In February 2011, the County of Fresno (County) approved the Friant Ranch project, a proposed master-planned community for persons age 55 or older located in north central Fresno County (the Project). The Project is located on 942 acres of unirrigated grazing land adjacent to the unincorporated community of Friant, below Friant Dam and Millerton Lake, near the San Joaquin River.
This appeal argues that (1) the Project was inconsistent with land use and traffic policies in County's general plan and (2) the environmental impact report (EIR) for the Project failed to comply with the California Environmental Quality Act (CEQA).
As to the claims of general plan inconsistency, we conclude that the Project is not inconsistent with the land use element, since the agricultural use designation was properly changed by amendment, thereby avoiding an inconsistency, and the issues regarding traffic policy TR-A.2 were not exhausted during the administrative process.
We conclude the CEQA claims involving wastewater disposal lack merit because the amount and location of wastewater use and disposal and the hydrogeology of the site ultimately chosen for the wastewater treatment plant were addressed in sufficient detail during the environmental review process.
As to the CEQA claims involving air quality, we conclude that (1) the EIR was inadequate because it failed to include an analysis that correlated the Project's emission of air pollutants to its impact on human health; (2) the mitigation measures for the Project's long-term air quality impacts violate CEQA because they are vague, unenforceable and lack specific performance criteria; and (3) the statement that the air quality mitigation provisions will
We therefore reverse the judgment.
Plaintiffs Sierra Club, League of Women Voters of Fresno, and Revive the San Joaquin (collectively, plaintiffs) alleged that they are nonprofit organizations concerned with protecting the environment, public participation in the political process, and protection and restoration of the San Joaquin River, respectively.
County is the local governmental entity that acted as the lead agency in the preparation of the EIR for the Project and, through its board of supervisors, issued approvals necessary for the Project. Real party in interest Friant Ranch, L.P., is the Project proponent. This opinion refers to County and Friant Ranch, L.P., collectively as "defendants."
The Project proposes the development of the Central Valley's first master-planned retirement community for "active adults" (age 55 and older) on a 942-acre site in north central Fresno County, just south of the San Joaquin River. The development includes single- and multifamily residential units that are age restricted, some residential units that are not age restricted, a commercial village center, a recreation center, trails, open space, and parks and parkways.
County approved alternative 3 of the Project, which includes the construction of approximately 2,500 residential units and 250,000 square feet of commercial space on 482 acres and the dedication of 460 acres to open space.
The residential and commercial growth envisioned by the Project will require additional wastewater treatment capacity. The hydrogeology of the site proposed for the new wastewater treatment facilities, the concerns about
The initial proposal for the Project placed new wastewater treatment facilities adjacent to a small existing plant in the Friant Ranch Specific Plan area and indicated that treated effluent might be discharged from the new plant into the San Joaquin River during winter months, when demand for irrigation was low.
In October 2007, County distributed a notice of preparation regarding the draft EIR for the Project. Two years later, the draft EIR was released. The 45-day period for the public to submit comments on the draft EIR and the Project ended on December 15, 2009. The final EIR, which included the comments presented and County's responses, was released in August 2010.
On February 1, 2011, County's board of supervisors approved the Project by adopting resolution No. 11-031, which certified the final EIR and approved general plan amendment No. 511, which updated the Friant Community Plan (a component of the Fresno County General Plan) and authorized the proposed Friant Ranch Specific Plan. The update to the Friant Community Plan expanded the area covered from the existing unincorporated community of Friant to include the proposed development — that is, the area covered by the Friant Ranch Specific Plan. One controversy generated by the board of supervisors's approval of the Project and general plan amendment relates to the redesignation of land in the Project area from agricultural use to commercial, residential, public facility, and open space uses and whether that redesignation was consistent with the general plan's policy of preserving valuable agricultural land. General plan amendment No. 511 did not change any of the land use goals and policies set forth in the general plan.
Other County action required for the Project includes amending the Friant Redevelopment Plan, changing zoning, and entering into a development
This appeal concerns primarily the approvals issued by County because County (1) acted as the lead agency for the CEQA review and (2) approved aspects of the Project that plaintiffs contend are inconsistent with County's general plan. Nevertheless, the Project cannot be completed without approvals from other state and federal agencies.
One such state agency involved in approving the Project is the Central Valley Regional Water Quality Control Board. The final EIR states that the Project will require the water quality control board to adopt waste discharge and water reclamation requirements for land disposal of treated effluent, adopt a National Pollutant Discharge Elimination System (NPDES)
In addition, the San Joaquin Valley Air Pollution Control District (Air District) might review certain aspects of the Project. The final EIR states that the proposed Project might require the Air District to (a) process an air permit application for the wastewater treatment plant, (b) process an air impact assessment, (c) issue a dust control permit, and (d) take appropriate action to ensure compliance with Air District's rule 9510.
The draft EIR states that the Friant Ranch Specific Plan area was being used for cattle grazing and the Project did not propose to convert to nonagricultural uses any (1) prime farmland, (2) farmland of statewide importance, or (3) land designated unique farmland. Also, no land within the Project area is subject to a Williamson Act (Gov. Code, § 51200 et seq.) contract or a farmland security zone contract. Based on these facts, the draft EIR stated that the growth proposed by the Project was being directed to "an area that does not include valuable agricultural land." Accordingly, the draft EIR concluded that the Project was consistent with County's land use policies designed to protect agricultural resources in Fresno County.
The majority of the land in the Friant Ranch Specific Plan area was designated "Agriculture" by County's general plan. Similarly, most of the
The EIR discusses the disposal of effluent resulting from the treatment of wastewater at the proposed wastewater treatment plant. The discussion of wastewater issues relevant to this appeal is described later in this opinion. (See pt. III.A., post.) Similarly, matters relevant to plaintiffs' claims that the EIR's analysis of air quality impacts was inadequate and the mitigation measures are flawed are also set forth below. (See pt. IV.A., post.)
Following the board of supervisors's approval of the Project, County filed a notice of determination for the Project on February 3, 2011, which triggered the 30-day statute of limitations for bringing a CEQA claim. (§ 21167, subd. (c); Guidelines, § 15112, subd. (c)(1).)
Plaintiffs' petition for writ of mandate and complaint challenges County's approval of the Project and certification of the final EIR and alleged violations of CEQA and the Planning and Zoning Law (Gov. Code, § 65000 et seq.) requirement that land use decisions be consistent with the applicable general plan.
After extensive briefing by the parties, a hearing on the merits was held on September 21, 2012. On December 14, 2012, the trial court delivered its ruling from the bench, denying all of the claims and entering judgment in favor of defendants.
In February 2013, plaintiffs filed a notice of appeal from the judgment entered against them.
A local governing body's determination that a project is consistent with a general plan is subject to judicial review under the abuse of discretion standard. (Families Unafraid to Uphold Rural etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1338 [74 Cal.Rptr.2d 1].) An abuse of discretion is established if the governing body did not proceed as required by law, made a determination that was not supported by findings, or made findings of fact that were not supported by substantial evidence. (Ibid.) A finding of fact related to general plan consistency is not supported by substantial evidence if, based on the evidence before the local governing body, a reasonable person could not have reached the same conclusion. (Ibid.)
Defendants argue that the deferential arbitrary and capricious standard of review should be applied to County's determination that the Project was consistent with the general plan.
We believe that the arbitrary and capricious standard and the abuse of discretion standard are the same in substance. (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782, fn. 3 [32 Cal.Rptr.3d 177]; cf. Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712 [76 Cal.Rptr.3d 250, 182 P.3d 579] [the abuse of discretion standard of review, in the context of a motion to recuse a prosecutor, uses an arbitrary and capricious test for the application of the law to the facts].) Because this court used the abuse of discretion standard in Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 706 [58 Cal.Rptr.3d 102], we will proceed in this appeal using that formulation of the standard of review.
When the particular issue presented on appeal involves the interpretation of an ambiguous provision of a general plan, appellate courts defer to the local government's resolution of that ambiguity so long as the interpretation adopted is reasonable. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 142 [104 Cal.Rptr.2d 326].) In other words, the local government may adopt any reasonable interpretation; it is not required to select the most likely interpretation out of the range of possible reasonable interpretations.
