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New CEQA Case Limits Disclosure Of Information About Vulnerable Cultural Resources And Clarifies Water Supply Availability Analyses

In Clover Valley Foundation v. City of Rocklin, the Third District Court of Appeal considered a challenge to the Environmental Impact Report (EIR) for a 558-home residential development in the City of Rocklin.  While this case addresses a host of CEQA issues, the most notable holdings come with respect to the EIR’s analysis of impacts to cultural resources and water supply. 

The case provides authority for agencies to withhold from public disclosure detailed information about the precise location and contents of potentially affected Native American cultural sites in order to safeguard those sites from looting, despite CEQA’s otherwise stringent information-disclosure mandates. 

The Clover Valley case also provides public agencies with useful, practical clarification about the level of certainty needed to satisfy principles for analysis of water supply availability which were previously announced in the California Supreme Court’s decision in Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007), particularly when it is necessary for an EIR to identify and analyze replacement water supply sources.

Various non-profit organizations challenged the adequacy of the EIR’s analysis regarding cultural resources (primarily Native American artifacts), the growth inducing impacts of an expanded sewer pipeline, mitigation measures for oak tree removal and the California Black Rail, and the project’s General Plan consistency.  The Town of Loomis brought a separate action challenging the project’s visual impacts on views, traffic impacts, and the EIR’s water supply analysis.  The cases were consolidated.  The trial court denied the petition for writ of mandate, the Court of Appeal affirmed. 

In their appeal, the non-profit organizations argued the EIR failed to adequately describe the Native American cultural sites that may be affected by the project.  The Court held the EIR satisfied CEQA’s requirement to make a good faith effort to describe existing conditions.  The City acknowledged that it possessed additional information regarding the exact location of vulnerable cultural sites that it did not disclose in order to protect the confidentiality of the sites.  The Court agreed with the City that CEQA, as well as other State and Federal laws, requires the City to protect the confidentiality of the sites.  In light of those restrictions, the information disclosed in the EIR was sufficient under CEQA.  The City disclosed some new information about the protected cultural resource qualifications of the sites in “additional responses” to comments received on the Final EIR; however, substantial evidence supported the City’s conclusion that the additional responses did not trigger CEQA’s requirement to recirculate the EIR. 

The project also called for the expansion of an existing sewer pipeline.  The new pipeline would have capacity to serve the project’s 558 homes, as well as an additional 524 homes which had been included in a previously approved Master Plan, but had not yet received project-level approval.  The EIR disclosed that the sewer line could generate a growth-inducing impact, but that any induced development would require future discretionary approval by the City.  Petitioners argued the EIR failed to adequately analyze and mitigate the growth inducing impacts of the expanded pipeline.  The Court disagreed for three reasons:  (1) the project’s purpose was not to facilitate additional development; (2) the contemplated impact on growth is indirect in that it only removes one obstacle to future growth; and, (3) any future growth would undergo future CEQA analysis.  The Court also relied on the fact that the growth contemplated was previously analyzed in the City’s General Plan and the General Plan EIR. 

The Court upheld the EIR’s analysis and mitigation of impacts caused by oak tree removal, which found a significant and unavoidable impact, despite mitigation in compliance with the City’s Oak Tree Preservation ordinance .  The Court then considered the analysis of the project’s impacts on the California Black Rail, a “threatened” bird species designated as “fully protected” under the California Endangered Species Act.  The fully protected bird designation means no permit or license can authorize a taking of the species.  Petitioners attacked a mitigation measure that deferred further study until 30-days prior to construction.  Under the Mitigation Measure, the developer must obtain proper permits if a listed species is identified in a pre-construction survey.  Petitioners argued the mitigation measure was unenforceable because no permit can issue authorizing the take of a Black Rail.  CEQA allows deferral of a mitigation measure where another agency has permitting authority and the EIR includes performance standards and a commitment from the lead agency to mitigate.  The Court held the EIR complied with these requirements; that a permit cannot authorize the take of a Black Rail was irrelevant. 

The Court also found no basis in Petitioner’s challenge to the project’s General Plan consistency, due to the deferential standard of review applied to such challenges, and the relatively trivial nature of the alleged inconsistency of the project with the General Plan.  

In its appeal, Loomis asserted the EIR failed to adequately analyze the project’s impacts on views.  The Court held that, while some residents of Loomis may not want their views of Clover Valley to change, the EIR complied with CEQA’s requirements to disclose, analyze, and mitigate impacts to the extent feasible. 

Loomis also claimed the EIR was inadequate because it did not consider traffic impacts at two particular intersections and during morning school commute times.  The EIR analyzed impacts on 17 different intersections and at peak afternoon traffic flows.  The City historically used peak afternoon traffic for its analyses because traffic volumes tend to be higher in the afternoon.  The Court held the City’s conclusions were supported by substantial evidence, and that no additional studies were required. 

Lastly, Loomis argued that the EIR failed to demonstrate availability of adequate water supply.  The City relied on statements from its water provider, the Placer County Water Agency (PCWA), that it had sufficient water and adequate infrastructure to supply the project.  The controversy arose around PCWA’s first-come, first-serve policy.  Any delays in project construction could mean that other projects would consume PCWA’s surplus.  At the time the EIR was prepared, PCWA was processing a transfer to acquire additional water and had plans for certain infrastructure projects to increase its capacity.  Loomis claimed the EIR failed to verify adequate water availability and that the possible replacement source was too uncertain.  The Court held that PCWA’s assurances that adequate water is available constituted substantial evidence to support the City’s conclusions and negated the need to identify replacement water sources.  The Court held the EIR’s analysis of replacement sources, while not required, was also adequate.