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LandWatch Comments on the Draft EIR |
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July 12, 2004 Therese Schmidt, Senior Planner [Hand Delivery] County of Monterey, Planning and Building Inspection Department Re: Comments on Draft Environmental Impact Report (DEIR) for the Proposed Rancho San Juan Specific Plan and HYH Property Project; SCH No. 2002121142 Dear Therese Schmidt: This comment letter on the Draft Environmental Impact Report (“DEIR”) for the proposed Rancho San Juan Specific Plan and HYH Property (hereinafter “RSJ Project” and “HYH Project” or collectively “the projects”) is submitted by LandWatch Monterey County. The mission of LandWatch Monterey County is to promote and inspire sound land use legislation at the city, county, and regional levels through grassroots community action. LandWatch and its members strongly believe that proper land use policies can prevent urban sprawl and promote infill development, with beneficial impacts on the local economy, environment, and social equity. Our comments provide a detailed and explicit outline of the problems and inadequacies presented by the DEIR, including deficiencies under the California Environmental Quality Act (“CEQA”) (Pub. Res. Code §§ 21000 et seq.) and the CEQA Guidelines (14 Cal. Code Regs. §§ 15000 et seq.). In addition, this letter provides preliminary comments on the Specific Plan and HYH project failure to comply with State planning laws. The overarching defects in the DEIR are that it fails: 1. To provide information about the projects individually and collectively necessary to support adequate analysis of impacts. 2. To analyze adequately project-related and cumulative impacts. 3. To identify mitigation measures and alternatives necessary to support informed decision-making by the permitting agencies and the County. For the most part, the DEIR’s failure is not due to a lack of information about the proposed projects. The DEIR simply fails to make us of the information contained in the Specific Plan to analyze project-related impacts. The Specific Plan contains detailed information about the Specific Plan project. For example, the Specific Plan describes the potential size of estate homes. The DEIR not only ignores this information, but overlooks the importance of it in terms of analyzing the impacts of estate homes located in the hills in excess of 28,000 square feet in size according to the lot standards. (These impacts include impacts related to grading, viewshed and resources, and traffic). See the Specific Plan at 7-40, Estate Single Family Lot Standards.[1] This is but one example of the DEIR’s failure to analyze the whole project. As a result, the DEIR barely scratches the surface of disclosing project-related impacts and fails to identify feasible mitigation measures and alternatives. A revised DEIR must be prepared which fully analyzes the impacts of all aspects of the proposed projects and project alternatives. The Board of Supervisors has the responsibility to uphold the law. Considering a proposal of this magnitude before the facts are in would not only be illegal, it would also be a profound disservice to the citizens who will have to bear the consequences of any decision made. The public has a legal right to know how much these projects would actually cost in terms of air and water pollution and increased demand for public services. If it turns out that the price is too high, the County should reject the projects. Unfortunately, the DEIR fails to provide the information needed to make this determination. I. THE PROJECTS CANNOT LEGALLY BE APPROVEDState law requires that the County have a legally adequate general plan, Gov’t Code § 65300, and requires that individual projects be consistent with the general plan. See Lesher Communications, Inc. v. City of Walnut Creek, 52 Cal.3d 531 (1990). Any project approval that is made in the absence of a legally adequate general plan, where the project implicates an inadequacy of the general plan, is invalid at the time it is made. See Neighborhood Action Group v. County of Calaveras, 156 Cal.App.3d 1176 (1984). The proposed Draft General Plan Update has not been adopted. Thus, the 1982 Monterey County General Plan (hereinafter “1982 General Plan”) comprises the general plan for the County unincorporated territory where the projects are located. The 1982 Monterey County General Plan Circulation element is no longer adequate to support the Land Use element because of 22 years of largely unanticipated growth. Before the Project can be approved, the land use and circulation elements of the General Plan must be revised, at least as they affect and are affected by the Project area. The orderly and logical process to accomplish this is the General Plan Update, which the County should complete prior to approval of further large scale intensive land uses. A general plan may “fall so far behind changing local conditions that the County will fail to fulfill an implied statutory duty to keep its general plan current.” (DeVita v. County of Napa (1995) 9 Cal.4th 763, 792, citing Garat v. City of Riverside (1991) 2 Cal.App.4th 259, 296, fn. 28.) “Local agencies must periodically review and revise their general plans as circumstances warrant . . ..” (Citizens of Goleta Valley v. Board of Supervisors of Santa Barbara County (1990) 52 Cal. 3d 553, 572.) The consistency doctrine requires that a General Plan be internally consistent. (Gov. Code, section 65300.5.) Thus, in amending its General Plan to re-designate land uses, the County must ensure that the amendment is consistent with the other elements of the plan and that the General Plan as a whole remains internally consistent. Specifically, the circulation element must correlate with the land use element of a general plan so that growth does not impair circulation standards. (Gov. Code, section 65302, subd. (b); (Concerned Citizens of Calaveras County v. Calaveras County Board of Supervisors (1985) 166 Cal.App.3d 90, 99-103.) When a general plan is inconsistent or inadequate due to a county’s failure to keep it current, and there is a nexus between its inadequacies and inconsistencies and the geographic areas implicated in its proposed amendment, a court may require a general plan update before approval of zoning enactments. (Garat v. City of Riverside, supra, 2 Cal.App.4th at 299, 303.) For example, a general plan can be invalidated upon a showing that 1) changes in land use and adoption of community and specific plans resulted in traffic impacts, causing an inconsistency or a lack of correlation between circulation and land use elements, 2) those impacts required update of the general plan to avoid inconsistency, and 3) the inconsistency affects the geographic area affected by the proposed amendment. (Id. at 301.) The recently abandoned general plan update process provides ample evidence that the circulation element is no longer correlated with the land use element and that the general plan must be updated to correct this lack of correlation. The traffic policies, implementation plans, improvements, and standards included in the current General Plan are inadequate to support the current intensity of land use. Furthermore, these inadequacies apply in the geographic area covered by the specific plan. The ad hoc general plan amendments proposed for the Project cannot cure the lack of correlation between the land use and circulation element because they simply do not address the problem. The proposed general plan amendments purport only to address such General Plan inconsistencies as park sizes, industrial land designation, and building heights. (DEIR, 4-52.) The only proposed General Plan amendment to address traffic problems pertains only to interior circulation improvements, not regional traffic impacts. (DEIR, C-13.) 1. The Project Is Inconsistent With Existing General Plan Policies Even if the Monterey County General Plan were adequate, the Project is not consistent with its policies and goals. Thus, it cannot be approved. Generally, a project must be consistent with the applicable general plan. (Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176, 1183 [203 Cal.Rptr. 401].) Consistency demands that a project both “further the objectives and policies of the general plan and not obstruct their attainment.” (Families Unafraid to Uphold Rural El Dorado County v Board of Supervisors of El Dorado County (1998) 62 Cal.App.4th 1334, 1336 (“FUTURE”), citations and internal quotations omitted, emphasis added.) Where a project conflicts with a single general plan policy, its approval may be reversed. (San Bernardino County Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 753; FUTURE, supra, 62 Cal.App.4th at 1341( project inconsistent with one land use policy).) A specific plan must be consistent with a general plan. (Gov. Code, section 65454.) A specific plan must support a general plan; thus, revisions to a specific plan that frustrate general plan policies, even without direct conflicts, will be found inconsistent. (Napa Citizens v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 379 [110 Cal.Rptr.2d 579].) The Project is fundamentally inconsistent with a number of Monterey County General Plan policies. For example, the Project would cause a substantial increase in regional traffic that would not be fully mitigated by improvements to Highway 101 and impacted regional arterials. Thus, the Project fails to meet transportation related General Plan Goals 37 (promote safe, effective, and economical transportation system that will service existing and future land uses), 38 (minimize negative impacts of transportation in the County), and 39 (provide for a road and highway network to meet the needs of existing and anticipated movements of people and commodities). The Project is also inconsistent with Greater Salinas Area Plan Goal 20.1.5.1 (discourage scattered development to reduce commute emissions). The Project is inconsistent with RSJ ADC Development Guideline 2 (specific plan shall include phasing of development, transportation improvements, and other traffic mitigation for Highway 101 and adjacent arterial roadways), Guideline 5 (development which has any significant unmitigated impacts shall not commence until the Highway 101 bypass construction date has been set), and Guideline 58 (arterial roadways will be developed at the outset of the project). Under Specific Plan Alternatives 2 and 4e, even with a deferred and unspecified fair share funding program, the DEIR admits that the availability of supplemental funding or other limitations may prevent the County from constructing the improvements necessary to mitigate the Project impacts on its roads and intersections in 2010 and 2020. Thus, “the improvements may not be available concurrent with need or completed