Lastly, appellate courts review the local government's consistency determination, not the decision of the trial court. Consequently, our review is
The agriculture and land use element of County's general plan states that its goal regarding agriculture is to promote the long-term conservation of productive and potentially productive agricultural lands and to accommodate agriculturally related activities and support services. To achieve this goal, the general plan lists 21 policies. The first is land use policy LU-A.1 (County Ag Use Policy), which states: "The County shall maintain agriculturally-designated areas for agriculture use and shall direct urban growth away from valuable agricultural lands to cities, unincorporated communities, and other areas planned for such development where public facilities and infrastructure are available."
The parties disagree about the meaning of the County Ag Use Policy and whether County violated the policy when it approved the Project. We conclude that County interpreted the policy in a reasonable manner when it determined agricultural land use designations could be changed by amendment and a project is consistent with the County Ag Use Policy if some public facilities and infrastructure are available in the project area.
Plaintiffs' argument that the Project is inconsistent with the County Ag Use Policy begins with the contention that the policy is fundamental, mandatory and unambiguous. Plaintiffs interpret the mandatory language of the policy to mean that County is prohibited from changing the designation of land that has been designated for agriculture. Based on this interpretation, plaintiffs conclude that the Project is inconsistent with the County Ag Use Policy because the Project included the redesignation and rezoning of an agricultural area to allow for intensive urban use.
Plaintiffs also contend that the Project is inconsistent with the County Ag Use Policy because the Project is located in an area where public facilities and infrastructure are not available.
As to the interpretation of the County Ag Use Policy, defendants contend it does not prohibit changes in land use designations that are accomplished by
Defendants also contend that the Project is consistent with the County Ag Use Policy because (1) it protects valuable agricultural land by directing growth to less-productive grazing land and (2) it directs growth to the existing community of Friant and ensures appropriate improvement and expansion of public facilities there.
The first disagreement over the proper interpretation of the County Ag Use Policy centers on the phrase "shall maintain agriculturally-designated areas for agricultural use ...." This phrase is not interpreted in isolation. Consequently, we will discuss other provisions in the general plan that may shed light on its meaning.
Plaintiffs support their view that County is prohibited from redesignating agriculturally designated areas to other uses by referring to the general plan's (1) definition of "policy" as a "[s]pecific statement guiding action and implying clear commitment" and (2) statement that the "use of the word `shall' in a policy is an unequivocal directive ...." Because the general plan does not define the word "maintain," plaintiffs cite a dictionary that defines "maintain" to mean (1) to cause something to exist or continue without changing or (2) to keep in an existing state.
Defendants argue that the "shall maintain" language in the County Ag Use Policy does not prohibit general plan amendments that change the designation of land that had been designated "Agriculture." Defendants refer to the provision in the general plan that authorizes amendments and County's history of adopting amendments that change land use designation. Defendants also quote three other agriculture policies (LU-H.8, LU-F.39 and LU-A.14) as evidence that the general plan recognized situations could arise where the redesignation of agricultural land is necessary.
Amendments to the general plan are addressed in the introduction under the heading "REVISING AND AMENDING THE GENERAL PLAN." The first paragraph under the heading states that the general plan "must be flexible enough to respond to changing conditions and at the same time specific enough to provide predictability and consistency in guiding day-to-day land use and development decisions. Over the years, conditions and community
Where a provision of the general plan is ambiguous, the next and final question is whether the local governing body adopted a reasonable interpretation when it resolved that ambiguity. (No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 244 [242 Cal.Rptr. 37] [addressing whether city council's interpretation of ambiguous term in general plan was arbitrary, capricious or entirely lacking in evidentiary support].)
We conclude that the statement in the County Ag Use Policy that "... County shall maintain agriculturally-designated areas for agriculture use ..." is ambiguous as to whether County may amend the general plan and change the designation of land that had been designated "Agriculture." It is possible to interpret this language to mean that County may not ever change the agricultural designations made by the general plan. Alternatively, it is possible to interpret the language to mean, simply, that County shall allow only agriculture uses on land that is designated "Agriculture." Under this latter interpretation, the language does not address the subject of changing land use designations — it deals only with the designation that exists at the time in question.
The general plan's statement that "[m]ost general plan amendments involve changes in land use designations for individual parcels" clearly indicates that land use designations are not locked in forever. This reference to "land use
In summary, County's interpretation of the County Ag Use Policy and the other provision of the general plan to allow general plan amendments that change a land use designation from "Agriculture" to another use was one of the interpretations to which the general plan was reasonably susceptible. Therefore, County did not abuse its discretion in adopting that interpretation.
The second dispute over the proper interpretation and application of the County Ag Use Policy relates to the provision that County "shall direct urban growth [to areas] where public facilities and infrastructure are available." Plaintiffs cite the EIR's statement that the Project is consistent with the County Ag Use Policy "in that growth is being directed in an area that does not include valuable agricultural land and where public facilities and infrastructure are available or can be expanded." (Italics added.) In plaintiffs' view, the italicized language does not appear in the policy itself and demonstrates that the Project is inconsistent with the wording of the County Ag Use Policy.
Defendants argue that plaintiffs' interpretation of that policy is not reasonable because it effectively limits growth to areas where the necessary public facilities and infrastructure are in existence and excludes growth in areas where only some public facilities and infrastructure are available.
We conclude that County reasonably interpreted the County Ag Use Policy to mean that County could direct growth to an area where an expansion of existing facilities and the development of new facilities was required. County's interpretation is supported by policy PF-A.1, which provides: "The County shall ensure through the development review process that public facilities and services will be developed, operational, and available to serve new development. The County shall not approve new development where existing facilities are inadequate unless the applicant can demonstrate that all necessary public facilities will be installed or adequately financed and maintained (through fees or other means)." (Italics added.)
The general plan's "Transportation and Circulation Element" addresses various modes of transportation and their related facilities, including streets and highways. Goal TR-A is to "plan and provide a unified, coordinated, and cost-efficient countywide street and highway system that ensures the safe, orderly, and efficient movement of people and goods." Policy TR-A.1 addresses standards used in the planning and construction of streets and roads. Policy TR-A.2 (LOS Policy) provides in full:
The first paragraph of the LOS Policy uses the word "shall" and the last paragraph uses the word "should." The general plan contrasts the meaning of "should" with the unequivocal directive "shall" by stating that "the word `should' is a less rigid directive that will be honored in the absence of compelling and countervailing considerations."
Plaintiffs contend that the Project is inconsistent with the general plan's LOS Policy because it plans for roadways and intersections operating at worse than acceptable levels of service.
Defendants disagree with this claim of inconsistency and also argue that plaintiffs are barred by Government Code section 65009, subdivision (b)(1) from pursuing the claim because they did not exhaust their administrative remedies on the issue.
Plaintiffs' reply brief addresses exhaustion by contending the claim that the Project's contribution to unacceptable levels of service on numerous County roadways and intersections is inconsistent with the LOS Policy raised during the administrative proceedings. Plaintiffs support their position by citing a single document — the December 15, 2009, letter in which the City of Fresno set forth its comments to the draft EIR. The contents of the letter, which are crucial to the exhaustion issue, are described in part I.E.4., post.
The exhaustion of administrative remedies is required by Government Code section 65009, which provides in relevant part: "(b)(1) In an action or proceeding to attack, review, set aside, void, or annul a finding, determination, or decision of a public agency made pursuant to this title at a properly
The purpose of Government Code section 65009, which also includes a 90-day statute of limitations, "is to provide certainty for property owners and local governments regarding decisions made pursuant to this division." (Gov. Code, § 65009, subd. (a)(3).) Certainty is increased by the exhaustion requirement because it prevents administrative agencies from being surprised in court and provides them an opportunity to address issues and make any necessary findings or changes before the issue is subject to judicial review. (Friends of Lagoon Valley v. City of Vacaville, supra, 154 Cal.App.4th at p. 831.) The exhaustion requirement also lightens the burden on the court system by encouraging the development of a complete record before the administrative agency and allowing the agency to exercise its expertise on the issues raised. (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1137 [27 Cal.Rptr.3d 675].)
