Loading...
HomeMy Public PortalAboutPublic Comment - MAP April 7, 2023 Via E-Mail Mayor Lindsay Romack and Honorable Councilmembers Truckee Town Hall 10183 Truckee Airport Rd Truckee, CA 96161 truckee@townoftruckee.com lromack@townoftruckee.com dpolivy@townoftruckee.com aklovstad@townoftruckee.com chenderson@townoftruckee.com jzabriskie@townoftruckee.com Re: Final EIR for the Truckee2040 General Plan Update Dear Mayor Romack and Honorable Councilmembers: On behalf of Mountain Area Preservation Foundation (“MAP”)1, we submit these comments regarding the Final Environmental Impact Report (“Final EIR” or “FEIR”) for the proposed Truckee2040 General Plan Update (“General Plan Update,” “GPU,” or “Truckee2040”). As with the Draft Environmental Impact Report (“Draft EIR” or “DEIR”), the FEIR is fundamentally inadequate under the California Environmental Quality Act, Public Resources Code section 21000 et seq. (“CEQA”). We hereby incorporate by reference our letter of September 23, 2022 on the DEIR, including all attachments. In that letter we described many substantive flaws in the DEIR’s analysis. As detailed below, the FEIR fails to correct those deficiencies and cannot support current approval of the GPU. We therefore respectfully request that the Town Council recirculate the EIR with corrected analyses and consideration of additional 1 Mountain Area Preservation Foundation is a 501(c)3 non-profit organization. The organization also conducts business as Mountain Area Preservation (MAP). The names are interchangeable in all of MAP’s correspondence with the Town. Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 2 policy changes, mitigation, and alternatives as detailed in our September 23, 2023 correspondence and below. Before explaining the numerous ways that the FEIR fails to fulfill the Town’s legal obligations, we must first comment on the absurdity of the public review process for environmental documents currently before the Town. As the Town is aware, there has been an on-going public planning process for the GPU for quite some time and MAP and many others have been actively engaged in that process. Given the long-range planning implications of the GPU, the people of the Town deserve the opportunity to review the environmental documents thoroughly and to understand the issues as fully as possible before the Town Council makes a decision. Just as importantly they deserve to be represented by Town officials possessed of as much information as is available before making extraordinarily important decisions that would have lasting impacts on the entire region. Yet, the public and decision-makers were only given a few short weeks to digest volumes of materials for the GPU before the Planning Commission hearing, and just over a month before the Town Council meeting was set to take place. These new materials included, among hundreds of pages of FEIR materials, numerous new policies and actions added after the DEIR was released, as well as a new Policy and Action Monitoring Program (“PAMP”). Despite the cramped schedule, MAP was able to quickly review the documents and provide brief comments to the Planning Commission at its March 21 and 22, 2023 hearings. In addition to oral comments, MAP provided a written summary of its comments to the Commission, which are attached hereto as Exhibit A and incorporated herein by reference. The Planning Commission heard the concerns from MAP members and numerous others and adopted several recommendations, which MAP fully supports and urges the Town Council to adopt. Those recommendations include:  Do not certify the EIR for the GPU at this time, and instead review and revise it in compliance with CEQA; do not adopt the PAMP or the CEQA Findings and Statement of Overriding Considerations.  Work with various stakeholders on the concerns raised to find solutions and common ground on which to move forward.  Find solutions to address traffic and get people out of their cars.  Support the MAP alternative. Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 3  Revisit the Climate Action Plan (“CAP”) in order to provide more clarity, concrete actions to mitigate GHGs, and measurable goals. As MAP informed the Planning Commission, we have reviewed the FEIR and find that it, like the DEIR, fails to meet the requirements of CEQA and the CEQA Guidelines, 14 California Code of Regulations section 15000 et seq. (the “Guidelines”). Most glaringly, the FEIR repeatedly attempts to justify the DEIR’s perfunctory analysis as appropriate for a “program EIR,” claiming that this label frees it from the obligation to perform an evidence-based analysis of the GPU’s impacts. As explained below, this is incorrect. Regardless of the label, the EIR remains inadequate as an informational document when it fails to conduct a thorough analysis of all of the GPU’s significant environmental impacts, as well as to evaluate feasible, enforceable mitigation or alternatives to reduce or avoid those impacts. The FEIR neither adequately responds to comments previously raised nor cures the legal inadequacies identified by those comments. Rather than revise the EIR to comprehensively analyze, for example, the GPU’s impacts on biological resources, water quality and supply, scenic vistas and night sky, wildfire evacuation, and climate change, as well as its growth-inducing impacts, the FEIR merely seeks to defend the erroneous assertions and conclusions of the prior document. Making matters worse, the FEIR repeatedly tries to put the onus on the public to provide analysis that CEQA requires the agency to perform. Additionally, the FEIR fails to adopt feasible mitigation measures identified by comments. Although we identified feasible measures to reduce, for example, the GPU’s significant and purportedly unavoidable aesthetic, biological, greenhouse gas (“GHG”) emissions, and transportation impacts, such as by setting standards and making GPU policies and actions enforceable, the FEIR rejects the vast majority of these measures. Thus, the FEIR perpetuates the failings of the DEIR. We will not here reiterate our comments in full. Instead, we detail below some of the FEIR’s more egregious shortcomings. I. The EIR Inadequately Responds to Comments Raised on the DEIR. The FEIR fails to respond to pertinent comments on significant environmental issues. Instead, the FEIR dismisses comments by reiterating claims made in the DEIR without supporting facts or substantive analysis, offers conclusory statements without a factual or legal foundation, disregards feasible mitigation measures, and offers deferred mitigation measures rather than adequate actions to reduce the Project’s environmental consequences. Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 4 In an FEIR, a lead agency must respond to all comments made on the DEIR. Pub. Res. Code § 21091(d); CEQA Guidelines §§ 15088(a), 15132. When a comment objects to the DEIR’s analysis and raises significant environmental issues, the FEIR’s response must give a reasoned, good-faith analysis and “describe the disposition of significant environmental issues raised,” such as how revisions to the project will mitigate anticipated impacts. CEQA Guidelines § 15088(c). Comments must be “addressed in detail giving reasons why specific comments and suggestions were not accepted.” Id. Detailed responses are required to “ensure that the lead agency will fully consider the environmental consequences of a decision before it is made.” City of Long Beach v. Los Angeles Unified Sch. Dist. (2009) 176 Cal.App.4th 889, 904. The level of detail necessary “depends on factors such as the significance of the issues raised, the level of detail of the proposed project, the level of detail of the comment, and the extent to which the matter is already addressed in the DEIR or responses to other comments.” Id. at 901. Generally, the level of detail in the response must match the level of detail in the comment. Pfeiffer v. City of Sunnyvale (2011) 200 Cal.App.4th 1552, 1568. “Conclusory statements unsupported by factual information” are never an adequate response. Guidelines § 15088(c); City of Maywood v. Los Angeles Unified Sch. Dist. (2012) 208 Cal.App.4th 362, 391. As set forth below, in numerous instances, the FEIR’s response to comments fails to meet these requirements. Some responses do not sufficiently address the comment. See, e.g., FEIR at 3-128 (failure to justify lack of performance standards for TDM program), 3-135 (dismissing proposed mitigation without valid rationale), 3- 140 (failure to adequately respond regarding baseline data), 3-146 (failure to provide requested wildlife information), 3-150 (erroneously claiming CAP is not subject to CEQA), 3-155 (improperly attempting to excuse lack of information due to programmatic nature of document). Other comments are ignored entirely. See, e.g., FEIR at 3-108 (comment that the Town should have prepared a Water Supply Analysis (WSA) for the GPU), 3-121 (comment that cumulative analysis was inadequate). The Town has not shown a good faith effort to consider public input, much less modify the EIR as a result. II. The Final EIR Still Fails to Ensure that the “Self-Mitigating” General Plan Approach Will Adequately Mitigate the GPU’s Impacts MAP commented that the Town’s “self-mitigating” General Plan approach was problematic for four reasons: because it (1) fails to disclose and describe significant environmental impacts that could occur if the General Plan policies do not reach fruition; (2) relies on policies and actions as mitigation that are vague, unenforceable, or Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 5 improperly deferred; (3) ignores feasible mitigation outside of GPU policies and actions; and (4) lacks an adequate mitigation monitoring and reporting program (“MMRP”). See FEIR at 3-79 to 3-84. We also reminded the Town that MAP had provided in its cover letter a list of ten proposed additional mitigation measures that could further reduce the GPU’s impacts. See id. at 3-82 to 3-83. In response, the FEIR claims that environmental protection “is a primary purpose of the project.” See FEIR at 3-4 (emphasis original). While this may be part of the GPU’s intended goal, that does not excuse the EIR from fully disclosing significant environmental impacts that could occur if development proceeds pursuant to the GPU yet not all environmentally beneficial policies come to fruition. Put another way, even if the GPU results in benefits to the existing environment, that does not mean it would not also have significant environmental impacts related to the development it facilitates. The Final EIR still fails to disclose what impacts would look like if GPU policies fail or are insufficient. This analysis is essential to understanding whether all adequate mitigation has been identified. The Final EIR also fails to correct the Draft EIR’s reliance on GPU policies that are inadequate as mitigation, including improperly deferred mitigation. For example, in our comments on the DEIR, we explained that Action M-1.A was insufficient as mitigation because development of the Transportation Demand Management (TDM) program under that action would be deferred until 2030, and Action M-1.A lacks any performance standards, as is required when mitigation is deferred. See FEIR at 3-81. In response, the Final EIR claims that “success of the action would be measured by adoption of a TDM program by the 2030 date.” See FEIR at 3-128. But the deadline for adopting a TDM is not a performance measure for the TDM itself, which is the actual mitigation. The Final EIR also notes that similar programs have been adopted elsewhere in the region. See FEIR at 3-128. But without any insight into what sorts of elements the TDM will include, it is impossible to measure it against other adopted programs. Finally, the case cited by the Final EIR – City of Maywood v. LA Unified School District (2012) 208 Cal.App.4th 362 – is inapposite. That case allowed deferred mitigation where the EIR had defined “enforceable performance criteria by the time of project approval.” Id. at 406. Here, that essential element of permissible deferred mitigation is missing. The Final EIR goes on to claim it need not consider any additional mitigation for the GPU’s impacts because the GPU policies were part of an iterative process to incorporate mitigation into the GPU policies. See FEIR at 3-137. But just because the Town used this process to identify some mitigation does not mean that all feasible mitigation to reduce the plan’s impacts was identified. Indeed, MAP recommended a number of mitigation measures that the Town could adopt to further Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 