South County Citizens for Smart Growth v. County of Nevada, KKP Lake of the Pines, LLC
On October 8, 2013, the Third Appellate District Court held in South County Citizens for Smart Growth v. County of Nevada, KKP Lake of the Pines, LLC
that the California Environmental Quality Act (CEQA) does not require recirculation of a Draft EIR (DEIR) based upon staff-generated project alternatives added after the preparation of a Final EIR (FEIR) if these alternatives are "not significant." Additionally, the court held that the subsequent findings regarding the feasibility of the staff alternative are not required if adequate alternatives were proffered after the FEIR.
This court decision means that recirculation of a DEIR is not required simply because new information is added. The Court recognized that an FEIR will almost always include additional information from the DEIR and recirculation is intended to be an exception rather than a general rule. Only if the additional information is considered significant, as defined by CEQA Guidelines Section 15088.5,
should recirculation be considered.
The Court further clarified that an express finding is also not required by CEQA on whether new information is considered significant. The Court held that an agency's decision to certify an EIR without recirculation or public comment implies that the additional information was not significant. Alternatively, if new information becomes available the agency can deem the information significant triggering revision and recirculation.
The Smart Growth
decision also addressed whether additional findings were needed for staff alternatives to the DEIR. The Court ruled that findings are not required for a new alternative introduced after the close of the public review period for the DEIR if the DEIR already included a reasonable range of alternatives to the proposed project. The Court held that per CEQA Guidelines Section 15126.6-c, a lead agency needs to provide reasons for rejecting an alternative during the scoping process, but if the alternatives are proposed after completion of an EIR, the lead agency is not required to provide findings for rejecting that alternative.
Finally, the court reiterated that an EIR's analysis must be upon the actual environment, which will determine the baseline decisions for which a lead agency will determine if an impact is significant. When this is applied to roadways, an agency can look at the existing conditions of the roadway rather than the label attached to the roadway (i.e. minor arterial or major collector) when determining the actual environment for the EIR's analysis.
You can read more of the nuances of the case in the full decision here: South County Citizens v. County of Nevada
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