The petitioner has the burden of proving an issue was exhausted. (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 624 [157 Cal.Rptr.3d 240].) Whether exhaustion occurred is usually deemed a question of law. (Ibid.) As a result, appellate courts conduct an independent (i.e., de novo) review when evaluating whether an issue was raised at the administrative level. (Ibid.)
In the instant case, the primary legal question regarding exhaustion is whether the objections submitted to County during the administrative process were sufficiently specific to raise the issue of the Project's alleged inconsistency with the LOS Policy.
Some courts have adopted statements that suggest a relatively high degree of specificity is required. For example, in Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385 [64 Cal.Rptr.3d 79], the Second Appellate District stated: "The `exact issue' must have been presented to the administrative agency to satisfy the exhaustion requirement. [Citation.]" (Id. at p. 1394.) The rationale given for the "exact issue" standard is that requiring less would enable litigants to narrow, obscure or even omit arguments before the final administrative authority in the hope a trial court would reach a more favorable decision. (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors, supra, 216 Cal.App.4th at p. 623.)
Other appellate decisions set forth principles regarding specificity that appear more moderate. For example, we have stated that less specificity is required to preserve an issue in an administrative proceeding than to preserve an issue for appeal in a judicial proceeding because citizens are not expected to bring legal expertise to the administrative proceeding. (Woodward Park Homeowners Assn., Inc. v. City of Fresno, supra, 150 Cal.App.4th at p. 712.)
Plaintiffs attempt to prove exhaustion of the claim that the Project is inconsistent with the general plan's LOS Policy by referring to language in the 26-page comment letter the City Manager of the City of Fresno submitted on the draft EIR. We will discuss the portions of that letter that address (1) inconsistencies with the general plan and (2) traffic.
The letter contains six paragraphs of comments under the heading "Chapter 3.9 Land Use and Planning." The first sentence of the comments states the objection in broad terms: "The Project presents fundamental inconsistencies with the land use and planning policies in the County of Fresno General Plan and the General Plans of surrounding cities." The letter then describes alleged inconsistencies in more detail, which include (1) the Project's development of
The City of Fresno's comments to "Chapter 3.13 Transportation/Traffic" of the draft EIR are set forth at pages 14 through 21 of the letter. The first and third paragraph of that discussion state:
The italicized language was quoted in plaintiffs' reply brief to support their position that the issue regarding the Project's inconsistency with the LOS Policy was presented to County during the administrative proceedings and, as a result, the administrative remedies were exhausted.
Our analysis of whether the contents of the letter satisfy the exhaustion requirement starts from the perspective of what the letter omits and what it contains.
First, the portion of the letter cited by plaintiffs omits any mention of (1) the general plan, (2) the requirement for consistency with the general plan, or (3) any statutory provision that requires consistency with the general plan
Second, the portion of the letter cited by plaintiffs includes the factual assertion, which is accurate, that "the EIR identifies multiple road segments and intersections on both Friant Road and Willow Avenue as operating at unacceptable levels of service ...." This factual assertion appears to provide part of the foundation for the objection the City of Fresno set forth in the last sentence of the paragraph. That objection states: "The EIR ... must explain how it determines that access for necessary [(i.e., emergency)] medical services will not be significantly affected by the unacceptable traffic conditions on Friant Road and Willow Avenue."
The paragraph that includes the language quoted by plaintiffs to prove exhaustion stands in contrast to other portions of the letter that (1) explicitly mention the general plan, (2) articulate an allegation of inconsistency, and (3) refer to the requirements of the policy in question. As discussed earlier, the section of the letter that addresses land use and planning makes the broad assertion that the Project presents fundamental inconsistencies with the general plan and then sets forth the following specific claim: "The policies of directing urban development to incorporated areas with existing services to support development and away from agricultural land are contradicted by the Project." This language illustrates that when the City of Fresno wished to raise the question of general plan inconsistency it was capable of doing so with direct language. The absence of any comparable language in the portion of the letter relied upon by plaintiffs would lead an objectively reasonable person reading that part of the letter to infer that the claim of general plan inconsistency regarding levels of service for traffic was not being raised by the letter.
Accordingly, we conclude the City of Fresno's comment letter was not specific enough to satisfy the exhaustion requirement on the issue of the Project's inconsistency with the general plan LOS Policy. For example, plaintiffs now interpret the language that "[i]n no case should the County plan for worse than LOS D on rural County roadways" (italics added) to be a clear prohibition. If a claim of inconsistency had been articulated during the administrative process, County's personnel who responded to the public comment would have been alerted to the need to set forth their interpretation of the LOS Policy, including the meaning of the word "should" and other phrases.
The parties agree that the CEQA claims are reviewed on appeal under the abuse of discretion standard set forth in section 21168.5. We concur. Our
Under this abuse of discretion standard, we independently review claims that a public agency committed legal error (i.e., did not proceed in the manner required by law) in the preparation of an EIR. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427 [53 Cal.Rptr.3d 821, 150 P.3d 709] (Vineyard Area Citizens).) In comparison, we review claims that an agency committed factual errors under the substantial evidence standard. (Id. at p. 426.)
Generally, claims that the information presented in an EIR is legally inadequate under CEQA can be divided into two types. The first type involves a situation where the EIR does not discuss a topic that a statute, regulation or judicial opinion says must be discussed. This type of claim is relatively easy to decide — either the required information was in the EIR or it was omitted. (E.g., Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 404 [253 Cal.Rptr. 426, 764 P.2d 278] [EIR concluded there were no feasible alternative sites for relocation of biomedical research facilities; EIR's discussion was insufficient because it contained no analysis of alternative locations].)
The second type of claim, which is presented in this case, is more complex. It involves an EIR that has at least addressed the required topic and a claim by the plaintiff that the information provided about that topic is insufficient. Conceptually, this type of claim involves reviewing courts drawing a line that divides sufficient discussions from those that are insufficient. Drawing this line and determining whether the EIR complies with CEQA's information disclosure requirements presents a question of law subject to independent review by the courts. (Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 102 [131 Cal.Rptr.3d 626].) The terms themselves — sufficient and insufficient — provide little, if any, guidance as to where the line should be drawn. They are simply labels applied once the court has completed its analysis.
In Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383 [133 Cal.Rptr.2d 718] (AIR), this court set forth the following general principles to help define the line between sufficient and insufficient discussions in an EIR: "When assessing the legal sufficiency of an EIR, the reviewing court focuses on adequacy, completeness and a good faith
This court has also recognized that a good faith effort at full disclosure does not mandate perfection and does not require an analysis to be exhaustive. (San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 653 [57 Cal.Rptr.3d 663].)
Because the standard of review established by section 21168.5 refers to a prejudicial abuse of discretion, plaintiffs claiming the information in an EIR was insufficient must demonstrate that the failure to include relevant information precluded informed decisionmaking by the lead agency or informed participation by the public. (Madera Oversight Coalition, Inc. v. County of Madera, supra, 199 Cal.App.4th at pp. 76-77; AIR, supra, 107 Cal.App.4th at p. 1391.) Plaintiffs need not show that the outcome of the administrative process would have been different if the lead agency had complied with CEQA's disclosure requirements. (San Joaquin Raptor Rescue Center v. County of Merced, supra, 149 Cal.App.4th at p. 653.)
Plaintiffs contend that the EIR's discussion of wastewater generated by the proposed treatment plant lacks sufficient information about (1) the amount and location of wastewater application and (2) the hydrogeology of the Beck Property, the site selected for the proposed treatment plant and storage pond.
Section 3.14 ("Utilities and Service Systems") of the draft EIR described the existing water, wastewater treatment, effluent disposal, storm drainage and solid waste service in the Project area. As to wastewater treatment and effluent disposal, the draft EIR set forth various state and federal laws, regulations and other standards that affect wastewater service. Then, the draft EIR described the existing facilities for handling wastewater in the Project area as follows: "Nearly all of the buildings in the Friant Community are currently serviced by individual septic systems. The Millerton Lake Village Mobile Home Park is the only portion of the Friant Community that is
The draft EIR addressed the Project's need for a new wastewater treatment plant by discussing the possibility of locating a new wastewater treatment facility immediately adjacent to the small existing plant. This location is east of Friant Road and north of much of the proposed development.
