The Court of Appeal ruled that a development project that conformed to a previously approved plan was sufficient to not require a new EIR, as no significant changes had been made to endangered species. Citizens’ Committee to Complete the Refuge v. City of Newark, No. A162045 (1st Dist., Dec. 29, 2021).
The City of Newark approved an environmental impact study for a specific plan in 2010. It covered Areas 3, 4 and 5, which are near San Francisco Bay. The EIR stated that all new projects would be evaluated in accordance with CEQA Guidelines Section 15168. This allows for the City of Newark to use a checklist or initial investigation to evaluate specific development proposals. It also states that no additional environmental documents would be required for any subsequent activities within the scope EIR.
The City approved a subdivision plan for the development of residential lots in Area 4. The City prepared a checklist that compared the EIR analysis with the proposed project’s impacts. The checklist contained supporting materials such as letters, expert memos and technical reports. It also included a revised analysis of the effects on sea level rise. After determining that the project would not have significant impacts, the City approved it. The City approved the map and used the checklist, but the plaintiffs opposed it.
The court of appeal ruled the subdivision map was exempted for further CEQA review under Government Code section 655457 because it was consistent in its design with the specific plan. This plan had an EIR certified. In such circumstances, no further environmental reviews are required unless the project is substantially modified or the circumstances in which the project will develop or new information becomes available.
Plaintiffs claimed that the subdivision map was significantly different from the EIR plan and would have new impacts on the salt marsh harvested mouse. However, substantial evidence supported the City’s conclusion that none of the changes would significantly increase the impacts on the harvest mouse beyond those addressed in the EIR. The court recognized that there was proposed use of riprap to reduce erosion, which was not mentioned in the EIR, but held that this did not rise to the level of a “[s]Substantial change[] . . . in the project which will require major revisions of the environmental impact report.” While plaintiffs argued that use of riprap deserved further study because it would substantially increase the severity of rat predation of the harvest mouse, they failed to offer any substantial evidence to support this claim.
Plaintiffs also claimed that the project could increase sea level rise by interfering with local wetlands. The court found that, even if plaintiffs’ theory was correct, these dynamics were not new in relation to this project, so the City did not need to address them in reviewing the project—the time to address them, if at all, was in relation to the original EIR.
The court likewise rejected plaintiffs’ argument that a hydrology report’s reliance on adaptive management to address flooding of the project from sea-level rise (such as by creating levees or floodwalls) amounted to improper deferral of mitigation measures. The court argued that sea level rise was not a result of the project’s impact on the environment. Therefore, neither the EIR nor checklist had to discuss this effect. Deferred mitigation rules did not apply to adaptive responses to sea rise as discussed in the hydrology reports.
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