to rely, absent the 41,000 AFY transfer. Gate King
argues that SCOPE’s “mind-numbing calculations” of paper water versus actual
water ignore “the most reliable indicator” of the volume of water the State
Water Project will deliver, namely, the amount delivered in the past. In 2002, this figure was 41,768 acre-feet,
“not the theoretical 27,100 AF posited by” SCOPE.[xviii] This argument assumes the very point at
issue, since Castaic’s 2002 water delivery was based on the full 95,200 AFY
entitlement, and it ignores the EIR’s own statement that delivery of
entitlements is estimated to be 50% of the entitlement 80% of the time.[xix] In sum,
without the 41,000 AFY entitlement, substantial evidence of sufficient water
supplies simply does not exist.
Accordingly, the EIR’s failure to present a “reasoned analysis in
response” to SCOPE’s comments – that is, an analysis of how demand for water
would be met without the 41,000 AFY entitlement, or of why it is appropriate to
rely on the 41,000 transfer in any event – renders the EIR defective as an
informational document upon which the public and its officials can rely in
making informed judgments. (SCOPE, supra, 106 Cal.App.4th at p.
723.) 3. The
EIR’s treatment of the perchlorate contamination issue was adequate. SCOPE also
contends the trial court erred when it upheld the final EIR’s analysis of
perchlorate contamination in the Saugus Formation. It claims the EIR is inadequate because it
does not attempt to quantify the impact of the contamination on the
availability of groundwater from the Saugus Formation, and does not analyze the
extent of the contamination, the rate at which it is advancing, the status of
potential remediation measures, or the time line for their implementation. On this point, we disagree with SCOPE,
although the point is effectively moot in light of our conclusion that the
water supply analysis is otherwise defective.
The draft
EIR did not mention perchlorate contamination.
However, it relied upon UWMP 2000’s projections of water supply and
usage. UWMP 2000 identified the
discovery of perchlorate in Southern California as a water quality problem that
could affect groundwater supply availability, stated that perchlorate can be
treated and removed from groundwater, and mentioned two possible treatment
programs. UWMP 2000 concluded: “The few wells affected have been shut down,
effective treatment technologies have been developed, and a plan is being
worked out to remove the contamination from the groundwater.” SCOPE’s comments on the draft EIR asserted
the Saugus Formation could not be relied on until it is remediated, and
observed that the UWMP 2000 was in litigation “due to its over-statement of
water supply and understatement of demand.”
SCOPE also submitted expert testimony, reports and memoranda which
extensively discussed the contamination.
The City’s
response acknowledged that perchlorate has been a concern since its discovery
in 1997, and stated that operation of the four contaminated wells was
suspended, testing for perchlorate was continuing in all active wells, and
treatment technologies were currently available. SCOPE asserts its evidence was ignored, but
we are unable to make that assumption.
The function of the EIR is to inform and, by virtue of SCOPE’s evidence
and the UWMP 2000, the City and the public were fully informed. While we may not agree with the City’s
decision to rely on the conclusions in the UWMP 2000 rather than the
conclusions flowing from SCOPE’s evidence, this court’s inquiry extends only to
the EIR’s sufficiency as an informative document, not to the correctness of its
environmental conclusions. (Laurel Heights, supra, 47 Cal.3d at p.
392.) SCOPE
points out that Castaic’s UWMP 2000 was recently invalidated by the court of
appeal in Friends II, supra, 123
Cal.App.4th at pp. 14-15, and suggests that we remand the case to the City for
a re-evaluation of its analysis. SCOPE
is mistaken. It is well-established that
once a project is approved, new information does not require reopening the
approval. (SCOPE, supra, 106 Cal.App.4th at p. 723; Cal.Code Regs.,
tit. 14, § 15162, subd. (c).) Gate
King is thus correct that it is “simply too late to raise this [the
invalidation of the UWMP 2000] as an issue.”
Gate King’s
victory on the issue of perchlorate contamination, however, is pyrrhic. Our decision to decertify the EIR, based on
inadequate consideration of the water supply issues previously discussed,
inevitably has the practical effect of requiring the City to come to grips with
the perchlorate issue as well, because reliance on groundwater supplies will
acquire additional significance if less imported water is available. And, while the City properly relied on UWMP
2000 conclusions on perchlorate contamination in its previous analysis, it will
be unable to do so in any new analysis because of the invalidation of UWMP 2000
in Friends II. (Friends
II, supra, 123 Cal.App.4th at pp.
14-15 [describing the UWMP 2000 as “fatally flawed” and concluding that its
description of the reliability of the groundwater supplied from the Saugus Formation
and Alluvial Aquifer was inadequate because of failure to address timing issues
related to the perchlorate contamination].)[xx] III. The Ridgeline Preservation Ordinance SCOPE
contends the City’s approval of the Gate-King project should be set aside
because the City violated its own ridgeline preservation ordinance. Specifically, SCOPE asserts the project did
not qualify as an “innovative design” under the ordinance, and the City was
required, but failed, to make an explicit finding that the design for the
project was unique. SCOPE is mistaken on
both counts.[xxi] The City of
Santa Clarita’s municipal code includes an ordinance governing ridgeline
preservation and hillside development.
(Santa Clarita Mun. Code, ch. 17.80.)
