Power to the Public: DEIR’s Failure to Identify Proposed Project Among Handful of Vastly Different Analyzed Alternatives Violates CEQA’s Requirement to Contain “Accurate, Stable and Finite” Project Description, Vitiates Intelligent Public Participation, Holds First District

Miller Starr Regalia

In a published opinion filed November 15, 2017, the First District Court of Appeal (Division 5) affirmed the trial court’s order granting a petition for writ of mandate setting aside the California Department of Parks and Recreation’s (Department) approvals and EIR for the “Upper Truckee River Restoration and Golf Course Reconfiguration Project” (the “Project”).  Washoe Meadows Community v. Department of Parks and Recreation (1st Dist. 2017) _____ Cal.App.5th _____.  The Court agreed with the trial court’s determination that “the DEIR’s failure to provide the public with an accurate, stable and finite” project description “prejudicially impaired the public’s ability to participate in the CEQA process by setting forth a range of five very different alternatives and by declining to identify a preferred alternative.”

As relevant background, the project involved 777 acres of state-owned land encompassing a 2.2-mile stretch of the Upper Truckee River in the Lake Tahoe Basin.  The land was divided into two units: 608 acres of state park land (Washoe Meadows State Park), and the remainder designated as Lake Valley State Recreation Area to allow continuing operation of an existing golf course (a use not allowed in state parks).  Since at least the 1990s, the golf course layout had altered the river’s course and flow, raising environmental concerns of river bed erosion that threatened habitat and water quality in and around Lake Tahoe through deposition of substantial sediment.

These concerns prompted the Department’s Project, and ultimately resulted in a Draft Environmental Impact Report (DEIR) that considered and analyzed the following five alternatives:  (1) no project; (2) river restoration with reconfigured 18-hole golf course; (3) river restoration with 9-hole course; (4) river stabilization and continuation of existing 18-hole course; and (5) ecosystem restoration and decommissioning the golf course.  The DEIR studied all these alternatives at a comparable level of considerable detail, but did not define a preferred or proposed alternative, expressly leaving that decision to be made by the lead agencies in the Final EIR (FEIR) following their consideration of public comment on the DEIR.  Following an extensive public review and comment period, the FEIR identified a “refined version” of Alternative 2 as a “proposed preferred alternative” for various reasons, even though it would result in a net loss of about 40 state park acres.  The Department certified the FEIR and approved the preferred alternative, and the State Park and Recreation Commission (Commission) approved the necessary land classification adjustments to accommodate it.

Plaintiff Washoe filed suit challenging the Project approval and alleging six (6) CEQA violations: (1) the DEIR lacked an “accurate, finite and stable” project description; (2) the DEIR lacked a reasonable range of project alternatives; (3) the CEQA findings failed to explain why the Department did not adopt a new, potentially feasible alternative proposed by Washoe; (4) the FEIR lacked needed golf course design and layout details; (5) the DEIR lacked an accurate and complete environmental setting description; and (6) the FEIR lacked necessary mitigation and improperly deferred mitigation measures.

The trial court granted the Petition on four grounds, but the Court of Appeal found it needed to reach only one to affirm: “the DEIR failed to identify a stable proposed project on which the public could comment because it set forth a range of alternatives without designating a preferred alternative.”  The Court noted that whether a DEIR is adequate to apprise interested parties of the true scope of the project is an issue of law as to which the agency’s determination is given no deference.  (Citing Communities For a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 82-83.)  Key takeaways from the Court’s published opinion include:

  • “[A] project description that gives conflicting signals to decision makers and the public about the nature and scope of the project is fundamentally inadequate and misleading.” (Citing Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1052.)  “‘An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.’”  (Citing ibid., citing County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 192-193 (County of Inyo).)  The seminal County of Inyo case first articulating this last – and oft-cited – CEQA principle involved “fluctuating and inconsistent project descriptions” in the EIR for the City of Los Angeles’ Owens Valley water extraction project, which analyzed projects of significantly different scope and different pumping rates throughout.  County of Inyo noted that because the EIR adequately described the “broader” project’s impacts, the project description defect did not indicate a deficiency in its informational quality.  However, “[t]he incessant shifts among different project descriptions . . . vitiate[d] the City’s EIR process as a vehicle for intelligent public participation” because “[a] curtailed, enigmatic or unstable project description draws a red herring across the path of public input.”
  • The Court of Appeal found that while the Project description defect involved in the Department’s DEIR here was not the same as that in County of Inyo, it was “no less problematic” – “[r]ather than providing inconsistent descriptions of the scope of the project at issue, the DEIR did not describe a project at all.” Stating the eventual project would be “somewhere” in a reasonable range of alternatives did not constitute the description of a stable proposed project allowing for intelligent public participation and comment.  The Court observed the Department’s DEIR functioned more like a scoping plan, which is supposed to precede the DEIR.
  • The Court held the DEIR’s failure to identify a project “impair[ed] the public’s right and ability to participate in the environmental review process” because it “presents the public with a moving target and requires a commenter to offer input on a wide range of alternatives that may not be in any way germane to the project ultimately approved.”
  • The Court recognized that “[w]hile there may be situations in which the presentation of a small number of closely-related alternatives would not present an undue burden on members of the public wishing to participate in the CEQA process, in this case the difference between the five alternative projects was vast, each creating a different footprint on public land[,] . . . a different set of impacts, [and] requiring different mitigation measures.” Such an unstable project description “stultified” public participation, because “it failed to identify the project being proposed.”
  • Based on the above analysis, the Court of Appeal had no trouble finding the DEIR’s deficiency was “prejudicial” – it thwarted CEQA’s goals by precluding informed decision making and informed public participation, regardless of whether compliance would have changed the ultimate outcome of the Department’s project selection and approval.
  • The Court of Appeal held the other issues on which the trial court had based its order were either mooted by its decision, or that it need not address them because should the Department proceed with a revised EIR “it is entirely foreseeable that new or more comprehensive information will be developed on these important topics [such that the claims on which the trial court ruled “may ultimately be rendered moot”].” In a footnote, it refused to depart from the “general rule” of appellate procedure that amici curiae cannot raise new issues not raised by the parties; it thus declined to consider the arguments of amicus curiae CBD and the Sierra Club that reclassification of state park lands to accommodate a golf course would violate the Department’s duty to preserve park lands and the public trust doctrine.  (Citing Lavie v. Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 502-503.)

The Court of Appeal’s opinion underscores that the fundamental requirement that an EIR contain an “accurate, stable and finite” project description is not solely concerned with ensuring the document’s informational adequacy, but also serves the crucial purpose of facilitating intelligent public participation in the CEQA process.  While CEQA review is an interactive process that contemplates the emergence of new insights and project revisions to address identified impacts, and is thus “not designed to freeze the ultimate proposal in the precise mold of the initial project” (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 736-737), this flexibility in end result does not mean the DEIR can fail to identify a proposed project.  Agencies should thus be careful to clearly identify the proposed project and any preferred alternative in their DEIRs in order to avoid any “project description” problem.


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Miller Starr Regalia

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