Saturday, December 30, 2006

When is an EIR done?

When is an EIR done?

The recent decision of California's 3rd District Court of Appeal in Western Placer Citizens for an Agr. and Rural Environment v. County of Placer (2006) 144 Cal.App.4th 890 dissects the California Environmental Quality Act's (CEQA) requirement to supplement and recirculate an environmental impact report with new information. Its conclusion: "...all new information occurring after release of the final EIR but prior to certification and project adoption need not be included in the EIR before the agency determines whether the new information is significant so as to trigger revision and recirculation." At p. 902.

The case involved gravel mining in western Placer County. Teichert Construction had engaged in almost a decade of applications for approval, greatly modifying the project in response to public and official comments and revised conditions. A final change to the phasing of the mining, decided after circulating a Final EIR, was intended avoid Williamson Act agricultural preservation on the project lands.

That last minute change may have added salt to the wounds of project opponents facing gaping open gravel mine pits for pretty much eternity: agriculture on "islands" preserved amidst gravel pits is a farce. Besides insisting that the changed project should be addressed in a recirclated EIR, opponents WPCARE also petitioned to throw out the EIR for failure to assure water supply.

The Court started analysis with Public Resources Code §21092.1 and its corresponding CEQA Guideline 15088.5. Supplement and recirculation of an EIR was only required after the close of public comment when "significant" new information was produced. Examples of "significant" are given in Guideline 15088.5.

How does one know if the project change is "significant" if the information isn't included in the EIR? That dilemma had convinced the Placer County trial court that the information--significant or not--had to amended to the EIR.

That conclusion was wrong, said the appeal court ruling. The test should be two-step:

"The California case closest to addressing the issue, Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 58 Cal.Rptr.2d 152 ( Chaparral Greens ), implies not all new information must be added to the EIR." At p. 807.

The Court also relied upon the state Supreme Court's Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553.