Its purpose is to regulate the development and alteration of hillside
areas and ridgelines.[xxii] The ordinance contains development standards
for two categories of significant ridgelines, primary and secondary
ridgelines. Significant ridgelines may
not be altered by grading or improvements, except as approved through a
hillside plan review permit.[xxiii] (Mun. Code, § 17.80.045, subd. C., formerly §
17.80.040, subd. B.) The
ordinance has a subdivision entitled “Innovative Applications for Significant
Ridgelines.” At the time of the City’s
action in this case, this subdivision provided that: “Certain uses may be permitted on
significant ridgelines to promote the public health, safety and general
welfare. Such uses or development may
include but shall not be limited to the following: innovative development alternatives,
apiaries, aviaries, historical landmarks, observatories, open
space/conservation areas, parks and recreation areas, publicly and
privately-operated transmission facilities, public street access (including
utility extensions underneath the street), public buildings, recreational
camps, riding academies or stables, trails and water tanks (screened).” (Former Mun. Code, § 17.80.040, subd.
E.) Subdivision E continued with a specification of “Criteria
for innovative applications.” ( The City
made each of the five written findings specified by the ridgeline preservation
ordinance (see footnote 24, ante),
and each finding included a delineation of the evidence and reasons supporting
the finding. On appeal, SCOPE does not
challenge these findings or their evidentiary support. Instead, SCOPE argues that a project “cannot
be considered ‘innovative’ within the meaning of the Ordinance unless its
design is ‘unique’ and ‘differs from other projects around the City.’” SCOPE also contends the City was required to
make a finding “as to whether the Project employs a unique design,” and that
the trial court erred when it held that no express findings other than those
specified in the ordinance were required.
We disagree. First, the
ordinance was clear on its face. It expressly
stated that encroachment onto a significant ridgeline is permitted when the
Planning Commission issues written findings based upon the five criteria
specified in the ordinance. (Former Mun.
Code, § 17.80.040, subd. E.1.) The
City made those findings, which are uncontested on this appeal. Moreover, the ordinance’s list of the “uses
or development” permitted on significant ridgelines is not exhaustive. Those uses “may include but shall not be
limited to” those specified, among which was “innovative development
alternatives.” The term “innovative
development alternatives” was not defined in the ordinance.[xxv] However, even if the Gate-King project were
not an “innovative development alternative,” the fact that the “uses or
development” allowed are not limited to those listed strongly suggests that, as
long as the City makes the findings expressly required by the ordinance, the
project need not fall into any of the categories listed.[xxvi] Second,
SCOPE’s contention that a project cannot be considered “innovative” unless its
design is “unique” and “differs from other projects in and around the City” is
not based on the text of the ordinance, but on a “However, staff believes that to be
considered an innovative application a project should be defined as a project
having a unique site design that differs from other projects in and around the
City and utilizes a high quality of design.
Those projects that would be designated as an innovative application are
ones that are of public benefit, sensitive planning design, and unique to the
proposed project area. These projects
should also be designed with maximum sensitivity to the natural hillsides with
minimal landform alteration.” The staff stated it did not consider the application, as
then designed, to be innovative: “Although the Gate-King project
incorporates contour grading, a trail system, 220 acres of open space, and
minimal improvements to the historical Pioneer Oil Refinery site, staff does
not consider the application, as currently designed, to be innovative. Staff believes the project as proposed does
not provide a significant public benefit and is not designed to be sensitive to
viewsheds, oak trees, and the wildlife corridor.” The staff then considered the five findings necessary for
approval of an innovative application, and determined that none of them could
be met by the project as then proposed.
The staff discussed several alternatives that appeared in the draft EIR,
and concluded some of them “could possibly” meet the definition and findings,
including, with some modifications, “Alternative 5,” also known as the “C”
Street alternative. SCOPE’s
reliance on the staff memorandum avails it nothing for several reasons. First, a staff opinion on whether a project
should be considered “innovative” has no compelling legal significance,
particularly in the face of the text of an ordinance. Second, even according full weight to the
staff opinion, it does not suggest that the City is required to make an express
finding that an application is innovative.
Third, and most significantly, the staff’s memorandum analyzed Gate
King’s initial proposal, not the proposal that the Planning Commission
ultimately recommended to the City. The
staff’s view that the initial proposal should not be considered an innovative
application was expressly based on its belief that the project “as proposed
does not provide a significant public benefit and is not designed to be
sensitive to viewsheds, oak trees, and the wildlife corridor.” However, the alternative project ultimately
recommended by the Planning Commission after several further meetings was the
“‘C’ Street Alternative #5 Project.” The
approved alternative was different from the initial proposal in numerous
respects.[xxvii] Moreover, the Planning Commission expressly
found that the alternative project would mitigate impacts to wildlife corridors
to a less than significant level; would allow the Commission to “make the
findings [of innovation] as described in the entitlement resolution for
hillside and oak trees”; and was “a significant community
benefit . . . .”
Accordingly, the bases underlying the staff view that the original
application was not “innovative” were subsequently eliminated. Finally,
the City concedes it has interpreted the term “innovative development” to mean,
as the staff stated, “projects . . . that are of public
benefit, sensitive planning design, and unique to the proposed project area,”
and such projects “should also be designed with maximum sensitivity to the
natural hillsides with minimal landform alteration.” However, the ordinance plainly did not
require the City to make an explicit finding to that effect or, as SCOPE
contends, a finding that the project employed a “unique site design.” Moreover, the City’s conclusion that the
Gate-King project, as finally modified, complied with the City’s interpretation
of “innovative development” is implicit throughout and is supported by
substantial evidence in the record. For
example: ·
As
to “public benefit,” the City expressly listed numerous benefits in finding the
project was a “significant community benefit.”[xxviii] ·
As
to “sensitive planning design,” the City stated in its resolution, inter alia, that “[w]ith the elimination
of ‘C’ Street and the dedication of permanent open space, the site’s wildlife
corridor is protected.” Further, the
City found that the changes made to the project, including the elimination of
“C” Street and adjacent development lots, “retain[ed] more of the undisturbed
portion of another primary ridgeline” and “minimize[d] disruption of view
corridors and scenic vistas,” and that the “revised project will not cause
depreciation of the appearance of the primary
ridgeline . . . .”