6 reduce significant impacts, but the Final EIR rejected them, often with little to no explanation. For example, MAP recommended that the Town adopt as mitigation “height requirements in scenic corridors and stronger protections for hillsides, ridges, and bluffs.” See FEIR at 3-82. MAP proposed this mitigation because even with other mitigation for aesthetic impacts, the GPU would still result in significant and unavoidable impacts. The Final EIR dismisses this proposed mitigation first because it says MAP “does not identify any specific recommendations.” See FEIR at 3-135. But MAP specifically recommended that the Town adopt some building height requirements in those specific highly scenic areas, leaving it to the Town’s expertise to identify the appropriate heights. The Final EIR next argues that MAP did not “identify any specific reason that the policies already included are inadequate.” See id. This is wrong. We explained in our DEIR comment letter why existing proposed GPU policies to mitigate aesthetic impacts were insufficient, especially for mitigating impacts to the I-80 scenic corridor. See id. at 3-89 to 3-91. The Final EIR likewise ignores support MAP provided for its proposed mitigation to “develop a Transfer of Development Rights (TDR) program, and identify desired open space areas with high natural, cultural, and/or recreational resource values to protect.” See FEIR at 3-82. The Final EIR claims that MAP did not articulate what impact of the proposed GPU that a TDR program would reduce. Id. Again, this claim is wrong and ignores MAP’s explanation in its comment letter of the benefits of a TDR program to help conserve the Upper McIver site, which would lose scenic and habitat value if developed. See id. at 3-89 to 3-91. We also recommended that the Town transform the GPU’s optional and illusory policies and actions into mandatory, enforceable ones to help ensure reduction of environmental impacts. Instead of doing so, however, the FEIR merely deletes reference to many of the unenforceable policies in the EIR and the PAMP. But this contravenes the alleged “self-mitigating” nature of the GPU. The DEIR claimed that the Town’s self- mitigation approach “enables environmental considerations to influence policy development, thereby ensuring that the plan’s policies will address potential environmental impacts and the means to avoid them.” DEIR at 3-10. The Town cannot have it both ways. CEQA requires that an agency consider and adopt all feasible mitigation. Guidelines § 15091(a)(1). The EIR acknowledges that many of the GPU’s impacts would be significant and unavoidable even with the EIR’s proposed mitigation. Thus, the Town must consider the feasibility of the mitigation proposed by MAP like the measures Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 7 described above and making GPU policies and actions mandatory and enforceable. But instead of evaluating each measure for its feasibility, the Final EIR just rejects them outright, deleting them from the EIR, in violation of CEQA. Finally, we commented that the Draft EIR lacked an adequate MMRP. In response, the Final EIR has created a “Policy and Action Monitoring Program” (PAMP), attached to the Final EIR as Appendix A. The PAMP provides that the Town can “verify” that mitigation has occurred. However, it is unclear how the PAMP would ensure compliance with or reporting on the sort of ongoing mitigation on which the GPU relies. Moreover, the PAMP does not even include all of the GPU policies and actions. As we have explained, mitigation incorporated into a General Plan still must comply with CEQA’s MMRP requirements; the PAMP is inadequate to meet this requirement . See, e.g., Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1159, 1165. III. The FEIR Fails to Correct the DEIR’s Deficient Description of the GPU Setting and Baseline Conditions. Our DEIR comment letter stated that the DEIR’s deficiencies in describing Truckee2040’s baseline setting undermines its adequacy as an informational document – most importantly as it relates to population characteristics, determining residential occupancy, and the use of these figures in analyzing the environmental impacts of buildout under Truckee2040. To underestimate these baseline conditions fails to set the stage for a discussion of significant effects. The DEIR uses baseline population and other data from 2018 in Tables 2-1, 3-2, and 3-3, and continues to rely on occupancy assumptions from 2018 for tenancy of second homes and vacation rentals. We noted that due in large part to the COVID-19 pandemic, there have been adjustments over the past two to three years in where people are choosing to live and work, and that the occupancy characteristics of formerly-vacant second homes and vacation rentals that are prevalent in the greater Truckee/Tahoe area are changing. The DEIR should not be relying on population and tenancy statistics from 2018 as a basis for growth projections and expected household occupancy. See DEIR Table 3-3 at 3-17. In response, the Final EIR dismisses the suggestion that population data and occupancy assumptions should be based on post-pandemic information and suggests that our comment letter does not provide evidence that patterns of population growth and visitation have or will permanently change to support the claim that post-pandemic household data is more appropriate. The Final EIR then states that it would be speculative to rely on occupancy rates and trends that are not supported by evidence in the record. See FEIR at 3-140. However, it is the failure of the EIR itself to not examine rates and trends based on existing conditions at the time the DEIR analysis was underway in 2021 Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 8 and 2022 and to justify why these were not used in the EIR. In 2021 and 2022, it was well-known that the pandemic was having immense impacts on live/work dynamics in communities across the nation, and the Truckee/Tahoe region was no exception. The Truckee/Tahoe area is not the same place it was in 2018. Since that time, permanent shifts in living patterns have emerged - including a mass influx to the Sierra Nevada. In this region housing prices have nearly doubled, exacerbating workforce housing shortages and generating associated environmental impacts, as described below. The Final EIR must address this issue and revise its analysis in light of the influx of remote-worker residents that moved to the area in 2020 and 2021. During the first year of the pandemic, the Tahoe region saw its largest ever one-year increase in population on record. See Exh. B (Tahoe Prosperity Center, Envision Tahoe Prosperity Playbook (June 2022)) at 30. This trend cannot be expected to disappear anytime soon, as the national work-from-home rate is stabilizing at about 30 percent—up from less than 5 percent before the pandemic. See Exh. C (Work From Home, Survey of Working Arrangements and Attitudes Research Update (Jan. 17, 2023)) at 5-6. This change in population patterns was not taken into consideration in this EIR because the population and occupancy figures used are from 2018, well before this shift in living and working patterns were brought to light. Thus, the analysis must be updated to reflect the changed circumstances today. Since the onset of the COVID-19 pandemic, home prices in the Tahoe region have soared, further illustrating the high demand for housing and the population influx. In 2015, the median home price in the region was $490,000, but by 2021 it was $950,000—nearly double. See Exh. D (Tahoe Prosperity Center, Community Report for the Tahoe Region (Mar. 2022)) at 23. Similarly, the cost of rent in the area has been climbing steeply since the onset of the Pandemic, with the cost of rent in Truckee climbing 25-50 percent in just the first half of 2021. See Exh. E (Mountain Housing Council of Tahoe Truckee, Housing Issues in North Tahoe Truckee). These changes cannot and should not be ignored in the baseline assumptions feeding into the environmental analyses for the Truckee2040 project. Our previous comment letter noted that the DEIR must provide clear evidence that each impact analysis relied on accurate and consistent population characteristics/occupancy rates and not low-vacancy presumptions from data points that are several years old and based on pre-pandemic conditions. In the absence of this information, neither decision- makers nor the public are able to determine the accuracy of the DEIR’s impact analyses. For example, understanding the true residential and service population for the Town is critical to accurately assessing existing and future VMT, accurately measuring GHG emissions, accurately planning for emergency services and evacuation, and accurately Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 9 understanding the impacts of future utility and infrastructure needs for the community, all of which are topics covered in Truckee2040 and its EIR. Furthermore, escalating home prices and increased population are relevant to an adequate analysis of feasible mitigation measures and alternatives. A housing pattern or related measure that may have been feasible pre-pandemic may not be so now given increased prices and population, and vice versa. IV. The FEIR Fails to Correct the DEIR’s Deficient Analysis and Mitigation of Impacts to Aesthetics. A. The FEIR Continues to Ignore Community Requests to Preserve the Upper McIver Site. The FEIR continues to dismiss suggestions to conserve the Upper McIver site, which would contribute to the loss of visual character and habitat value if developed and could enhance visual character and public views if preserved. See FEIR at 3-89 to 3- 91. The Final EIR contains Master Response 3.2.4 (Upper McIver Site), which offers several excuses why Truckee2040 does not include, and the EIR does not analyze, redesignation of the Upper McIver to Resource Conservation/Open Space as continually requested by the community. See FEIR at 3-27. The constraints noted in the Final EIR are: (1) SB 330 (Housing Crisis Act) prevents the Town from reducing the residential capacity of a site zoned for housing without identifying replacement capacity; (2) the site is identified in the Town’s Housing Element inventory of available sites for affordable housing, so the Town would need to find replacement capacity in other areas of town in order to avoid violating the “no net loss” law; (3) in order for a Transfer of Development Rights program to be effective in preserving the site, there would need to be developers willing to purchase the development rights and a site identified to receive the units being transferred; (4) advocates have not demonstrated that Upper McIver site has resource value worth preserving; and (5) a potential takings claim from the property owner due to existing zoning. As explained below, none of these rationales justify a failure to consider redesignation of Upper McIver as Resource Conservation/Open Space: 1. SB 330 Compliance and Housing Element/”No Net Loss” Concerns. The FEIR identifies a perceived conflict with SB 330 and “no net loss” provisions under State law because the site is currently zoned for housing. However, other properties in Town are being up-zoned as part of the Truckee2040 implementation, which could cover the Upper McIver “shortfall” if the property is rezoned. Preservation of the Upper McIver site is clearly important to the community as the issue has been Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 10 raised time and again. The FEIR acknowledges this noting that when the McIver site rezoning to RM-18 was completed in 2018, it was done so to avoid repercussions from the State related to the Town’s compliance with Housing Element requirements. In fact, the rezoning was completed with the recognition that the issue would likely be revisited as part of this very process. “The resolution adopted by the Town Council includes language that the Town reserves the right to revisit the zoning as part of the GPU. The Town Council discussed potentially up-zoning other parcels to meet the housing allocation elsewhere and expressed an underlying desire to preserve the Upper McIver parcel.” See FEIR at 3-24. There is clearly a high level of interest in the site and concern regarding its development. If the Town believes that a “no net loss” site needs to be identified in order to change the designation for Upper McIver, that is exactly what should be done through this GPU process. This is what was anticipated by the language in the 2018 rezoning resolution. 