How Much Uncertainty Does CEQA Allow? Court Upholds EIR's Practical Approach for Evaluating Uncertain Cumulative Impacts, but Invalidates Biological Mitigation and Water Supply Analysis as Too Uncertain

by Perkins Coie
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In Preserve Wild Santee v. City of Santee, the court immersed itself in an EIR’s evaluation of the impacts of a large residential project proposing 1,395 homes and 1,400 acres of open space preserve. The court upheld the analysis of cumulative impacts to biological resources despite the uncertainty regarding the extent of those impacts, but struck down project-level mitigation and an analysis of water supply impacts as too uncertain.

The City’s Practical Approach for Addressing Unknown Cumulative Impacts Was Adequate.  The EIR acknowledged that because proposed development in the surrounding area was in the early planning stages, the cumulative biological impacts were unknown.  But it explained that the area is covered by a multi-jurisdiction Multiple Species Conservation Program that is designed to protect natural habitats.  Neighboring jurisdictions had adopted subarea plans to implement the Conservation Program, but Santee had completed only a draft subarea plan.  The EIR assumed that projects in nearby jurisdictions would be consistent with the applicable subarea plans, and that projects within Santee would be governed either by its own subarea plan (if completed in time) or the overarching standards of the Conservation Program.  The EIR concluded that the project would not make a cumulatively considerable contribution to biological impacts (except concerning one species that was not covered by the Conservation Program, which the EIR addressed separately).

In upholding this conclusion, the court explained that each development project would be required to do its part to meet the goals of the Conservation Program, thus implementing its share of mitigation designed to alleviate the cumulative impact.  The EIR was not required to address each species individually, as there was insufficient information to do so.  The EIR’s discussion was adequate "under a practicable and reasonable standard."

Mitigation That Relied on a Management Plan to Be Drafted Later Was Too UncertainThe court reached a different conclusion regarding the mitigation the EIR proposed to address the project's impact to the Quino checkerspot butterfly.  The mitigation measure called for an open space preserve that would be governed by a habitat plan that was to be approved by the city and the wildlife agencies.  The court emphasized the lack of standards for actively managing the butterfly within the preserve.  The EIR failed to explain why it could not specify performance standards or guidelines and “the fact that the City and wildlife agencies must ultimately approve the plan does not cure these informational defects.”  In addition, because the timing and details for implementing the plan were left to the discretion of the preserve manager based on prevailing environmental conditions, there was no guarantee that any of the measures would occur "at any particular time or in any particular manner." 

The Water Supply Analysis Failed to Acknowledge the Uncertainty of Providing Water to the ProjectThe court also struck down the EIR's water supply analysis, in part because it failed to consider the uncertainty of obtaining supplies from the State Water Project.  The project proposed to obtain water from a local district, which would obtain water from other agencies that ultimately relied upon the State Water Project.  The local water district prepared a water supply assessment for the project that concluded that if the agencies implemented their planned water development, delivery and conservation projects, adequate supplies would be available to serve the project.  The EIR relied on that conclusion in finding water supply impacts less than significant.

The court found three problems with this analysis.  First, the EIR projected a demand of approximately 1,446 acre feet per year, while the assessment projected 881 acre feet per year.  The EIR did not explain this discrepancy, and the court rejected the parties' attempts to explain it in their briefs.  "The question is . . . not whether the project's significant environmental effects can be clearly explained, but whether they were."

Second, the EIR failed to address the uncertainty arising from a court decision that ordered severe cutbacks in the amount of water the State Water Project could pump from the delta, in order to protect the delta smelt.  The water district had prepared its assessment before the court had issued its decision, and the district acknowledged in an addendum to the assessment that it could not "predict whether any mandatory cut backs will result from the court's ruling or what the impact of those cut backs would be."  According to the court, the analysis failed to comply with the Supreme Court's 2007 decision in the Vineyard Area Citizens case, which held that an EIR must discuss reasonably foreseeable alternatives and the impacts of those alternatives when it cannot confidently identify the project's future water sources. 

Third, the EIR did not adequately address the water supply for a proposed 10-acre lake on the project site.  The EIR specifically acknowledged a potential problem with using groundwater, requiring an alternative water source if monitoring showed that groundwater levels dropped below a certain point.  But the EIR failed to identify or study any alternative source.

Read about this and other legal developments in Perkins Coie's California Land Use & Development Law Report.

Please see our website for more information about our California Environmental, Energy, Resources & Land Use professionals:

Louise Adamson, 415.344.7036
Cecily Barclay, 415.344.7117
Marc Bruner, 415.344.7171
Marie Cooper, 415.344.7012
Matt Gray, 415.344.7082
Julie Jones, 415.344.7108
Steve Kostka, 415.344.7006
Alan Murphy, 415.344.7126
Geoff Robinson, 415.344.7174
Barbara Schussman, 415.344.7168
Chris Tom, 415.344.7047

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