These are implicit, if not explicit, findings consistent with “sensitive
planning design” and “maximum sensitivity to the natural hillsides with minimal
landform alteration.” ·
Finally,
the project is clearly “unique to the proposed project area.” It is a modern industrial/commercial
development, estimated to provide employment for more than 6,000 people, where
no other such project currently exists. In sum, and
as the trial court properly concluded, the ridgeline preservation ordinance did
not require an express finding that the project was an innovative development
alternative. Indeed, the ordinance on
its face permitted encroachment on significant ridgelines when, as here, findings
were made based upon the five criteria specified in the ordinance. In any event, the City’s conclusion that the
Gate-King project, as finally modified, was consonant with the City’s
interpretation of “innovative development” is implicit and supported by
substantial evidence in the record.
Accordingly, SCOPE’s claim that the City violated the ordinance is
without merit. IV. The EIR’s Treatment of Special-Status
Species Special-status
biological resources are resources, including vegetation, that are considered
endangered, threatened, rare, or sensitive by federal, state, or local
agencies. At issue in this case are
three special-status plant species: the
slender mariposa lily, the Plummer’s mariposa lily, and the San Fernando Valley
spineflower. We describe first the EIR
findings and then address SCOPE’s claims that the City did not require adequate
surveys for these species prior to approving the EIR, and failed to require
adequate mitigation measures to address the project’s potential adverse impacts
on these species. We reject both
contentions. A. The
EIR findings. The
methodology for assessing the environmental impacts of the Gate-King project on
biological resources, including special-status biological resources, consisted
of: ·
A
review of the literature applicable to the biological resources in the project
area, including a 1999 study entitled “Biological Resources of Needham Ranch,”
conducted for Gate King by Independent Environmental Consultants (the IEC
study). The IEC study included survey
efforts for vegetation, wildlife, special-status species, and habitats of
special concern over an eight-year period between 1991 and 1999, as well as
site visits since that time, “with records maintained on the flora and fauna
observed.” ·
A
compilation of recorded occurrences of state and federally threatened and
endangered plants and animals in the project vicinity from the California
Department of Fish and Game Natural Diversity Data Base; and ·
A
survey of the project area, conducted by biologists for Rincon Consultants, the
City’s environmental advisors, to determine the adequacy of the conclusions of
the biological studies prepared for the project site.[xxix] Rincon’s literature review, database search, and field
surveys identified 13 special-status plant species as potentially occurring at
the site. Among these were the slender
mariposa lily, Plummer’s mariposa lily, and the San Fernando Valley
spineflower. Specifically, the EIR
reports that:
·
The
proposed project “may cause the direct loss of special-status plants identified
as List 1B . . . species . . . .” Since the California Department of Fish and
Game considers the loss of any List 1B species as a potentially adverse impact
under CEQA, “potential impacts to the slender and Plummer’s mariposa lilies
would be potentially significant, but mitigable.” ·
Mitigation
measures would reduce the potential impacts to a less than significant
level. The mitigation measures require,
prior to the grading of each development phase of the project, the conduct of
focused surveys during the prior flowering season to determine the presence or
absence of the two species. If no
specimens are found within the development footprint or fire clearance zone, no
additional mitigation is required. On
the other hand, if either species is identified, Gate King must submit a
special-status plant restoration plan for review and approval by a City of
Santa Clarita Planning Department-approved biologist.[xxx] ·
The
San Fernando Valley spineflower was identified by Rincon biologists as
potentially present in areas of low vegetative cover and shallow soils within
the chaparral, scrub, annual grassland and disturbed areas onsite. This species was presumed extinct until it
was rediscovered in 1999 at the Ahmanson Ranch and later in the Newhall
area. The EIR reports that: “Due to its limited blooming period in
April-June, and the expanse of areas onsite within the development footprint
which might host appropriate habitat for the spineflower, onsite surveys to
date have not been able to confirm the absence of this species within the
project area.” The EIR concluded that: ·
Development
of the proposed project “could potentially affect the ·
Due
to the extreme rarity of the spineflower and its known presence at only two
locations, several mitigation measures were required, including a survey
conducted by a qualified biologist in areas where ground disturbance is
anticipated. If the spineflower is
discovered, further mitigation measures are required, including the mapping of
current and anticipated future distribution of the species by a qualified
biologist, notification of and consultation with various agencies, and
preparation of a preservation and management plan by a qualified
biologist. The plan must include a
number of stated requirements.[xxxi] In addition, if it is determined that
project development could potentially affect the spineflower, the Department of
Fish and Game must be contacted to determine the need for a “take permit” under
the California Endangered Species Act.[xxxii] In that event, “[a]ppropriate mitigation
required to minimize or mitigate impacts to the [spineflower] shall be
implemented and may include . . . the creation of a
spineflower preserve, establishment of vegetated buffers or other setbacks,
drainage modification of the adjacent areas, [spineflower] revegetation, and
monitoring to ensure the success of the mitigation.” ·
With
mitigation as described, “[d]irect and indirect impacts to the B. The
City was not required to undertake focused surveys
before certification of the EIR. SCOPE
argues that once the City determined that special-status plants were
potentially present on the site, it was required to undertake focused surveys
that would enable it to either rule out or confirm the presence of each of the
three special-status species on the site, before certification of the EIR.[xxxiii] Deferral of focused surveys until after
project approval, SCOPE contends, runs counter to the CEQA policy of requiring
environmental review at the earliest possible stage. Surveys before certification would enable the
City to adequately evaluate the project’s impact on the species and to better
formulate mitigation measures. Without
survey results, SCOPE maintains, the City could not adequately determine the
project’s impacts on the three species.