2. Transfer of Development Rights (TDR) Program. The Final EIR states that including the Upper McIver site as part of a “transfer of development rights” program as suggested by MAP would not work because “[T]he Town has not identified a suitable receiver site for the allocated housing units.” See FEIR at 3-27. Truckee2040 Policy COS-1.1 and Action COS-1.D reiterate the Town’s interest in exploring methods to promote conservation of land with high resource values, including a TDR program. There is no evidence to suggest that the Upper McIver site specifically would not be suitable for inclusion in this program. 3. Advocates need to demonstrate that Upper McIver site has resource value worth preserving. The suggestion that the Upper McIver site has no resource value worth preserving is simply not credible. The Upper McIver site was zoned Resource Conservation/Open Space for many years prior to rezoning in 2018 and the FEIR recognizes that maintaining the Upper McIver site as open space has been a focus area of public comment for over 4 years. See FEIR at 3-27. The community’s goals with the preservation of Upper McIver are to maximize open space protection, minimize hillside disturbance, preserve scenic values, preserve tree cover, and prevent development of the site from impacting the protected McIver Dairy site, which sits downhill from the Upper McIver site. Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 11 4. The Town could face legal challenges if the site were re- designated to Resource Conservation/Open Space. The FEIR states that the Town could face a potential takings claim from the Tahoe Forest Hospital District if the site were re-zoned. However, the FEIR presents no substantial evidence that this would happen, or even that it is likely. For example, the FEIR acknowledges that the Hospital District’s plans for their campus are undetermined, and states that “the Town believes that it would be speculative to assume that the plan would be approved as currently proposed.” See FEIR at 3-172. The FEIR characterizes the hospital master plan as “redesignation of all parcels owned by TFHD to allow increased density of development, which . . . would allow for clustered development on a healthcare campus . . .” See FEIR at 3-172. If the Hospital District is considering a redesignation of all parcels, consideration of a reduction in development capacity on the Upper McIver site and an increase in development capacity on other sites could be considered. Sheer speculation that redesignation of Upper McIver would result in litigation does not constitute substantial evidence of infeasibility. See Guidelines § 15384; Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1454-65 (rejecting argument that alternative involving land exchange was infeasible, finding EIR lacked substantial evidence that the land exchange could not be feasibly accomplished). B. The FEIR Continues to Ignore Feasible Mitigation Measures for Impacts to Visual Character and Public Views. One of the significant impacts identified in the DEIR is to visual character and public views. The DEIR concludes that “development that could occur with implementation of the proposed GPU, in concert with state laws that could result in increased density, could change in visual character of the town in a manner that some perceive as a degradation of baseline conditions. Therefore, impacts would be significant and unavoidable.” See DEIR at 2-9. MAP recommended that the Town adopt as mitigation “height requirements in scenic corridors and stronger protections for hillsides, ridges, and bluffs.” See FEIR at 3-82. MAP proposed this mitigation because even with other mitigation for aesthetic impacts, the GPU would still result in significant and unavoidable impacts. The FEIR dismisses this proposed mitigation first because it says MAP “does not identify any specific recommendations.” See FEIR at 3-135. However, MAP specifically recommended that the Town adopt building height requirements in those specific highly scenic areas where visual character and scenic corridors would be impacted. The FEIR states MAP did not “identify any specific reason that the policies already included are inadequate.” See FEIR at 3-135. This is incorrect. In our DEIR comment letter, we explained why existing proposed GPU policies to mitigate aesthetic Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 12 impacts were insufficient, especially for mitigating visual impacts to the I-80 scenic corridor. See FEIR at 3-89 to 3-91. C. The EIR’s Analysis of Nighttime Views Continues to Be Deficient and it Lacks Support for Its Insignificance Conclusion. Our DEIR letter commented that the analysis of impacts to nighttime views (dark skies) is insufficient and lacks any basis to conclude that impacts are less than significant. The FEIR dismisses this claim and states that because the Truckee2040 land use plan focuses development in existing areas and away from open spaces, the General Plan Update is effectively minimizing light pollution. See FEIR at 3-144. The FEIR also restates several General Plan policies that aim to reduce light and glare impacts. See id. However, this is a deficiency here as well as in many other sections of the Final EIR: the policies are laudable, but there continues to be no analysis, data, or evidence to suggest the policies, which are in many cases vague and unenforceable, will be effective enough to keep the impacts from being significant. The FEIR also continues to rely on other cities’ and counties’ policies and zoning requirements to support the claim that cumulatively considerable light and glare impacts will not be present despite providing no evidence to support the conclusions. See FEIR at 3-144. V. The FEIR Fails to Correct the DEIR’s Deficient Analysis and Mitigation of Impacts to Biological Resources. A. The FEIR Fails to Describe Existing Biological Resources. Our DEIR comment letter stated that the EIR should provide more information on the location of migration corridors and wildlife nursery sites – the preservation of which are a particular concern of MAP. The letter explained that by not mapping the locations of native nursery sites at this time, the EIR improperly defers analysis of GPU impacts until later stages of development. However, the FEIR argues that the EIR is not an appropriate document to provide detailed wildlife resource mapping because “wildlife species are dynamic and their breeding and movement patterns change over time.” See FEIR at 3-146. The FEIR further suggests that “[I]t would not be appropriate for the Draft EIR to presume to analyze project level detail for the 20-year plan horizon.” See id. Mapping migration corridors and wildlife nursery sites across the Town is not the same as analyzing project level detail. If key wildlife corridors are not mapped as part of this townwide GPU land planning program, how can the Town ensure that existing corridors are respected and protected? How can the Town validate that the Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 13 Truckee2040 land plan has taken the protection of sensitive species that rely on wildlife connectivity corridors into account? The FEIR suggests that impacts to biological resources be studied at the project (site-specific) level, but at that stage, it is too late to find out that a site slated for development should have been mapped with sensitive resources. Instead, the FEIR simply contains a policy to create/preserve open space corridors - to be implemented after the land plan that guides future development has already been approved. This is faulty logic and a failure to document existing resources that could be impacted by the land use plan being proposed. B. The FEIR Fails to Identify Adequate Mitigation Measures or General Plan Policies to Reliably Reduce the GPU’s Impacts to Biological Resources to a Less-than-Significant Level. Like many others, the Biological Resources section relies on GPU policies and actions to purportedly reduce impacts of development under the GPU. But many of the policies and actions lack detail and accountability necessary to serve as mitigation under CEQA and are overly broad. Examples include: (1) Policy COS-1.7 to create/preserve open space corridors. Since no corridors are analyzed in the EIR land use plan, there is no guidance on what areas could/should be prioritized for preservation to reduce the significance of the impact; (2) Action COS-3.B to monitor the health of sensitive wildlife and habitat resources. The action offers no concrete plan to do monitoring, and no metric to measure the effectiveness of GPU policies and actions to determine if the monitoring has been successful in reducing impacts; and (3) Action COS-3.D to create incentives to permanently protect significant areas. There is no guidance on the type of incentives that could be effective here or any threshold identified to determine what habitat protection would result in a less than significant impact. Lastly, (4) Policy COS-3.4 requires that all new development avoid identified sensitive habitats, wetlands, other non-wetland waters within or adjacent to the development site, as feasible, by implementing no-disturbance buffers around these areas or implementing project-specific design features. The inclusion of language like “if feasible” renders these policies of questionable effectiveness. Our DEIR comment letter pointed out that these policies, among others, do not effectively demonstrate the reduction of significant impacts to less than significant levels with their implementation. Our comment letter raised the issue of noise impacts on wildlife. In response to this comment, the FEIR noted that “[N]oise impacts of individual projects could affect biological resources at a project-specific level depending on the proposed activity and its location relative to sensitive resources.” See FEIR at 3-147. The FEIR went on to explain that this would be addressed later when “each discretionary project that could affect biological resources, either directly or indirectly, would require a Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 14 biological survey on the development site (Policy COS-3.3) and potential impacts would need to be addressed through site-specific environmental review and permitting requiring development and implementation of project-specific conservation measures to minimize or avoid impacts through the design process, and potentially by providing compensatory or other mitigation for any adverse effects on these species as a condition of project approval.” See FEIR at 3-147. The FEIR further states that “if a residual significant impact would remain after implementation of the GPU policies, project proponents would be required to provide additional mitigation until the impact on biological resources were reduced to a less-than-significant level.” See FEIR at 3-148. Biological surveys and site- specific mitigation will be required only for projects that are subject to discretionary review. Because programmatic studies have not been completed in the GPU, there may be sites where development will not be subject to discretionary review and the EIR lacks detailed mitigation measures to identify the specific, measurable actions that need to be taken to protect biological resources on these sites. The FEIR defers mitigation for future projects subject to discretionary review and fails to address altogether mitigation for future projects that are not subject to discretionary review, leaving the broad policies and actions identified in the GPU as the only guidance for protecting biological resources. This is a failure of the FEIR. No evidence has been provided to demonstrate that the GPU policies and actions will be effective. Additional measures are needed to address Impact 4.4-4, which is identified as significant and unavoidable. VI. The FEIR Makes an Incorrect Assumption about the Climate Action Plan and Fails to Correct the EIR’s Deficient Analysis and Mitigation of the GPU’s Greenhouse Gas Emissions. A. The FEIR Errs in its Assertion that the CAP Is Not Subject to CEQA; Consequently, Its Responses to Comments and the EIR’s Climate Change Analysis Are Inadequate. In our letter on the DEIR, we commented that the EIR’s greenhouse gas (“GHG”) emissions analysis was deficient in numerous ways, including a lack of sufficient information to support the emissions estimates and purported reduction estimates provided. See FEIR at 3-97 to 98. The DEIR relied on the proposed Climate Action Plan (“CAP”) for much of the analysis. In the FEIR, the Town appears to take the position that the development and adoption of the CAP—and hence the information provided therein—is not subject to CEQA review. See, e.g., FEIR