The draft EIR stated that the proposed wastewater facilities would be built in three phases, as the development project is built out. When completed, the facilities would be able to handle approximately 800,000 gallons of wastewater per day (roughly 900 acre-feet per year). The wastewater would be treated to achieve tertiary quality effluent that would meet the state water quality standards for unrestricted use.
The draft EIR, in six paragraphs at pages 3-368 and 3-369, discussed the use or disposal of the wastewater once it has been treated by the new plant. During the summer months, all treated effluent was to be used irrigating landscape within the Project and turf at Lost Lake Park. During the winter months, when plants and grasses are dormant, the treated effluent could not be applied to land at the same rates as summer and, therefore, it was to be stored or disposed of in another way. The draft EIR stated that it was doubtful that storage ponds could be provided within the Friant Ranch development and proposed disposal of the treated effluent by discharge into the San Joaquin River, such discharges being limited to the months of October through April. If the requisite approval for the proposed discharge could not be obtained, the draft EIR stated that alternative disposal options would be considered, "such as storage or percolation at locations in the immediate vicinity (see Figure 3.14-4 for Beck Property effluent storage option)." Figure 3.14-4 presents an aerial view of the Beck Property and Lost Lake Park that includes a superimposed outline of a proposed 25-acre storage pond on the Beck Property.
A controversial part of the draft EIR's discussion of effluent disposal and use relates to the calculations regarding (1) the amount of treated effluent that
The water balance calculations referred to were included in the draft EIR as an appendix to an appendix. "Appendix L — Water Quality Impact Analysis" of the draft EIR contained three reports. One such report was dated December 2007 and titled "Anti-Degradation Analysis — Part 1." This report assessed wastewater discharge into the San Joaquin River and wastewater reclamation for Project landscaping and irrigation at Lost Lake Park. It had six appendices of its own, including appendix E, which was labeled "Friant Ranch Alternatives Water Balance" (Appendix E).
Appendix E is a one-page table providing six categories of information for three alternatives for the disposal of treated wastewater. The alternatives were described as (1) "Irrigate in Summer/Store in Winter," (2) "Irrigate in Summer/Discharge in Winter," and (3) "Irrigate Year Round/Store on Rainy Days." The first alternative listed the phase 1 irrigation area as 85 acres, the buildout irrigation area as 225 acres, and the requisite storage volume and storage area as 113.1 million gallons and 35 acres, respectively.
The data in Appendix E, together with other information in the draft EIR, can be analyzed mathematically to derive additional information about the "Irrigate in Summer/Store in Winter" alternative. First, the treatment plant's expected annual production of 900 acre-feet of treated wastewater can be divided by the irrigation area of 225 acres to conclude that, not factoring in losses from evaporation, each acre in the irrigation area would receive four acre-feet of treated wastewater per year. Second, the information about (1) the amount of treated wastewater that needs to be stored and (2) the amount of wastewater produced each day can be used to calculate the number of days that wastewater will be stored. When the 113.1 million gallons of stored effluent is divided by 800,000 gallons of effluent per day, the resulting figure is approximately 141 days. Because a year contains 365 days, the 141 days of storage implies an irrigation season of 224 days.
Another report in Appendix L to the draft EIR is titled "Anti-Degradation Analysis — Part II" (Part II) and was completed in April 2009, 16 months after the first part. It contains a two-paragraph section of text labeled "Seasonal
Part II then discussed possible locations for such a storage facility and concluded that, with the exception of the Beck Property, no available site was suitable for such a storage pond. It is unclear whether Part II's reference to the "preliminary water balance" meant the same water balance set forth in Appendix E. The numbers presented in Part II — 42 acres and 370 acre-feet — do not appear in Appendix E, which lists 35 acres as the storage area needed for approximately 113.1 million gallons (i.e., 347 acre-feet) of wastewater.
A reader of the draft EIR and its attachments would be confused about the number of acres needed for the effluent storage pond because the numbers provided are not consistent. Figure 3.14-4 (Oct. 2009) in the draft EIR shows a proposed 25-acre storage pond on the Beck Property. Yet, Appendix E indicates that 35 acres of storage is needed for the "Irrigate in Summer/Store in Winter" alternative. Also, the discussion in Part II of the antidegradation analysis indicates that a 42-acre storage pond would be needed.
The final EIR was released in August 2010. Section 2.4 contained the Project description and addressed the treatment and disposal of wastewater as envisioned at that time. The Project description stated that permits were required from the regional water quality control board for "irrigation with treated effluent of Specific Plan landscaping and off-site disposal of treated effluent on suitable nearby lands such as the Beck Property (identified in Figure 2-6) and/or Lost Lake Park (and, if sufficient winter land disposal areas are not available, seasonal discharge to the San Joaquin River) ...." (Fn. omitted.) The footnote described the Beck Property as the location of an
The final EIR also contained comments to the draft EIR and County's responses. One comment criticized the generality of the water balance information in the draft EIR and stated it was difficult to ascertain the precise water balance for the Project. In addition, the comment asserted that Friant Ranch, L.P., "should prepare a water balance that compares recycled water produced and recycled water demand on a monthly basis." (Italics omitted.) County's response provided in part: "A water supply balance has been conducted for the Project to determine and plan for expected effluent supply and demand. Effluent will be applied to landscape irrigation use as needed (during irrigation season from spring to fall) and excess effluent (e.g., effluent during winter months not otherwise disposed of) would be stored in tanks or ponds located onsite or at the off-site disposal sites for subsequent use onsite (see e.g., DEIR page 366). The Beck property disposal option includes over-winter storage, where effluent would be held until it could be used for irrigation. The water balance shows the Beck Property has capacity to provide 100 days storage, which is sufficient to accommodate wastewater generated by the Project, with enough remaining land to use the balance of reclaimed water for agriculture irrigation after supplying 400 acre-feet to the development areas of the Specific Plan Area for landscape irrigation.... The excess effluent will be used off-site, once the on-site demand is met."
The final EIR included a March 2009 memorandum prepared by Live Oak Associates, Inc., an ecological consulting firm, that analyzed the biological resources associated with the Beck Property. The memorandum was designated as appendix Q to the final EIR. It set forth the conclusion that the use of tertiary treated effluent to irrigate crops on the Beck Property during the spring, summer, and fall, and the storage of effluent in the existing mining pit, would have a negligible impact on the San Joaquin River. This conclusion was based on the factual assertion that effluent applied to the Beck Property to irrigate crops and the effluent stored in the pond would not reach the river.
After the final EIR was distributed in August 2010, County's planning commission reviewed the Project and the final EIR and issued a staff report.
Some of the concerns about the Beck Property and the winter storage of effluent were addressed in the Friant Ranch Infrastructure Master Plan dated September 2010 (IMP). The IMP addressed a smaller version (i.e., fewer residences) of the Friant Ranch Specific Plan than initially proposed. Under the scaled-down version, the expected wastewater production from the residences at Friant Ranch, commercial and industrial flows, and the existing and future uses in the Friant Community Plan area was estimated at 625,000 to 725,000 gallons per day or up to 815 acre-feet per year. This volume of effluent is about 10 percent less than the 900 acre-feet per year discussed in the draft EIR.
The IMP stated that the preferred alternative for winter effluent disposal was storage in the existing pond at the Beck Property and that the existing size of the pond was "more than adequate to provide 100-day storage of over-winter effluent" and "[w]ith a total available capacity of approximately 600 ac-ft, at project build-out, this pond actually provides for over a year of storage of effluent."
The IMP also addressed the Project's water balance, which is a broader water issue than balancing wastewater production with application and
The IMP does not discuss in specific terms how the remainder of the effluent from the treatment plant would be used. Instead, it includes a general statement (much like the statement in the draft EIR) that water balance calculations have been prepared and those calculations demonstrate "a balance between effluent production and available reclamation areas, allowing application of all effluent in a manner that does not exceed agronomic demand of the receiving lands." Whether this general statement is intended to cover the 815 acre-feet of total effluent production or just the effluent attributable to Friant Ranch is not clear.
On December 7, 2010, County's board of supervisors held a public hearing where one of the agenda items was the consideration of the Project and the final EIR. At the hearing, concerns on many topics were expressed, including locating the proposed wastewater treatment plant and storage pond in the San Joaquin River bottom. A vote on the approval of the Project was not taken at that hearing. Instead, the board of supervisors decided that issues raised at the hearing should be clarified. Accordingly, they continued the matter to the February 1, 2011, hearing and allowed further comments and rebuttal.
