In a partially-published opinion filed January 30, 2014, the First District Court of Appeal, Division 3, reversed the trial court’s judgment denying a writ petition, and held that Caltrans must correct certain deficiencies in its EIR for a highway construction project to realign a 1-mile stretch of US Route 101 through Richardson Grove State Park (Park).  (Lotus v. Department of Transportation, et al. (1st Dist., Div. 3, 1/30/14) 223 Cal.App.4th 645.)  While rejecting many of appellants’ challenges, the Court of Appeal in the published portion of its opinion held the EIR “failed to properly evaluate the significance of impacts on the root systems of old growth redwood trees adjacent to the highway.”

Caltrans’ project sought to realign, widen and improve a narrow, two-lane, one-mile stretch of Route 101 through the Park, which is home to a stand of massive, 300-foot tall redwood trees thousands of years old.  Its primary objective was to accommodate use of this roadway portion by industry standard-size trucks authorized by the Surface Transportation Assistance Act of 1982 (STAA trucks).  Allowing use of STAA trucks, which are longer and differently-configured than “California Legal” trucks, would enhance the economic profitability and competitiveness of Humboldt County businesses, while improving highway safety and operation and the movement of goods.

The EIR identified the project’s “primary environmental impacts” as “tree removal and potential damage to the structural root zones” “of trees caused by excavation and placement of paving or fill over the roots.  While only six redwoods – and no old growth redwoods – would be removed, construction activities would occur within the structural root zones of some 74 redwood trees ranging from 18 inches to 15 feet in diameter.  And while the EIR contained data and information allowing the reader to identify which old growth trees, and the areas and percentages of their root zones, would be affected by the cut or fill and paving work, it did not “include any information that enables the reader to evaluate the significance of these [project] impacts.”  My translation: “Would these root zone impacts kill or seriously damage the health and vigor of the affected old growth trees?”  The EIR appears never to have directly posed or analyzed this issue.  According to the Court, the EIR’s fatal flaw was that it “fails to identify any standard of significance, much less apply one to an analysis of predictable impacts from the project.”

Those fatal omissions were not inevitable.  The Court noted the existence of a State Park Natural Resources Handbook (handbook) containing information and guidelines for safeguarding trees and assessing the significance of damage from certain construction activities in their structural root zones, and observed that Caltrans’ EIR failed to reference the handbook or apply its standards to evaluate the significance of the project’s expected impacts.  While acknowledging that it was not suggesting “the handbook is the only or necessarily the best measure for determining significance[,]” and that “[t]he standard of significance applicable in any instance is a matter of discretion exercised by the public agency ‘depending on the nature of the area affected’” (citing North Coast Rivers Alliance v. Marin Municipal Water District Board of Directors (2013) 216 Cal.App.4th, 614, 624; 14 Cal. Code Regs., § 15064(b)), the EIR’s failure to identify or apply any standard of significance at all violated CEQA.

Compounding this omission, the Court indicated the EIR improperly incorporated the proposed mitigation measures into its project description and summarily concluded any potential project impacts would be less than significant.  However, the mitigation measures were not properly characterized as “part of the project”; rather, they were mitigation measures designed to reduce or eliminate damage to redwoods from disturbing their structural root zones.  For several reasons, CEQA’s procedures require a separate identification and analysis of such proposed measures.  This analytical procedure is necessary in order for the lead agency: (1) to make required findings regarding potentially significant project impacts; (2) to determine whether mitigation measures are required; (3) to adequately evaluate the range or efficacy of required mitigation measures or project modifications; and (4) to trigger the required adoption of an enforceable mitigation monitoring program.  Accordingly, failure to discuss the significance of project impacts apart from proposed mitigation measures was a “structural deficiency in the EIR” which resulted in a failure to consider whether other possible mitigation measures would be more effective.  These failures were pointed out in a DEIR comment letter from the California Department of Parks and Recreation, but Caltrans ignored the letter.  Far from a “merely harmless procedural failing,” the EIR’s deficiency was a “short-cutting of CEQA requirements” that subverted CEQA’s purpose by omitting material necessary to informed decision-making and public participation; in short, it “preclude[d] both identification of potential environmental consequences arising from the project and also thoughtful analysis of the sufficiency of measures to mitigate those consequences.”

Regarding a proper remedy, the Court acknowledged that Caltrans retained discretion in determining how to bring its actions into compliance. In reversing and remanding for issuance of a writ directing Caltrans to set aside its EIR certification pending modification of those portions of the EIR discussing old growth redwood trees impacts and proposed mitigation measures to comply with CEQA. The Court stated: “Caltrans is not required to start the EIR process anew.  [It] need only correct the deficiencies we have identified before considering recertification of the EIR.  Whether the correction requires recirculation of the EIR is for Caltrans to decide in light of the standards governing recirculation of an EIR prior to certification.”

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