at all” and intersection impacts are considered significant even after mitigation. (DEIR 5.2-26, 29, 30.) Impacts on regional highways in 2010 and 2020 would also remain significant because there is no adopted programmatic development traffic Impact Fee Program and the existing ad hoc fee program cannot mitigate impacts. (DEIR 5.2-29 to 31.) Similarly, for the HYH Property Project, The DEIR acknowledges that availability of supplemental funding or other limitations may prevent the County from constructing the improvements necessary to mitigate traffic impacts and thus “the improvements may not be available concurrent with need or completed at all.” (DEIR 5.2-35.) The HYH Property Project’s impacts on highways in 2010 and 2020 would also remain significant due to the lack of a programmatic development traffic Impact Fee Program. (DEIR 5.2-36.) Monterey County General Plan Goals 37, 38, and 39 are intended to ensure that the County’s circulation system supports its land use. These provisions are not simply a wise choice by the County; they are mandated by the statutory requirement that the circulation element correlate with the land use element of a general plan. (Gov. Code, section 65302, subd. (b).) This effectively requires the circulation element to set forth service standards as well as proposals respecting changes in roadway demand caused by changes in land use. The correlation requirement is intended to prevent the land use element from permitting growth without adequate proposals for addressing circulation needs. (Concerned Citizens of Calaveras County v. Calaveras County Board of Supervisors (1985) 166 Cal.App.3d 90, 99-103 [212 Cal.Rptr. 273].) In Concerned Citizens of Calaveras County the court held that achieving the mandatory correlation of the circulation and land use elements required that a county actually identify funding sources and a real plan to address the state highway system before allowing additional growth: “We conclude that the general plan cannot identify substantial problems that will emerge with its state highway system, further report that no known funding sources are available for improvements necessary to remedy the problems, and achieve statutorily mandated correlation with its land use element (which provides for substantial population increases) simply by stating that the county will ask other agencies of government for money.” (Id. at 103.) The facile consistency analysis in Appendix C of the DEIR[2] obscures the bleak fact that the Project will cause significant unmitigated regional traffic impacts that cannot be reconciled with General Plan goals. The consistency analysis recites the Specific Plan requirements for roadway improvements and traffic mitigation facilities, “as identified in the Environmental Impact Report.” (DEIR, p. C-13.) However, the consistency analysis does not mention that the DEIR admits that the facilities it identifies will not meet the General Plan goals. In Napa Citizens v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 379 [110 Cal.Rptr.2d 579], the court held that the consistency doctrine required “more than that the Updated Specific Plan recite goals and policies that are consistent with those set forth in the County’s General Plan.” (Id. at 379.) Instead, the specific plan was required actually to mitigate impacts that would frustrate general plan goals, goals which were very similar to Monterey County General Plan Goals 37, 38, and 39: “If the Updated Specific Plan will frustrate the General Plan’s goals and policies, it is inconsistent with the County’s General Plan unless it also includes definite affirmative commitments to mitigate the adverse effect or effects.” (Id., emphasis added.) This required more than a recitation that the County would “work towards improving roadways;” it required a “binding commitment . . . to alleviate the impact the Project will have on traffic . . ..” (Id. at 380.) There is simply no such binding commitment here. The 1982 General Plan is inadequate in numerous respects that are implicated by the projects, including, but not limited to the following:
Therefore, the applicable General Plan does not comprise a legally adequate plan for County and the projects are inconsistent with the General Plan. As a result, consideration of the proposed project is premature because the County lacks a general plan on which to base approval of the projects. Moreover, the projects are inconsistent with numerous County policies and ordinances. Specifically, the DEIR states: “Implementation of the proposed Specific Plan would require an amendment to the adopted General Plan to reconcile differences between the Specific Plan and various goals and objectives of the adopted General Plan and/or the proposed General Plan including substandard community park size, insufficient industrial area, and inconsistent building lot coverage and building height. Other local discretionary actions include an amendment to the water transfer ordinance, approval of the Specific Plan, and establishment of a Community Service District (see Table 4.4-1 in the Project Description for more detail).” DEIR at 1-2. In view of the fact that no such changes have occurred, or are specifically proposed in connection with the projects, it would be impossible, legally, to approve the projects as proposed. In addition, the projects are inconsistent with numerous other policies of the 1982 General Plan, including, but not limited to the following:
Many more inconsistencies exist between policies of the applicable General Plan and the proposed projects. It is not job of commentors on this DEIR fully to analyze consistency of the proposed projects with the applicable General Plan, nor to evaluate the legal sufficiency of the General Plan. The analysis contained in the DEIR (Appendices) is merely copied from the Specific Plan. The County should retain outside Counsel to provide a full analysis of project consistency with the General Plan and an evaluation of the legal adequacy of the 1982 General Plan. This information should be provided to the Board of Supervisors in advance of any action on the projects. If the County fails to provide this analysis, LandWatch will be supplementing these comments with a full review of the adequacy of the General Plan and Specific Plan. Finally, the projects together will result in at least 39 project-related direct and cumulative impacts, including impacts to traffic, air quality and biological resources. For this reason alone, the projects cannot be legally approved, and should be denied. II. THE DEIR IS INADEQUATE UNDER CEQA The DEIR is inadequate. An EIR must provide enough analysis and detail about environmental impacts to enable decision-makers to make intelligent judgments in light of the environmental consequences of their decisions. See CEQA Guidelines § 15151; Kings County Farm Bureau v. City of Hanford, 221 Cal.App.3d 692 (1990). Under the law, the lead agency must make a good faith effort to fully disclose the environmental impacts of the project. This requirement cannot be met unless the project is adequately described and existing setting information is complete. See County of Inyo v. City of Los Angeles, 71 Cal.App.3d 185, 199 (1977). Both the public and decision-makers need to fully understand the implications of the choices presented by the project, mitigation measures, and alternatives. See Laurel Heights Improvement Ass’n v. Regents of University of California (Laurel Heights I), 6 Cal.4th 1112, 1123 (1988). The DEIR fails to provide sufficient information to enable informed decision-making by the County, the public, and the permitting agencies. The DEIR is intended to cover all necessary approvals for the HYH project, including a vesting tentative map. Many of the most significant impacts on this property will be irreversible after rough grading has occurred. Thus, detailed information concerning project level impacts must be provided at this stage of project consideration so that the County, the agencies and the public can fully understand the impacts of the proposed project and alternatives. Deferral of information concerning project-related and cumulative impacts, mitigation measures and alternatives is improper and unacceptable given the types of activities and irreversible environmental harm that will result from the initial approval of the project by the Board of Supervisors. A. The DEIR Fails to Adequately Describe the Project and Project Setting The DEIR fails to describe the project and its setting accurately and completely. It omits key project features that have the potential to result in significant impacts even though some of those features are described in the Specific Plan text and maps. The CEQA Guidelines define “project” as “the whole of an action, which has a potential for resulting in a physical change in the environment, directly or ultimately . . . .” CEQA Guidelines § 15378. Among other components, an EIR’s project description must contain a “general description of the project’s technical, economic, and environmental characteristics, considering the principal engineering proposals if any and supporting public service facilities.” CEQA Guidelines § 15124(c). As the Court of Appeal has noted, “The defined project and not some other project must be the EIR’s bona fide subject.” County of Inyo, 71 Cal.App.3d at 185. An accurate and complete project description is indispensable because, “[a] curtailed or distorted project description may stultify the objectives of the reporting process. Only through an accurate view of the project may affected outsiders and public decision-makers balance the proposal’s benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal . . . and weigh other alternatives in the balance. An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.” Id. at 192. It does no good from the standpoint of an adequate EIR to have information in the Specific Plan that is not the subject of analysis in the DEIR. The DEIR also fails to provide an adequate description of the setting for the project. Such a failure is fatal under CEQA. CEQA and the CEQA Guidelines mandate that an EIR include a description of “the physical environmental conditions in the vicinity of the project . . . from both a local and a regional perspective . . . Knowledge of the regional setting is critical to the assessment of environmental impacts.” CEQA Guidelines §§ 15125(a) and (c). This requirement derives from the principle that without an adequate description of the project’s local and regional context, the EIR, and thus the decision-makers and the public who rely on the EIR, cannot accurately assess the potentially significant impacts of the proposed project. Additionally, the DEIR fails to describe accurately and completely the environmental setting impacted by the project. Accordingly, potentially significant environmental impacts cannot be adequately analyzed or addressed by the DEIR and, for this reason, the DEIR is fatally deficient under CEQA. Specific defects in the project description and setting include, but are not limited to the following: First, the project objectives for the HYH Property are improperly narrow in their scope. A project’s goals and objectives may not be defined so narrowly as to preclude all environmentally superior alternatives. Objectives for the HYH Property are described in the DEIR and include:
This objective and other objectives are improper in that they narrowly define the project so as to preclude consideration of feasible alternatives that would attain the legitimate goals of the County General Plan and applicable community plan. For example, the HYH Project objectives do not take into account recent studies showing that residential communities that provide for natural open space, such as trails or parks, are more desirable than golf courses. Moreover, development of a wastewater treatment facility is an implementation element of the proposed project, and is improperly listed in Project objectives. An appropriate objective would be to require the timely provision of all essential public services and facilities for the project. By identifying the development of a wastewater treatment plan as a Project objective, feasible project alternatives are precluded. A revised DEIR must include appropriate objectives which do not have the effect of limiting the range of alternatives analyzed for the projects. Second, the DEIR fails to describe and analyze the whole project. The Specific Plan provides that “[t]wo Future Development/Interim Agricultural areas, comprised of 565.5 acres, would be established, the largest in the eastern portion of the Specific Plan area, and the other in the northwestern portion. Development of these areas would depend on additional sources of water supply as groundwater is currently considered insufficient to accommodate more than the development intensity included in the proposed Specific Plan. Interim agricultural use of the large Future Development/Interim Agricultural area is allowed.” DEIR at 4-4. The DEIR also states: “The Future Development/Interim Agriculture areas could be developed for urban use provided an amendment to the Specific Plan is granted.” DEIR at 4-19. Development of this area in the future as urban is foreseeable and a “worst-case scenario” could have been included in the analysis of potential impacts in the DEIR – either related to the project or potential cumulative development under the General Plan. The DEIR does not include such an analysis. Contrary to the Specific Plan and DEIR’s approach, the Court’s have clarified that an EIR must examine a project’s potential to impact the environment, even if the development may not materialize. Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d263, 279, 282. A revised DEIR must include analyses of the impacts associated with the full potential buildout of the whole Specific Plan area. Third, the DEIR fails to include adequate information concerning grading necessary to construct the project as proposed. The DEIR states that cut and fill “is anticipated to be balanced on site,” but fails to provide adequate illustrations and information to document this statement. DEIR at 4-28. It is clear from the mitigation measures for the Specific Plan that the analysis of potential impacts associated with cut and fill is far from complete. Specifically, both measures, MM 5.8-1a and 5.8-1b required further investigations to determine the specific characteristics and capabilities of underlying soils and potential geologic hazards. The problem with deferring this information is that the statement that cut and fill is anticipated to be balanced on site is not supported by any evidence in the record. Neither the DEIR nor Appendix I, Geologic, hydrogeologic and Geotechnical Assessment Report contain information sufficient to ascertain whether cut and fill can be balanced on site. Moreover, MM 5.8-1b makes clear that there may be a need for additional remedial and contour grading. If cut materials must be exported and fill imported because on-site materials are not adequate, significant additional impacts will occur, including, but not limited to: traffic associated with hauling; growth inducement depending upon the nature of disposal sites; impacts to biological resources and impacts to air quality among other impacts. The provision of this information in a revised DEIR is particularly important for development in the hilly areas within in the Specific Plan area. For example, the DEIR states that “[t]he HYH Property contains little flat land…” Emphasis added. DEIR at 5.8-11. Elsewhere the DEIR appears to contradict this statement: “Due to the relatively flat topography, the potential for landslides is considered low.” DEIR at 5.8-8. Neither the Appendix nor the DEIR provide sufficient information about the project site’s geology to support the conclusions reached that before and after mitigation, project impacts will be less than significant. Clearly, the information in the DEIR is subject to major revision as adequate information about site geology is developed in the future pursuant to mitigation measures. Thus, the DEIR fails to provide sufficient information at this point on which to base informed decisions concerning site grading, landform alteration, potential need for off-site fill and the like. Please respond to the following questions in the response document:
Fourth, according to the DEIR, the project will require major general plan amendments and in order to be consistent with the County’s 1982 General Plan. The DEIR fails to include a complete description of these amendments required for project approval. Preparation of a revised and clarified section concerning general plan and zoning consistency is warranted. A revised project description must include any required text changes to these documents needed for conformity, as well as detailed maps comparing current zoning and general plan land uses with proposed zoning and land uses. A revised analysis must state whether any of the proposed zone or general plan amendments will result in significant impacts (e.g. related to changes in land use, precedent for growth beyond the project, etc.). The consistency “analysis” included in Appendix C fails to provide adequate information concerning conforming amendments and map changes. Specifically, the consistency discussion in the DEIR contains simplistic and conclusory statements, instead of analysis, concerning project consistency with the general plan. In addition, the analysis should include a defense of why the 1982 General Plan is legally adequate given its dated information about population, traffic and the like and given the general plan amendments that have occurred since it was adopted. The latter should be listed and described. For example, has an analysis been completed that demonstrates the 1982 General Plan circulation element is still correlated with planned and approved land uses? If not, one should be completed and reference in the Final EIR. In short, a revised project description must respond to the following questions: What are the specific General Plan text and map changes required to support findings of project consistency? Will any of these changes result in inconsistencies between the zoning and the General Plan? Please provide detailed text changes in a revised DEIR. Will any of these changes result in additional significant impacts, and if not, why not? Fifth, the DEIR lacks a complete description of proposed uses at the project site. Specifically, the DEIR fails to describe key aspects of the proposed project. A revised project description must include complete information concerning:
16) Engineering and operational details of the wastewater treatment plant. This plant is part of the proposed projects and must be fully analyzed in the DEIR. 17) Engineering and operational details of water wells, storage and conveyance. Again, the impacts of these facilities must be fully analyzed in the DEIR. 18) Again, a revised DEIR or FEIR should also include a large color graphic that clearly numbers each lot so that commentors and decision-makers can readily refer to lots that should be relocated or eliminated due to impacts and/or site constraints. All graphic information concerning site constraints and resources should be keyed to this map. This information is relevant to a number of impact analyses including, but not limited to: demand for services, traffic, jobs-housing balance, growth inducement, water quality among other issues. A revised project description must include this information. Sixth, the project description fails to provide an adequate description of project-related and cumulative construction activities. The DEIR project description fails to include any information about: a) the duration and total extent of grading activities; b) amount and types of construction equipment for each phase; c) number of construction employees; d) total construction trips, including trips related to equipment, hauling and employee trips; e) location of staging areas and spoils sites; and f) cumulative project construction phasing and activities. Without a description of these activities and phasing, the DEIR cannot adequately identify and analyze environmental impacts to air and water quality, impacts to biological resources, and other impacts associated with construction worker traffic, truck traffic, grading emissions, construction noise and dust. An example of the level of information provided in the DEIR is as follows: “Construction erosion and sedimentation would occur in the event proper drainage control measures are not undertaken (e.g. sandbags, brow ditches, and interim landscaping).” DEIR at 5.9-13. This type of vague statement is the equivalent of saying “just trust us.” The point of an EIR is to provide the information about potential impacts and specific mitigation so that the decision makers, the public and permitting agencies can decide for themselves whether the information is sufficient to support informed decision-making. Detailed information about construction activities and phasing must be added to a revised project description and the potential new impacts analyzed in a revised DEIR. Finally, in addition to project description information, the DEIR fails to provide all of the setting information necessary to support an adequate analysis of project and cumulative impacts. Setting information missing from the DEIR, which must be included in a revised DEIR includes, but is not limited to, the list below. A revised DEIR should include this information and identify any new significant or more severe impacts as a result of its inclusion.