At the February 1, 2011, hearing of County's board of supervisors, the wastewater treatment plant and associated issues were addressed again. Travis Crawford from the Quad Knopf consulting firm testified that the Beck Property, a former gravel quarry, was identified as the environmentally superior site for the plant and effluent storage and disposal. He also stated that, at full buildout, there was enough area at the Beck Property and the open spaces areas of the Friant Ranch Specific Plan to use the wastewater without discharging into the San Joaquin River.
Glicker presented a slide showing that all effluent would be reused for irrigation and none would be discharged into the river. His figures included 15 million gallons (about 46 acre-feet) being added to the storage pond by rainfall and losses of 75 million gallons (about 230 acre-feet) to evaporation and three to four million gallons (about nine to 12 acre-feet) to percolation. The other two uses were Friant Ranch irrigation at 110 to 120 million gallons and farm reuse at 65 million gallons.
As to storage capacity and the system in general, Glicker stated: "The reuse system as we've looked at it is very well thought out. The pond is an oversized pond, a large amount of storage. In a typical year, there's about a year and a half of storage in the pond. The kinds of landscape and agricultural uses and the crops that ha[ve] been selected to be used on the Beck property are the kinds of crops that use reused water well. So it is a system that we feel adequately balances the water and the water that's going into the plant will get used in the reuse operations."
Glicker's slide about the uses of the effluent appears to be the only document in the administrative record that provides figures for all inflows into the pond and for all the ways that water in the pond could leave.
Plaintiffs contend that the EIR lacked sufficient detail about the amount and location of wastewater discharge and use. The lack of detail, they argue, makes it impossible to ascertain how it was determined that there could be a balance between effluent production and its subsequent storage and disposal.
Defendants contend that they provided more than adequate information about the wastewater treatment plant and its environmental impacts because
We disagree with plaintiffs' argument that the draft EIR did not show how effluent production, storage and disposal could be balanced.
When the information in Appendix E is considered with information disclosed in the text of the draft EIR and a few mathematical calculations are performed, the reader is able to understand how a year's production of effluent will be handled over the course of a year and the amount of land on which it will be applied for irrigation. In particular, under the irrigate-in-summer-and-store-in-winter alternative, the 900 acre-feet of effluent expected to be produced by the plant at Project buildout would require winter storage of 113.1 million gallons (i.e., 347 acre-feet) of effluent. Also, Appendix E's reference to the irrigation of 225 acres can be compared to the 900 acre-feet of treated effluent generated per year to deduce that, on average, four acre-feet of effluent would be applied to each acre of land during the irrigation season.
As to the location of the effluent application, the draft EIR indicates that "the Project proposes to use all effluent for a combination of irrigation of landscape features within the Friant Ranch Specific Plan development and turf at Lost Lake Park or other suitable disposal area in the immediate vicinity." While this statement about location is general in nature, we conclude that it is legally sufficient for a draft EIR because it provides enough detail to enable members of the public to present comments during the administrative review process about the location of effluent application and its potential environmental impacts. (See AIR, supra, 107 Cal.App.4th at p. 1390.)
Plaintiffs' opening brief argues that the statement about the Project's use of 400 acre-feet annually "fails to account for the entire 900 AFY of wastewater that the Project will generate." First, this argument does not reflect the wastewater production of alternative 3, the smaller version of the Project that was approved. Under alternative 3, the treatment plant's wastewater production is not expected to exceed 815 acre-feet per year. Second, the final EIR states that the excess effluent will be applied to the Beck Property, which has enough remaining land (i.e., land besides that used for the wastewater treatment plant and storage pond) to use the balance of the effluent for agriculture irrigation. Therefore, the final EIR does account for the application of all of the effluent produced by the wastewater treatment plant over the course of a year.
Plaintiff also argues that the draft EIR does not indicate that the Beck Property has the capacity to store all of the effluent generated during the nonirrigation season. This alleged shortcoming has some merit because the draft EIR referred to a 25-acre storage pond on the Beck Property and Appendix E indicated that a storage pond of 32 acres was needed for the irrigate-in-summer-and-store-in-winter alternative.
Plaintiffs also argue that the final EIR added to the confusion about wastewater balance by deleting the draft EIR's explanation of plans for disposal during the winter months. We conclude that the final EIR was not confusing on this point because the irrigate-in-summer-and-store-in-winter alternative was recommended to the board of supervisors and approved by them. This alternative provides for winter storage rather than winter disposal. Therefore, the discussion of possible methods of winter disposal, such as discharge into the San Joaquin River, was not relevant to the recommendations being made or approved and the continued inclusion of that information was unnecessary. In short, deleting the reference from the final EIR was consistent with the board of supervisors's decision to prohibit the discharge of effluent into the San Joaquin River and simplified matters by eliminating the discussion of an alternative that was being abandoned. Consequently, we reject plaintiffs' argument that County violated CEQA by approving a final EIR that deleted a discussion contained in the draft EIR.
In summary, we conclude that the various arguments presented by plaintiffs have not established that the CEQA documents provided insufficient detail regarding the amount and location of wastewater disposal.
For purposes of creating a full record, we will address briefly other issues raised by defendants. First, we conclude that the issue regarding the adequacy of the disclosures about the amount and location of wastewater disposal was exhausted during the administrative process by comment No. 28.14 and a letter from plaintiff Revive the San Joaquin River.
The opening brief plaintiffs filed in the trial court contained (1) a heading that asserted the EIR's analysis of the water quality impacts associated with the proposed wastewater treatment facility was inadequate and (2) one related subheading that asserted the "EIR fails to adequately analyze potential discharge of effluent to the River." (Underscoring omitted.) Plaintiffs argued that an adequate analysis would have described the hydrogeology of the Beck Property and analyzed the hydrological connection between the proposed effluent storage pond and the San Joaquin River.
Plaintiffs acknowledged a discussion in the final EIR (which relied upon a 2009 memorandum by Provost & Pritchard) that concluded: "[D]ue to the impermeable soil conditions and the direction of groundwater flow underlying the site, it is unlikely that a hydrologic connection exists between the groundwater and the San Joaquin River such that later groundwater seepage of treated wastewater into the San Joaquin River from the [Beck] Property would occur."
Defendants responded to plaintiffs' arguments by filing a joint opposition brief that asserted substantial evidence supported County's conclusion that operating a wastewater treatment plant on the Beck Property would not adversely affect the San Joaquin River. Defendants referred to studies and testimony of its expert that recycled water stored in the pond on the Beck Property would not reach the river. As an alternative, defendants also argued the EIR determined that even a direct discharge of the treated effluent would have no significant impact on the river and, therefore, seepage could not have a significant adverse impact.
The trial court rejected plaintiffs' claims, stating that a battle-of-the-experts situation existed and the court could not substitute its decision for County's decision where that decision was supported by substantial evidence.
On appeal, plaintiffs have focused their argument on the adequacy of the draft EIR, rather than the final EIR. They argue that the "failure to disclose and discuss information about the hydrogeology of the Beck Property in the DEIR precluded informed public review and scrutiny of the decision to approve wastewater treatment, storage, and discharge on the Beck Property."
Plaintiffs rely on this court's decision in San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713 [32 Cal.Rptr.2d 704], a case in which the plaintiffs challenged the adequacy of a final EIR prepared for a residential and commercial development project. The rescue center argued the inadequate description of the existing environmental setting of the site and surrounding areas made it impossible to determine from the final EIR whether wetlands existed on the site. (Id. at p. 722.) The trial court rejected the claim, but this court reversed and directed the trial court to require the preparation of an EIR that accurately described the site and surrounding environs. (Id. at pp. 742-743.)
The challenge presented in San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, supra, 27 Cal.App.4th 713, concerned the adequacy of
The instant case is distinguishable from San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, supra, 27 Cal.App.4th 713, in at least two important ways.