at 3-150 (“[T]he development of the CAP is not a CEQA-related action.”). This is a fundamental error. Adoption of the CAP is part of the “project” being approved and therefore must be Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 15 evaluated under CEQA. See Guidelines § 15378 (“‘Project’ means the whole of an action.”). Furthermore, even if the CAP were being adopted independently of the GPU (which it is not), it would still be a discretionary action subject to CEQA. See Guidelines § 15183.5(a), (b)(1)(F) (A plan for the reduction of GHG emissions should “[b]e adopted in a public process following environmental review.”); Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 506-25; Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1166, 1170-76. The Town’s error in treating the CAP as essentially exempt from CEQA ripples throughout the FEIR’s responses to comments, rendering them inadequate and full of improper circular logic. See Sierra Club, 231 Cal.App.4th at 1173 (“By failing to consider environmental impacts of the CAP and Thresholds project, the County effectively abdicated its responsibility to meaningfully consider public comments and incorporate mitigating conditions.”). For example, our letter pointed out that the DEIR did not provide sufficient information and evidence to justify the Project’s GHG emissions estimates. See FEIR at 3-97 to 98. Yet, the Town’s response is completely circular. For example, the FEIR (at 3- 149) states: “It is appropriate for the Draft EIR to incorporate, and rely upon, the calculations prepared in conjunction with the CAP because the CAP itself is a plan for reductions of GHG emissions anticipated through buildout of the GPU.” Essentially, the Town’s response is that the EIR may rely on any estimates, without sufficient explanation, in the proposed CAP simply because the CAP is meant to be a plan for GHG reduction. CEQA requires more. See, e.g., Guidelines § 15183.5(b)(1)(C) (The CAP must “[i]dentify and analyze the greenhouse gas emissions resulting from specific actions or categories of action anticipated within the geographic area.”). Likewise, the FEIR states that the public need not concern itself with the EIR’s methodologies used to calculate baseline data or impacts, because “the Draft EIR uses CAP consistency to determine the GPU’s contribution to climate change.” See FEIR at 3-149. And the FEIR uses the same faulty logic to evade providing needed information regarding emissions reductions, stating: “The Draft EIR does not need to summarize the total reductions achieved by each specific measures as the analysis relies on whether or not development under the GPU would meet the goals of CAP.” See FEIR at 3-150. Such circular “trust us” responses are absurd and not compliant with CEQA. The FEIR also refers the reader to “Appendix C” (FEIR at 3-149 to 3-150), but “information contained in appendices are not a substitute for ‘a good faith reasoned analysis.’” Sierra Club, 231 Cal.App.4th at 1170 (citation omitted). Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 16 The FEIR also provides no valid rationale for excluding various categories from its emissions estimates. For example, our letter criticized the DEIR for failing to include construction-related GHG emissions. The FEIR admits to this omission but claims without support that “authority to control emissions from construction projects are generally outside of the direct control of the local entity creating the plan.” FEIR at 3- 149. The Town provides no rationale as to why they would not have authority over construction-related activities within the Town, or even why it could not estimate emissions from activities outside its control. Contradicting itself, the FEIR also states that construction “emissions would be further evaluated and mitigated, as appropriate, as future projects undergo environmental review.” See FEIR at 3-149. But such deferral is improper under CEQA; the EIR must “use its best efforts to find out and disclose all that it reasonably can” in conjunction with this approval. Guidelines § 15144. Furthermore, the FEIR fails to recognize a critical fact: the CAP states that future projects may not undergo further environmental review regarding GHG emissions if they comply with the CAP. See infra Part VI.B. The FEIR also admits that it did not evaluate GHG emissions from wildfire, claiming they are difficult to predict. See FEIR at 3-149. However, as the EIR itself acknowledges, sufficient patterns of wildfire have emerged in recent years and wildfires are a major source of GHG emissions that should not be overlooked. See, e.g., FEIR at 2- 28. Moreover, at a bare minimum, known emissions from past wildfires must be included in the EIR’s cumulative GHG analysis. Finally, in response to our detailed comments explaining that the EIR’s cumulative GHG analysis was inadequate, the FEIR claims, without support or citation, that “The modeling conducted for the Climate Action Plan includes projections of reasonably foreseeable growth in the region in the modeling.” See FEIR at 3-151. CEQA requires more. See The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603, 616-17. B. The FEIR Correctly Admits that Future Projects Cannot Tier from the CAP for a CEQA Analysis, But the CAP Must Be Amended to Reflect This. Our letter commented that it was especially critical for the EIR’s analysis and mitigation of the GPU’s GHG emissions to be comprehensive because the Town’s CAP Element indicated that it would be used to streamline CEQA review for future projects. See FEIR at 3-99. In response, the FEIR concedes that “a project with operational dates extending beyond 2030 would not be capable of using the CAP for CEQA streamlining.” See FEIR at 3-150. To begin, for reasons stated herein and in its Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 17 DEIR comments, MAP does not agree that either the CAP or the EIR are sufficient in their present state to be used for tiering for any project, even in the near term. However, we agree with the FEIR’s assessment that the CAP cannot lawfully be used for CEQA streamlining for projects that would be operational past 2030 given the EIR’s own admission that Town is unable to meet its long-term climate change objectives. See, e.g., Guidelines § 15183.5(b)(2). The DEIR and CAP, however, were not at all clear about that fact. See DEIR at 3-9; GPU (June 2022) at 1-9, 9-3. Indeed, the proposed CAP Element in the General Plan indicates quite the contrary. It states the following under the heading “California Environmental Quality Act”: The Truckee CAP is being developed to serve as a plan for the reduction of GHG emissions in accordance with CEQA Guidelines Section 15183.5. A tiering document front-loads the analysis needed for most new development projects in the town to decrease the time and money required for project-level environmental analyses. As part of implementation of the Town’s CAP, a CAP Development Review Checklist is being prepared to support new development projects in complying with applicable GHG reduction measures in the CAP. The checklist, in conjunction with the CAP, provides a streamlined review process for proposed new development projects that are subject to discretionary review that triggers environmental review under CEQA (e.g., an initial study/negative declaration or a full environmental impact report is required). Project applicants may seek to streamline the review process by using the CAP to analyze GHG emissions impacts. Projects can achieve streamlining pursuant to the provisions of Section 15183.5 by including all applicable GHG reduction measures in this CAP in the project’s design or as mitigation measures in the environmental document, thus demonstrating that the project is consistent with CAP goals and policies and may determine that the project’s incremental contribution to a cumulative effect is not cumulatively considerable. See GPU at 9-4 (formerly 9-3) (CAP Element) (Emphasis added). This language, at best, creates confusion between the CAP and the FEIR, and must be resolved. The CAP should be revised to clearly state that it is not to be used as a CEQA streamlining device for projects with an operational horizon beyond 2030. The CEQA Findings of Fact for the GPU should also clearly state this. Furthermore, the CAP should provide examples of what types of projects would not have an operational Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 18 horizon beyond 2030; it appears that most if not all development projects would be operating beyond 2030. The CAP and EIR should further identify what standards will be used (e.g., identify thresholds of significance) for assessing whether such projects are “consistent with CAP goals and policies,” especially given that the CAP lacks concreted, effective mitigation measures. The failure to provide clarification would undoubtedly lead to uncertainty and disagreements with future project applicants and would represent very poor planning. C. The FEIR Fails to Evaluate Feasible Mitigation for the GPU ’s Significant GHG Impacts. Our DEIR comments noted that CAP lacked enforcement “teeth” and thus the EIR violated CEQA by failing to: (1) support its conclusion that the CAP would achieve specific GHG emission reductions; and (2) consider all feasible mitigation measures to reduce the GPU’s significant GHG impacts. In addition to violating CEQA, the CAP cannot serve as a CEQA streamlining device for any future projects. In response, the FEIR denies the obvious deferral and unenforceability of climate mitigation, ironically justifying it by claiming a sustainability coordinator and Climate Action Team will be formed in the future to handle it. The FEIR also baldly claims: “All actions included in the Climate Action Plan Element include performance standards and have an associated timeframe established.” See FEIR at 3-151. This statement is simply untrue. Indeed, nearly all the CAP mitigation is improperly deferred and/or lacks any requirements or valid performance standards. To give just a few examples, the CAP calls for the future creation of a transportation demand management (TDM) program (M- 1.A), VMT mitigation measures (M-1.B), rideshare programs (M-1.C), bicycle and pedestrian improvements (e.g., M-2.5, M-2.13, M-2.14, M-2.N), and electric vehicle incentives (M-1.F). It does not actually formulate any such programs in conjunction with the CAP. And while the CAP sometimes includes suggestions for measures to be considered in the future, it does not require any certain measures to be implemented and provides no specific standards that must be achieved by any specific dates. And even where the CAP does mention specific targets, it does not make such goals mandatory, but rather uses soft language that makes them optional. For example, with respect to energy efficiency, a CAP action is to “strive to achieve a 20 percent reduction in energy consumption in existing residential uses and a 15 percent reduction in existing nonresidential uses by 2030.” See GPU at 9-39 (CAP-7.A). Likewise, while the CAP identifies some potential funding sources, it does not commit to funding any specific measures or even to apply for any specific grants or other funding avenues by a date certain. Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 19 “‘Mitigating conditions are not mere expressions of hope.’ They must be enforceable through permit conditions, agreements, or other legally-binding instruments.” Golden Door Properties, 50 Cal.App.5th at 506 (citations omitted). Here, the CAP fails to provide sufficient enforceable requirements to achieve the purported emissions reductions, which the Town admits do not even go far enough to achieve state climate goals. Moreover, even if the requirements were enforceable and could achieve the stated reductions (which they are and cannot), “[q]uantifying GHG reduction measures is not synonymous with implementing them. Whether a measure is effective requires not just quantification, but also an assessment of the likelihood of implementation.” Sierra Club, 231 Cal.App.4th at 1170. Here, the Town has not identified a solid commitment to fund or implement any of the CAP’s policies and actions, much less by a date certain. Based on the Town’s past poor performance in implementing climate reduction strategies, it is unlikely that the GPU’s actions will be implemented in an effective and timely manner. “The [Town] cannot rely on unfunded programs to support the required GHG emissions reductions.” Id. at 1169. The Town must provide a comprehensive analysis of its own programs and show they are funded, and that the Town is engaging in “meaningful implementation efforts” that would support such mitigation results. Id. The Town must provide “evidence in the record to support its belief that people will participate in the various programs to the extent necessary to achieve the reductions asserted, [and to support its] assert[ion] that feasible measures will actually be implemented.” Id. at 1170. The FEIR claims that MAP’s “comment does not identify any additional policies or actions for consideration.” See FEIR at 3-151. As discussed, it is the Town’s responsibility, not the public’s, to provide adequate mitigation and support its claims that GHG emissions reductions will take place. In any event, this is also simply untrue. Our letter identified numerous ways and resources to strengthen the CAP’s policies and to provide meaningful mitigation to reduce the GPU’s significant climate change impacts. In addition to advocating for making optional CAP policies mandatory, our letter provided several examples of model CAP policies and resources, as well as enforceable policies from other jurisdictions. See FEIR at 3-99 to 3-101. The FEIR just chooses to ignore these. To name just a few of the sample measures provided and suggested, the CAP should:  Formulate a TDM program in conjunction with the CAP, or at a bare minimum require its adoption by a date certain and require program standards that guarantee a certain level of emission reductions. Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 20  Require actions that will result in a defined percentage of passenger vehicles in the Town being zero emission vehicles (ZEVs) by a specified date.  Provide for specific transit improvements by a date certain with designated funding.  Provide a meaningful and enforceable commitment to preserve a defined amount of open space.  Provide meaningful and enforceable commitments to energy reduction programs and/or building standards that are feasible for Truckee, to be completed by dates certain and to be required for all new projects.  For all new proposed projects in the Town, require project-specific reductions percentages using identified criteria (such as CAPCOA), and require verified offset purchases when local reductions cannot be achieved. The FEIR’s assertion that nothing more can be done to reduce the GPU’s significant GHG emissions is unsupported, especially in light of the fact that other jurisdictions are doing far more and there are numerous resources available to help jurisdictions develop adequate CAPs. It also runs contrary to the GPU’s lofty objective to “reduce greenhouse gas emissions in all sectors” and for the Town to be a leader in sustainability. D. The Town Should Revise and Recirculate the CAP and the EIR’s Climate Change Analysis to Address the Deficiencies as well as CARB’s New Scoping Plan. As discussed above, the EIR’s climate change analysis and mitigation are deficient in several respects and should be revised and recirculated to correct these inadequacies. Furthermore, significant new regulatory information regarding climate change has been released since the DEIR requiring reconsideration in a recirculated DEIR. The EIR and CAP claim that the CAP’s approach is “consistent with state targets and goals.” See GPU at 9-12; see also FEIR at 3-149. The CAP relies on the 2017 California Air Resources Board (CARB) Scoping Plan, but states that it will be necessary to adjust to future CARB Scoping Plans to help meet the CAP’s long-term goals. See, e.g., GPU at 9-12. However, subsequent to the circulation of the DEIR, CARB released its new Scoping Plan in November of 2022 (attached hereto as Exhibit F). The new Plan is far more aggressive than previous ones and the bar has moved substantially for Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 21 lowering emission targets; indeed, it is “unprecedented” in a number of ways. Thus, an analysis of the GPU’s GHG impacts and consistency with state targets and goals must be reevaluated in light of the new Plan. The Town must revise and recirculate the EIR to discuss new impacts/consistency issues and adopt any new feasible mitigation measures. Below are some of the Scoping Plans relevant substantial changes:  “This plan, addressing recent legislation and direction from Governor Newsom, extends and expands upon these earlier plans with a target of reducing anthropogenic emissions to 85 percent below 1990 levels by 2045. This plan also takes the unprecedented step of adding carbon neutrality as a science-based guide and touchstone for California’s climate work.” See Exh. F (2022 CARB Scoping Plan) at 1 (emphasis added).  “The major element of this unprecedented transformation is the aggressive reduction of fossil fuels wherever they are currently used in California, building on and accelerating carbon reduction programs that have been in place for a decade and a half. That means rapidly moving to zero-emission transportation; electrifying the cars, buses, trains, and trucks that now constitute California’s single largest source of planet-warming pollution.” See Exh. F (2022 CARB Scoping Plan) at 1 (emphasis added).  The Scoping Plan “identifies a technologically feasible and cost-effective path to achieve carbon neutrality by 2045 while also assessing the progress California is making toward reducing its GHG emissions by at least 40 percent below 1990 levels by 2030, as called for in SB 32 and laid out in the 2017 Scoping Plan. The 2030 target is an interim but important stepping stone along the critical path to the broader goal of deep decarbonization by 2045. Modeling for this Scoping Plan shows that this decade must be one of transformation on a scale never seen before to set us up for success in 2045.” See Exh. F (2022 CARB Scoping Plan) at 24 (emphasis added).  “The Scoping Plan Scenario achieves the AB 1279 target of 85 percent below 1990 levels by 2045 and identifies a need to accelerate the 2030 target to 48 percent below 1990 levels.” See Exh. F (2022 CARB Scoping Plan) at 71.  “Appendix D (Local Actions) provides suggestions for prioritizing the various types of mitigation, starting with on-site GHG-reducing design features and mitigation measures, such as methods to reduce VMT and support building decarbonization, access to shared mobility services or transit, and EV charging. After exhausting all the on-site GHG mitigation measures, CARB recommends Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 22 prioritizing local, off-site GHG mitigation measures, including both direct investment and voluntary GHG reduction or sequestration projects, in the neighborhoods impacted by the project. This could include, for example, development of a neighborhood green space, investment in street trees, or expansion of transit services.” See Exh. F (2022 CARB Scoping Plan) at 270. The need for recirculation of the EIR and reconsideration of the CAP was not only set forth by MAP but was also adopted as the recommendation of the Planning Commission to the Town Council. Given the urgency of the climate crisis, the Town should accept this recommendation and give due attention to the CAP. VII. The FEIR Does Not Fix the DEIR’s Inadequate Analysis and Mitigation of the GPU’s Impacts on Hydrology and Water Quality. A. The Setting Information Regarding Hydrology and Water Supply Remains Inadequate. Our prior comments pointed out that the DEIR failed to provide proper environmental setting information for hydrology and water quality, including a lack of detail regarding the current status of nearby waterbodies and wetlands. See FEIR at 3-103 to 3-104. We also noted that CEQA requires that an EIR’s environmental setting information place “[s]pecial emphasis … on environmental resources that are rare or unique to that region and would be affected by the project,” such as the unique features of the Lake Tahoe area. Guidelines § 15125(c); FEIR at 3-103 (quoting Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86, 96-99; League to Save Lake Tahoe, et al. v. County of Placer (2022) 75 Cal.App.5th 63, 99-100). In response, the FEIR adds some information regarding the Lahontan RWQCB Basin Plan, and Donner Lake, Truckee River, Little Truckee, and Martis Creek Reservoir water quality. See FEIR at 3-152 to 3- 154. The FEIR also adds a paragraph on water reservoir levels. See FEIR at 3-154. We commend the Town for adding some of the requested information. However, environmental setting information must be included in the Draft EIR, not just the FEIR, as it is the basis upon which environmental impacts are evaluated. As the court explained in Communities for a Better Environment v. City of Richmond, “[e]stablishing a baseline at the beginning of the CEQA process is a fundamental requirement so that changes brought about by a project can be seen in context and significant effects can be accurately identified.” 184 Cal.App.4th 70, 89 (“CBE”); see also Guidelines § 15120(c) (environmental setting information must appear in DEIR). Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 23 Furthermore, even with the additions, the EIR still lacks sufficient setting information. For example, the EIR fails to provide requested information on the Upper McIver wetland, claiming such information is inappropriate for a Program EIR. See FEIR at 3-152. Not so. The GPU and its environmental review are precisely the places to be considering long-term decisions regarding the land use of Upper McIver, and such information is fundamental to those decisions. See FEIR at 3-24 (noting Town Council previously stated its desire to revisit preservation of this area during the GPU process). Indeed, elsewhere the FEIR suggests Upper McIver is not suitable for preservation (see FEIR at 3-27), a claim that is specious without necessary information regarding valuable resources such as wetlands. Likewise, the FEIR claims aquatic invasive species information is not necessary because no water bodies in the plan area are listed as impaired for this. See FEIR at 3-154. However, this is a known issue in the area and the public and decision makers need to know how close water bodies are to impairment so that the EIR can properly assess whether impacts from the GPU would result in a “tipping point.” Additionally, the FEIR fails to provide further information on the Lake Tahoe setting, including current VMT figures, based on the unsupported assumption that increased growth under the GPU would not substantially impact resources in the Lake Tahoe Basin. As discussed infra, such assumption is incorrect. Moreover, it is putting the cart before the horse as a full understanding of the Lake Tahoe Basin and the special regime adopted to protect it is required before such an analysis is performed. Here, while the DEIR provides a broad outline of TRPA’s policies for protecting the Lake, it fails to provide a complete list of TRPA’s water quality thresholds or goals and policies that could be implicated by the GPU. See DEIR at 4.10-2 to 4.10-3. This is especially troubling given the special significance of Lake Tahoe as a regional resource. Attached hereto as Exhibit G is TRPA’s Threshold Standards and Regional Plan (last amended on April 28, 2021), which sets forth the agency’s threshold standards, goals, and policies. At a minimum, a revised EIR should list TRPA’s water quality thresholds and related goals and policies. See Exh. G at 5-7 (Threshold Standards WQ1- 41); 2-38 to 2-43 (Regional Plan Water Quality Goals and Policies). Of particular note, the EIR should emphasize TRPA’s Water Quality Policy WQ-3.10, which has direct relevance to the new vehicle trips that would travel in the Basin as a result of the GPU. That policy sets forth the interrelated nature of TRPA’s water quality, land use, transportation, and air quality measures in protecting Lake Tahoe: Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 24 WQ-3.10 IMPLEMENT LAND USE, TRANSPORTATION AND AIR QUALITY MEASURES AIMED AT REDUCING AIRBORNE NITROGEN EMISSIONS AND ENTRAINED DUST IN THE TAHOE REGION. There is evidence that atmospheric sources of nitrogen and entrained dust may be a major contributor of nutrients to Lake Tahoe, and that local emissions of oxides of nitrogen and entrained dust, primarily from automobiles, account for most of these atmospheric inputs. The land use, transportation and air quality measures aimed at reducing emissions of oxides of nitrogen and entrained dust should be carried out to ensure that atmospheric sources do not degrade Lake Tahoe’s water quality. See Exh. G at 2-42 (emphasis added). Pursuant to Water Quality Policy WQ3-10, the EIR should then discuss the relevant land use, transportation, and air quality measures to reduce oxides of nitrogen