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
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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
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April 7, 2023
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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
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April 7, 2023
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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
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April 7, 2023
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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
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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
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April 7, 2023
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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.
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April 7, 2023
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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
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April 7, 2023
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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
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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
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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
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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).
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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
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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
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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.
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“‘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.
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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
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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
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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).
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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:
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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
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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
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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.
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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.
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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
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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
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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.
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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.
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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
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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.
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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
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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
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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.
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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.