First, the draft EIR for the Project actually mentioned the point in dispute — that is, the possibility of seepage of wastewater from the Beck Property to the San Joaquin River. At page 3-210, the draft EIR states: "Due to impermeable soil conditions, it is unlikely that a hydrological connection exists between the groundwater and the surface water such that wastewater applied to irrigate onsite landscaping, the Beck Property, Lost Lake Park, or similarly situated lands would seep into the San Joaquin River through groundwater." This disclosure set forth the position that a hydrological connection was unlikely and, as a result, allowed those who disagreed to challenge that conclusion during the subsequent environmental review process.
Second, after the release of the draft EIR for the Project, the environmental review process (which included the submission of public comments, the publication of responses in a final EIR, and further public hearings) produced further information and analysis regarding the possible hydrologic connection
Therefore, unlike the circumstances in San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, supra, 27 Cal.App.4th 713 that led to our conclusion that the final EIR was inadequate, the circumstances of the instant case show that the subject of the alleged inadequacy was mentioned in the draft EIR and expanded upon in the final EIR. Accordingly, we reject plaintiffs' position that the disclosures in the draft EIR regarding the hydrogeology of the Beck Property were prejudicially inadequate and require this matter be remanded with directions for County to prepare a further analysis of the subject.
Chapter 3 of the EIR addresses the Project's setting, impacts and mitigation measures. Air quality is addressed in section 3.3.
Subsection 3.3.1 of the EIR describes the regulatory setting — that is, the federal and state agencies that regulate air quality and the applicable statutes, regulations, policies and plans. Among other things, subsection 3.3.1 contains a table of the National Ambient Air Quality Standards (NAAQS) and corresponding California standards for certain pollutants, including ozone, particulate matter 10 microns in diameter or smaller (PM10), fine particulate matter (PM2.5), carbon monoxide, nitrogen dioxide, sulfur dioxide and lead.
Subsection 3.3.2 describes the Project's physical setting in a manner relevant to the air quality issues, including the fact that the Project is located in the San Joaquin Valley Air Basin, which is the lower half of California's Central Valley. The EIR states that (1) the basin's ozone problem ranks among the most severe in California and (2) under the NAAQS and California's standards, Fresno County is designated a severe nonattainment area for ozone and a nonattainment area for PM10. Subsection 3.3.2 also provides a general description of the criteria air pollutants; these descriptions usually include a paragraph addressing the adverse health effects associated with exposure to the pollutant.
Subsection 3.3.4 contains the impact analysis. The short-term construction emissions are analyzed separately from the long-term, ongoing area and operational emissions.
The estimate of the project's long-term emissions and the application of the Air District's thresholds of significance produced the conclusion that the Project would have a significant adverse effect on air quality. As a result, the EIR proposed mitigation measure No. 3.3.2 and stated that the measures would reduce the impacts, but not below the thresholds of significance. Whether mitigation measure No. 3.3.2 complies with various CEQA requirements is among the issues raised on appeal; the actual mitigation provisions are discussed below.
Plaintiffs' first CEQA air quality challenge asserts that the EIR's discussion of air quality impacts failed to explain in adequate detail how the air pollutants emitted by this project would impact public health. We agree.
The EIR's discussion of impact No. 3.3.2, the long-term area and operational emissions, estimated that, at buildout, the proposed Friant Community Plan would emit approximately 117.38 tons per year of PM10, 109.52 tons per year of reactive organic gases (ROG), and 102.19 tons per year of
The Air District's thresholds of significance are 15, 10 and 10 tons per year for PM10, ROG and NOx, respectively. Because the Project's estimated emissions of PM10, ROG and NOx were from seven to 10 times larger than that of the thresholds of significance, the EIR concluded these air pollutants would have a significant adverse effect on air quality. Because mitigation measure No. 3.3.2 could not reduce these emissions below the Air District's thresholds of significance, the EIR concluded that the significant impacts were unavoidable.
The draft EIR included a page of background information about ozone and nearly a page of background information about PM10. Each included a paragraph about the adverse health effects associated with the pollutant. The discussion of the adverse health effects, however, was not connected to the levels of the pollutant that would be emitted by the completed Project. Instead, the discussion of adverse health effects was general in nature. For example, the description of the health effects of ozone noted that the effects were primarily to the respiratory system and stated: "Exposure to ambient levels of ozone ranging from 0.10 to 0.40 ppm for 1 to 2 hours has been found to significantly alter lung functions by increasing respiratory rates and pulmonary resistance, decreasing tidal volumes, and impairing respiratory mechanics."
As to PM10, the EIR stated its adverse health effects depended upon "the specific composition of the particulate matter." The EIR, however, provided no information about the composition of the particulate matter that was expected to be produced by the Project.
Plaintiffs contend the discussion of air quality impact was inadequate because (1) the EIR did not explain what it meant to exceed the thresholds of significance by tens of tons per year and (2) provided no meaningful analysis of the adverse health effects that would be associated with the Project's estimated emissions, which were far above the thresholds. Plaintiffs argue that anyone reading the EIR would not be able to understand how to translate the bare numbers of tons of estimated emissions and the thresholds of significance into adverse health impacts. To illustrate this point, plaintiffs assert that a reader would not understand how, from the perspective of human health, exceeding an Air District threshold by 20 tons would differ from exceeding the threshold by 100 tons. Plaintiffs support their position by citing
Defendants contend the EIR was adequate because it informed readers that (1) Friant Ranch's operational emissions would exceed the thresholds of significance set by the Air District, which are based on standards necessary for public health; (2) the Project's exceedance of the thresholds was a significant and unavoidable consequence of the Project; (3) the Project's emissions will make it more difficult for the Central Valley to reach attainment status, which means the health of valley residents may be impacted; and (4) certain types of health impacts can occur from unsafe levels of ozone and PM10. Defendants contend that the "reader can infer from this information that the more tons per year of these emissions that a project adds to the air, the worse the project is for air quality and human health, generally." Defendants also contend that if anyone had requested additional information regarding the magnitude of the significant impact in a comment to the EIR, County would have responded.
In Bakersfield Citizens, supra, 124 Cal.App.4th 1184, a local citizens group filed a CEQA petition challenging the EIR's for two retail shopping centers planned for the southwestern portion of Bakersfield, California. (124 Cal.App.4th at p. 1193.) Each shopping center featured a Wal-Mart Supercenter as its primary anchor tenant. (Id. at p. 1194.) One of the arguments raised by the citizens group was "that both EIR's omitted relevant information when they failed to correlate the identified adverse air quality impacts to resultant adverse health effects." (Id. at p. 1219.)
We will discuss these two action verbs — identify and analyze — separately. With respect to identification, the EIR in the present case goes much further than the EIR's in Bakersfield Citizens, supra, 124 Cal.App.4th 1184, because it (1) lists many types of air pollutants that the Project will produce; (2) identifies the tons per year of PM10, ROG, NOx and other pollutants that the Project is expected to generate; and (3) provides a general description of each pollutant that acknowledges how it affects human health. Therefore, the Friant Ranch EIR has identified, in a general manner, the adverse health impacts that could result from the Project's effect on air quality.
Despite the inclusion of this information, the Friant Ranch EIR was short on analysis. It did not correlate the additional tons per year of emissions that would be generated by the Project (i.e., the adverse air quality impacts) to adverse human health impacts that could be expected to result from those emissions. As defendants have pointed out, the reader can infer from the provided information that the Project will make air quality and human health worse. Although the better/worse dichotomy is a useful starting point for analyzing adverse environmental impacts, including those to human health, more information is needed to understand that adverse impact.
To illustrate this point, we will use extreme examples from the continuum of potential human health impacts. The information provided does not enable a reader to determine whether the 100-plus tons per year of PM10, ROG and NOx will require people with respiratory difficulties to wear filtering devices when they go outdoors in the Project area or nonattainment basin or, in contrast, will be no more than a drop in the bucket to those people breathing the air containing the additional pollutants.
The lack of information about the potential magnitude of the impact on human health
The foregoing references to the data provided in the EIR should not be interpreted to mean that County must connect the Project's levels of emissions to the standards involving days of nonattainment or parts per million. County has discretion in choosing what type of analysis to provide and we will not direct County on how to exercise that discretion. (§ 21168.5.) Nonetheless, there must be some analysis of the correlation between the Project's emissions and human health impacts. (Bakersfield Citizens, supra, 124 Cal.App.4th at pp. 1219-1220.) In other words, we agree with plaintiffs that it is not possible to translate the bare numbers provided into adverse health impacts resulting from this project.