The significance of this missing information is such that the preparation of a revised DEIR is warranted. B. The DEIR’s Analysis of Environmental Impacts is Inadequate The DEIR’s analysis of environmental impacts fails to provide the necessary facts and analysis to allow the County, the agencies and the public to make an informed decision concerning the project, mitigation measures and project alternatives. Without such detail, the DEIR is deficient under CEQA. The role of the EIR is to make manifest a fundamental goal of CEQA: to “inform the public and responsible officials of the environmental consequences of their decisions before they are made.” Laurel Heights I, 6 Cal.4th at 1123. To do this, an EIR must contain facts and analysis, not merely bare conclusions. See Citizens of Goleta Valley v. Board of Supervisors, 52 Cal.3d 553, 568 (1990). Any conclusion regarding the significance of an environmental impact not based on analysis of the relevant facts fails to achieve CEQA’s basic informational goal. As set forth below, the DEIR is riddled with conclusory statements regarding environmental impacts, unsupported by facts and necessary analysis. Furthermore, the DEIR attempts to defer disclosure of key project components and analysis of environmental impacts to a later date. As discussed below, such deferral is not an option. CEQA mandates that environmental impacts be identified and analyzed in the EIR, not at a later date. See Sundstom v. County of Mendocino, 202 Cal.App.3d 296 (1988) (holding that a negative declaration was invalid when county approved a project while postponing the resolution of uncertainties regarding environmental impacts to a later date). It is particularly important that the DEIR reveal all significant impacts since the project approval for the HYH Property will result in a vested right for development. 1. The DEIR’s Analysis of Air Quality and Traffic Impacts Is Inadequate and Incomplete The DEIR correctly notes that the project will contribute to both significant and unavoidable construction-period air pollutants and air pollutant emissions from direct and cumulative motor vehicle emissions as well as significant traffic impacts. Even though these impacts are characterized as significant and unavoidable, it does not excuse the DEIR from providing current and complete information about air pollution sources and traffic impacts. For example, the DEIR fails to adequately describe construction activities, and therefore, fails to transparently and fully describe all air quality and traffic impacts associated with construction activities. Appendix H describes the considerable information that was not available for review and analysis in the DEIR: “At this time, specific construction information for the project is not available. Development of the HYH Property portion of the Project would occur first beginning as soon as possible after the approval of the project and lasting approximately 5 years…It is not know when the remainder of the property would be developed.” Appendix H at 11. Contrary to this statement, the Specific Plan appears to contain a very detailed phasing plan, including Table 10, which describes development of key components of the major infrastructure to serve the project. Yet, this information was apparently not included in the DEIR’s limited analyses of construction impacts. If it was included in the analysis of construction related air and traffic impacts, please indicate how it was. Revised tables should provide air quality emissions for both construction and operation periods broken out by major project feature (e.g. wastewater treatment plant; schools, etc.). Similarly, a revised traffic analysis must include a detailed analysis of construction impacts over the 20-year construction period. Moreover, since information is lacking concerning the amount of grading necessary for project implementation (see above comments), specific sources of cut and fill material and the like, it is also probable that the air quality and traffic analyses underestimate the potential impacts of project implementation related to moving dirt to elevate the site, remediate landslides and other grading activities. The analysis of air quality impacts omits analysis of diesel exhaust emissions. Such emissions have been linked with acute and chronic health risks. Given the scale of the project, and the duration of construction activities involving diesel fuel, a risk assessment should be included in the revised DEIR as well as a full analysis of air quality impacts associated with diesel. Another major deficiency is the lack of analysis of the direct project-related impacts on air quality and traffic. Traffic impacts are analyzed as cumulative impacts and therefore traffic-related air quality impacts are presented for cumulative conditions only. The DEIR also fails to assign realistic trip generation to each project component. Although the Specific Plan provides substantial detail concerning types of land uses proposed, there is insufficient information in the DEIR and Traffic Appendix concerning trip generation by land use. Also, certain land uses, which tend to generate significant trips, including big box stores and fast food restaurants are not called out for analysis. If these are permitted uses in the Specific Plan area, the additional impacts they generate must be analyzed. A revised DEIR must include detailed information matching all proposed land uses and trip generation rates so that the assumptions underlying the analysis are transparent. Similarly, information about trip distribution and vehicle assignment is omitted and must be provided in a revised DEIR. All together, these omissions likely result in the DEIR underestimating the traffic and air quality impacts of the project. The cumulative analyses for both traffic and air quality is inadequate because the geographic study area is too small to account for all significant cumulative impacts. A revised DEIR must extend the study area for cumulative impacts to include the area from Coyote Valley, San Jose to and including Salinas and the Monterey Peninsula, unless a marketing study is presented that supports a smaller radius for employment to home trips. Development trends in the region -- which projects such as HYH in particular will perpetuate -- include the construction of high-end homes serving a “Bay area and beyond” market and an increasing reliance on more remote areas for affordable workforce housing. These trends, which the project contributes to, must be evaluated in terms of the air quality implications over the short- and long-term. If these trends continue and are not addressed by “smarter” planning, commutes both to high end homes and employee residences will increase, with a resulting increase in traffic and air pollution. The DEIR lacks any analysis of these likely “trend” impacts. Nor does the DEIR suggest feasible mitigation measures to address these potentially significant impacts, including, but not limited to: 1) modified General Plan land use designations to require housing to meet local unmet needs; and 2) General Plan policies requiring “infill” projects be development “first” before greenfield development. What pages in the DEIR analyze the air quality, traffic and other impacts associated with increasingly longer commute patterns? Where is the analysis of the project, local and regional jobs-housing ratio and related environmental impacts? What is the documentation for the assumptions regarding internal trips? (e.g. “The percentage of internal trips calculated by the travel demand model was estimated to be 25 percent of non-educational uses and 80 percent for school related trips.” Appendix H at 3-7.) The Air Quality section also fails to provide information concerning the feasibility of mitigation measures that are identified in the DEIR and fails to identify numerous feasible mitigation measures. Omitted measures include, but are not limited to: limiting grading to 8.8 acres per day or grading and excavation to 2.2 acres per day to reduce PM10 emissions; prohibiting land uses that generate high trip rates, including big box stores, drive-through establishments and fast food restaurants; and increasing densities overall and clustering development to improve the chances for transit; provision of transit options; among other measures. In addition, a number of planned roadway improvements are assumed in the analysis of traffic impacts and therefore air quality impacts. These improvements are not proposed as part of the project, but are assumed to be constructed with or without the project. Revised traffic and air quality analyses should be completed, which do not include any transportation improvements for which funding is not certain. A list of improvements and funding sources should be included in a revised DEIR as well. Finally, alternatives should be directed at mitigating significant traffic and related air pollution impacts of the project. For example, a truly mixed use, compact development alternative with a range of housing affordability mixed with services and offices should be designed and contrasted with the project in terms of both traffic generation and air pollution. In addition, an infill alternative, which directs growth into existing cities and their SOIs should be evaluated. See Alternatives Section of this Letter. Finally, please respond to the following questions:
Finally, a revised analysis must include setting information about existing transit service in the area, including, but not limited to: types of transit; routes; headways; capacity and plans for expanded service in the region, County and at the site. 2. The DEIR Fails to Analyze Land Use and Planning Impacts Adequately The DEIR fails to describe all relevant policies and plans, and fails to evaluate the consistency of the project with each policy. Moreover, as noted above, the DEIR’s conclusions concerning project consistency with a number of General Plan policies is inaccurate or unsupported by sufficient evidence. A mere statement of consistency is not sufficient to support statements of consistency between the project and a number of policies. A revised DEIR must respond to the following questions:
Once a complete list of amendments to plans, regulations and ordinances is assembled, an analysis should be done concerning the precedent of these amendments for additional development in the County. For example, some of the amendments may result in growth inducement as a result of relaxing current rules about where development should go and under what circumstances it should be permitted (e.g. groundwater withdrawal; scale and density of development; development in advance of traffic improvements and other needed services, etc.). 3. The DEIR Fails to Analyze Adequately Impacts to Hydrology, Drainage, and Water Quality and Flooding Pollution carried by storm water and urban runoff is the largest source of contamination to surface water both in California and nationwide. Construction sites, in particular, have been identified as significant dischargers of polluted storm water, involving high concentrations of silt and turbidity, as well as oil and grease, trash, sewage, and other chemicals used in construction activities and equipment maintenance. Despite this well-known and well-documented problem, the DEIR fails to adequately describe project-related and cumulative construction activities and on-site and off-site drainage “improvements,” both of which could impact the water quality of the area. Moreover, the DEIR fails to describe in sufficient detail the types and amounts of contaminants the project will generate. The DEIR therefore takes an illegal approach to water quality impact analysis. Typical water quality analyses prepared for environmental documents would describe existing water quality in a project’s watershed, identify the estimated total daily loads of sediment and other pollutants from the projects into the watershed, and determine whether the projects’ pollutant contribution would substantially degrade water quality. Rather than perform an analysis of impacts to water quality that would result from the construction and operation of the projects, the DEIR relies on mitigation measures to minimize and avoid undisclosed impacts. Examples of the DEIR’s treatment of characterizing impacts is as follows: “Development of the property would generate a variety of sources of urban runoff, which if not controlled, would significantly reduce water quality. Major sources of urban runoff include parking lots associated with proposed commercial and business park uses as well as pesticides and fertilizers associated with the proposed golf course.” “Parking lots and roadways would impact water quality by allowing automobile products (e.g. motor oil, copper used in brake linings, antifreeze and gasoline) to accumulate on impermeable surfaces and be picked up in first flush rainfall events.” Landscape maintenance on the golf course would pose one of the greatest sources of urban pollutants due to the amount of herbicides, pesticides and fertilizers used to maintain the greens and fairways.” DEIR at 5.9-12 Similarly, there is no quantification of erosion and sedimentation related to site development. Nor are potentially hazardous materials associated with the industrial uses permitted by the Specific Plan adequately identified or quantified. Details are also lacking in the mitigation measures. Yet, the DEIR concludes that impacts will be less than significant across the board with mitigation because of a highly engineered system to control drainage and water pollutants. Specific information about the drainage and water quality features and how they will be maintained and monitored over the long-term (including information about the cost of maintenance and monitoring) is essential to determine: 1) whether the extent of drainage alterations is an acceptable project feature; 2), whether the proposed system of drainage features will actually be a viable system over the long-term, and effectively mitigate significant impacts to the natural drainage system; and 3) what impacts the system will have on the environment. The DEIR also fails to analyze adequately the potential impacts associated with flooding and mitigation for flooding. The first mention of the potential for flooding in the Specific Plan area is in the discussion of potential impacts. DEIR at 5.9-7. According to the DEIR: “Any proposed residential structures located within the 100-year floodplain shall be elevated to a minimum of one foot above the basic flood elevation and shall be constructed in accordance with Chapter 16.16 of the Monterey County Code. Any commercial structures located within the 100-year floodplain shall be elevated to base flood elevation, at a minimum and shall be constructed in accordance with Chapter 16.16 of the Monterey County Code. There shall be no encroachments to the floodway portion of the 100-year floodplain.” DEIR at 5.9-7. The DEIR does state there is flooding downstream from the area currently. DEIR at 5.9-10. However there is no analysis concerning how the development of structures within the floodplain could impede or redirect flood flows, such that additional areas could be inundated.” A revised analysis must include:
The best way to ensure that water quality is maintained is reduce overall site coverage. A second way to ensure that water quality is not compromised is to delete golf courses from the project. For both of these reasons, we urge that a revised DEIR give serious consideration to additional alternatives, including, but not limited to: an infill first alternative which directs new growth to meet needs into infill areas, and a truly clustered alternative which significantly reduces the “footprint” of this project and a no-golf course alternative. Questions concerning hydrology, drainage, and water quality that should be responded to in a revised DEIR or FEIR include, but are not limited to:
It should also be noted that the DEIR is inconsistent in its statements concerning the disposition of impacts to water quality associated with the Golf Course. Pollution from the golf course is “found” to be less than significant with mitigation in the section on hydrology/water quality (DEIR at 5.9-17), but according to the cumulative discussion: “Although best management practices would be conducted as part of the golf course, the potential pollutants from golf course operations cannot be reduce to zero. Thus, significant cumulative water quality impacts would occur.” DEIR at 6-12. A revised DEIR must not only provide “analysis,” but also state why BMPs are sufficient to reduce golf course pollution to less than significant. Finally, the significance of project-related impacts requires that the analysis of cumulative impacts to drainage and water quality be extensive. The DEIR fails to complete any analysis of these admittedly significant cumulative impacts, yet concludes that cumulative impacts would not be significant. 4. The DEIR Fails Adequately to Analyze and Mitigate Impacts to Biological Resources The biological analysis section of the DEIR is inadequate for numerous reasons, including, but not limited to the following: First, the DEIR fails to adequately mitigate for the indirect and direct losses of biological resources. Mitigation measures largely consist of deferred studies and plans (e.g. Habitat Restoration Plan; Forest Management Plan; future pre-construction surveys and the like). DEIR Biology section. Because the DEIR fails to provide adequate mitigation to offset these impacts, project-related and cumulative impacts to biological resources should be identified as significant and unavoidable in a revised DEIR. Second, the DEIR fails to identify feasible mitigation measures including, but not limited to:
With respect to cumulative impacts to biological resources, the DEIR lacks any information or analysis and fails to provide any mitigation. Even though the DEIR finds impacts to biological resources cumulatively significant, it does not excuse the document from analyzing these impacts or identifying mitigation that might address these impacts. For all of the above reasons, a revised DEIR must be recirculated which contains an adequate analysis of project-related and cumulative impacts to biological resources and corridors. In the absence of more specific measures which will insure avoidance of impacts to species and their habitats as well as key wildlife corridors, a revised DEIR must also reclassify many of the impacts to biological resources as significant and unavoidable. 5. The DEIR Lacks Any Analysis of Population, Housing and Employment The DEIR lacks any analysis of population, housing and employment. Where jobs and housing are imbalanced, the result is increased traffic, commute times and other effects such as declining air quality that can contribute to the significant impacts of a project. A revised DEIR must respond to the following questions:
Such a revised analysis must be included in a revised DEIR. 6. The DEIR’s Analysis of Landform Alteration and Visual Quality is Incomplete and Inadequate The Specific Plan contains detailed specifications for project design and architecture. Yet, the visual analysis in the DEIR lacks any simulations or photo montages of the projects as proposed to support its conclusions concerning impacts to landforms and views. A revised DEIR must include images of the project at the completion of grading and after construction from at least the view points included in the DEIR. Absent this information, the DEIR’s evaluation of impacts to these resources is incomplete. In addition, such graphic depictions are critical to informed decision-making concerning logical and feasible mitigation measures and alternatives that would reduce significant impacts to these resources (e.g. relocation or elimination of certain development areas or lots; additional screening or landscaping, and the like). While it is commendable that this section includes a couple of grading cross-sections, additional graphics illustrating project impacts on the landforms and ridgelines must be included in a revised analysis. All of the information needed to perform these simple graphics is readily available in the Specific Plan. Finally, mitigation measures included in the DEIR to reduce or eliminate significant impacts are lacking. Additional measures should be included in a revised DEIR, including, but not limited to relocation of development from areas that would require excessive grading (e.g. areas where knolls would be lowered by 50 feet; ridgelines and areas of slopes over 30% at a minimum). Additional graphics that overlays development plans with these areas would assist the decision-makers in developing an alternative plan that would avoid these significant landform and visual impacts. If such measures/alternative(s) are considered not to be feasible, evidence of that should be provided in the Final EIR. 7. The DEIR Fails to Adequately Analyze Impacts to Agricultural Resources The DEIR fails to accurately characterize the impacts of the project on farmland and agricultural operations and omits any analysis of the cumulative loss of farmland. The DEIR notes that the HYH Property would be located adjacent to ongoing agricultural areas, but fails to identify any impacts that might result from incompatible lands uses. The DEIR omits feasible mitigation measures, including a requirement that new residents sign a right to farm agreement. A revised section must analyze the short and long-term impacts of this project on agriculture in the region. Such an analysis must include quantification of potential losses due to city and County growth trends and trends in agricultural practices. Reliance on the designation of this property as an ADC is insufficient since there are no mechanisms in place to protect other important farmland in the region. 8. The DEIR Fails to Adequately Analyze Water Resources for the Project and Cumulative Development The DEIR fails to evaluate a worst case analysis of impacts on water resources and omits any meaningful discussion or analysis of cumulative impacts to water resources. Specifically, the DEIR contains a summary breakdown of land use types and daily water demand factors, but fails to include a number of uses in that summary thereby underestimating total water demand. Such uses include, but are not limited to water use by landscaping for the project. In addition, the DEIR fails altogether to identify cumulative demand for water resources that may draw upon the same groundwater sources. The sum of the DEIR’s analysis of cumulative impacts -- related to the Specific Plan overall -- to water resources is: “The development of areas in unincorporated County and in the City of Salinas would most likely have a direct impact upon groundwater availability in the groundwater basin and specifically in the Specific Plan area. Additional withdrawals of groundwater from the basin, especially in the immediate vicinity of the Specific Plan area, would further reduce the available groundwater supply for overall consumption in the general area. As discussed in Chapter 5.10 (Water Resources), groundwater levels in the vicinity of the proposed Specific Plan have been dropping steadily as demand has outpaced recharge. Although development of the Specific Plan will result in a reduction in overall water consumption over current usage, there would still be a net annual deficit.Therefore; the Specific Plan would result in a significant cumulative impact on water resources.” DEIR at 6-14. On this critical topic, the DEIR is silent on total cumulative demand and the extent to which such demand could result in insufficient water for the projects and future development in the area. Specifically, the DEIR fails to discuss and analyze the differences between water entitlement and actual supply, particularly with consideration of cumulative demand on the same groundwater basin. Along these same lines, it is not clear how this basin interacts with other basins and the extent to which safe yield could be affected by water movement between basins. A revised DEIR must describe and analyze these potentially significant cumulative impacts to ground and surface water and identify and analyze any new sources of imported water, storage and other facilities (pipes, pumping, other) that will be needed to be planned, evaluated and built in order for cumulative projects, to proceed. Here again, the DEIR fails to satisfy CEQA’s requirement that an EIR “must address the impact of supplying water for the project.” Stanislaus Natural Heritage, 48 Cal.App.4th at 205. The County may not defer that analysis to a later time. Id. at 203. The revised DEIR must also analyze in detail the physical impacts associated with the construction of the infrastructure needed to serve the project (e.g. the new water lines, other facilities etc.). For the reason alone that the DEIR fails to demonstrate a realistically available water supply for the project, the project should be denied at this time. 9. The DEIR Fails to Provide Information Concerning Potential Impacts Associated with Serving the Project with Fire and Police Services As part of the General Plan update, extensive information about the status of public services and facilities was developed indicating that there are extensive service deficiencies in the County and that additional development will likely further reduce services to existing residents and businesses. Notwithstanding this information, the DEIR for the projects concludes that all service impacts will be less than significant. There is no information provided in the DEIR concerning cumulative demand or for that matter, concerning how public services will be provided to serve the project and maintain adequate levels of service. Incredibly, key analysis is improperly postponed: “Since the proposed Specific Plan will be developed in phases over an estimated 20 years, the Sheriff’s Office would analyze and determine facility and staffing needs and request phasing of additional staff and equipment as needed.” DEIR at 5.12-29. A completely revised discussion is warranted concerning the adequacy of all public services, which must include, among other information:
Gaps in the ability to provide services in a timely manner to the projects must be disclosed. In addition, the impact of this project on existing service levels must be disclosed as a significant impact. Finally, a revised DEIR must disclose how all impacts related to public services have been reduced to less than significant by the proposed mitigation. 10. The DEIR Fails to Adequately Analyze the Impacts of Major Infrastructure Improvements Necessary to Serve the Project The project involve development of major new infrastructure, including, but not limited to new water storage, pumps, wells, and delivery systems, a new wastewater treatment plant, major new roads and interchanges, detention basins and other drainage facilities. A revised DEIR must clearly identify infrastructure that is part of the project and fully and transparently analyze the impacts of these major facilities. For example, the DEIR includes some discussion of impacts of the wastewater treatment plant in some impact discussions (e.g. Noise, Water Quality), but not in others. The analysis of impacts that is included in the DEIR is far from adequate. For example, the sum total of the analysis of potential impacts associated with the treatment plant on water quality is: “Water quality degradation from the use of reclaimed water from the proposed wastewater treatment plant would not result in a significant impact on water quality. The wastewater treatment plant would be required to obtain appropriate wastewater discharge permits to assure that the water quality would be suitable for irrigation. Total dissolved solids would be anticipated from the wastewater treatment plant and subsequent use of reclaimed water for irrigation.” DEIR at 5.9-14. These major facilities warrant much more intensive scrutiny in a revised DEIR. Among the impacts not adequately addressed include, but are not limited to: growth inducing impacts associated with the wastewater treatment, roads and water facilities; grading and air quality impacts associated with the wastewater treatment plant and new roads; air quality impacts associated with the treatment plan (the discussion of potential odors and other impacts is extremely cursory and without evidence to support conclusions reached that these impacts will be less than significant); among other impacts of these major new facilities. 11. The DEIR Defers Information Needed for a Complete Analysis of Impacts In addition, the DEIR fails to analyze the significance of a number of other potential impacts due to a lack of information. Please include all of the following information in a revised DEIR as the basis for updated impact analyses or explain in the FEIR why this information can be delayed until a later date without compromising the adequacy of the DEIRs disclosure and analysis of impacts:
This is an impressive list of information missing from the DEIR that must be completed in order for the analysis of impacts to be complete. Each of these missing items has the potential to result in additional or more severe impacts to biological resources, visual resources, water resources, among others. Again, the project will be vested upon initial approval. As such, the specific details of this project must be disclosed and analyzed at this time. C. The DEIR Fails to Adequately Analyze Cumulative Impacts The DEIR utterly fails to analyze cumulative impacts in the manner or to the degree required by CEQA. The CEQA Guidelines define cumulative impacts as “two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.” CEQA Guidelines § 15355(a). “[I]ndividual effects may be changes resulting from a single project or a number of separate projects.” Id. A legally adequate cumulative impacts analysis views a particular project over time and must consider the impact of the project combined with other projects causing related impacts, including past, present, and probable future projects. Projects currently under environmental review unequivocally qualify as reasonably probable future projects to be considered in a cumulative impacts analysis. See San Franciscans for Reasonable Growth v. City and County of San Francisco, 151 Cal.App.3d 61, 74 & n. 13 (1984). In addition, projects anticipated beyond the near future should be analyzed for their cumulative effect if they are reasonably foreseeable. See Bozung v. Local Agency Formation Comm’n, 13 Cal.3d 263, 284 (1975). Alternatively, an EIR may utilize a summary of projections contained in an adopted general plan or related planning document, or in a prior environmental document which has been adopted or certified, which described or evaluated regional or area wide conditions contributing to the cumulative impact. Any such planning document shall be referenced and made available to the public at a location specified by the lead agency. The discussion of cumulative impacts must include a summary of the expected environmental effects to be produced by those projects, a reasonable analysis of the cumulative impacts, and full consideration of all feasible mitigation measures that could reduce or avoid any significant cumulative effects of a proposed project. The cumulative impacts concept recognizes that “[t]he full environmental impact of a proposed . . . action cannot be gauged in a vacuum.” Whitman v. Board of Supervisors, 88 Cal.App.3d 397, 408 (1097). The requirement of a cumulative impacts analysis of a project’s regional impacts is considered a “vital provision” of CEQA. Bozung, 13 Cal.3d at 283. Moreover, an EIR must examine not only the anticipated cumulative impacts, but also reasonable options for mitigating or avoiding the project’s contribution to significant cumulative impacts. The DEIR does not come close to meeting these requirements for the reasons described below. 1. The DEIR Fails to Adequately Establish and Utilize in its Cumulative Analyses Adequate Geographic Study Areas The failure to establish and utilize adequate geographic study areas underlies the DEIR’s lack of adequate analyses of cumulative impacts. In addition, the DEIR fails to include projects and planned developments beyond Monterey County but within an area where impacts will accumulate (e.g. Coyote Valley, San Jose and major projects in San Benito County). A revised DEIR must identify a meaningful geographic study area and projects/anticipated development within that study area as a basis for analyzing cumulative impacts to land use, biological resources, transportation, hydrology and drainage, noise, growth inducement, public services and facilities and visual impacts, among others. While the DEIR describes a study area including development under the General Plans of the County and all 12 cities, this information is not taken into consideration in any of the cumulative impacts discussions. DEIR at 6-1 to 6-2. Moreover, as described in detail in LandWatch’s letter on the County GPU DEIR (a full copy of which is attached here, for your convenience), the level of potential development permitted by the GPU is underestimated because it does not fully consider cluster units, development in Special Treatment areas, second units, estate homes on agricultural parcels and the like. For example, the cumulative discussion concerning the loss of agricultural land fails to identify the total loss of important farmland that could result from cumulative development: “The loss of 2,271 acres of Important Farmland which would result from development within the Specific Plan area would combine with the loss of Important Farmland associated with other developments in the region.” DEIR at 6-3. No information is provided on historic annual losses in the County or beyond and no information is provided concerning the relative value (economic and otherwise) of the farmland within the Specific Plan area compared with threatened farmland in the County. This information is readily available and must be included in a revised DEIR along with a map illustrating important farmland in the County and beyond. Based on this information, a revised analysis must be completed concerning cumulative farmland and agricultural productivity impacts. No mitigation measure is provided for cumulative losses of farmland. Similarly, there is no quantification or even qualitative assessment of the total cumulative impacts to biological resources as a result of cumulative development. Nor is a map provided that illustrates the connections between areas of high resource value in the County and beyond. Again, this information is readily available from the State and private conservancies and must be included in a revised analysis of cumulative impacts. A revised DEIR must also include mapped study areas and descriptions of potential development (development type; amount; etc.) for each impact. For example, for biological resources, the study area should include all areas in the region, which contain the same impacted habitats and species and corridors, at a minimum. For traffic, the geographic study area should at a minimum, include the areas where trips will be initiated and end, including employee trips to and from the site as well as trips to other attractions on the site. To the contrary, the traffic study area does not extend beyond the County lines. This is particularly insufficient since a likely source of jobs for new homeowners will be Santa Clara County. Thus, the trips generated by the project are likely to impact a far greater geographic area than included in the traffic study. A revised cumulative section should include a detailed description and map of each geographic study area, including, but not limited to: growth inducement, water quality, water supply (including all water source areas), biological resources, jobs-housing balance, traffic, and the like. Questions that the revised cumulative analysis must address include: Why are some major projects excluded from review, such as Coyote Valley in San Jose? What major regional projects outside in the cities are excluded from the cumulative analysis and why? Finally, please clarify how the DEIR does consider cumulative projects/developments in the analyses? 2. The DEIR Fails to Analyze Cumulative Impacts Adequately In addition to relying on a far too small geographic study area and essentially excluding cumulative development from the analyses, the level of analysis in the DEIR’s cumulative impacts analysis is far too cursory. An EIR must include objective measurements of a cumulative impact when such data are available or can be produced by further study and are necessary to ensure disclosure of the impact. See Kings County, 221 Cal.App.3d at 729. Despite this mandate, the DEIR fails to adequately analyze a number of cumulative impacts, including, but not limited to, impacts to biological resources, water quality and drainage, policy consistency, services, traffic, growth inducement, among others. Conclusions reached in the DEIR concerning the significance of cumulative impacts are flawed and devoid of any real analysis, including the lack of adequate study areas. Examples of “conclusory analyses” include, but are not limited to the following: “Reduced water quality associated with development of the Specific Plan would combine with urban runoff from other development projects in the area to degrade the quality of surface and ground water. Thus, cumulatively significant impacts to water quality would occur with implementation of the proposed Specific Plan.” DEIR at 6-12. “Although HYH Project-level impacts may be mitigated to a less than significant level, the HYH project plus cumulative impacts from other development in the Specific Plan and region would result in a significant cumulative impact on water resources.” DEIR at 6-15. “The development of areas in unincorporated County and in the City of Salinas would most likely have a direct impact upon groundwater availability in the groundwater basin and specifically in the Specific Plan area. Additional withdrawals of groundwater from the basin, especially in the immediate vicinity of the Specific Plan area, would further reduce the available groundwater supply for overall consumption in the general area. As discussed in Chapter 5.10 (Water Resources), groundwater levels in the vicinity of the proposed Specific Plan have been dropping steadily as demand has outpaced recharge. Although development of the Specific Plan will result in a reduction in overall water consumption over current usage, there would still be a net annual deficit. Therefore, the Specific Plan would result in a significant cumulative impact on water resources.” DEIR at 6-14. Virtually all other cumulative impacts statements lack any information to support conclusions reached concerning the significance of these impacts. Again, with respect to each of these conclusory statements, the DEIR lacks analysis and supporting data for the conclusions reached concerning level of impact. Finally, as described above, the DEIR fails to explore the full range of mitigation measures that could potentially reduce cumulative impacts below a level of