Deferred EIR Mitigation Measure Satisfies CEQA

Posted by in CEQA, Environmental Litigation on June 26, 2013

The California Court of Appeals held that an environmental impact report (“EIR”) which identified landscaping as a mitigation measure to the project’s visual impact satisfied the California Environmental Quality Act (“CEQA”).  The Court found that the EIR did not need to set forth the specific landscaping plan that would mitigate the impact.  Instead, the details of the mitigation could be deferred pending completion of a future study.

In North Coast Rivers Alliance v. Marin Municipal Water District Board of Directors (May 21, 2013), the Marin Municipal Water District planned to build a seawater desalination plant in Marin County (“Project”).  The District certified an EIR for the project and North Coast Rivers Alliance challenged the EIR for failure to adequately analyze adverse environmental consequences of the Project.

The trial court, citing Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 794, held that the EIR was deficient because the EIR failed to commit to specific measures to mitigate the visual impacts of proposed water storage tanks.  Although the EIR indicated that the landscape plan would identify the location and types of trees and shrubs that would best mitigate the visual impact, the trial court found that the mitigation measure was indefinite and did not satisfy CEQA because it simply required a report to be prepared and followed.  The trial court also indicated that the mitigation measure was deficient because it established no guidelines or criteria to evaluate the adequacy of the landscaping plan and the plan’s goal to soften the visual impact was a vague metric that was difficult to quantify.

However, in cases challenging an agency’s compliance with CEQA, a Court reviews the agency’s action for a prejudicial abuse of discretion, not the trial court’s decision.  Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, 40 Cal.4th 412, 426–427 (2007).  “Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.”  Id.  Here, in the CEQA context, substantial evidence means “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) (CEQA Guidelines).

As part of the Project, three water tanks to store desalinated water needed to be constructed.  The EIR indicated that two of the tanks would have a significant visual impact on the proposed location.  The EIR then identified, and the District adopted, a mitigation measure that requires the District to develop and implement a landscaping plan to shield the tanks from view.  The EIR mitigation measure indicated that the district would work with a landscape architect and the cities of San Rafael and Larkspur to develop a landscaping plan that would identify the location and types of planting that would soften the visual intrusion of the tanks and identify success metrics such as survival and growth rate for the plantings.

The Appellate Court found that the mitigation measure requiring a landscaping plan complied with CEQA.  The Court looked to CNPS v. Rancho Cordova and Sacramento Old City Assn. V. City Council which concluded “when a public agency has evaluated the potentially significant impacts of a project and has identified measures that will mitigate those impacts, the agency does not have to commit to any particular mitigation measure in the EIR, as long as it commits to mitigation of the significant impacts of the project.”  California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 621 (2009) citing Sacramento Old City Assn. v. City Council 229 Cal.App.3d 1011 (1991).  “The details of exactly how the mitigation will be achieved under the identified measure can be deferred pending completion of a further study.”  Id.   The Appellate Court stated, “although the specific details of how mitigation will be achieved under the landscaping plan is deferred until the construction phase, the EIR gives adequate assurance that visual impacts will be mitigated by the selection and location of appropriate plantings.”

Since the EIR evaluated the potentially significant visual impacts of the tanks, identified a landscaping plan with the goal of creating a visual screen to minimize the contrast between the tanks and the ridge top, and the District committed itself to implement, monitor, and maintain the landscaping, the Appellate Court concluded that the mitigation measure satisfied CEQA and was not improperly deferred.

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