Defendants argue that the issue regarding the correlation between the Project's emission of air pollutants and adverse health impacts was not exhausted during the administrative process. (See § 21177, subd. (a) [issue exhaustion].)
We conclude the City of Fresno's letter adequately raised the issue during the administrative process by asserting that "under CEQA, the EIR must
Also, we conclude that the issue was raised before the trial court. Plaintiffs' opening brief in the trial court asserted that the EIR failed "to discuss the health effects of the Project's significant air quality impacts" and cited Bakersfield Citizens, supra, 124 Cal.App.4th 1184.
Plaintiffs' second CEQA challenge involving air quality asserts that the EIR fails to provide sufficient detail about the measures that comprise mitigation measure No. 3.3.2. We agree.
The statutory requirement for a detailed statement about mitigation measures is expanded upon by Guidelines section 15126.4, which addresses the consideration and discussion of mitigation measures that must be included in an EIR. Plaintiffs' appellate briefs referred to the following three provisions. First, subdivision (a)(1) of Guidelines section 15126.4 states that an "... EIR shall describe feasible measures which could minimize significant adverse impacts ...." Second, Guidelines section 15126.4, subdivision (a)(1)(B) provides: "Where several measures are available to mitigate an impact, each should be discussed and the basis for selecting a particular measure should be indentified."
The third provision plaintiffs cite mandates a substantive requirement for mitigation measures. Guidelines section 15126.4, subdivision (a)(2) states that "[m]itigation measures must be fully enforceable through permit conditions, agreements, or other legally-binding instruments." The statutory basis
Mitigation measure No. 3.3.2 is not a single measure, but a dozen separate provisions that address (1) nonresidential development, (2) reducing residential energy consumption, (3) promoting bicycle usage and (4) transportation emissions. To avoid repetition, the terms of those provisions are set forth where relevant to our discussion of the issues raised.
The effectiveness of the proposed mitigation is addressed by the draft EIR's statement that mitigation measure No. 3.3.2 would reduce Project air quality impacts, but not below the Air District's thresholds of significance. In comparison, the lead paragraph of mitigation measure No. 3.3.2 goes further, stating that implementation of the measures would substantially reduce air quality impacts related to human activity within the Project area, but not to a level that is less than significant.
The final paragraph of mitigation measure No. 3.3.2 provides County with some flexibility by indicating that the mitigation measures are subject to change: "The County and [Air District] may substitute different air pollution control measures for individual projects, that are equally effective or superior to those proposed herein, as new technology and/or other feasible measures become available in the course of build-out within the Friant Community Plan boundary."
This paragraph is among those challenged by plaintiffs in this appeal.
Plaintiffs' first claim of insufficient detail concerns a statement made in the paragraph labeled "
Plaintiffs argue that "it is unclear what `impact' the policies will `lessen.' To the extent the objective is to minimize emissions from Project-related traffic, the EIR fails to explain how the policies of the proposed plans will minimize these emissions or to what extent they would minimize the emissions."
We disagree with plaintiffs' assertion that it is unclear what "impact" will be lessened. The statement is part of the discussion of impact No. 3.3.2, which addresses air pollutants from area and operational emissions at buildout of the Project. Thus, the "impact" referred to is the "increase [in] criteria air pollutants in [the] area" that is mentioned in the first paragraph of the EIR's discussion of impact No. 3.3.2. Furthermore, the goals and policies from the specific plan and community plan that are set forth in the EIR are not part of the mitigation measures, despite the fact that the implementation of the policies would appear to reduce emissions. Because the goals and policies are not part of mitigation measure No. 3.3.2, the rules of law governing the adequacy of an EIR's discussion of mitigation measures do not require the EIR to (1) explain how those policies would minimize emissions or (2) quantify, or otherwise describe, the extent that the policies would minimize emissions.
Plaintiffs' argument about the statement that the impact will be lessened by the plans' policies also includes the contention that "a mitigation measure cannot be used as a device to avoid disclosing project impacts." (San Joaquin Raptor Rescue Center v. County of Merced, supra, 149 Cal.App.4th at pp. 663-664.) This legal principle does not apply to the instant case because (1) the policies are not mitigation measures and (2) the EIR, in fact, does disclose the air quality impacts by setting forth estimates of the operational and area emissions at buildout produced by the URBEMIS software. The estimates in the final EIR are 117.38 tons per year of PM10, 109.52 tons per year of ROG, and 102.19 tons per year of NOx.
Therefore, the EIR's statement that the impact will be lessened by the plans' policies does not violate the informational requirements applicable to mitigation measures.
Plaintiffs' second claim of insufficient detail in the discussion of the mitigation measures concerns the part of mitigation measure No. 3.3.2 that addresses nonresidential development:
Plaintiffs' argument regarding the inadequacy of this discussion is built, in part, on two related flaws in the mitigation provisions themselves. Plaintiffs assert the mitigation measures (1) are merely amorphous guidelines and (2) are not enforceable. Plaintiffs appear to argue that these flaws (and the uncertainty they create) are not cured by the discussion in the EIR because there is no explanation of how it will be determined whether a measure is both "feasible and appropriate" and the person making this determination is not identified.
Defendants contend that the measures concerning nonresidential development are specific, enforceable and adequately described in the EIR. Defendants interpret these measures to mean that during review of future Project-specific submittals, County shall require that the three provisions be followed. Defendants acknowledge the use of the term "guidelines" in the introductory language, but note the use of the word "shall" and contend the requirements in the italicized text are quite specific. As to enforceability, defendants interpret plaintiffs' argument as being limited to the phrase "feasible and appropriate" and argue that feasibility is inherent in every mitigation measure adopted under CEQA and, alternatively, the three italicized mitigation measures are repeated in mitigation measures Nos. 3.15.1a and 3.15.1d without an introductory clause that states they will be implemented only if feasible and appropriate. Based on these arguments, defendants conclude that the CEQA requirements are satisfied because County is "committed" to the listed mitigation.
Our scrutiny of plaintiffs' claim begins by examining whether the mitigation measures in question are vague or unenforceable. For purposes of this case, we will treat the question of vagueness as being part of our inquiry into enforceability because vagueness makes it difficult to identify the who-what-when essential to enforcement.
As to defendants' argument that the phrase "where feasible and appropriate"
Plaintiffs' third claim of insufficient detail in the discussion of the mitigation measures concerns the first sentence in mitigation measure No. 3.3.2, which states that "[i]mplementation of the following mitigation measures will substantially reduce air quality impacts related to human activity within the entire Project area ...." (Italics added.) Plaintiffs argue there was no explanation of how it was determined that the proposed measures would
Defendants argue that the EIR is adequate because it enables the public to discern the analytical route County traveled from evidence to action and, furthermore, plaintiffs have cited no legal authority requiring an EIR to disclose the extent that mitigation would reduce emissions.
The statement that air quality impacts will be reduced substantially by mitigation measure No. 3.3.2 implies that someone has quantified the expected reductions to the tons of emissions disclosed earlier in the EIR and concluded that those expected reductions would be substantial. This implication is not supported by the discussion in the EIR nor explained in defendants' appellate brief. Thus, we are unable to discern whether the use of the term "substantially reduce" is supported by any evidence or, alternatively, is unsupported by the evidence and was included in mitigation measure No. 3.3.2 inadvertently or as an intentional attempt to mislead the reader. Regardless of how the phrase came to be used, we agree with plaintiffs that the statement that the measure will substantially reduce air quality impacts is a bare conclusion and, in this case, is not supported by facts or analysis as required by the disclosure principles set forth in AIR, supra, 107 Cal.App.4th at pages 1390 through 1391. On remand, if County reasserts its position that the reductions in emissions will be substantial, it should include enough facts and analysis in the EIR to allow a reviewing court to determine whether that finding of fact is supported by substantial evidence. For example, if the URBEMIS software program used to estimate the development's emissions contains variables that are affected by the mitigation measures, it may be that the software program was used to analyze a development scenario that included the mitigation measures. If that is the case, then the use of URBEMIS to quantify the emission reductions should be disclosed. Alternatively, if no quantitative assessment was performed, then (1) the claim of a substantial reduction should not be made or (2) the nonquantitative basis for the claim should be disclosed.
