Paige H. Gosney Discusses New CEQA Case with Significant Implications Regarding Cultural Resources and Water
In Madera Oversight Coalition, Inc. v. County of Madera, Case No. F059153 (5th Dist. Sept. 13, 2011) (certified for partial publication; cost discussion published), the Fifth District Court of Appeal affirmed a petition for writ of mandamus under the California Environmental Quality Act (“CEQA”) challenging the certification of an Environmental Impact Report (“EIR”) and Water Supply Assessment (“WSA”) for the Tesoro Viejo project, a proposed development of 5,190 residential units and related commercial, retail, office, public and light industrial uses on 1,579 acres near the San Joaquin River in southeastern Madera County. The decision has significant implications for the treatment of cultural resources and water under CEQA, and includes a lengthy discussion about the ins-and-outs of preparing and augmenting an administrative record.
Cultural Resources: In addressing the “preference” under CEQA that cultural resources subject to potential impacts by a proposed project be preserved in their existing locations (CEQA Guidelines, § 15126.4, subd. (b)(3)(A)), the Court of Appeal confirmed that, although preservation in place need not be implemented for every project, CEQA documents must address the reasons why preservation in place was rejected in favor of other forms of mitigation, where potential impacts to cultural resources are present.
The Court further held that a mitigation measure proposing to verify that certain archaeological sites are “historical resources” was invalid and constituted an unlawful deferral of environmental analysis. Under CEQA, the determination whether an archaeological site is an historical resource: (1) is mandatory; (2) must be made sometime before the final EIR is certified; and (3) cannot be undone after certification of the EIR. Because the mitigation measure at issue in Madera would have allowed for post-certification verification of certain sites as historical resources, and not simply determinations regarding certain aspects of those sites, like artifacts and other features as Defendants had suggested, the mitigation measure was declared invalid.
Water: In yet another decision illustrating the increasingly strict standards for demonstrating the sufficiency of proposed water supplies under CEQA, the Court of Appeal ruled that the WSA and the EIR failed to comply with CEQA’s “full disclosure” requirements and were therefore invalid. Specifically, the Court held that the WSA and EIR water analyses were inadequate because they did not disclose or discuss information concerning uncertainties with the project’s proposed water supplies (surface water delivered from the San Joaquin River under a contract with the United States Bureau of Reclamation), including a letter from the Bureau of Reclamation indicating that the proposed uses of the supply would require a contractual amendment, and a recent trial court decision invalidating the WSA for a nearby project that was relying upon the same source of supply. Because the WSA and EIR failed to include any discussion of these potentially significant issues, the Court found that the WSA and EIR did not provide the requisite good-faith effort at full disclosure of relevant information.