We conclude there is no precedential or other support for SCOPE’s
contention that the failure to perform focused surveys prior to EIR
certification violated CEQA. SCOPE
relies on Sierra Club v. State Bd. of
Forestry (1994) 7 Cal.4th 1215 (Sierra
Club) to support its claim that a focused survey must be conducted before
EIR certification. Sierra Club does not require the result SCOPE seeks. In Sierra
Club, the Board of Forestry approved a lumber company’s timber harvesting
plans, finding there would be no significant adverse effect on
old-growth-dependent wildlife species or habitat from the harvesting under the
plans. (Id. at p. 1219.) The Supreme
Court held the board abused its discretion in approving the plans based on a
record “which lacked information regarding the presence in the subject areas of
some old-growth-dependent species, information which both the [Department of
Forestry] and [the Department of] Fish and Game had determined was necessary.” (Id. at
p. 1220.) Although Fish and Game and the
Department of Forestry had requested the lumber company to conduct new surveys
of old-growth-dependent wildlife on its property, the company had refused. (Id. at
pp. 1222-1223.) The Court found the
board failed to proceed in the manner prescribed by CEQA (and by the Forest
Practice Act) because it evaluated the plans without any site-specific data
regarding the presence of four old-growth-dependent species, despite a
determination by Fish and Game that the proposed timber harvest could have a
significant adverse effect on the old-growth-dependent wildlife habitat. (Id. at
p. 1236.) Because of Fish and
Game’s determination, “the board, through the department,
had an obligation imposed by CEQA to collect information regarding the presence
of old-growth-dependent species on the site of the proposed timber
harvest. Without that information the
board could not identify the environmental impacts of the project or carry out
its obligation to protect wildlife as required by the Forest Practice Act …,
and to prevent environmental damage by refusing to approve projects if feasible
mitigation measures are available which will avoid or substantially lessen
significant environmental effects as required by CEQA.” (Ibid.) SCOPE’s reliance
on Sierra Club is misplaced. This case is significantly different from Sierra Club. In Sierra
Club, both the Department of Forestry and the Department of Fish and Game
requested new surveys of old-growth-dependent wildlife, which the company refused
to conduct. In this case, no such
requests were made by any governmental agency.
In Sierra Club, the board
found, without any information, that the timber harvesting plan would have no
significant adverse effect on old-growth-dependent wildlife. In this case, the City found the opposite –
that the project “may cause the direct loss of special-status plants” and
“could potentially affect the San Fernando Valley spineflower” if these species
were present. The City found these
adverse effects were significant, but mitigable, requiring the performance of
focused surveys during the flowering season and before grading in each
development phase. In short, fundamental
differences exist between Sierra Club
and this case, rendering Sierra Club inapposite. In Sierra
Club, the board’s decision allowed the project to proceed without
site-specific surveys for old-growth-dependent species, while in this case,
focused surveys for special-status plants must occur, and mitigation measures
are specified, before the project can go forward. Sierra
Club simply does not address SCOPE’s claim, otherwise unsupported, that
CEQA requires the conduct of a focused survey before certification of an EIR. Other case
precedent supports the conclusion that the EIR was adequate in its treatment of
special-status species. Defend the Bay v. City of Irvine (2004)
119 Cal.App.4th 1261 (Defend the Bay)
is a case in point. In that case, Defend
the Bay challenged the city’s certification of an EIR that authorized a general
plan amendment and zone change for development of a site near El Toro. The EIR concluded that, with proposed
mitigation measures, the biological impacts of the project would be
insignificant. Defend the Bay argued the
EIR improperly deferred mitigation of significant impacts to three species (an
endangered bird, the foothill mariposa lily, and the western spadefoot
toad). (Id. at pp. 1273-1274.)
Mitigation measures with respect to the endangered bird included
conducting “surveys during the breeding season to determine if the birds are in
fact present in the habitat area . . . .” (Id. at
p. 1274.) Similarly, as to the western
spadefoot toad: “The EIR reports the [toad] was not
found in the project area, but there is suitable habitat that would support the
creature, so surveys must be conducted in potential breeding pools prior to
issuing grading permits. If the toad is
found in the project area, a mitigation plan must be prepared in consultation
with [the United States Fish and Wildlife Service] and [the California Department
of Fish and Game]. It is to include the
construction of breeding pools satisfactory to these agencies on nearby
protected lands. Since there are
existing populations of the toad within the regional conservation
area . . . , the EIR concludes any impact on this animal
would be less than significant.”[xxxiv] (Id. at
p. 1275, fn. omitted.) The court rejected Defend the Bay’s objections, which
claimed improper deferral of mitigation of significant impacts as to the three
species. As the court stated with
respect to the toad: “[T]he City has
committed to mitigation if the toad is found in the project area, and it has a
plan – to build satisfactory breeding pools on nearby protected land. That is sufficient.” (Id. at
p. 1277.) We discern
no significant difference between this case and Defend the Bay, in which post-certification surveys, conducted
during the breeding season for the species, were permitted. That is exactly what will occur in this
case. SCOPE asserts that Defend the Bay is factually distinguishable
because (a) the project was at an earlier stage (involving approval of a
general plan amendment and zone change, rather than, as here, final approval of
tentative tract maps), and (b) populations of the toad existed elsewhere in the
regional conservation area, whereas in this case the species are “extremely
rare.” These distinctions do not support
a different result. While the projects
are at different stages, the surveys in this case are required to be
undertaken, as in Defend the Bay,
before grading. “Deferral of the
specifics of mitigation is permissible where the local entity commits itself to
mitigation and lists the alternatives to be considered, analyzed and possibly
incorporated in the mitigation plan.” (Defend the Bay, supra, 119 Cal.App.4th