and entrained dust from vehicles. This would include new Threshold TSC1, which requires a reduction in daily average VMT per capita, as well as policies in the 2020 Regional Transportation Plan and Sustainable Communities Strategy (“RTP/SCS”) for the Tahoe Basin. For these reasons, the EIR should be recirculated with complete setting information so that GPU impacts and mitigation may be properly assessed. See County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 952 (“Before the impacts of a project can be assessed and mitigation measures considered, an EIR must describe the existing environment. It is only against this baseline that any significant environmental effects can be determined.”). B. The EIR Still Lacks Adequate Information and Analysis Regarding Water Quality Impacts. We commented that the DEIR failed to provide sufficient analysis or evidence to justify its conclusion that the GPU would have less than significant impacts on water quality and thus that no mitigation was required. See FEIR at 3-104 to 3-105. Rather, the DEIR relied only on generic statements and compliance with GPU policies and existing law to justify that conclusion, which we commented was insufficient. Id. In response, the FEIR doubles down on its conclusory analysis, again claiming that compliance with existing regulations is enough to ensure the GPU will not result in significant water quality impacts. It is not. Indeed, the new information the FEIR adds to the environmental setting demonstrates that waterbodies in the area are impaired for several pollutants, and a major known cause of the impairments is from development Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 25 impacts. See FEIR at 3-154. The GPU plans for additional growth and development. Yet, the EIR fails to provide basic analysis and information (even on an aggregate level) necessary to assess the water quality impacts of such development, much less to justify its insignificance conclusion. The FEIR fails to respond to the case law we provided on this issue. See FEIR at 3-105 to 3-106 (citing Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 716). The FEIR also predictably hides behind the programmatic nature of the GPU and EIR to claim that no additional analysis is required. E.g., See FEIR at 3-155 (“The Draft EIR includes the appropriate level of technical detail and specificity commensurate with the level of detail of the program without improper deferral of analysis and is consistent with the mandates of CEQA.”) But as we informed the Town in our DEIR comment letter, a program EIR is not absolved from analyzing, disclosing, and mitigating to the extent feasible the project’s significant impacts. See FEIR at 3-78 to 3- 79, 3-104 to 3-105. The Town’s failure to meaningfully respond regarding the lack of sufficient water quality information and analysis violates CEQA. As an example of the lack of meaningful information, we commented that the DEIR did not adequately analyze the impacts of the GPU’s increased visitation on Lake Tahoe. See FEIR at 3-156. The FEIR responds with four main excuses, each of which does not pass muster. First, the FEIR claims the EIR need not analyze compliance with TRPA regulations for the protection of Lake Tahoe because the Town is not within TRPA’s jurisdiction and TRPA did not submit comments on the GPU. See FEIR at 3-156 to 3-157. Neither fact absolves the EIR from determining whether the GPU would result in a violation of water quality standards set by TRPA for Lake Tahoe. While the GPU does not require a permit from TRPA, the EIR can neither ignore science behind TRPA thresholds nor any discrepancies that may arise between the GPA and TRPA standards. See Cleveland Nat’l Forest Found. v. San Diego Ass’n of Govs. (2017) 3 Cal.5th 497, 515 (“CNFF I”) (although agency not bound by gubernatorial climate change reduction order, the science underlying that order “has important value to policymakers and citizens in considering the emission impacts of a project”). Indeed, the EIR itself uses non- compliance with any water quality standards or substantial degradation of water quality as a threshold of significance. See DEIR at 4.10-17. Second, the FEIR claims that “Increased VMT has not been shown to increase fine sediment loading to Lake Tahoe.” See FEIR at 3-157. This is misleading at best. Decades of science demonstrates the opposite. See League to Save Lake Tahoe, 75 Cal.App.5th at 84-85 (“Scientists have determined that three pollutants are primarily responsible for [Lake Tahoe’s] loss of transparency: fine sediment particles, phosphorus, and nitrogen. . . . Motor vehicles contribute to the formation of fine sediment particles by Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 26 creating sediment and dust, and they and airplanes are the primary sources of atmospheric nitrogen.”). Although it is true that large scale projects to reduce roadway runoff can be effective mitigation and stricter vehicle emission have produced gains in nitrogen reductions, that does not mean that runoff or nitrogen deposition from GPU-related VMT would or could not significantly impact the Lake. Indeed, Lake Tahoe remains out of attainment with TMDL goals, and VMT remains a major source of the problem. As stated by TRPA: “The [Tahoe Science Advisory] Council’s report reaffirmed the importance of pollutant loading and the influence of loading on clarity.” See Exh. H (2021 VMT Threshold Update: Standard Recommendation and Implementation (Draft) (“Threshold Update Recommendation”)) at 28-29. Further, as stated in TRPA’s most recent Regional Plan (updated in April 2021), “[t]here is evidence that atmospheric sources of nitrogen and entrained dust may be a major contributor of nutrients to Lake Tahoe, and that local emissions of oxides of nitrogen and entrained dust, primarily from automobiles, account for most of these atmospheric inputs.” See Exh. G at 2-42 (emphasis added). Moreover, nitrogen and dust are not the only Lake pollutants caused by cars. As reported in the most recent “State of the Lake” assessment conducted by researchers at UC Davis, microplastics are also a significant Lake pollutant. See Exh. I (State of the Lake Report) at 2.1-2.2, 6.18-6.19. Scientific research demonstrates that vehicles are a leading cause of microplastics in waterbodies such as Lake Tahoe, as rubber in tires is crushed and then the particles either get washed into the Lake or are atmospherically deposited. See, e.g., Exh. J (Desert Research Institute, Big Problems in Tiny Pieces (January 19, 2021)); Exh. K (Lake Tahoe’s Pristine Legacy Threatened by Microplastics. UC Santa Cruz Science Notes) at 10; Exh. L (Rosanna Xia, The biggest likely source of microplastics in California coastal waters? Our car tires , LA Times (Oct. 2, 2019)); and Exh. M (Tire particles can impact freshwater, ScienceDaily (Oct. 21, 2022)). Third, the FEIR claims “VMT numbers are anticipated to be reduced with implementation of the GPU.” See FEIR at 3-157. But again, this is misleading. While the Town anticipates that per capita VMT within the Town would be lowered with the addition of more people, the total VMT under the GPU would increase as would emissions. See FEIR at 3-160. Further, the EIR admits that growth under the GPU would induce additional visitors into the Lake Tahoe Basin. E.g., DEIR at 4.10-22. The DEIR does not claim, nor could it, that the GPU would result in a per capita decrease of VMT in the Basin or that impacts to the Basin would be decreased. The EIR must disclose the anticipated amount of increased visitation to the Basin under the GPU and analyze the potentially significant impacts of such increase on this sensitive resource. Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 27 Fourth, the FEIR claims it would be too speculative to estimate increased visitation to the Basin for a general plan and attempts to distinguish League to Save Lake Tahoe on this ground. See FEIR at 3-156 to 3-158. However, it should be possible to, even at an aggregate level, make assumptions to analyze the GPU’s increased visitation to the Lake Tahoe Basin. Indeed, many models exist to estimate such information based on existing visitation patterns and projected growth. The Town could easily consult with TRPA on this issue. Alternatively, the EIR could conservatively assume that all increased VMT under the GPU would impact the Basin in some way, as wind patterns could carry emissions from the GPU area to the nearby Basin. Moreover, if the Town is correct as to the highly speculative nature of the assessment, then there is no substantial evidence to support the EIR’s conclusion that the GPU would have less than significant impacts on this important resource, with no mitigation required. The Town cannot have it both ways. The EIR must also evaluate the GPU’s potentially significant impacts on the Lake Tahoe Basin from non-VMT related sources. For example, the GPU’s admitted potential to increase wildfire risk could result in potentially significant impacts as smoke from additional fires in the area could travel to the Basin and impact Lake clarity. See Exh. N (Chandra, et al., Impacts of Smoke-Ash from the 2021 Wildfires to the Ecology of Lake Tahoe (July 19, 2022). Moreover, as noted in TRPA’s threshold evaluation report and UC Davis’s “State of the Lake,” climate change caused by greenhouse gas emissions has proven to have major impacts on the Lake. See Ex. H (Threshold Update Recommendation) at 29; Exh. I (State of the Lake Report) at 2.1-2.4. Thus, the EIR must assess the GPU’s potential impacts on Lake Tahoe through the release of GHG emissions. In sum, the EIR’s conclusion that the GPU would not result in any significant impacts on water quality, including on nearby Lake Tahoe, is unsupported. The EIR must be revised and recirculated with an adequate impacts analysis, and a consideration of all feasible mitigation measures to lessen such impacts. C. The FEIR Remains Deficient with Respect to a Water Supply Analysis. In our comments on the DEIR, we informed the Town that the EIR failed to provide adequate detail on water supply. See FEIR at 3-107 to 3-108. Specifically, we observed that the DEIR did not meaningfully address the impacts of withdrawing water from the Martis Valley Groundwater Basin (MVGB), especially during times of drought. Id. This would include describing when MVGB depletion would start to impact surface waters and wetlands and what level and timing of development would result in impacts. Id. Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 28 The FEIR claims that it provided a sufficient analysis by concluding that buildout of the GPU would not conflict with the Martis Valley Groundwater Management Plan, and thus the GPU would not have a reasonably foreseeable significant impact on surface waters and wetlands. See FEIR at 3-158 to 3-159. This is not how CEQA works. Inconsistency with a plan may alone indicate a significant impact, but consistency with a plan or applicable law does not mean there will not be impacts. See, e.g., Californians for Alternatives to Toxics v. Dept. of Food & Agric. (2005) 136 Cal.App.4th 1, 17 (“Compliance with the law is not enough to support a finding of no significant impact under the CEQA.”). The EIR must describe actual impacts and assess their significance, separate from and regardless of plan consistency. The FEIR goes on to argue that it need not provide the requested full analysis of impacts to surface waters and wetlands because “[t]he comment does not provide evidence to support the idea that there is potential for impacts due to groundwater extraction that are omitted from the analysis.” See FEIR at 3-159. Essentially, the FEIR is saying that MAP must provide evidence of what potential impacts were omitted. Again, this is not how CEQA works. Our comment pointed out that the EIR lacked sufficient information for a reader to understand the scope of impacts to groundwater. It is not the public’s responsibility to provide evidence to prove that the agency failed to provide enough analysis to support its conclusions. See Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 516 (EIR must include enough detail to allow reader to “understand and to consider meaningfully the issues raised by the proposed project”). MAP also commented that the Town should have prepared a Water Supply Analysis (WSA) for the GPU. See FEIR at 3-108. The FEIR completely fails to respond to this comment, rendering the FEIR inadequate. See Pub. Resources Code § 21091(d); CEQA Guidelines §§ 15088(a), 15132. D. The FEIR Fails to Remedy the DEIR ’s Lack of an Adequate Cumulative Impact Analysis for Hydrology and Water