In summary, on remand, the assertion of fact in mitigation measure No. 3.3.2 that the reduction in air quality impacts will be substantial should be either explained or deleted.
Plaintiffs argue that mitigation measure No. 3.3.2 constitutes an impermissible deferral of the formulation of mitigation measures because (1) it
Defendants contend the issue of deferred formulation of mitigation was not raised in the trial court. Plaintiffs did argue to the trial court that the mitigation measures were vague and undefined, which made it impossible to gauge their effectiveness. This vagueness argument is similar to the claim that the mitigation measures failed to contain specific performance criteria — the test used to determine whether the formulation of a mitigation measure may be deferred. In addition, the improper deferral of the formulation of a mitigation measure for a project of this size presents a question of law involving the public interest. Therefore, in the exercise of our discretion, we will consider the question whether County improperly deferred the formulation of mitigation measures. (See Woodward Park Homeowners Assn., Inc. v. City of Fresno, supra, 150 Cal.App.4th at pp. 712-714 [this court exercised its discretion to consider issues regarding adequacy of EIR not raised below].)
Our analysis of the deferral issue begins with the last paragraph of mitigation measure No. 3.3.2 because of its overarching effect, which provides that all the mitigation provisions are subject to change. Specifically, the final paragraph provides that "... County and [Air District] may substitute different air pollution control measures for individual projects, that are equally effective or superior to those proposed herein...." The contents of the substitute provisions are unknown at present and, therefore, must be created (i.e., formulated) in the future. Because the formulation of the substitute provisions is deferred, they must qualify for an exception to the general rule that prohibits the deferred formulation of mitigation measures —
Many of the specific provisions in mitigation measure No. 3.3.2 lack performance standards that would allow either County or the public to determine whether the substitute measure works as well as the original provisions. The 12th measure, which is supposed to address transportation, states: "Information regarding [Air District's] programs to reduce county-wide emissions." When this provision is construed with the substitution clause, there is no basis for determining whether any potential substitute measure is equally effective or superior. Therefore, the substitution clause, when read together with the 12th measure, violates CEQA because it allows for the deferred formulation of mitigation measures when there are no specific performance standards to evaluate the effectiveness of the substitute measure.
The foregoing conclusion leads us to an analysis of each of the 12 mitigation provisions contained in mitigation measure No. 3.3.2. If the original provision contains specific performance criteria, then the possibility that a substitute measure might be formulated in the future does not violate CEQA because the substitute's performance could be measured objectively under those criteria and a determination reached as to whether the substitute is as effective as the measure being replaced.
The first mitigation measure, which concerns the use of trees in nonresidential development, fails to contain any performance standard as to the trees selected and located to protect buildings from energy consuming environmental conditions, but does contain a performance standard for trees selected to shade paved areas. The latter category of trees "should be varieties that will shade 25% of the paved area within 20 years" (italics omitted). The absence of any performance criteria for the trees selected to protect buildings leads us to conclude that part of the provision violates CEQA's rule against the deferred formulation of mitigation measures.
The second mitigation measure concerning nonresidential development states: "Equip HVAC units with a PremAir or similar catalyst system, if reasonably available and economically feasible at the time building permits are issued...." (Italics omitted.) In addition to the vagueness problem discussed earlier, the phrase "PremAir or similar catalyst system" does not identify the relevant performance characteristics of a PremAir system and, therefore, fails to set forth specific performance criteria. As a result, the
The third mitigation provision calls for the installation of "two 110/208 volt power outlets for every two loading docks." (Italics omitted.) Plaintiffs do not contend this measure lacks the requisite specificity.
The fourth through seventh mitigation provisions in mitigation measure No. 3.3.2 shall be used to "accomplish an overall reduction of 10 to 20% in residential energy consumption relative to the requirements of the 2008 State of California Title 24...."
The eighth and ninth provisions are designed to promote bicycle usage by requiring (1) nonresidential projects to have bike lockers or racks and (2) apartments and condominiums to provide "at least two Class I bicycle storage spaces per unit." (Italics omitted.) The eighth provision lacks any performance standard. The ninth provision is specific only about the amount of storage required. There is no basis for evaluating the emissions reductions achieved by the measure. Therefore, a substitute that addresses storage of bicycles could be evaluated under objective criteria, but a substitute pertaining to another subject matter could not be evaluated.
The 10th through 12th mitigation provisions, which are transportation-related mitigation, are not enforceable because of vagueness and, also, lack the specific performance criteria necessary for the evaluation of a substitute measure.
On remand, the CEQA violations involving the substitution clause and the lack of specific performance standards in the mitigation provisions should be addressed.
Plaintiffs requested County to consider how air quality impacts could be mitigated impacts through offsite emission reduction programs such as Air District's Voluntary Emission Reduction Agreement (VERA). Plaintiffs contend that County's response to their comment was not in good faith and does not provide a reasoned analysis for not requiring a VERA as a condition of Project approval.
Defendants contend County's response to the comments were adequate because they correctly explained that the suggestion for offsite emission reductions, including a VERA, would be considered during the Air District's indirect source review (ISR) process.
Applying the foregoing legal standards, we conclude that County's response to plaintiffs' written comments provided a reasoned analysis that meets an objective good faith standard.
We conclude that these responses adequately served the disclosure purpose that is central to the EIR process. (Twain Harte Homeowners Assn. v. County of Tuolumne (1982) 138 Cal.App.3d 664, 686 [188 Cal.Rptr. 233].) County clearly indicated that the consideration of a VERA would occur at a later stage and explained that process.
Besides claiming that County's response to the comment about VERA was inadequate, plaintiffs also appear to disagree with County's substantive decision to have the consideration of a VERA addressed later rather than accelerating the consideration of a VERA. Under the abuse of discretion standard of review, it can be difficult for a plaintiff to show that an agency's substantive decision constitutes reversible error. To establish reversible error, the plaintiffs must show that the agency "has not proceeded in a manner required by law...." (§ 21168.5.) In the present case, plaintiffs have identified no statute, regulations or case law that requires the consideration of VERA at this point in the administrative process. Therefore, plaintiffs have not shown that County failed to proceed in a manner required by law when it decided not to accelerate the consideration of a VERA.
The judgment is reversed and the matter remanded for further proceedings. The superior court is directed (1) to vacate its decision denying the petition for writ of mandate and (2) to enter a new order that grants the petition for writ of mandate.
The superior court shall issue a peremptory writ of mandate that compels County to vacate or set aside its approval of the Friant Ranch project and directs County not to approve the project before preparing a revised EIR that (1) contains an analysis of the adverse human health impacts that are likely to result from the air quality impacts identified in the EIR; (2) addresses the deficiencies concerning vagueness, enforceability and lack of specific performance standards in mitigation measure No. 3.3.2; and (3) addresses the issues related to the statement that those mitigation provisions will substantially reduce air quality impacts.
Costs on appeal are awarded to plaintiffs.
Cornell, Acting P. J., and Kane, J., concurred.
In BIA, supra, 190 Cal.App.4th 582, the petitioner's administrative challenge to a farmland mitigation program added to a county's general plan included the contention that the county did not have the authority to require involuntary agricultural conservation easements. (Id. at p. 597.) The petitioner did not refer to Civil Code section 815.3, subdivision (b) — the statute that prohibited conditioning the issuance of a land use entitlement on the granting of such an easement. (BIA, supra, at p. 597.) In BIA, we concluded the exhaustion requirement was satisfied because the petitioner's challenge at the administrative level adequately raised the issue concerning the county's authority to require such easements. (Id. at p. 598.) Therefore, in the instant appeal, the omission of the statutory provision containing the consistency requirement from the City of Fresno's comment letter does not resolve the exhaustion question presented.
The IMP identifies an alternate plan for disposal of winter effluent that involves the discharge to the San Joaquin River during the months of October through April.
Also, we do not join in defendants' interpretation of plaintiffs' argument about the lack of enforceability as concerning only the phrase stating that the specified measures will "be required where feasible and appropriate." Plaintiffs expressly argued that "there is nothing in MM 3.3.2 that appears to be a commitment to enforceable mitigation" and we interpret this argument as addressing more than just the phrase "feasible and appropriate."