at p. 1275; see Association of Irritated
Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1396 (Irritated Residents) [“[t]he County was
not required to conduct a protocol level study merely because [appellant]
requested it in its comment”].)[xxxv] In short, if adequate mitigation
measures are provided in the event the species are found on site, the stage of
the project and the degree of rarity of the species should not require a
different result. We therefore conclude
the City was not required to confirm or rule out the presence of the three
special-status plants before certification of the EIR, and turn to SCOPE’s
challenge to the mitigation measures required by the EIR. C. The mitigation measures required by the EIR
are adequate. SCOPE
argues the mitigation measures for the two mariposa lily species and for the
spineflower are legally inadequate. The
measures are “too vague and uncertain” to permit the EIR’s conclusion that
their implementation would reduce the impacts to the three special-status
plants to less than significant, and the measures “improperly defer the
formulation [of] mitigation measures without setting any performance criteria
for the success of the future plan.” We
do not agree. The
formulation of specific mitigation measures may be deferred if it is
impractical to formulate them at the time of project approval. “Deferral of the specifics of mitigation is
permissible where the local entity commits itself to mitigation and lists the
alternatives to be considered, analyzed and possibly incorporated in the
mitigation plan.” (Defend the Bay, supra, 119 Cal.App.4th at p. 1275.) In this case, the EIR provides that, if the
slender or Plummer mariposa lilies are found in the required surveys, Gate King
must submit a special-status plant restoration plan for review and approval by
a City of Santa Clarita Planning Department-approved biologist. The plan must provide for sampling of target
sites for soil type and habitat criteria sufficient for the establishment and
growth of the affected special-status species, and must include four other
specified components (see footnote 30, ante),
including performance criteria for an acceptable level of revegetation,
monitoring the success of the revegetation plan, contingency planning for
failed efforts, irrigation methods, and so on. SCOPE
argues that deferral of the formulation of the particulars of the specified
components of the plan – the performance criteria for success of revegetation,
deciding who will monitor the success of revegetation, the frequency of
monitoring and the remediation steps to be used if an acceptable level of
revegetation is not achieved – is improper.
However, the authorities cited by SCOPE do not support SCOPE’s conclusion. SCOPE relies on Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359 (Gentry).
Gentry states it may be proper
for an agency to “commit itself to eventually devising measures that will
satisfy specific performance criteria articulated at the time of project
approval.” (Id. at p. 1394, internal citations and quotations omitted.) SCOPE’s complaint is that “performance
criteria” have not been articulated, but SCOPE stretches the point too
far. The EIR requires a restoration plan
if the plants are found on site, and it requires the plan to include four
specified components. While the
particulars of the four specified components are not specified, this does not
indicate an absence of “performance criteria.”
The components of the plan are specified, and the plan must receive the
approval of a City-approved biologist.
These measures are not inadequate.
As the court stated in Defend the
Bay, supra, 119 Cal.App.4th at p. 1276:
“while there is deferred mitigation, it is not improper. The City is required to mitigate impacts to
the [foothill mariposa] lily . . . , the EIR commits the
City to such mitigation, and it lists what will be required in the mitigation
plan. That is enough.” (See also Gentry,
supra, 36 Cal.App.4th at p. 1396, citing and quoting with approval 1 Kostka
& Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar
1993) § 6.72, p. 318 (rev. 4/03) [“condition requiring applicant to avoid
erosion and prevent siltation by developing ‘erosion control plan subject to
review and approval by City staff’ avoids improperly deferred mitigation”].)[xxxvi] The
mitigation measures for the San Fernando Valley spineflower are likewise
adequate, and even more specific than those required for the mariposa
lilies. If the spineflower is
discovered, a qualified biologist is required to map the current and
anticipated future distribution of the species and to prepare a preservation
and management plan. Additionally,
various interested agencies must be notified.
The plan must include a number of items, including a buffer zone between
development and any spineflower that may be found; restrictions against
stormwater runoff, irrigation runoff, and other drainage from developed areas
passing through areas populated by the spineflower; prohibitions against
artificial shading by structures or landscaping in adjacent development areas;
prohibitions on pesticide use; and others (see footnote 31, ante and accompanying text). We can
discern no basis for SCOPE’s assertions that performance criteria have not been
articulated in these mitigation measures.
SCOPE asserts the measures are “too vague and uncertain” because, for
example, “it is unclear how wide a buffer would be required” and it is unclear
“what procedure is to be followed if [the spineflower] is discovered within a
construction pad, or in the middle of a road, where creating a buffer would be
infeasible.” The buffer, however, is to
be “as required by [the Department of Fish and Game],” which administers the
California Endangered Species Act.
(See Riverwatch v. County of
San Diego (1999) 76 Cal.App.4th 1428, 1447 (Riverwatch) [while the extent of mitigation required would depend
on the results of a study, “the fact the entire extent and precise detail of
the mitigation that may be required is not known does not undermine the final
EIR’s conclusion that the impact can in fact be successfully mitigated”].) Finally,
SCOPE objects to the mitigation measure ( In sum,
SCOPE has failed to show any legal inadequacy in the mitigation measures required
by the EIR for special-status plant species.
Previous studies and the City’s field surveys did not reveal the
presence of these species on the project site, and further focused surveys
during the blooming season are required before any grading may occur. No legal requirement exists mandating the
performance of focused surveys before certification of an EIR, and mitigation
measures are in place in the event any of the three species are found on site. No basis exists for concluding these measures
are legally inadequate. (See Riverwatch, supra, 76 Cal.App.4th at p.