Quality. With respect to cumulative impacts on Lake Tahoe, the FEIR claims that, “because a significant impact would not occur, the project would not contribute to a significant cumulative impact associated with Lake water quality.” See FEIR at 3-160. But this is not how a cumulative impact analysis works; the point is to assess situations where an impact may be individually insignificant, but cumulatively considerable when evaluated in conjunction with past, present, and future projects. See Sierra Watch, 69 Cal.App.5th at 320 (citing CEQA Guidelines, § 15065(a)(3) (“in determining whether a project’s impacts are ‘cumulatively considerable,’ agencies must consider ‘the incremental effects of an individual project ... in connection with the effects of past Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 29 projects, the effects of other current projects, and the effects of probable future projects’”)). VIII. The GPU Should Include Land Use Changes to Reduce VMT. Our DEIR comment letter initially raised the issue, and we continue to assert that land use changes should be implemented by the Town to reduce the Vehicle Miles Travelled (“VMT”) impacts of the GPU. While the per service population VMT is projected to decrease with the proposed GPU (as compared to existing conditions), the overall VMT is projected to increase, which is “attributable to the projected increase in service population (residents, employees, and visitors) in the town through the 2040 planning horizon of the GPU.” See FEIR at 3-160. There remains potential to further decrease VMT per service population by reducing opportunities for additional development at locations that are farther removed from transportation routes and services, such as Donner Lake. Not increasing the development capacity at these more distant areas would be a benefit to VMT per service population and should be implemented with the GPU. IX. The FEIR Fails to Correct the DEIR’s Deficient Analysis and Mitigation of the GPU’s Impacts on Wildfire Danger and Evacuation. Our DEIR comments pointed out that the DEIR lacks evidentiary support for its claim that the GPU’s impacts to emergency evacuation would be less than significant, even under cumulative conditions. See FEIR at 3-116 to 3-117. The DEIR based that claim largely on the fact that the GPU anticipates future “updates” to emergency evacuation plans to accommodate growth. See DEIR at 4.9-34, 5-11. But as we explained, such future updates do not absolve the Town from analyzing the GPU’s potentially significant impacts now. See FEIR at 3-116 to 3-117. The FEIR fairs no better. It points to a master response, which again points to existing plans and plans to analyze evacuation impacts and improve upon them in the future. See, e.g., FEIR at 3-18 (Claiming that in a future action, “[t]he Town would identify evacuation routes and their capacity, safety, and viability under a range of emergency scenarios.”). But again, future promised action does not substitute for an adequate impact analysis; the EIR must disclose whether the GPU’s increased demands on evacuation infrastructure would result in significant impacts either alone or under cumulative conditions. Nor do the future anticipated updates constitute substantial evidence that the GPU’s evacuation impacts would be properly mitigated, as no performance standards are provided. CEQA allows a lead agency to defer mitigation only when: (1) an EIR contains criteria, or performance standards, to govern future actions implementing the Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 30 mitigation; (2) practical considerations preclude development of the measures at the time of initial project approval; and (3) the agency has assurances that the future mitigation will be both “feasible and efficacious.” Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 94-95 (“CBE”); San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 669-71; Guidelines § 15126.4(a)(1)(B). Here, the EIR has met none of these requirements. Likewise, the FEIR fails to correct the DEIR’s failure to analyze the GPU’s impacts on emergency response times during an evacuation, including under cumulative conditions. The FEIR relies on existing programs such as the California Standardized Emergency Management System (SEMS) and the Incident Command System. See FEIR at 3-16. But again, the FEIR misses the point. While such systems are no doubt useful, they do not guarantee that the GPU’s planned growth would not result in impacts on response times or the ability for the community to safely evacuate in a wildfire emergency. As the FEIR admits, regardless of how those systems define “readiness,” it “would not change the potential for buildout of the GPU to increase the potential for wildfires.” See FEIR at 3-165. All systems have limits, and CEQA requires the EIR to disclose whether that increase in buildout and potential impacts for wildfires would significantly impact the ability to effectively use such systems—such as significantly increasing response times during a wildfire—under individual and cumulative conditions. Additionally, the FEIR’s justification for its claim that the GPU would result in less than significant evacuation impacts during periods of construction is insufficient. The Town’s response is essentially that construction impacts have not been an issue in the past, so the assumption is that they will not be an issue under the GPU. See FEIR at 3-17. But even assuming the premise that there have been no issues in the past is true, that fact does not mean that construction under the GPU, which would involve thousands of new units as well as commercial development, would not result in significant evacuation impacts. As the FEIR’s master response notes, many commenters including MAP asked the Town to conduct evacuation modeling for the growth planned under the GPU. See FEIR at 3-18 to 3-19. The FEIR also acknowledges that such modeling is advised by the California Attorney General. Id. The FEIR also admits that the Town has the capability to conduct such modeling using the Ladris software platform, but steadfastly refuses to conduct such modeling here, claiming CEQA does not require it. See FEIR at 3-19. But while CEQA does not require the Town to employ any specific methodology in the EIR, it does require that the EIR support its conclusions with substantial evidence. The EIR here fails to do so. Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 31 MAP and others also asked the Town to consider the GPU’s impacts on problematic roadways during an emergency evacuation and to set standards and consider alternate evacuation routes. See FEIR at 3-23. The FEIR claims other plans, such as the CWPP, LHMP, and Emergency Operations Plan, already consider such issues. Id. But this misses the point; the GPU would add additional growth beyond that considered in such plans, and the EIR must analyze the evacuation impacts of that additional growth. We also commented that the DEIR’s analysis of the GPU’s wildfire-related impacts was cursory and lacking any meaningful analysis of the relationship between various GPU components and the attendant significant impacts. The FEIR attempts to hide behind the programmatic nature of the EIR, claiming no further analysis is required. But regardless of its programmatic nature, the EIR must find out and reveal all that it reasonably can. We suggested preserving Upper McIver in order to mitigate wildfire risks associated with developing steep hillsides. See FEIR at 3-120 to 3-121. The FEIR claims that such development rights would be transferred to areas with even worse fire risk. See FEIR at 3-166. However, the FEIR provides no substantial evidence that the Town’s denser areas could not accommodate further growth, thereby reducing or eliminating the need to develop fire-prone steep slopes. The FEIR must meaningfully respond to comments, not simply make conclusory statements in an attempt to shoo them away. See The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603, 615- 17. Finally, we commented that the DEIR’s cursory analysis of the GPU’s cumulative impacts related to wildfire did not pass muster under CEQA. See FEIR at 3- 121. In response, the FEIR states only: “Please see Master Response: Wildfire Evacuation.” See FEIR at 3-166. Yet the Master Response does not discuss cumulative impacts at all. See FEIR at 3-13 to 3-23. This failure to respond to comments violates CEQA. See Pub. Resources Code § 21091(d); CEQA Guidelines §§ 15088(a), 15132. The EIR thus remains deficient as it fails to (1) support its conclusion that the GPU will not have cumulative impacts with respect to emergency evacuation, and (2) provide sufficient analysis and mitigation regarding the GPU’s significant impacts with respect to other wildfire hazards. Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 32 X. The FEIR Still Fails to Analyze Growth That Could be Induced by Development Facilitated by the GPU. In our comments on the DEIR, we explained that the EIR must disclose both direct and indirect growth-inducing impacts of the GPU. While the EIR does discuss some impacts of growth directly facilitated by the GPU, what is missing is analysis of what additional growth could be induced by economic growth in the Town. For example, the EIR must explain whether economic growth in the Town facilitated by the GPU would attract more out-of-area workers to the Town, and thus cause environmental impacts outside the planning area. See FEIR at 3-121 to 3-123. The FEIR points broadly to the entire EIR as evidence that it evaluated the impacts of increasing population in the Town. See FEIR at 3-166. But this completely misses the point. The purpose of CEQA’s required growth-inducing impacts section is not to evaluate the impacts of the increased growth directly caused by the project. Rather, it is to disclose impacts of induced growth caused by development pursuant to the GPU. The FEIR’s failure to meaningfully respond to our comment violates CEQA. The Flanders Foundation, Cal.App.4th at 615-17. The responses to comments try to avoid the required analysis by claiming that MAP did not offer “support for the idea that the proposed land use diagram could beget growth beyond full buildout of the GPU.” Id. at 3-167. This excuse willfully ignores our clear explanation that the EIR must analyze whether the economic growth of the Town facilitated by the GPU would generate more demand for low-wage workers, who, if drawn to the area, would increase demand for housing in surrounding areas and need to commute in. See id. at 3-122. It defies reason to assume, as the EIR does, that growth and increased economic demand in Truckee would not have a ripple effect and spur growth in surrounding, less expensive communities. It is the Town’s responsibility to evaluate the potentially significant environmental impacts of such ripple effects, not the public’s. XI. The FEIR Does Not Correct the DEIR’s Deficient Alternatives Analysis. As our DEIR comments explained and as the FEIR acknowledges, CEQA requires that an EIR consider a “reasonable range” of alternatives “that will foster informed decision-making and public participation.” CEQA Guidelines § 15126.6(a). These alternatives must “feasibly attain most of the basic objectives of the project” but “avoid or substantially lessen any of the significant effects of the project.” Id. The DEIR’s alternatives analysis was flawed both because it failed to find certain impacts significant, and therefore it did not study alternatives that would avoid those impacts, and Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 33 also because it failed to study any alternatives that would reduce any of the GPU’s significant impacts on aesthetics, air quality, biological resources, cultural resources, GHG emissions, hazards and hazardous materials, noise, transportation, tribal cultural resources, and wildfire to less than significant levels. See DEIR at 6-3 to 6-4. The FEIR simply doubles down on the DEIR’s alternatives analysis, claiming it was sufficient. See FEIR at 3-167 to 3-168. The FEIR claims the Town “made every attempt to identify a range of alternatives that could potentially reduce significant impacts.” See FEIR at 3-167. Yet, the Town acknowledges that none of the alternatives the EIR analyzes, including its designated “environmentally superior” alternative, actually does so. Id. CEQA requires that the EIR evaluate at least one potentially feasible alternative that would reduce key significant impacts. The FEIR fails to respond to the case law provided on this point. See FEIR at 3-124 (MAP comment letter citing Watsonville Pilots Ass’n v. City of Watsonville (2010) 183 Cal.App.4th 1059, 1089-90; Habitat & Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277, 1285, 1305). The FEIR argues that for a general plan update it would be impossible to identify a feasible alternative that would have no significant impacts. See FEIR at 3-167 to 3-168. But this is a straw man defensive. CEQA does not require an alternative to reduce every significant impact, but at least one alternative should reduce some of the project’s central significant impacts. See Habitat and Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277, 1305 (“CEQA does not permit a lead agency to omit . . . analysis . . . of any alternatives that feasibly might reduce the environmental impact of a project on the unanalyzed theory that such an alternative might not prove to be environmentally superior to the project”). The EIR fails to provide even one such alternative, and the Town cannot credibly argue that no such alternative exists. Indeed, MAP proposed an alternative that would concentrate development in pre-planned growth areas in order to reduce some of the GPU’s key significant impacts. As explained, the DEIR failed to evaluate the MAP alternative (despite the EIR’s claims to the contrary). Regardless, the EIR must be recirculated to evaluate at least one alternative that reduces some of the Plan’s central significant impacts. The EIR’s failure to do so is especially egregious given the GPU’s objectives for the Town to be a leader in sustainability, such as its objectives to “reduce greenhouse gas emissions in all sectors” and to “enhance natural systems by promoting aquatic and terrestrial biodiversity and by implementing environmental, ecological, and conservation-minded strategies.” The Town must walk this talk by evaluating one true environmentally superior alternative, such as the real MAP alternative. Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 34 XII. The EIR Must Be Recirculated; the EIR Does not Support the Proposed Findings of Fact and Statement of Overriding Considerations. Our comments on the DEIR set forth CEQA’s standard for recirculation. See FEIR at 3-124 to 3-125 (citing CEQA Guidelines § 15088.5)). As explained, the Town must recirculate the EIR if (1) significant new information becomes available prior to certification, or (2) the EIR is so inadequate “that meaningful public review and comment were precluded.” Id. The FEIR recognizes, as it must, that this is the correct standard, but it refuses to acknowledge that recirculation is required here. See FEIR at 3- 168. As demonstrated throughout this letter and in our comments on the DEIR, MAP and others have presented information that reveals either new or more severe significant environmental impacts, or potentially feasible mitigation measures or alternatives to lessen the GPU’s impacts, that have not been subject to review and comment in a DEIR. Furthermore, we have demonstrated that the EIR is fundamentally inadequate in several respects, including by improperly deferring analysis and mitigation under the guise of a “program EIR.” The Town must revise and recirculate the EIR to include a proper analysis and mitigation of all the Project’s significant impacts. As it stands, the document fails as an informational document and violates CEQA. Accordingly, the Town’s proposed CEQA Findings and Statement of Overriding Considerations (SOC) are unsupported and inadequate as a matter of law. Adequate findings are, of course, necessary to ensure that mitigation is actually incorporated and implemented. Federation of Hillside and Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1260-61. But they also serve another important purpose: they enable the public and the courts to trace the analytic route that the agency followed from evidence to action. Citizens for Quality Growth, 198 Cal.App.3d at 441; see also Village Laguna, 134 Cal.App.3d at 1035-36. The Town’s failure to support its findings and SOC with substantial evidence thus constitutes a prejudicial abuse of discretion. Id. To take but a few examples:  Proposed Findings II.H.6, II.R.1, and IV.I regarding emergency evacuation are not supported by substantial evidence. The proposed Findings recognize that “[T]he development [under the GPU] would increase the number of people who may need to be rescued, rendered aid, and evacuated and the amount of property that may need to be protected. Implementation of emergency plans could be impaired if emergency plans are not properly updated to reflect changes in land use.” Yet, the Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 35 Findings claim that the GPU would have less than significant impacts on emergency evacuation, even during construction and under cumulative conditions, without providing any standards for or guarantees of future emergency planning efforts.  Proposed Finding II.I.1 is not supported by substantial evidence because, as explained, the EIR fails to provide sufficient facts and analysis to support a claim that the GPU would not significantly impact water quality. For example, the claim that “[t]here is a very limited correlation between VMT and roadway sediment loads” in Lake Tahoe is not supported in the EIR or elsewhere.  Proposed Finding II.I.2 is legally inadequate because, as explained above and in our previous letter, the EIR lacks substantial evidence to conclude that the project’s anticipated withdrawals from the Martis Valley Groundwater Basin would not impact surface waters or wetlands.  For the reasons set forth above, no substantial evidence supports the Town’s proposed findings regarding GHG emissions (Section III.H). First, no substantial evidence supports the conclusion that the CAP, which is riddled with deferred, vague, and unenforceable policies, would “would exceed that Town’s targets of reducing emissions by 40 percent below 2008 levels and 80 percent below 2008 levels by 2030.” See Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 280-82 (improperly deferred mitigation measures cannot support a finding that measures will reduce project impacts). Nor is there substantial evidence that there is “[n]o additional feasible mitigation available beyond compliance with the proposed GPU policies” to help minimize the GPU’s GHG emissions. Additionally, the proposed Findings (IV.H) err in claiming the GPU would result in less than significant cumulative GHG emissions when the EIR and the Findings’ explanation admits the GPU would result in significant cumulative GHG emissions.  Proposed Finding II.D.1 regarding biological resources is legally inadequate because it lacks substantial evidence that the candidate, sensitive, or special status species will be protected by the proposed GPU policies and actions, and since they are only focused on future discretionary projects. Future housing projects (many of which can be ministerially approved in accordance with new State housing legislation) may not be subject to GPU policies and actions by virtue of the discretionary review process and therefore impacts will remain unmitigated.  Proposed Finding III.E.1 regarding the degradation of visual character/quality of public view of the site and its surroundings is legally inadequate because it states that no additional feasible mitigation measures are available to reduce impacts Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 36 beyond compliance with the policies and actions in the proposed GPU. As explained above and in our previous letter, MAP did identify additional measures that should be considered to reduce impacts to visual character/public views such as preserving the Upper McIver site, but they were ignored in the FEIR.  The proposed Findings regarding Growth-Inducing Impacts (Section VI) are legally inadequate because they fail to account for growth outside of the Town’s immediate area that could be fostered by residential and commercial development pursuant to the GPU. Furthermore, the Town rests its proposed SOC (Section VIII) on conclusory statements of so-called GPU benefits. As discussed above, there is no substantial evidence to support findings of so-called GPU benefits regarding the ability to maintain the Town’s “quality of life and community character” (VIII.3), or to promote sustainability, reduce greenhouse gas emissions, minimize hazards, and strengthen diversity, equity, and inclusion. As the Supreme Court has held, “[a] statement of overriding considerations is required, and offers a proper basis for approving a project despite the existence of unmitigated environmental effects, only when the measures necessary to mitigate or avoid those effects have properly been found to be infeasible.” City of Marina v. Bd. of Trustees of the Cal. State Univ. (2006) 39 Cal.4th 341,368 (citing Pub. Res. Code section 21081(b)); see also City of San Diego, 61 Cal.4th at 965 (agency’s erroneous assumptions about legal infeasibility of mitigation renders statement invalid); § 21002. If a lead agency has failed to properly support its finding that a mitigation measure or environmentally superior alternative is infeasible, the agency cannot remedy this failing by adopting findings of overriding consideration. Id. Thus, because the Town fails to make the necessary findings that proposed mitigation measures (such as setting enforceable standards) or alternatives (such as the MAP alternative) are infeasible, the Town’s proposed SOC is also invalid. XIII. The Town Must Fully Evaluate Whether It Contains Disadvantaged Communities. Our DEIR comment letter identified that Truckee2040 should include an environmental justice element pursuant to Senate Bill (SB) 1000 if the Town contains disadvantaged communities, based on the analysis methodology provided by the California Office of Planning and Research (OPR). See FEIR at 3-125 to 3-126. This analysis must be broad to further the intent of SB 1000 and should include analysis of issues unique to the community that may not be captured by Cal EPA’s CalEnviroScreen tool. See id. Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 37 The Town still has not performed the thorough analysis set forth in the Office of Planning and Research (OPR) guidance to ensure that all disadvantaged communities are accounted for. For example, the Town has not indicated that it took regional costs of living into account when evaluating whether there are disadvantaged communities in Truckee. Nor is there any indication that the Town engaged with low- income communities and communities of color as part of this evaluation. Without this analysis, the Town may be failing to account for its own disadvantaged communities and may not be in compliance with SB 1000. XIV. Conclusion For the reasons set forth herein and in our comment letter on the DEIR, we respectfully request that the Town Council follow the Planning Commission’s recommended denial of the GPU and certification of the EIR in order to allow time to meet with stakeholders and ensure compliance with CEQA. Very truly yours, SHUTE, MIHALY & WEINBERGER LLP Kristi Bascom, AICP, Urban Planner Laura Beaton, Attorney Amy J. Bricker, Attorney Mayor Lindsay Romack and Honorable Councilmembers April 7, 2023 Page 38 Exhibits: A. Mountain Area Preservation (MAP), FEIR/GPU comment letter. March 22, 2023 B. Tahoe Prosperity Center, Envision Tahoe Prosperity Playbook. June 2022 C. Work From Home, Survey of Working Arrangements and Attitudes Research Update. Jan 17, 2023 D. Tahoe Prosperity Center, Community Report for the Tahoe Region. March 2022 E. Mountain Housing Council of Tahoe Truckee, Housing Issues in North Tahoe Truckee. Website accessed March 29, 2023. F. California Air Resources Board (CARB), 2022 Scoping Plan for Achieving Carbon Neutrality. November 16, 2022. G. Tahoe Regional Planning Agency (TRPA), Threshold Standards and Regional Plan. April 28, 2021. H. TRPA, VMT Threshold Update: Standard Recommendation and Implementation . April 18, 2021. I. UC Davis Tahoe Environmental Research Center (TERC), Tahoe: State of the Lake Report 2022. J. TERC and Desert Research Institute (DRI), Big Problems in Tiny Pieces. January 19, 2021. K. Adams, James and Ashley Ersepke, Lake Tahoe’s Pristine Legacy Threatened by Microplastics. UC Santa Cruz Science Notes. Website accessed January 16, 2023. L. Xia, Rosanna, The biggest likely source of microplastics in California coastal waters? Our car tires. Los Angeles Times. October 2, 2019. M. University of British Columbia Okanagan campus, Tire particles can impact fresh water. ScienceDaily. October 21, 2022. N. Chandra, Dr. S., et al, Impacts of Smoke-Ash from the 2021 Wildfires to the Ecology of Lake Tahoe. Tahoe Regional Planning Agency. July 19, 2022.