significance. An EIR must examine reasonable options for mitigating or avoiding the project’s contribution to cumulative impacts. Such measures could include, at the least: Ÿ Participation in the regional HCP process and delaying all “greenfield” projects until the HCP is completed; Ÿ Implementation of the County General Plan to increase neighborhood friendly infill development to accommodate growth demands in lieu of greenfield development. If these and other mitigation measures for cumulative impacts are not considered feasible and included in a revised DEIR or FEIR, please state why each is not considered feasible. D. The DEIR’s Discussion of Growth-Inducing Impacts is Inadequate Under CEQA The DEIR must consider the growth-inducing potential of the project in this undeveloped area. CEQA requires that an EIR include a “detailed statement” setting forth the growth-inducing impacts of the proposed project. See Public Resources Code § 21100(b)(5); City of Antioch v. City Council of Pittsburg, 187 Cal.App.3d 1325, 1337 (1986). The statement must “[d]iscuss the ways in which the proposed project could foster economic growth, or the construction of additional housing, either directly or indirectly, in the surrounding environment.” CEQA Guidelines § 15126.2(d). It must also discuss how a project may “encourage and facilitate other activities that could significantly affect the environment, either individually or cumulatively” or “remove obstacles to population growth.” Id. In this case, the growth inducing analysis fails to adequately analyze the potential growth inducement associated with the project’s new and extended services and significant new infrastructure as well as new residents and employees and the demand for services and facilities by new residents. A revised environmental document must include an adequate analysis of the project’s potential for growth inducement, including, but not limited to the following:
If no additional development is contemplated on the project site, a permanent conservation easement, development agreement or other legal instrument should be included as a mitigation measure to ensure that development on this site is permanently capped. In the alternative, a full analysis must be included in a revised DEIR of the impacts of development of the Future Development/Interim Agricultural area is allowed.” DEIR at 4-4. A more thoughtful evaluation of these impacts is warranted given the scale of this project and other projects in the region. This analysis should also be used to inform a revised analysis of cumulative impacts. E. The DEIR Improperly Attempts to Defer Mitigation to a Later Date, Fails to Identify Feasible Mitigation Measures, and Relies on Inadequate Mitigation Measures CEQA requires that mitigation measures be identified and analyzed. “The purpose of an environmental impact report is . . . to list ways in which the significant effects of such a project might be minimized . . . .” Pub. Res. Code § 21061. The Supreme Court has described the mitigation and alternative sections of the EIR as the “core” of the document. Citizens of Goleta Valley v. Board of Supervisors, 52 Cal. 3d 553 (1990). As explained below, the DEIR’s identification and analysis of mitigation measures, like its analysis throughout, is thoroughly inadequate. An EIR is inadequate if it fails to suggest mitigation measures, or if its suggested mitigation measures are so undefined that it is impossible to evaluate their effectiveness. See San Franciscans for Reasonable Growth v. City and County of San Francisco, 151 Cal.App.3d 61, 79 (1984). Moreover, an EIR may not use the inadequacy of its impacts review to avoid mitigation: “The agency should not be allowed to hide behind its own failure to collect data.” Sundstrom v. County of Mendocino, 202 Cal.App.3d 296, 361 (1988). Nor may the agency use vague mitigation measures to avoid disclosing impacts. See Stanislaus Natural Heritage Project v. County of Stanislaus, 48 Cal.App.4th 182, 195 (1996). Lastly, the formulation of mitigation measures may not properly be deferred until after Project approval; rather, “[m]itigation measures must be fully enforceable through permit conditions, agreements, or legally binding instruments.” 14 CCR § 15126.4 (a). In the present case, the DEIR does not come close to satisfying these basic CEQA requirements regarding impact mitigation. Most egregiously, it attempts to defer discussion and development of suitable mitigation measures until after the certification of the environmental document and the conclusion of public review. 1. The DEIR Improperly Defers Identification of Feasible Mitigation Measures The DEIR impermissibly concludes that the majority of all of the project’s environmental impacts are either less than significant or will be rendered less than significant by mitigation, while at the same time deferring necessary analysis of mitigation measures. Under CEQA, an EIR may conclude that impacts are insignificant only if it provides an adequate analysis of the magnitude of the impacts and the degree to which they will be mitigated. See Sundstrom, 202 Cal.App.3d at 306-07. Thus, if an agency fails to investigate a potential impact, its finding of insignificance simply will not stand. Id. Further, CEQA generally requires that all mitigation measures be adopted simultaneously with, or prior to, project approval. An agency may defer preparation of a plan for mitigation only when the agency commits itself and/or the project proponent to satisfying specified performance standards that will ensure the avoidance of any significant effects. Id. In the present case, the DEIR violates CEQA by deferring critical analyses of project impacts and feasible mitigation. The following is a non-exhaustive list of mitigation measures that the DEIR improperly defers to a later date:
In addition, lot plans, biological surveys, and many other measures are simply deferred until after initial project approval which will result in vesting development on this site. In many of the above cases of deferring specific mitigation, the DEIR finds that potentially significant impacts will be reduced to less than significant, even where the impact analysis is also deferred. Not only will this render the development of specific mitigation too late for public and decision-maker review to determine the adequacy and efficacy of the measure, this approach is improper under CEQA. Either specific mitigation measures must be developed at this time, based on complete project information and impact analyses, or a number of project-related and cumulative impacts must be listed as significant and unavoidable. Such impacts include, but are not limited to impacts to: biological resources, additional traffic impacts, impacts to water quality, transit impacts, growth inducement, impacts associated with lack of affordable housing, among other impacts. The DEIR’s failure to adequately analyze the potentially significant effects of the project, and to design proper mitigation measures prior to project approval, renders the document inadequate and vulnerable to legal challenge. With the DEIR in its current form, decision-makers, the public and permitting agencies cannot evaluate the advisability of project approval. 2. The DEIR Fails to Identify Feasible Mitigation Measures The DEIR’s consideration of mitigation is inadequate because it fails to identify several feasible measures that could reduce or eliminate identified significant impacts. Also, the DEIR fails to identify some impacts, such as impacts to land use, historical resources and water quality among others, as significant, and therefore omits identification of feasible mitigation. Mitigation is defined by CEQA as including: (a) Avoiding the impact altogether by not taking a certain action or parts of an action. (b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation. (c) Rectifying the impact by repairing, rehabilitating, or restoring the impacted environment. (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action. (e) Compensating for the impact by replacing or providing substitute resources or environments. CEQA Guidelines § 15370. The DEIR fails to consider measures, which could mitigate in the fashion described above significant impacts in several resource categories, including, but not limited to biology, loss of open space, hydrology and water quality, traffic, affordable housing among others. Furthermore, the DEIR improperly concludes that many impacts are mitigated to below a level of significance based either on deferred mitigation measures, as discussed above, incomplete and “future” project features, or on mitigation measures of unproven efficacy. These determinations are not supported by substantial evidence. A partial list of impacts that should be identified as significant and unavoidable in a revised environmental document include, but are not limited to the following: 1) plan and policy inconsistencies; 2) changes in land use and land use compatibility; 3) project-related and cumulative drainage and water quality impacts; 4) impacts to biological species, species habitat and wildlife movement corridors; 5) impacts associated with inadequate affordable housing in the region (air quality and increased traffic); and 6) cumulative impacts associated with increased nighttime lighting, loss of habitat and wildlife movement corridors, water quality and traffic impacts, among others. Growth inducement should also be identified as a significant adverse result of the project unless an adequate analysis proves otherwise. The DEIR does not include sufficient evidence to identify these and other impacts as less than significant after mitigation. Finally, the DEIR omits feasible mitigation measures for a number of impacts, including the following:
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