1447 [fact that precise details of required mitigation are not known does not
undermine EIR’s conclusions].) V. CONCLUSION While no
other defects in the EIR are found, the section discussing water supplies is
inadequate. Specifically, the EIR failed
to present a reasoned analysis in response to SCOPE’s comments pointing out the
uncertainty attending the City’s reliance on Castaic’s entitlement to 41,000
AFY of imported water purchased under the Monterey Agreement. Without the 41,000 AFY entitlement,
substantial evidence of sufficient water supplies does not exist. Yet neither the text of the EIR nor its
appendices present a reasoned analysis of the significance vel non of the decertification of the EIR for the Castaic purchase;
how demand for water would be met without the 41,000 AFY entitlement; or why it
is appropriate to rely on the 41,000 AFY transfer in any event. The absence of this analysis renders the EIR
defective as an informational document upon which the public and its officials
can rely in making informed judgments.
An analysis of these points should, in our view, appear in the text of
the EIR. However, if the analysis is to
appear in an appendix, the EIR text should contain a summary of the salient
points of the appendix and a specific reference to it. As for the issue of perchlorate
contamination, the City and the public were fully informed by virtue of SCOPE’s
evidence and the UWMP 2000. However, our
decision to decertify the EIR based on inadequate consideration of the imported
water issues will necessarily require a renewed consideration of groundwater
supplies, and the City will be unable to rely on UWMP 2000 conclusions on
perchlorate contamination because of the invalidation of UWMP 2000 in Friends II, supra, 123 Cal.App.4th 1. DISPOSITION Because the
water supplies portion of the EIR is inadequate, the judgment is reversed. The trial court is directed to issue a writ
of mandate vacating the certification of the EIR and to retain jurisdiction until the City
certifies an EIR complying with CEQA consistent with the views expressed in
this opinion. Costs on appeal are
awarded to appellants. CERTIFIED FOR PARTIAL PUBLICATION CONCURRING: COOPER, P. J. RUBIN, J. *
Pursuant to California Rules of Court, rules 976(b) and 976.1, this
opinion is certified for publication with the exception of parts III and IV. [i] All
statutory references are to the Public Resources Code, unless otherwise
specified. [ii] The
site is west of the Antelope Valley Freeway and is bounded by [iii] The
commercial and industrial buildout of the site required amending the land use
designations and zoning for parts of the site.
Before the changes, approximately 58% of the site was designated for
industrial/commercial uses; 21% for residential use; 16% for open space; and 5%
for community commercial (retail) uses.
The general plan’s land use designation and zoning changes required by
the project eliminated the residential and commercial designations from the
site, increased the area designated for industrial uses slightly, and increased
the area designated for open space to more than 40%. [iv] “An
acre-foot is 43,560 cubic feet.
Colloquially, it is an irrigation-based measurement equaling the
quantity of water required to cover an acre of land to a depth of one
foot.” (Brydon v. [v] “Paper
water always was an illusion.
‘Entitlements’ is a misnomer, for contractors surely cannot be entitled
to water nature refuses to provide or the body politic refuses to harvest,
store, and deliver. Paper water
represents the unfulfilled dreams of those who, steeped in the water culture of
the 1960’s, created the expectation that 4.23 [million acre-feet] of water
could be delivered by a [State Water Project] built to capacity.” ( [vi] The
court observed that Castaic “may be able to cure the [vii] Gate
King requested, and is granted, judicial notice of various documents showing
that on [viii] According
to the EIR, Castaic has developed a funded capital improvement program
providing for the following activities to achieve water supply
reliability: purchase of additional
State Water Project supplies; implementation of recycled water programs;
development of additional dry-year Saugus Formation supplies (new wells);
enhancement of groundwater banking programs; and seawater desalination/water
exchange. [ix] In
September 2004, more than a year after final certification of the EIR in this
case, the UWMP 2000’s description of the reliability of groundwater supplies
was found to be inadequate under the Water Code, because it failed to address
timing issues related to perchlorate contamination discovered in Saugus
Formation groundwater. (Friends II, supra, 123 Cal.App.4th at p.
14.) See discussion post, part II.G.3. [x] The
EIR notes that according to UWMP 2000, dry year supplies are greater than wet
year supplies because the Newhall District
(the project’s water retailer) will tap reserves, including drilling new
wells in the Saugus Formation and importing additional water. [xi] The
103,200 AFY figure is the sum of 30,000 AFY of groundwater from the Alluvial
Aquifer; 7,500 AFY of groundwater from the Saugus Formation; 1,700 AFY of
recycled water; 56,800 AFY of State Water Project entitlements (59.7% of
Castaic’s total entitlement of 95,200, which includes the disputed 41,000 AFY);
and 7,200 AFY from planned programs for future implementation (water transfers
and desalination). The EIR also states
that, while the Saugus Formation has been pumped to an average of slightly more
than 7,000 AFY over the last 20 years, increases in pumpage from 15,000 (the
maximum to which it has been pumped historically) to 25,000 to 40,000 AFY, “in
a ramped manner, would be hydrologically
feasible . . . .” [xii] If
estimated demand for water generated by the project exceeded available existing
or future supplies, the impact would be considered significant. [xiii] These
included interior water conservation measures, “as required by the State of [xiv] The
response also reported that the local water purveyors had filed a lawsuit
against the former and present owners of the contaminated property, seeking
payment by defendants of all necessary costs of response, removal of
perchlorate, and so on. [xv] On
remand of Friends I to the trial court, Castaic submitted the
declaration of Dan Masnada, its general manager, urging the court not to set
aside the transfer of the 41,000 AFY entitlement. SCOPE included the Masnada declaration, dated
[xvi] Gate
King contends that there is “simply no reason to believe that the transfer will
be reversed,” and that “it must be presumed” that Castaic “will eventually be
able to prepare an adequate EIR.”
According to Gate King, to argue that Castaic should not be allowed to
rely on the 41,000 AFY for planning purposes gives greater weight to a
theoretical possibility than to an environmental reality, “turning CEQA on its
head.” We are inclined to agree with
SCOPE that it is Gate King which turns CEQA on its head with its argument,
which suggests that the environmental review of the 41,000 AFY transfer is “an
exercise in futility because the pre-ordained outcome of the process is
continued use of the 41,000.” We note
the Friends I trial court, in
refusing to enjoin Castaic’s use of the 41,000 AFY, found petitioner’s
contention that the water would be used to approve new development was
“speculative at this time,” but stated that the petitioner could renew its
application to prohibit Castaic from using the water for development “based
upon evidence of the actual use of such additional water for purposes it
considers improper.” [xvii] The
court continued: “Without some
reasonably accurate estimate of [State Water Project’s] ability to deliver
water, it is impossible to judge how likely or how deep the deficit might
be.” (SCOPE, supra, 106 Cal.App.4th at p. 723.) [xviii] The
41,768 acre-feet figure for 2002 appears in the 2002 Santa Clarita Valley Water
Report, prepared in April 2003. The report
also shows total water demand at 85,031 acre-feet in 2002. [xix] Castaic’s
receipt of 41,768 acre-feet was 44% of the full entitlement of 95,200. Had Castaic been unable to rely on the 41,000
AFY entitlement, and received 44% of its reliable entitlement of 54,200, it
would have received only 23,848 acre-feet of State Water Project water. [xx] In Friends II, supra, 123 Cal.App.4th 1,
the court held that the UWMP 2000 failed to comply with statutory requirements
for preparation of an urban water management plan. The court found the UWMP 2000’s description
of the reliability of the groundwater supplied from the Saugus Formation and
Alluvial Aquifer was inadequate under Water Code section 10631, subdivision
(c), because it failed to address timing issues related to the perchlorate
contamination discovered in Saugus Formation groundwater. While the UWMP 2000 mentioned that a
groundwater cleanup plan was being developed, it did not mention the stage of
development that had been reached or the date when the plan could be completed
and implemented. (Friends II, supra,
123 Cal.App.4th at p. 12.) Nor did the
UWMP state how fast the perchlorate contamination was spreading, or how any
uncertainty on timing issues affects the reliability of the supply of
groundwater. (Id. at p. 13.) The court
observed that “[t]he public and the various governmental entities that rely on
the UWMP may be seriously misled by it and, if the wrong set of circumstances
occur [e.g., prolonged drought, increased reliance on groundwater from the
Saugus Formation, accelerated spread of the perchlorate contamination within
the formation], the consequences to those who relied on the UWMP, as well as
those who share a water supply with them, could be severe.” (Id. at
p. 15, fn. omitted.) [xxi] The EIR
for the Gate-King development found that the project would alter scenic views
from public viewing locations and alter city-designated primary and secondary
ridgelines, an impact considered unavoidably significant. The EIR also concluded that, because project
development would entail grading on primary and secondary ridgelines, a finding
that the proposed grading plan is consistent with the ridgeline preservation
ordinance would be required to approve the project. SCOPE does not challenge the EIR, but asserts
a violation of the ordinance, compliance with which is necessary for project
approval. [xxii] The
regulation of development and alteration of hillside areas and ridgelines is
“to minimize the adverse effects of hillside development and to provide for the
safety and welfare of the City of [xxiii] Significant
ridgelines are those that “surround or visually dominate the valley landscape”
under criteria described in the ordinance.
(Mun. Code, § 17.80.045, subd. B., formerly §17.80.040, subd. A.) [xxiv] Subdivision
E.1. stated: “Encroachment onto a significant ridgeline shall be
permitted when the Planning Commission, following a public hearing, issues
written findings based upon the following evidence: a. The proposed use is proper in relation
to adjacent uses, the development
of the community and the various goals and policies of the General Plan. b. The use or development will not be
materially detrimental to the visual
character of the neighborhood or community, nor will it endanger the public health, safety
or general welfare. c. The appearance of the use or
development will not be different than the
appearance of adjoining ridgeline areas so as to cause depreciation of the
ridgeline appearance in the vicinity. d. The establishment of the proposed use
or development will not impede
the normal and orderly development and improvement of surrounding property, nor encourage
inappropriate encroachments to the
ridgeline area. e. It has been demonstrated that the
proposed use or development will not
violate the visual integrity of the significant ridgeline area through
precise illustration and depiction as required in [subdivision] D . . . .” (Former Mun. Code, § 17.80.040, subd.
E.1.) The same provisions now appear in Municipal Code section 17.80.040,
subdivision C.1. a. through e., along with additional criteria. See footnote 25, post. [xxv] The
ridgeline ordinance was revised in January 2005 by Santa Clarita Ordinance No.
05-1, section 2. The subdivision on
“Innovative Applications for Significant Ridgelines” now appears in section
17.80.045, subdivision A, and includes a definition of the term “innovative
development” as follows: “[A]n ‘innovative development’ shall be defined as a
proposed use or development that demonstrates creative and imaginative site
design resulting in a project that will complement the community character and
provide a direct benefit to current and future community residents of not only
the proposed use or development, but the residents of the City of Santa Clarita
as a whole utilizing unique grading techniques, imaginative project site design
and spacing of development that significantly exceeds the minimum standards
identified in the City of Santa Clarita Ridgeline Preservation and Hillside
Development Guidelines.” (Mun. Code, §
17.80.045, subd. A.) In addition, under the amended ordinance the approving authority must
issue written findings based upon six further criteria, as well as the five
criteria quoted above and required at the time the City approved the Gate-King
project. (Mun. Code, § 17.80.040, subd.
C.1. f. through k.) Two of the
additional criteria use the terms comprising the ordinance’s new definition of
“innovative development.” (Mun. Code, §
17.80.040, subd. C.1.h. & j.) [xxvi] The
City has not argued that the plain language of the ordinance – that uses “may
include but shall not be limited to” those stated – on its face permitted the
city to approve any project encroaching onto a ridgeline, whether innovative or
not and whether listed or not, so long as the five specified findings were made
and supported by the evidence. The parties
proceeded on the basis that Gate King applied for project approval as an
“innovative development alternative”; the City conceded a two-step process
existed for such applications; and the City conceded it has interpreted the
term “innovative development” to mean “projects . . . that
are of public benefit, sensitive planning design, and unique to the proposed
project area.” This court is obliged to
take the case as it finds it. [xxvii] The
alternative was a derivative of “Alternative 5:
Reconfigured ‘C’ Street,” a project alternative reviewed in the draft
EIR. In the final proposal, the overall
buildout of the project was reduced by 5%; 75.8 acres were removed from the
project site and donated to the City; grading was avoided on an approximately
1,700 foot section of the primary ridgeline; open space was increased; and
overall impacts to biological resources were reduced, as there were fewer oak
tree removals and a reduction in the impact to wildlife movement through the
open space area. [xxviii] The
Planning Commission found that the project was a significant community benefit
as the applicant was providing the following benefits: “landscaped medians and full street
improvement from Pine Street to Sierra Highway on San Fernando Road, a
community entrance sign, Phase I, II, III environmental test for City land
dedication, 237 acres of dedicate[d] open space, a 9 acre alternative school
site, $1,923,500.00 cash contribution to the City, a 1.5 acre fire station
site, a fire heli-pad site, two trail heads, and three miles of trails.” [xxix] The EIR
states: “Rincon Biologists surveyed the
project area on February 7, April 10, and [xxx] The
required mitigation measures continue: “Target sites for mitigation shall be sampled for
soil type and habitat criteria sufficient for the establishment and growth of
the affected special-status species. The
plan shall additionally include, but not be limited to, the following
components: 1) Performance criteria (i.e., what is an acceptable
success level of revegetation to mitigate past impacts); 2) Monitoring effort (who is to check on the success
of the revegetation plan, and how frequently); 3) Contingency planning (if the effort fails to reach
the performance criteria, identify the remediation steps need to be taken); and
4) Irrigation method/schedule (how much water is
needed, where, and for how long).” [xxxi] The
preservation plan must include the following:
“The project applicant will provide a buffer between development and any
[spineflower] that may be found onsite as required by [California Department of
Fish and Game]. This buffer zone shall
be designated with appropriate fencing to exclude construction vehicles and
public access, but not wildlife access; [¶] Stormwater runoff, irrigation
runoff, and other drainage from developed areas shall not pass through areas
populated by the [spineflower]; [¶] Spineflower areas shall not be artificially
shaded by structures or landscaping within the adjacent development areas; [¶]
Pesticide use shall not be permitted within [spineflower] areas; [¶] The agency
responsible for monitoring the [spineflower] area during construction and after
project completion shall be identified and the frequency and extent of
monitoring shall be determined.” [xxxii] The
California Endangered Species Act prohibits the incidental taking of a listed
species unless a permit is obtained.
(Fish & G. Code, §§ 2080, 2081.)
Among the conditions for issuance of a permit is the requirement that
the impacts of the take be fully mitigated.
(Fish & G. Code, § 2081, subd. (b)(2).) If the spineflower is listed under the
federal Endangered Species Act (for which it was a candidate when the EIR was
certified) before site grading, federal authorities must also be contacted to
determine the need for a take permit under federal law. [xxxiii] By
“focused surveys” SCOPE apparently means “protocol level surveys,” designed on
a species-by-species basis to definitively rule out the presence of a species. [xxxiv] The
project also affected two colonies (28 individual plants) of the foothill
mariposa lily on the site. The city was
required to comply with specified requirements of a regional conservation plan,
but the actual mitigation plan was not set out in the EIR. (Defend
the Bay, supra, 119 Cal.App.4th at p. 1275.) [xxxv] “CEQA
does not require a lead agency to conduct every recommended test and perform
all recommended research to evaluate the impacts of a proposed project. The fact that additional studies might be
helpful does not mean that they are required.”
(Irritated Residents, supra, 107
Cal.App.4th at p. 1396.) [xxxvi] SCOPE
points to one mitigation condition in Gentry
which the court found improperly deferred the formulation of specific
mitigation measures. This mitigation
condition allowed the city to request the applicant to obtain a biological
report concerning the Stephens’ kangaroo rat, and in that event the applicant
had to comply with any recommendations in the report. This constituted improper deferral of the
formulation of mitigation because it required compliance “with any
recommendations of a report that had yet to be performed.” (Gentry,
supra, 36 Cal.App.4th at p. 1396.)
This is not such a case. See Defend the Bay, supra, 119 Cal.App.4th
at p. 1275 [contrasting permissible deferral of the specifics of mitigation
(where the local entity commits itself to mitigation and lists the alternatives
to be considered, analyzed and possibly incorporated into the mitigation plan)
with impermissible deferral (when the agency merely requires a project
applicant to obtain a biological report and comply with any recommendations
that may be made)]. [xxxvii] SCOPE
cites an opinion of the Attorney General concluding that the California
Endangered Species Act does not prohibit indirect harm to an endangered or
threatened species by way of habitat modification. (78 Ops.Cal.Atty.Gen. 137 (1995).) The federal Endangered Species Act is
broader, and includes harm to or harassment of a species. (16 U.S.C. § 1532(19).) As previously noted, the mitigation measures
for the spineflower provide that if the spineflower is federally listed prior
to site grading, the U.S. Fish and Wildlife Service must also be contacted to
determine the need for a take permit under federal law. 
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